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Longs v. Wherry

United States District Court, D. Nebraska

June 27, 2019

MICHAEL J. LONGS II, Plaintiff,
v.
STEVEN D. WHERRY, AMY GOODRO, and LINCOLN POLICE DEPARTMENT, Defendants.

          MEMORANDUM AND ORDER

          Richard G. Kopf, Senior United States District Judge.

         Plaintiff filed a Complaint on November 5, 2018, when he was incarcerated at the Lancaster County Department of Corrections. (Filing No. 1.) He has been given leave to proceed in forma pauperis.[1] (Filing No. 6.) The court now conducts an initial review of Plaintiff's Complaint to determine whether summary dismissal is appropriate under 28 U.S.C. §§ 1915(e) and 1915A. For purposes of this initial review, the Complaint includes Plaintiff's supplemental filing (filing no. 8).

         I. SUMMARY OF COMPLAINT

         Plaintiff brought this action pursuant to 42 U.S.C. § 1983 against Steven D. Wherry (“Wherry”), Amy Goodro (“Goodro”), and the Lincoln Police Department. Plaintiff alleged:

On November 28, 2017, Steven D. Wherry for the Lincoln Police Department knowingly, willingly, and intentionally perjured himself under oath on the stand for the state's prosecutor, Amy Goodro. He fabricated an arrest warrant under oath as well after reading reports from Officer Peth, [and] he perjured himself and left out vital information in order to arrest and kidnap me.

(Filing No. 1 (spelling, capitalization, and punctuation corrected).) Plaintiff attached to his supplemental filing (filing no. 8) the transcript from the preliminary hearing in State v. Longs, No. CR17-10082, in the County Court of Lancaster County, Nebraska, which contains Wherry's testimony at the hearing and a copy of the arrest affidavit signed by Wherry regarding the investigation of Plaintiff for the alleged assault of his intimate partner.

         Plaintiff further alleged that Goodro “helped author the fabricated affidavit” and both Goodro and Wherry “have threatened the alleged victim” with Wherry telling the victim “he would ‘doctor' up the reports after she told him [Plaintiff] was in fact innocent.” (Filing No. 1.)

         Plaintiff alleged he was jailed, assaulted, damaged, and injured as a result of Defendants' actions and asks for $100, 000, 000.00 in damages as relief.

         II. APPLICABLE 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); 28 U.S.C. § 1915A(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).

         Liberally construed, Plaintiff here alleges federal constitutional claims. To state a claim under 42 U.S.C. § 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); Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993).

         III. ...


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