United States District Court, D. Nebraska
MEMORANDUM AND ORDER
RICHARD G. KOPF, SENIOR UNITED STATES DISTRICT JUDGE
James Michael Recca, an inmate at the Nebraska State
Penitentiary, filed his Complaint (Filing 1) on November 29,
2018, and was granted leave to proceed in forma
pauperis. The court conducted an initial review of
the Complaint and, in a Memorandum and Order entered on April
8, 2019 (Filing 13), determined that it failed to state a
claim upon which relief may be granted. The court on its own
motion granted Plaintiff leave to amend, and an Amended
Complaint (Filing 14) was filed on May 9, 2019. The court now
conducts an initial review Plaintiff's Amended Complaint
to determine whether summary dismissal is appropriate under
28 U.S.C. §§ 1915(e)(2) and 1915A.
SUMMARY OF AMENDED COMPLAINT
alleges that on November 3, 2015, at about 1:30 a.m., he was
walking in a wooded area at the rear of the Carol Hotel in
Omaha, Nebraska, when he saw police officers arrive; that
Plaintiff laid face-down on the ground to get out of the way
of any police action, but the K-9 officer, Defendant
Pignotti, gave his dog verbal commands and hand signals to
attack Plaintiff; that the dog ripped off Plaintiff's
left ear and bit his right shoulder and right leg, leaving a
deep wounds; and that several officers kicked and punched
Plaintiff while he was on the ground and being attacked by
the dog. Plaintiff seeks to recover damages.
LEGAL STANDARDS ON INITIAL REVIEW
court is required to review prisoner and in forma pauperis
complaints seeking relief against a governmental entity or an
officer or employee of a governmental entity to determine
whether summary dismissal is appropriate. See 28
U.S.C. §§ 1915(e) and 1915A. 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.”
Id., at 849 (internal quotation marks and citations
DISCUSSION OF CLAIMS
construing Plaintiff's Complaint, this is an action
brought under 42 U.S.C. § 1983 against the Omaha Police
Department (“OPD”), seven named officers or
employees of the OPD, and unidentified individuals. 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).
Fourth Amendment Claims
Fourth Amendment protects citizens from being seized through
excessive force by law enforcement officers.”
Mettler v. Whitledge, 165 F.3d 1197, 1202 (8th Cir.
1999). “An officer's use of excessive force
violates the Fourth Amendment if ‘objectively
unreasonable.'” Wilson v. Lamp, 901 F.3d
981, 989 (8th Cir. 2018) (quoting Graham v. Connor,
490 U.S. 386, 397 (1989)).
unreasonableness is ‘judged from the perspective of a
reasonable officer on the scene,' in light of ‘the
facts and circumstances of each particular case, including
the severity of the crime at issue, whether the suspect poses
an immediate threat to the safety of the officers or others,
and whether he is actively resisting arrest or attempting to
evade arrest by flight.'” Id. (quoting
Graham, 490 U.S. at 396). “Force may be
objectively unreasonable when a plaintiff does not resist,
lacks an opportunity to comply with requests before force is
exercised, or does not pose an immediate safety
threat.” Id. (citing Smith v. Kansas City,
Missouri Police Dep't, 586 F.3d 576, 581 (8th Cir.
2009)). “[R]eview of excessive force claims involving
police dogs is properly governed by the general standard
established in Graham rather than the deadly force
standard of [Tennessee v. Garner, 471 U.S. 1
(1985)].” Kuha v. City of Minnetonka, 365 F.3d
590, 598 (8th Cir. 2003), abrogated on other grounds by
Szabla v. City of Brooklyn Park, 486 F.3d 385 (8th Cir.
2007) (en banc).
vicarious liability is inapplicable to § 1983 suits,
Plaintiff must plead that each Defendant, through his or her
own individual actions, has violated the Constitution.
See Iqbal, 556 U.S. at 676; Martin v.
Sargent, 780 F.2d 1334, 1338 (8th Cir.1985) (holding
that, in order for a claim to be cognizable under §
1983, plaintiff must allege that the defendant “was
personally involved in or had direct responsibility for
incidents that injured him”). The court therefore will
review the allegations made against each Defendant.
Defendant Omaha Police Department
court advised Plaintiff in its previous Memorandum and Order,
the Omaha Police Department is not a proper party. See
Gerlach v. Omaha Nebraska Police Dep't, No.
8:19CV67, 2019 WL 1207178, at *1 (D. Neb. Mar. 14, 2019)
(police department is not suable under 42 U.S.C. §
1983); Ketchum v. City of W. Memphis, 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 ...