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Longs v. Groves

United States District Court, D. Nebraska

July 25, 2019

MICHAEL J. LONGS II, Plaintiff,
v.
LINCOLN POLICE OFFICER GROVES, and LAURA LOWE, Defendants.

          MEMORANDUM AND ORDER

          Richard G. Kopf Senior United States District Judge.

         Plaintiff filed a Complaint on January 9, 2019, 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. 8.) 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. 9) and his Motion to Amend and Add Defendant and Supplemental Filing (filing no. 10).

         I. SUMMARY OF COMPLAINT

         Plaintiff brought this action pursuant to 42 U.S.C. § 1983 against Officer Groves of the Lincoln Police Department (“Groves”) and Laura Lowe (“Lowe”). Plaintiff also filed a motion to add Investigator Steven Wherry (“Wherry”) as a defendant, which the court will grant. (Filing No. 10.) Plaintiff alleges Groves arrested Plaintiff on December 19, 2018, for “the alleged crime of violation of protection order” based on a false probable cause affidavit and in violation of Plaintiffs First Amendment right of freedom of speech “for speaking to Vida Sanchez, Suzann Shull, and Deputy Sheriff Hopper about filing lawsuits on Mallory A. [unintelligible] and Laura Lowe.” (Filing No. 1 (capitalization corrected); Filing No. 9.) Plaintiff further alleges that Lowe conspired with Groves to have Plaintiff arrested so that Lowe's client could win a custody battle. (Filing No. 9.)

         Plaintiff alleges no police investigation was conducted prior to his arrest and that “ video footage of the alleged crime that transpired in the police station/court house” was not preserved and was recorded over in bad faith and in concert by Lowe, Groves, and Wherry. (Filing No. 9 at CM/ECF p. 1.) Plaintiff believes Wherry “is behind Officer Groves and is retaliating upon [Plaintiff] for filing civil suits against him.” (Id. at CM/ECF p. 2.)

         As a result of his arrest and ensuing incarceration, Plaintiff claims “[a] $25, 000.00 bail has been set and [his] $500, 000.00 bail has been revoked” and he has suffered “irreparable harm, mental anxiety, monetary damages, [and] loss of liberty.” (Filing No. 1; Filing No. 9.) For relief, Plaintiff seeks $5, 000, 000.00 in damages and injunctive relief. (Filing No. 1; Filing No. 9.)

         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. DISCUSSION

         A. Laura Lowe

         Plaintiff alleges Lowe conspired with Groves and Wherry to have Plaintiff arrested in order for Lowe's client to win a custody battle. From these allegations, the court can reasonably infer that Lowe is an attorney ...


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