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Frazier v. City of Omaha Police Department

United States District Court, D. Nebraska

February 13, 2019

THE CITY OF OMAHA POLICE DEPARTMENT, OMAHA FIRE DEPARTMENT, DOUGLAS COUNTY ATTORNEY OFFICE, DONALD W. KLEINE, Individual and Official Capacity, JULIE MEDINA, Individual and Official Capacity, GARY B. RANDALL, Judge, Individual and Official Capacity, CRAIG Q. MCDERMOTT, Judge, Individual and Official Capacity, PETER C. JESSEN DDS, Dentist, Individual and Official Capacity, JENNIFER SIMMS, Individual and Official Capacity, and ANDREA MCCHESNEY, Attorney, Individual and Official Capacity, Defendants.



         Plaintiff, a non-prisoner, has been given leave to proceed in forma pauperis. (Filing No. 5.) The court now conducts an initial review of Plaintiff's claims to determine whether summary dismissal is appropriate under 28 U.S.C. § 1915(e)(2) (requiring the court to dismiss actions filed in forma pauperis if they are frivolous or malicious, fail to state a claim on which relief may be granted, or seek monetary relief against a defendant who is immune from such relief).


         Plaintiff's 169-page Complaint[1]-144 pages of which purport to be notices, motions, informations, complaints, journal entries, and orders from both criminal and domestic court proceedings in Douglas County, Nebraska; arrest records, incident reports, and inmate request forms; letters from attorneys; utility bills issued to Plaintiff; and a list of “Psych Consults”-asserts claims under 42 U.S.C. §§ 1983, 1985, and 1986, including 23 “Violations”[2] and 19 “Federal Violations.”[3] At bottom, Plaintiff sues city and county entities, officials, and judges; his ex-wife; his ex-wife's employer/alleged lover; and his own divorce attorney for “executing a plan to drag [him] off to prison” to prevent Plaintiff from “advertising [his ex-wife's lover's] sexual fetish[] with [Plaintiff's ex-wife]” and to “help themselves to [his] assets.” (Filing No. 1 at CM/ECF p. 22.)

         As part of this “twisted revenge and extortion plot” (Filing No. 1 at CM/ECF p.

         3), Plaintiff alleges that false police reports were issued about him, leading to two arrests, one of which was without a warrant; during his arrests, Omaha police officers took personal items out of his home without a search warrant; a Douglas County Attorney falsely accused Plaintiff of depriving his son of “food, shelter, clothing etc. and engaging in prostitution and porn”; Plaintiff was falsely charged with terroristic threats, burglary, arson, stalking, and child abuse, all of which were ultimately dismissed; he was detained for 133 days in the Omaha Correctional Center (“OCC”) awaiting trial; a Douglas County District Court Judge ordered that Plaintiff's marital residence be sold as part of divorce proceedings that occurred while Plaintiff was imprisoned; and Plaintiff's minor child was removed from his custody while he was detained in the OCC. (Filing No. 1 at CM/ECF pp. 5-15.)

         Plaintiff requests relief in the form of $500 million, holding all Defendants criminally responsible, removing all Defendants from their official positions, unsealing his Douglas County criminal case “for educational purposes, ” receiving a public apology from the governor and mayor, and a “public announcement of the suit.” (Filing No. 1 at CM/ECF pp. 23-24.)


         The court is required to review in forma pauperis complaints to determine whether summary dismissal is appropriate. See 28 U.S.C. § 1915(e). 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).

         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).


         The most efficient way to analyze Plaintiff's unwieldy Complaint is to discuss the Defendants against whom Plaintiff has asserted a multitude of claims. As stated above, Plaintiff seeks to assert claims under 42 U.S.C. §§ 1983, 1985, and 1986 against the following Defendants in their official and individual capacities-the City of Omaha Police Department; the City of Omaha Fire Department; the Douglas County Attorney's Office, along with county attorneys Donald W. Kleine and Julie L. Medina; Judges Gary B. Randall and Craig C. McDermott; Peter C. Jessen, DDS (Plaintiff's ex-wife's employer and alleged lover); Jennifer Simms (Plaintiff's ex-wife); and Andrea McChesney (Plaintiff's former divorce attorney).

         A. Defendants City of Omaha Police Department, City of Omaha Fire Department & Douglas County Attorneys' Office

         Plaintiff has failed to state a claim as to these Defendants because they are not suable entities. De La Garza v. Kandiyohi Cty. Jail, Corr. Inst., 18 Fed.Appx. 436, 437 (8th Cir. 2001) (unpublished) (§ 1983 action against county jail and county sheriff's department must be dismissed without prejudice because they are not legal entities subject to suit); Ketchum v. City of West Memphis, Ark., 974 F.2d 81, 82 (8th Cir. 1992) (city police and paramedic departments were “not juridical entities suable as such. . . . [t]hey are simply departments or subdivisions of the City government”); Clayborne v. City of Lincoln, No. 8:17CV481, 2018 WL 4915838, at *2 (D. Neb. Oct. 9, 2018) (§ 1983 claims against city police department must be dismissed without prejudice because department is not suable entity); Cambara v. Schlote, No. 8:14-CV-260, 2015 WL 5775766, at *3 (D. Neb. Sept. 30, 2015) (county attorney's office and city police department are not independent legal entities subject to suit).

         B. Defendants Judge Randall & Judge McDermott

         1. Official-Capacity Claims

         According to the purported court documents attached to Plaintiff's Complaint, Judge Gary Randall is a judge of the District Court for Douglas County, and Judge McDermott is a judge for the County Court of Douglas County. Plaintiff seeks damages from these judges in their official and individual capacities.

         As county and district court judges within the Nebraska Judicial Branch, Judges Randall and McDermott are state officials; therefore, Plaintiff's official-capacity claims are actually asserted against the State of Nebraska. See Johnson v. Outboard Marine Corp., 172 F.3d 531, 535 (8th Cir. 1999) (“[a] suit against a public employee in his or her official capacity is merely a suit against the public employer”); Tisdell v. Crow Wing Cty., No. CIV. 13-2531, 2014 WL 1757929, at *7 (D. Minn. Apr. 30, 2014) (official-capacity claims against state court judge are claims against state).

         The Eleventh Amendment bars claims for damages by private parties against a state. See, e.g., Egerdahl v. Hibbing Cmty. Coll., 72 F.3d 615, 618-19 (8th Cir. 1995); Dover Elevator Co. v. Arkansas State Univ., 64 F.3d 442, 446-47 (8th Cir. 1995). Any award of retroactive monetary relief payable by the state, including for back pay or damages, is proscribed by the Eleventh Amendment absent a waiver of immunity by the state or an override of immunity by Congress. See, e.g., Dover Elevator Co., 64 F.3d at 444; Nevels v. Hanlon, 656 F.2d 372, 377-78 (8th Cir. 1981).

         There is nothing in the record before the court showing that the State of Nebraska waived, or that Congress overrode, sovereign immunity in this matter. Thus, Plaintiff's claims against Judges Randall and McDermott in their official capacities will be dismissed.

         2. Individual-Capacity Claims

         Plaintiff's claims against Judges Randall and McDermott in their individual capacities are barred by judicial immunity. A judge is immune from suit, including suits brought under section 1983 to recover for alleged deprivation of civil rights, in all but two narrow sets of circumstances. Schottel v. Young, 687 F.3d 370, 373 (8th Cir. 2012). “First, a judge is not immune from liability for nonjudicial actions, i.e., actions not taken in the judge's judicial capacity. Second, a judge is not immune for actions, though judicial in nature, taken in the complete absence of all jurisdiction.” Id. (internal citations omitted).

         An act is judicial if “it is one normally performed by a judge and if the complaining party is dealing with the judge in his judicial capacity.” Id. (internal citations omitted). Where the issue is a judge's immunity, a court is to broadly construe the scope of a judge's jurisdiction. “Thus, ‘[a] judge will not be deprived of immunity because the action he took was in error, was done maliciously, or was in excess of his authority; rather, he will be subject to liability only when he has acted in the clear absence ...

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