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Clayborne v. Parker

United States District Court, D. Nebraska

November 15, 2018

ROBERT EARL CLAYBORNEJR., Plaintiff,
v.
PARKER, Officer, #1577, Individuidal capacity and official capacity; JAMES, Sgt, #1370, Individuidal capacity and official capacity; CHAD HEIN, Officer, #1552, Individuidal capacity and official capacity; RIPLEY, Officer, #1256, Individuidal capacity and official capacity; MESSERSMITH, Officer, #1568, Individuidal capacity and official capacity; KOUNOVSKY, Officer, #1593, Individuidal capacity and official capacity; and SUNDERMEIER, Captain, #717, Individuidal capacity and official capacity; Defendants.

          MEMORANDUM AND ORDER

          RICHARD G. KOPF SENIOR UNITED STATES DISTRICT JUDGE.

         This matter is before the court upon review of Plaintiff's Amended Complaint. (Filing No. 13.) For the reasons explained below, Plaintiff's Fourth Amendment claims will be permitted to proceed to service of process.

         I. BACKGROUND

         On December 18, 2017, Plaintiff, an inmate currently confined at the Tecumseh State Correctional Institution, filed this action against the City of Lincoln, Nebraska (“City of Lincoln”); the City of Lincoln Police Department (“Lincoln Police Department”); and several City of Lincoln Police Officers in their individual and official capacities. (Filing No. 1.) Plaintiff alleged that he was subject to an unreasonable search and seizure and excessive force in violation of his rights under the 4th and 14th Amendments and also cited to the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101-12213, as legal authority for his claims.

         This court conducted an initial review of Plaintiff's Complaint on October 9, 2018. (Filing No. 12.) The court dismissed Plaintiff's claims against the Lincoln Police Department as it is not a suable entity and concluded that Plaintiff had stated viable Fourth Amendment claims against Lincoln Police Officers James, Sundermeier, Parker, Hein, Ripley, Messersmith, and Kounovsky in their individual capacities. However, the court determined that Plaintiff had failed to state a claim against the City of Lincoln or the Lincoln Police Officers in their official capacities and also failed to state a claim under the ADA. The court granted Plaintiff leave to file an amended complaint with respect to his official-capacity and ADA claims and ordered that Plaintiff's Fourth Amendment claims against the officers in their individual capacities would proceed to service of process only after Plaintiff had an opportunity to amend his Complaint.

         Plaintiff filed his Amended Complaint on October 22, 2018. (Filing No. 13.)

         II. SUMMARY OF AMENDED COMPLAINT

         Plaintiff's Amended Complaint names as Defendants City of Lincoln Police Officers Parker, James, Hein, Ripley, Messersmith, Kounovsky, and Sundermeier in their individual capacities only. Again, Plaintiff claims that he was subjected to an unreasonable search and seizure and excessive force in violation of his rights under the 4th and 14th Amendments. (Id. at CM/ECF p. 3.) Specifically, Plaintiff alleges:

Lincoln Police forced entry & conspired to force entry inside my home to arrest me without an arrest warrant or search warrant supported with probable cause or oath or affirmation, particular[ly] describing the place to be searched & person to be seized, or without consent or exigent circumstances as a mental[ly] disabled Adult and placed me in detention in the Lancaster County Jail on Dec[ember] 27[, ] 2011 between 3[:]28am and 4:00am in Lincoln[, ] NE.

(Id. at CM/ECF p. 5.) Plaintiff also alleges the Defendants deprived him of his “civil right to due process as a mentally disabled adult under the [ADA].” (Id. at CM/ECF p. 3.)

         Plaintiff seeks monetary damages for a number of alleged harms including “physical injury of restraint of liberty[, ] . . . pain and suffering[, ] mental distress, false arrest and unlawful detention.” (Id. at CM/ECF p. 6.)

         III. DISCUSSION

         Plaintiff's Amended Complaint essentially restates the allegations of his original Complaint but omits his claims against the City of Lincoln and the Lincoln Police Officers in their official capacities. Plaintiff only seeks relief against Lincoln Police Officers Parker, James, Hein, Ripley, Messersmith, Kounovsky, and Sundermeier in their individual capacities for the alleged Fourth Amendment violations and for an alleged violation of the ADA.

         With respect to his ADA claim, Plaintiff's Amended Complaint suffers from the same defect as the original Complaint. Plaintiff has failed to plausibly allege the elements of a claim under the ADA or to set forth any factual support for such a ...


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