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Wit v. City of Lincoln

United States District Court, D. Nebraska

April 2, 2019

BRIAN A. WIT, Plaintiff,
v.
CITY OF LINCOLN, NEBRASKA, OFFICER TREY L. WAYNE 1751, and OFFICER MURPHY 1758, Defendants.

          MEMORANDUM AND ORDER

          Richard G. Kopf Senior United States District Judge.

         Plaintiff, Brian A. Wit, filed this case on January 30, 2019, and was granted leave to proceed in forma pauperis. The court conducted an initial review of Plaintiff's Complaint (Filing 1) and entered a Memorandum and Order on February 5, 2019 (Filing 9), finding that the Complaint failed to state a claim upon which relief may be granted. The court on its own motion gave Plaintiff leave to amend and indicated the manner in which certain pleading deficiencies should be addressed. Plaintiff filed on Amended Complaint on February 25, 2019 (Filing 12). The court now conducts an initial review of Plaintiff's Amended Complaint to determine whether summary dismissal is appropriate under 28 U.S.C. § 1915(e)(2).

         I. SUMMARY OF AMENDED COMPLAINT

         Plaintiff claims Defendants, the City of Lincoln, Nebraska, and two Lincoln police officers, violated his constitutional rights under the First, Fourth, Fifth, and Fourteenth Amendments (Filing 9, pp. 1, 2). He alleges:

[O]n or around 1:00 a.m. on January 24, 2019, [I] was on private property, ... and was resting safe, from the dangerous sub degree temperatures that evening.... I was forcibly trespassed in property, and on person and feared for my life and defended my person and property not knowing who at the exact moment was trespassing on me. I received Physical damage on property and person. The defendants, Officer Trey L. Wayne badge number 1751, and officer Murphy badge number 1758 in this case, forged libel accusations of harm with out due process.
I was physically pulled out of my car resting safely. The defendants shoved me to the ground with great force, when I awoke and was some what coherent. I was being slammed around, punched, tassed, pepper sprayed. I was fighting for my life. My back is harmed, my right shoulder dislocated, will need surgery .... I have sustained nerve damage in left foot, and nerve damage in right hand. The social discredit from all who have seen my picture for defending my rights, my friends and family have seen mine [sic] picture of arrest and misconstrued false libel via internet to local news to a face book app....

(Filing 12, p. 2). Plaintiff seeks “compensatory and exemplary damages, injunctive relief, $1, 000, 060.00 (one million and sixty thousand [sic] dollars) in fees and such other relief as this court deems just and proper” (Filing 12, p. 2).

         II. STANDARDS ON INITIAL REVIEW

         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).

         III. DISCUSSION

         Liberally construed, Plaintiff's Amended Complaint asserts one or more claims for relief under 42 U.S.C. § 1983. To state a claim under § 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).

         Plaintiff does not specify whether he sues Officers Wayne and Murphy in their individual or official capacities.[1] Where a plaintiff does not specify the capacity in which a defendant is sued, it is presumed that a defendant is sued in his official capacity only. See, e.g., Johnson v. Outboard Marine Corp., 172 F.3d 531, 535 (8th Cir. 1999) (stating that “in order to sue a public official in his or her individual capacity, a plaintiff must expressly and unambiguously state so in the pleadings, otherwise, it will be assumed that the defendant is sued only in his or her official capacity.”). A claim against an individual in his official capacity is in reality a claim against the entity that employs the official. See Parrish v. Luckie, 963 F.2d 201, 203 n. 1 (8th Cir. 1992) ...


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