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Jones v. Carter

United States District Court, D. Nebraska

July 30, 2019

MARVEL JONES, Plaintiff,


          Richard G. Kopf Senior United States District Judge

         The 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.


         Jones 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.[1] 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.[2]


         The 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).

         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).

         III. ANALYSIS

         Jones 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)

         A. State Law Claims

         This 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), [3] but instead must depend on 28 U.S.C. § 1367(a) (supplemental jurisdiction).[4] 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).

         Because 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, ....”).[5]

         B. Section 1981

         “To 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.

         Even if 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.[6] “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 accrued.”).[7]

         C. Section 1983

         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). For various reasons which will be discussed below with reference to each defendant, no plausible claim for relief under § 1983 is stated.

         1. Lincoln Police Officers

         Jones 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, ¶¶ 31-32)

         “The 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).

         The 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 original).

         The 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 ...

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