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. 6.) 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
alleges that he suffered injuries and was hospitalized after
being run off the road while riding his motorcycle in Omaha,
Nebraska. Plaintiff states that he has been unable to find
the party who ran him off the road, and he is suing the Omaha
Police Department (“OPD”) “for not
protecting me and [to] preserve my rights and find the
unknown party which cau[s]ed me harm.” (Filing No. 1 at
CM/ECF p. 1.)
alleges that he brings this suit pursuant to 42 U.S.C. §
1983 for violation of his constitutional right to a jury
trial. Plaintiff's jury-trial allegation apparently
relates to the fact that he has been sued as a result of this
accident, and he has hired counsel to represent
him. Plaintiff complains that he is dissatisfied with his
retained counsel because counsel has refused to show
Plaintiff his discovery file, making it impossible for
Plaintiff to prepare his own “defense and
prosecution.” Plaintiff requests that this court
dismiss his lawyer in his state-court case and order that his
retainer be returned. He also seeks medical expenses and
“compensation for lost time and injury.” (Filing
No. 1 at CM/ECF p. 1.)
only Defendant Plaintiff names in his Complaint-the Omaha
Police Department-is not suable under 42 U.S.C. § 1983.
“[I]t is well settled that municipal police
departments, sheriff's offices, and jails are not
generally considered persons within the meaning of 42 U.S.C.
§ 1983 and thus not amenable to suit.” Ferrell
v. Williams Cty. Sheriffs Office, No. 4:14-CV-131, 2014
WL 6453601, at *2 (D.N.D. Nov. 4, 2014). See also De La
Garza v. Kandiyohi Cty. Jail, Corr. Inst., 18 Fed.Appx.
436, 437 (8th Cir. 2001) (unpublished) (county jail and
sheriff department not subject to suit under § 1983);
Ketchum v. City of W. Memphis, Ark., 974 F.2d 81, 82
(8th Cir. 1992) (city police department and paramedic
services “are not juridical entities suable as such. .
. . [t]hey are simply departments or subdivisions of the City
Failure to State a Claim
Plaintiff had sued a proper defendant, his claims would still
be dismissed for failure to state a claim upon which relief
can be granted.
Plaintiff's request that this court order the dismissal
of his state-court retained counsel and the refund of such
counsel's retainer due to counsel's failure to show
Plaintiff his discovery file fails to state a claim because
this court has no jurisdiction to enter orders in an ongoing
state-court case or to review such orders. See D.C. Court
of Appeals v. Feldman, 460 U.S. 462, 483 n.16 (1983)
(“‘lower federal courts possess no power whatever
to sit in direct review of state court decisions'”
(quoting Atlantic Coast Line R. Co. v. Engineers,
398 U.S. 281 (1970))); Feinwachs v. Minnesota Hosp.
Assoc., No. 11-cv-8, 2018 WL 882808, at *4 (D. Minn.
Feb. 13, 2018) (“This Court will not exercise what
amounts to appellate jurisdiction and effectively overrule or
vacate a state court protective order shielding documents
from the public. Comity between state and federal courts and
constraints placed on a federal district court's
jurisdiction dictate nothing less.”); Key v.
Does, 217 F.Supp.3d 1006, 1009 (E.D. Ark. 2016) (in pro
se case where nature and status of state proceedings were
unclear, court dismissed complaint for failure to state a
claim, reasoning in part that “if [the plaintiff] is
requesting relief from an outstanding warrant related to the
conviction and nonpayment of fines, then this Court must
abstain from interfering with the ongoing state action,
whether criminal or civil, absent exceptional circumstances,
which are not alleged”); Glickman, Lurie, Eiger
& Co. v. I.R.S., No. 4-75-CIV. 303, 1975 WL 706, at
*4 (D. Minn. Oct. 14, 1975) (“The Federal courts are
not empowered to review the propriety of protective discovery
orders in State court proceedings. . . . Any claim that [the
taxpayer] has waived its rights to confidentiality in the
requested documents must be presented to the State court and
determined by that forum.”).
any claim Plaintiff may attempt to assert against an
individual Omaha police officer or officers for failure to
properly investigate the accident would fail. In the absence
of allegations that the police officers' failure to
investigate violated Plaintiff's right to equal
protection or that the failure to investigate violated
Plaintiff's right to due process because the lack of
investigation was intentional or reckless, thereby
“shocking the conscience”-none of which is
alleged here-Plaintiff cannot state a claim against
individual Omaha police officers. Winslow v. Smith,
696 F.3d 716, 732 (8th Cir. 2012) (“To establish a
constitutional violation based on an inadequate
investigation, a plaintiff must show that the defendant
officer's failure to investigate was intentional or
reckless, thereby shocking the conscience. . . . Mere
negligent failure to investigate, such as failing to follow
up on additional leads, does not violate due process.”
(internal quotation and citation omitted)); Brockinton v.
City of Sherwood, Ark., 503 F.3d 667, 672 (8th Cir.
2007) (same); Andrews v. Fowler, 98 F.3d 1069, 1079
(8th Cir. 1996) (“While [police officer's] failure
to investigate the rape may have violated state law and
common sense, it did not rise to the level of a separate
constitutional violation of [the plaintiff's]
rights.”); Scott v. BJC Behavioral Health, No.
4:11CV00633, 2011 WL 2899141, at *4 (E.D. Mo. July 20, 2011)
(dismissing § 1983 claim against police officers because
“courts have not recognized inadequate investigation as
sufficient to state a civil rights claim unless there was
another recognized constitutional right involved”);
McKenna v. St. Louis Cty. Police Dep't, No.
4:09CV1113, 2010 WL 56011, at *4 (E.D. Mo. Jan. 4, 2010)
(“it is well settled that a police officer does not
violate an individual's constitutional rights by failing
to investigate”); Isom v. Heller, No.
8:04CV70, 2005 WL 661696, at *4 (D. Neb. Mar. 21, 2005)
(unreasonable or negligent failure to investigate
arrestee's claim of innocence or mistaken identity does
not amount to constitutional violation; no constitutional
right to have perfect investigation by police); Clark v.
Brandom, 415 F.Supp. 883, 884 (W.D. Mo. 1976) (defendant
police officers, who allegedly failed to investigate and
prosecute offenses against plaintiff, did not act in
violation of plaintiff's constitutional rights).
any claim Plaintiff intends to assert against his state-court
counsel for deficient performance would also be dismissed. In
order to state a cognizable claim for money damages under 42
U.S.C. § 1983, Plaintiff must allege that the conduct of
a defendant acting “under color of state law”
deprived him of a right, privilege, or immunity secured by
the federal Constitution or laws of the United States. 42
U.S.C. § 1983. The conduct of Plaintiff's private,
retained counsel is not “under color of state
law” for purposes of § 1983. DuBose v.
Kelly, 187 F.3d 999, 1003 (8th Cir. 1999); Bilal v.
Kaplan, 904 F.2d 14 (8th Cir. 1990) (conduct of counsel,
either retained or appointed, in representing clients, does
not constitute action under color of state law for purposes
of § 1983); Dunn v. Hacksworth, 628 F.2d 1111
(8th Cir. 1980). Accordingly, Plaintiff cannot sue his
counsel under § 1983 for failure to adequately represent
Plaintiff has failed to sue a proper Defendant for purposes
of 42 U.S.C. § 1983, and because Plaintiff's
allegations fail to state a claim upon which relief can be
granted, Plaintiff's Complaint will be ...