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Recca v. Omaha Police Department

United States District Court, D. Nebraska

May 29, 2019

JAMES MICHAEL RECCA, Plaintiff,
v.
OMAHA POLICE DEPARTMENT, PIGNOTTI, JOSEPH RICHTER 2019, ERIK P. FOREHEAD 1556, HEIDI L. ALTIC Y792, MICHAEL OLIVER 2040, HANSEN 2043, NASS 1886, and any and all JANE or JOHN DOES, Defendants.

          MEMORANDUM AND ORDER

          RICHARD G. KOPF, SENIOR UNITED STATES DISTRICT JUDGE

         Plaintiff, 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.[1] 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.

         I. SUMMARY OF AMENDED COMPLAINT

         Plaintiff 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.

         II. LEGAL STANDARDS ON INITIAL REVIEW

         The 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. § 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.” Id., at 849 (internal quotation marks and citations omitted).

         III. DISCUSSION OF CLAIMS

         Liberally 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).

         A. Fourth Amendment Claims

         “The 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)).

         “Objective 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).

         Because 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.

         1. Defendant Omaha Police Department

         As the 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 ...


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