United States District Court, D. Nebraska
MEMORANDUM AND ORDER
RICHARD G. KOPF, SENIOR UNITED STATES DISTRICT JUDGE.
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).
SUMMARY OF COMPLAINT
169-page Complaint-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” and 19 “Federal
Violations.” 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.
of this “twisted revenge and extortion plot”
(Filing No. 1 at CM/ECF p.
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.
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.)
STANDARDS ON INITIAL REVIEW
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. §
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.”).
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).
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).
Defendants City of Omaha Police Department, City of Omaha
Fire Department & Douglas County Attorneys'
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
Defendants Judge Randall & Judge McDermott
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
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).
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
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.
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
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 ...