United States District Court, D. Nebraska
BRIAN A. WIT, Plaintiff,
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.
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. §
SUMMARY OF AMENDED COMPLAINT
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
(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).
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).
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).
does not specify whether he sues Officers Wayne and Murphy in
their individual or official capacities. 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)