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Webb v. State

United States District Court, D. Nebraska

November 1, 2019

YOHAN WEBB, Plaintiff,


          Richard G. Kopf, Senior United States District Judge

         Plaintiff, Yohan Webb, filed his Complaint (Filing 1) on September 19, 2019, and was granted leave to proceed in forma pauperis on October 7, 2019 (Filing 18). 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)(2) and 1915A.


         Plaintiff alleges he is a pretrial detainee who has been in the custody of the Lancaster County Department of Corrections since June 2019, but also alleges he became a civilly committed detainee as of September 2019. (Filing 1, p. 4, ¶ III) According to public records on file with the County Court of Lancaster County, Nebraska, in No. CR19-6354, State v. Yohan Webb (available on the JUSTICE public database at, [1] Plaintiff is currently charged with false imprisonment, negligent child abuse, and disturbing the peace, and, not being able to meet bond requirements, has been detained since being arrested on June 1, 2019. Plaintiff was found to be mentally incompetent to stand trial on September 5, 2019, and was ordered committed to the Lincoln Regional Center until such time as the disability may be removed; a review hearing is scheduled for December 16, 2019. This order entered in Plaintiff's criminal case is not a civil commitment. See Neb. Rev. Stat. § 29-1823. All filings Plaintiff has made since the commencement of this action on September 19, 2019, have been mailed from the Lancaster County Department of Corrections. The Department's website ( also lists Plaintiff is a “current inmate.” The court therefore concludes Plaintiff remains a “prisoner” for purposes of the Prison Litigation Reform Act (“PLRA”).[2]

         The present action does not concern the June 1, 2019 arrest or Plaintiff's subsequent confinement. Instead, Plaintiff claims he was falsely arrested by police in Lincoln, Nebraska, on July 25, 2018, and later was wrongfully charged with possession of methamphetamine.[3] Plaintiff further complains he was mistreated while being held by the Lancaster County Department of Corrections, from July 25 until his release on September 7, 2018.

         Plaintiff alleges he is “chronically homeless” and was sleeping in his parked car on the morning of July 25, 2018, before being awakened by two Lincoln police officers (names unknown); one of the officers, a male detective, stated he wanted to ask Plaintiff a few questions; Plaintiff responded that he did not talk to police; the detective then searched Plaintiff, placed him in handcuffs, and instructed the other officer, a female in uniform, to transport Plaintiff to the station; the uniformed officer again searched Plaintiff, put him in a patrol car, and drove to the police station; Plaintiff resisted and began yelling for help when the officer attempted to remove him from the vehicle; the detective, who had driven to the station in an unmarked car, assisted the uniformed officer in pulling Plaintiff out of the patrol car and walking him into the station; Plaintiff continued screaming for help; a male officer (name unknown) took Plaintiff by the arm and walked Plaintiff down a hallway with the detective; the officer and the detective had a conversation outside of Plaintiff's hearing, after which the officer took Plaintiff back up the hallway, where the female officer had remained; the female officer then stepped outside while the male officer pulled Plaintiff into a corner and searched him; the detective reappeared and escorted Plaintiff to his unmarked vehicle; the detective transported Plaintiff to the Lancaster County Department of Corrections (“jail”). (Filing 1, pp. 12-16, ¶¶ 1-36)

         Plaintiff alleges he was taken to the booking area at the jail, where two corrections officers (names unknown) searched him; four or five other corrections officers entered the area, and the first two left; one officer (name unknown) held onto Plaintiff, who was still handcuffed, while another officer (name unknown) searched Plaintiff's pockets; the detective then asked, “Do we have enough to hold him?” and officer holding Plaintiff replied, “Yep.” (Filing 1, p. 17, ¶¶ 37-42)

         Plaintiff alleges the handcuffs were removed and he was immediately strapped into a “suicide chair” with restraints on his forehead, chest, wrists, and legs; he was placed in a foul-smelling cell, which had a hole in the floor for a toilet; Plaintiff did not receive any food or water, and was forced to urinate on himself while strapped in the chair; Plaintiff was not freed from the “suicide chair” until sometime on July 27, when several corrections officers entered the cell and stripped Plaintiff naked; one of officers may have injured Plaintiff's shoulder by twisting his arm, and then forcibly put Plaintiff on the floor before leaving; someone later threw a “suicide suit” into the cell for Plaintiff to wear. (Filing 1, pp. 17-19, ¶¶ 43-50)

         Plaintiff alleges he was transferred to a cell in a different area of the jail (R-Pod) at some unknown date and time; the new cell had a water fountain Plaintiff was able to use, but he was still not given any food; Plaintiff was not allowed to take a shower or even to wash up with soap; at some point, a female corrections officer (believed to be “O'Bryan” and responsible for inmate housing assignments) demanded to know how he'd gotten into the R-Pod cell; a few minutes later, two corrections officers (names unknown) moved Plaintiff to a dirty cell in the jail's medical area, where someone informed Plaintiff he was on “suicide watch” and was not to be given anything; Plaintiff finally got to eat the next day, but he still was not permitted to shower and was not given any bedding or supplies; Plaintiff was held in the medical area for “some days” before being moved to a cell in the S-Pod, which is the administrative segregation unit. Plaintiff alleges there was no disciplinary report to justify his placement in administrative segregation. (Filing 1, pp. 19-21, ¶¶ 53-68, 70)

         Plaintiff alleges he was released from jail on September 7, 2018, after writing to the public defender and explaining that he was being held without having been charged with a crime or arraigned. (Filing 1, p. 21, ¶ 70; see also p. 6, ¶ VII.A) However, Plaintiff also alleges: “When they took me to court, I was arraigned and charged with possession of a controlled substance to wit: (meth). I received documents alleging that when I was removed from the suicide chair that my pants were searched and in my back right pocket a baggie of meth was found.” (Filing 1, p. 19, ¶ 51) Plaintiff denies having any drugs on his person and speculates that someone either put the baggie in his pocket or lied about it. (Id., ¶ 52)

         Finally, Plaintiff alleges the Lincoln Police Department had his car was towed away one or two days after his arrest, and subsequently auctioned it off as abandoned property. (Filing 1, p. 12, ¶ 3 & p. 28)


         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).


         Liberally construing Plaintiff's Complaint, this is a civil rights action brought pursuant to 42 U.S.C. § 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).

         Plaintiff names seven Defendants in his Complaint: (1) the State of Nebraska; (2) Nebraska Governor Pete Ricketts; (3) the City of Lincoln; (4) Lincoln Mayor Leiron Gaylor Baird; (5) Lancaster County; (6) the Lincoln Police Department; and (7) Lincoln Police Chief Jeff Bliemiester. Plaintiff indicates all Defendants are sued in their individual and official capacities. (Filing 1, pp. 2-3, ¶ I.B) For reasons which w ill discussed below, the court finds that the State of Nebraska and Governor Ricketts, in his official capacity, cannot be sued for damages in federal court under § 1983, that the Lincoln Police Department is not a suable entity, and that the Complaint fails to state a claim upon which relief may be granted against any other named Defendant.

         Numerous additional “Defendants” are mentioned in the “Relief Requested” section of Plaintiff's Complaint. (Filing 1, pp. 22-34) The court is not required to consider possible claims against persons who are not named as defendants and listed in the caption of a complaint. See Jones v. Pollard-Buckingham, 348 F.3d 1072, 1073 (8th Cir. 2003) (“To the extent the complaint contains allegations against individuals not named as defendants, the district court may refuse to allow [the plaintiff] to proceed against those individuals, ....”). Nonetheless, because Plaintiff will be given leave to amend, the court will analyze the sufficiency of claims alleged against persons who are not named Defendants.

         A. Claims Against Named Defendants

         1. State of Nebraska

         Section 1983 only provides a cause of action against a “person” who, acting under the color of state law, deprives another of his or her federal constitutional or statutory rights. See Will v. Mich. Dep't of State Police, 491 U.S. 58, 71 (1989). “[N]either a State nor its officials acting in their official capacities are ‘persons' under § 1983.” Id. In addition, the Eleventh Amendment bars claims for damages that are brought in federal court by private parties against a state, a state instrumentality, or a state employee who is sued in his or her official capacity. See Egerdahl v. Hibbing Cmty. Coll., 72 F.3d 615, 619 (8th Cir. 1995); Dover Elevator Co. v. Arkansas State Univ., 64 F.3d 442, 446-47 (8th Cir. 1995).

         2. Pete Ricketts

         As stated above, Governor Ricketts cannot be sued in his official capacity under section 1983. “State officers sued for damages in their official capacity are not ‘persons' for purposes of [§ 1983] because they assume the identity of the government that employs them.” Hafer v. Melo, 502 U.S. 21 (1991). Because this elected official is not alleged to have participated in unconstitutional action, there also can be no personal liability. See White v. Jackson, 865 F.3d 1064, 1081 (8th Cir. 2017) (“To prevail on a § 1983 claim, a plaintiff must show each individual defendant's personal involvement in the alleged violation.”).

         3. City of Lincoln

         In Monell v. Department of Social Services, 436 U.S. 658 (1978), the Supreme Court held that a municipality (or other local government unit) can be liable under § 1983 if an “action pursuant to official municipal policy of some nature caused a constitutional tort.” Id. at 691. “To establish municipal liability, a plaintiff must first show that one of the municipality's officers violated her federal right.” Veatch v. Bartels Lutheran Home, 627 F.3d 1254, 1257 (8th Cir. 2010) (citing City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986) (per curiam); Sanders v. City of Minneapolis, 474 F.3d 523, 527 (8th Cir. 2007)). “If that element is satisfied, then a plaintiff must establish the requisite degree of fault on the part of the municipality and a causal link between municipal policy and the alleged violation.” Id. (citing City of Canton v. Harris, 489 U.S. 378, 388-92 (1989)).

         To prevail on a claim alleged against the City of Lincoln, Plaintiff must show that the constitutional violation resulted from (1) an official “policy, ” (2) an unofficial “custom, ” or (3) a deliberately indifferent failure to train or supervise. Corwin v. City of Independence, 829 F.3d 695, 699 (8th Cir. 2016). “Official policy involves ‘a deliberate choice to follow a course of action ... made from among various alternatives' by an official who has the final authority to establish governmental policy.” Jane Doe A By & Through Jane Doe B v. Special Sch. Dist. of St. Louis Cty., 901 F.2d 642, 645 (8th Cir. 1990) (quoting Pembaur v. City of Cincinnati, 475 U.S. 469, 483 (1986)). “Alternatively, a plaintiff may establish municipal liability through an unofficial custom of the municipality by demonstrating ‘(1) the existence of a continuing, widespread, persistent pattern of unconstitutional misconduct by the governmental entity's employees; (2) deliberate indifference to or tacit authorization of such conduct by the governmental entity's policymaking officials after notice to the officials of that misconduct; and (3) that plaintiff was injured by acts pursuant to the governmental entity's custom, i.e., that the custom was a moving force behind the constitutional violation.'” Malone v. Hinman, 847 F.3d 949, 955 (8th Cir. 2017) (quoting Corwin, 829 F.3d at 699-700).

         A municipal liability claim based on a theory of inadequate training or supervision is simply an extension of a claim based on a “policy” or “custom” theory of municipal liability. Marsh v. Phelps Cty., 902 F.3d 745, 751 (8th Cir. 2018); see City of Canton (“Only where a municipality's failure to train its employees in a relevant respect evidences a ‘deliberate indifference' to the rights of its inhabitants can such a shortcoming be properly thought of as a city ‘policy or custom' that is actionable under § 1983.”). “Generally, an isolated incident of alleged ... misconduct ... cannot, as a matter of law, establish a municipal policy or custom creating liability under § 1983.” Ulrich v. Pope Cnty., 715 F.3d 1054, 1061 (8th Cir. 2013).

         Thus, to state a viable § 1983 claim for “failure to train” against the City of Lincoln, Plaintiff must “plead facts sufficient to show that (1) [the City's] officer-training practices were inadequate; (2) [the City] was deliberately indifferent to the rights of others in adopting these training practices, and [the City's] failure to train was a result of deliberate and conscious choices it made; and (3) [the City's] alleged training deficiencies caused [Plaintiff's] constitutional deprivation.” Id. “[A] claim for failure to supervise requires the same analysis as a claim for failure to train.” Atkinson v. City of Mountain View, 709 F.3d 1201, 1216 (8th Cir. 2013) (quoting Robinette v. Jones, 476 F.3d 585, 591 (8th Cir. 2007)).

         Plaintiff's Complaint does not contain any facts from which it might reasonably be inferred that the City of Lincoln is liable for his alleged injuries. “At a minimum, a complaint must allege facts which would support the existence of an unconstitutional policy or custom.” Crumpley-Patterson v. Trinity Lutheran Hosp., 388 F.3d 588, 591 (8th Cir. 2004) (quoting Doe ex rel. Doe v. Sch. Dist. of City of Norfolk, 340 F.3d 605, 614 (8th Cir. 2003)). “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged but it has not ‘show[n]'-‘that the pleader is entitled to relief.'” Iqbal, 556 U.S. at 679 (quoting Fed.R.Civ.P. 8(a)(2)). “While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations.” Id.

         4. Leiron Gaylor Baird

         As explained above, suing the Mayor in her official capacity is functionally equivalent to suing the City. Plaintiff's Complaint also contains no facts which would permit a finding of personal liability. Plaintiff alleges the Mayor is being sued “based upon the actions of her subordinates” (Filing 1, p. 22), but vicarious liability is inapplicable to § 1983 suits. Neither municipalities nor government officials may be held liable for unconstitutional conduct under a theory of respondeat superior. Rogers v. King, 885 F.3d 1118, 1122-23 (8th Cir. 2018). “[A] plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution.” Iqbal, 556 U.S. at 676.

         Plaintiff also alleges the Mayor is being sued “based upon her involvement of [sic] the hiring process of ... Lincoln police officers” (Filing 1, p. 22), but, again, there are no facts alleged which would support a finding of liability against the Mayor, either in her official or individual capacity. In Board of County Commissioners of Bryan County v. Brown, 520 U.S. 397 (1997), the Supreme Court addressed the issue of municipal liability under § 1983 for a single hiring decision made by a sheriff. Concerned that municipal liability could very easily collapse into respondeat superior liability in the context of a single, facially lawful hiring decision, the Court adopted stringent culpability and causation requirements, noting that “[a] showing of simple or even heightened negligence will not suffice.” Morris v. Crawford Cty., 299 F.3d 919, 922 (8th Cir. 2002) (quoting Brown, 520 U.S. at 407). The Court demanded that courts “carefully test the link between the policymaker's inadequate decision and the particular injury alleged.” Id. (quoting Brown, 520 U.S. at 410). “[A] finding of culpability simply cannot depend on the mere probability that any officer inadequately screened will inflict any constitutional injury. Rather, it must depend on a finding that this officer was highly likely to inflict the particular injury suffered by the plaintiff. The connection between the background of the particular applicant and the specific constitutional violation alleged must be strong.” Id. (quoting Brown, 520 U.S. at 412) (emphasis in original). This exacting test also applies to individual-capacity claims. See Perkins v. Hastings, 915 F.3d 512, 523 (8th Cir. 2019) (involving individual-capacity claim against sheriff for hiring decision).

         5. Lancaster County

         What has been said above concerning the City of Lincoln applies with equal force to claims made against Lancaster County. There are no facts alleged in Plaintiff's Complaint which would support a finding of liability against the County. Plaintiff also seeks to recover damages from five County Commissioners in their individual and official capacities (Filing 1, pp. 30-31), but they are not alleged to have taken any action to violate his constitutional rights and are not named as Defendants. In addition, Plaintiff seeks to recover damages from the Lancaster County Department of Corrections (Filing 1, p. 31), but the Department is not a distinct legal entity subject to suit. See Dan v. Douglas Cty. Dep't of Corr., No. 8:06CV714, 2009 WL 483837, at *4 (D. Neb. Feb. 25, 2009) (“the Department of Corrections and other units within the [Douglas County Correctional Center] and Douglas County lack the legal capacity to sue or be sued in their own names”); see also Ketchum v. City of West Memphis, 974 F.2d 81, 82 (8th Cir. 1992) (departments or subdivisions of local government are “not juridical entities suable as such”); Marsden v. Fed. Bureau of Prisons, 856 F.Supp. 832, 836 (S. D. N.Y.1994) (jails are not entities amenable to suit).

         6. Lincoln Police Department

         Similarly, the Lincoln Police Department is not a proper Defendant. See Gerlach v. Omaha Nebraska Police Dep't, No. 8:19CV67, 2019 WL 1207178, at *1 (D. Neb. Mar. 14, 2019) ...

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