United States District Court, D. Nebraska
MEMORANDUM AND ORDER
Richard G. Kopf Senior United States District Judge
plaintiff, Marvel Jones, filed this case on July 1, 2019, and
he has since been granted leave to proceed in forma pauperis.
The court now conducts an initial review of Jones'
complaint to determine whether summary dismissal is
appropriate under 28 U.S.C. § 1915(e)(2). For the
reasons stated below, the court determines that the action
should be dismissed without prejudice.
SUMMARY OF COMPLAINT
alleges he is a “civilly committed prisoner
detainee” at the Norfolk Regional Center
(“NRC”) in Norfolk, Nebraska. Although not
specifically alleged, Jones presumably was committed to NRC
under Nebraska's Sex Offender Commitment Act, Neb. Rev.
Stat. § 71-1201, et seq., upon completion of his
sentence for a 1997 conviction for first degree sexual
assault. Jones seeks to be released from NRC, to
have the conviction expunged and his name removed from the
sex offender registry, and to recover damages from twelve
defendants for alleged constitutional violations associated
with the conviction.
STANDARDS ON INITIAL REVIEW
court is required to review in forma pauperis complaints to
determine whether summary dismissal is appropriate. 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).
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).
alleges that he brings this action for damages and injunctive
relief under 42 U.S.C. §§ 1981, 1983, 1985, 1986,
1987, and 1988 for violation of his rights under the United
States Constitution and the Nebraska Constitution. (Filing 1,
p. 1) Jones may also be asserting common law tort claims,
including claims for false arrest, false imprisonment,
malicious prosecution, abuse of process, fraud, and
negligence. (Filing 1, pp. 1-2, 14-15)
State Law Claims
court's ability to entertain Jones' claims arising
under the Nebraska Constitution and Nebraska tort law cannot
be predicated on 28 U.S.C. § 1331 (original
jurisdiction),  but instead must depend on 28 U.S.C.
§ 1367(a) (supplemental jurisdiction). See Preston
v. City of Pleasant Hill, 642 F.3d 646, 650 (8th Cir.
2011); Stamm v. Cty. of Cheyenne, 326 F.Supp.3d 832,
843 (D. Neb. 2018).
the court has determined that all of Jones' federal
claims must be dismissed for failure to state a claim upon
which relief may be granted, it will decline to exercise
supplemental jurisdiction over any state claims that are
alleged in the Complaint and will dismiss such claims without
prejudice. See 28 U.S.C. § 1367(c) (“The
district courts may decline to exercise supplemental
jurisdiction over a claim under subsection (a) if ... the
district court has dismissed all claims over which it has
original jurisdiction, ....”).
state a claim under § 1981, a plaintiff must plead:
‘(1) that the plaintiff is a member of a protected
class; (2) that the defendant intended to discriminate on the
basis of race; and (3) that the discrimination on the basis
of race interfered with a protected activity as defined in
§ 1981.'” Elmore v. Harbor Freight Tools
USA, Inc., 844 F.3d 764, 767 (8th Cir. 2016) (quoting
Bediako v. Stein Mart, Inc., 354 F.3d 835, 839 (8th
Cir. 2004)). While investigation reports attached to the
Complaint identify Jones as a black male (Complaint, pp.
28-59), there are no allegations that any actions taken by
the defendants were racially motivated. Thus, no plausible
claim for relief under § 1981 is stated.
Jones were to allege facts to support a § 1981 claim, it
is apparent that such a claim would be barred by the
applicable statute of limitations. “Because there is no
specifically stated or otherwise relevant federal statute of
limitations for a cause of action under § 1981, the
controlling period is the most appropriate one provided by
state law. The three-year limitation period provided by
Nebraska law applies to actions brought under §
1981.” Guy v. Swift & Co., 612 F.2d 383,
385 (8th Cir. 1980) (citations omitted); Neb. Rev. Stat.
§ 25-219 (“All actions upon a liability created by
a federal statute ... for which actions no period of
limitations is provided in such statute shall be commenced
within three years next after the cause of action shall have
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). For various reasons
which will be discussed below with reference to each
defendant, no plausible claim for relief under § 1983 is
Lincoln Police Officers
alleges that three police officers employed by the City of
Lincoln, Nebraska, John Carter, Timothy Carmichael, and
Jeffrey Howard, violated his constitutional rights on August
30, 1996, when Jones was taken to the police station for a
polygraph exam. Jones alleges he was interrogated for several
hours without being given Miranda warnings and was
coerced into incriminating himself. (Complaint, ¶¶
21-24) Jones also complains generally about testimony the
officer provided at his trial. (Complaint, ¶¶
reading of Miranda warnings is a procedural
safeguard rather than a right arising out of the fifth
amendment itself. Thus, the remedy for a Miranda
violation is the exclusion from evidence of any compelled
self-incrimination, not a section 1983 action.”
Warren v. City of Lincoln, 864 F.2d 1436, 1442 (8th
Cir. 1989) (en banc); see Hannon v. Sanner, 441 F.3d
635, 637 (8th Cir. 2006) (reaffirming Warren).
Court of Appeals has also held that a Fifth Amendment claim
challenging the voluntariness of a confession accrues when
the violation occurs and is not postponed under the rationale
of Heck v. Humphrey, 512 U.S. 477 (1994), in which
“the Supreme Court held that where ‘judgment in
favor of the plaintiff would necessarily imply the invalidity
of his conviction,' a cause of action has not accrued
unless the plaintiff can demonstrate that the conviction or
sentence has already been invalidated by a state court or
called into question by a federal habeas court.”
Simmons v. O'Brien, 77 F.3d 1093, 1095 (8th Cir.
1996) (citations omitted). “Because harmless error
analysis is applicable to the admission at trial of coerced
confessions, judgment in favor of [the plaintiff] on this
§ 1983 action challenging his confession will not
necessarily demonstrate the invalidity of his
conviction.” Id. at 1095 (emphasis in
length of the statute of limitations for a § 1983 claim
is the same as the length of the statute of limitations
“for personal-injury torts” in “the State
in which the cause of action arose.” Wallace v.
Kato, 549 U.S. 384, 387 (2007). In Nebraska, § 1983
actions are subject to a 4-year statute of limitations.
See Montin v. Estate of Johnson, 636 F.3d 409,
412-13 (8th Cir. 2011); Neb. Rev. Stat. § 25-207
(“The following actions can only be brought within four