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Mixon v. Omaha Police Department Officers

United States District Court, D. Nebraska

October 30, 2018

MATTHEW O. MIXON, Plaintiff,


          Richard G. Kopf Senior United States District Judge

         Plaintiff, a prisoner currently in the custody of the Nebraska Department of Correctional Services (“NDCS”), brings this 42 U.S.C. § 1983 action for alleged injuries and rights violations relating to his 2015 arrest, conviction, and incarceration in the Douglas County Department of Corrections (“DCDC”). He has been given leave to proceed in forma pauperis. (Filing No. 10.) The court now conducts an initial review of Plaintiff's Complaint[1] to determine whether summary dismissal is appropriate under 28 U.S.C. §§ 1915(e) and 1915A.


         Plaintiff brings this action against various Omaha Police Department (“OPD”) officers, Jacquelyn Morrison (“Morrison”) of the Douglas County Public Defender's Office, Julie L. Medina (“Medina”) of the Douglas County Attorney's Office, unspecified Medical Department Employees of the DCDC (hereinafter “DCDC medical employees”), and Douglas County alleging violations of his rights under the Fourth, Sixth, Eighth, and Fourteenth Amendments.

         Plaintiff's claims arise out of his arrests on September 7, 2015, and November 19, 2015, for domestic assault. According to the documents submitted by Plaintiff, OPD officers Bradley Nielsen and Snethen, [2] arrested Plaintiff on September 7, 2015, for assaulting his wife in the backseat of his car after speaking with Plaintiff's wife and a witness who confirmed the wife's account of the event. (Filing No. 7 at CM/ECF pp. 7-8.) Plaintiff alleges that Nielsen and Snethen lacked probable cause to arrest him and provided false information in their reports. Subsequently, Plaintiff “took a deal of probation on or about 09/22/2015 . . . and was released on Probation.” (Filing No. 1 at CM/ECF p. 7.) Thereafter, on November 19, 2015, Plaintiff's wife called the police and advised the responding OPD officers, Daniel Flynn and Pearson, [3] that Plaintiff had assaulted her by pushing her against the wall. (Filing No. 6 at CM/ECF p. 2; Filing No. 7 at CM/ECF pp. 9-10.) Plaintiff alleges Flynn and Pearson then wrongfully arrested him without evidence or probable cause and booked him into the DCDC for domestic assault and a probation violation. (Filing No. 6 at CM/ECF p. 2.)

         With respect to both of his arrests, Plaintiff alleges his attorney, Morrison, “just wanted to make a deal with the prosecutor Julie L. Medina” and refused to investigate Plaintiff's claims that his wife's injuries on September 7, 2015, were the result of a fight she had with her sister on August 30, 2015. (Filing No. 1 at CM/ECF p. 7.) Plaintiff alleges Morrison was ineffective, that she did nothing to “get the false claims of the Omaha police officer dismissed and charge dismissed, ” and worked with Medina to protect the officers' wrongful arrests. (Id. at CM/ECF pp. 7-8; Filing No. 6 at CM/ECF pp. 2-3.) Similarly, Plaintiff alleges Medina abused her discretion in reaching the wrongful plea agreement and in imposing an excessive punishment after the officers' wrongful arrests. (Filing No. 6 at CM/ECF p. 2.)

         Plaintiff's state court records, available to this court online, confirm that Plaintiff pleaded no contest and was sentenced to probation for third degree domestic assault in September 2015, that his probation was later revoked, and that he was also charged with another domestic assault and sentenced to a term of imprisonment arising out of the November 19, 2015 arrest. I take judicial notice of the state court records related to this case in State v. Mixon, No. CR15-18512, County Court of Douglas County, Nebraska, and State v. Mixon, CR15-3305, District Court of Douglas County, Nebraska. See Stutzka v. McCarville, 420 F.3d 757, 760 n.2 (8th Cir. 2005) (court may take judicial notice of judicial opinions and public records).

         Plaintiff also alleges he agreed to the initial plea agreement on September 22, 2015, based on his “medical condition and medical neglect by the D.C.D.C. medical employee[s].” (Filing No. 1 at CM/ECF p. 7.) Plaintiff claims that the DCDC medical employees knew that Plaintiff needed medication for his seizure condition but refused to provide him his medications, delayed giving him his medications, and did not give him his medications correctly or in the proper amount. As a result, Plaintiff experienced confusion, dizziness, sleepiness, loss of appetite, seizures, and injuries from falling due to seizures. (Id. at CM/ECF pp. 5- 7; Filing No. 6 at CM/ECF pp. 2-3.) Plaintiff further alleges that the DCDC placed Plaintiff on the second floor and required him to walk up the stairs which was dangerous due to his seizure condition not being properly medicated. (Filing No. 6 at CM/ECF pp. 2-3.) Plaintiff also claims he was forced to live in an “unsafe houseing [sic] mod” where he lacked access to an emergency button if he had a seizure and where no corrections officers were in the mod between 11:00 p.m. and 7:00 a.m. (Filing No. 13.)[4]

         In addition, Plaintiff includes two other unrelated claims in one of his supplemental filings. First, Plaintiff alleges he was locked down for something he did not do, and second, the DCDC records department took money from his account for a check and failed to return it to him after the check never made it to where it was supposed to be delivered. (Filing No. 18.)

         As relief, Plaintiff seeks $2, 800, 000.00 in damages, sanctions against all the Defendants, and “expungement of records of this [conviction] too.” (Filing No. 1 at CM/ECF p. 8.)


         The court is required to review prisoner and in forma pauperis complaints seeking relief against a governmental entity or an officer or employee of a governmental entity to determine whether summary dismissal is appropriate. See 28 U.S.C. §§ 1915(e) and 1915A. The court must dismiss a complaint or any portion of it that states a frivolous or malicious claim, that fails to state a claim upon which relief may be granted, or that seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B); 28 U.S.C. § 1915A(b).

         Pro se plaintiffs must set forth enough factual allegations to “nudge[] their claims across the line from conceivable to plausible, ” or “their complaint must be dismissed.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 569-70 (2007); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”).

         “The essential function of a complaint under the Federal Rules of Civil Procedure is to give the opposing party ‘fair notice of the nature and basis or grounds for a claim, and a general indication of the type of litigation involved.'” Topchian v. JPMorgan Chase Bank, N.A., 760 F.3d 843, 848 (8th Cir. 2014) (quoting Hopkins v. Saunders, 199 F.3d 968, 973 (8th Cir. 1999)). However, “[a] pro se complaint must be liberally construed, and pro se litigants are held to a lesser pleading standard than other parties.” Topchian, 760 F.3d at 849 (internal quotation marks and citations omitted).

         Liberally construed, Plaintiff here alleges federal constitutional claims. To state a claim under 42 U.S.C. § 1983, a plaintiff must allege a violation of rights protected by the United States Constitution or created by federal statute and also must show that the alleged deprivation was caused by conduct of a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993).


         Liberally construed, Plaintiff seeks monetary and equitable relief from Officers Nielsen, Snethen, Flynn, and Pearson (collectively “the OPD officers”), Morrison, and Medina for actions they took during his criminal proceedings, as well as from the DCDC medical employees and Douglas County for deliberate indifference to his medical needs. For the following reasons, Plaintiff's claims against the OPD officers, Medina, and Morrison related to his state criminal proceedings will be dismissed without prejudice, and Plaintiff will be given leave to file an amended complaint with respect to his Eighth Amendment deliberate indifference claims.

         A. Claims Related to Plaintiff's State ...

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