Frazier v. Smith
| Decision Date | 11 May 2021 |
| Docket Number | 8:20CV520 |
| Parties | ALPHONSON VERNELL FRAZIER II, Plaintiff, v. JUSTIN SMITH; ERIC JONES; ROBERT DELLUTRI; ADAM MOORE; JORDAN JACOBS; JORDAN BRANDT; NICHOLAS YARPE; ANGIE CIRCO; MARLENE NOVOTNY; and SCOTT FOX, in their individual and official capacities, Defendants. |
| Court | U.S. District Court — District of Nebraska |
Plaintiff filed his pro se Complaint (Filing 1) on December 22, 2020, and was granted leave to proceed in forma pauperis. The court conducted an initial review of Plaintiff's Complaint, and determined it was subject to preservice dismissal under 28 U.S.C. § 1915(e)(2) for failure to state a claim upon which relief may be granted. See Memorandum and Order dated February 9, 2021 (Filing 8). However, the court on its own motion gave Plaintiff leave to amend. Plaintiff's Amended Complaint (Filing 9), which was timely filed on March 11, 2021, will now be reviewed by the court to determine whether summary dismissal is appropriate.
On March 16, 2021, Plaintiff filed a Supplement to Amended Complaint (Filing 10). Because this supplemental pleading was not filed with leave of court and is unsigned, it will be stricken from the court file and will not be considered by the court in conducting its initial review of Plaintiff's Amended Complaint. See Fed. R. Civ. P. 11 & 15; NECivR 15.1.
Plaintiff claims he was subjected to illegal searches and seizures, and was twice unlawfully arrested.1 He sues ten Omaha police officers in their individual and official capacities, alleging:
1. On January 11, 2017, Peter C. Jessen reports to Omaha Police Department RB#AJ37341 of him being followed on 90th Street by the Plaintiff in a blue truck. Jessen reports pulling over in the area of 91st and Sprague street and approaching Plaintiffs vehicle, the same man he claims to be afraid of and is after him. Jessen reports that Plaintiff pulled a knife on him and he retreated to his car and drove off. Witness Paul Miller states the he saw Jessen get out of the car and approach Frazier, saw Frazier punch Jessen and both parties get into their respective vehicle and drive off, but did not see any weapons.
2. Someday between January 11, 2017 and January 16, 2017, Defendant Angie Circo drafts a felony warrant affidavit related to January 11, 2017 events and presents it to a judge for authorization. See RB AJ-23248AA, dated February 21, 2017.
3. On January 13, 2017, Jessen applied for a protection order against Plaintiff.
4. On January 16, 2017, Defendant Defendant's [sic] learned by a data check that Plaintiff had a locate for a protection order.
5. On January 16, 2017, around 8:00 p.m. Plaintiff is illegally arrested by Defendants at his home ... for terroristic threats under RB#AJ37341 while Plaintiffs DVR is filming without the awareness of the Defendants. Threatening that they will shoot through the door to killhim if he does not open up the door, Plaintiff opens the door and Defendants bum rush into Plaintiffs home, grab Plaintiff, and put Plaintiff in handcuffs. The Defendants entered the home and arrest Plaintiff without an arrest warrant or probable cause.
6. Sergeant Justin Smith seizes an 8-inch knife out of Plaintiffs home and takes Plaintiff outside the residence. RB[#]AJ37341
7. Defendant Sergeant Justin Smith calls Defendant Detective Angie Circo, who informs the arresting officers that there is only an affidavit for a warrant, not an arrest warrant.
8. The affidavit had not been signed or approved by any Judge.
9. Plaintiff requests to see an arrest warrant and search warrant. Defendants cannot and do not oblige.
10. Plaintiff requests that Defendants return items as they do not have a search warrant to seize items. Defendants do not oblige.
11. Plaintiff is locked in the back of one of Defendant's patrol units and transported to Douglas County Department of Corrections, 710 S. 17th St Omaha, NE 68102, where he is booked on a charge of Terroristic Threats.
12. On January 17, 2017, while being falsely imprisoned under RB# AJ37341, Plaintiff is served with the Jessen protection order, and is unable to request a hearing to defend himself against said protection order.
13. On January 19, 2017, a terroristic threats report generated under RB#AJ37341 was assigned to the felony assault unit.
14. On January 25, 2017, Plaintiff posts 10% of $50,000 ($5,000), and bonds out of jail from the illegal arrest made under RB#AJ37341.
15. On January 30, 2017, Plaintiff goes to visit Douglas County Attorney Don Kleine and shows him surveillance video footage from his phone of the Defendants illegally entering, seizing items, and arresting Plaintiff on January 16, 2017.
16. On January 30, 2017, Defendant Angie Circo drafted an arrest warrant for Plaintiff regarding arson, burglary of Jessen's office, felony stalking, and felony child abuse under RB#AJ242248. The felony warrant was approved and signed by a judge.
17. On January 30, 2017, Omaha Police Department came to home of Plaintiffs aunt ..., and drew down guns and threatened to shoot him again, before placing him under arrest under RB#AJ242248. Plaintiff's phone containing the surveillance video application is seized and booked into property at that time.
18. On February 1, 2017, [Plaintiff's] soon to be ex-wife Jennifer Frazier made a court appearance in the ongoing divorce proceeding and gains approval to enter Plaintiff's home .... Plaintiff did not receive notice of this court hearing, as he was incarcerated. Plaintiff did not appear.
19. On February 3, 2017, Defendant Angie Circo receives a call from Plaintiff's wife Jennifer Frazier who tells her that she has obtained an ex-parte order allowing immediate access to the residence .... Defendant Angie Circo tells Frazier to stand by while she secures a search warrant.
20. On February 3, 2017, Defendant Angie Circo gets a search warrant for Plaintiff's home and is let in the home by Jennifer Frazier and begins removing/stealing items from the home. The Omaha Police Department Crime lab is in Plaintiff's home as well as Defendants Scott Fox, Sergeant Marlene Novotny, and Detective Angela Circo. The DVR containing the surveillance video of the January 11, 2017 illegal arrest and search istaken, as well as $50,000 cash- both of which were in the attic and outside of the search warrant's purview and not listed in any associated RB (034127, AH07172, AH40728, AH59516, AJ09148, AJ13578, AJ14423).
21. On or about February 7, 2017, CR 17-223, the case under RB#AJ37341 that Plaintiff was illegally arrested on without a warrant was dismissed by the state with prejudice.
22. On February 21, 2017, Defendant Angela Circo begins writing her fairytale police report dating back to "2015" under a SupplementaryPolice report RB#AJ-23248AA, but the police report for the public is under AJ-23248.
23. On February 22, 2017, Plaintiff has a Preliminary Hearing in Douglas County Courtroom #625 under charges stemming from the second arrest under RB#AJ242248 where a charge of Terroristic Threats was bound over to Douglas County District Court, but 2nd Degree Arson, Burglary, Stalking, and Intentional Child abuse were dismissed due to lack of evidence.
24. On May 1, 2017, Plaintiffs house is sold $101,000.00.
25. On June 3, 2017, Plaintiff Bonds out of jail for the second time for 10% of $75,000 ($7,500), now homeless, divorced, searching for his assets and trying to figure out how to restore he and his son's life.
26. On January 18, 2018, Douglas County Deputy Attorney Jennifer K. Meckna requests that Judge Marlon Polk dismiss and seal case of the second arrest, under RB#AJ242248. The Honorable Marlon Polk grants request. The case is dismissed with prejudice.
27. On January 19, 2018, order to seal case is signed by Judge Friend (see) exhibit 44.
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 alsoAshcroft v. Iqbal, 556 U.S. 662, 678 (2009) ().
"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 construing Plaintiff's Amended Complaint, this is a civil rights action brought under 42 U.S.C. § 1983 to recover damages for alleged violations of Plaintiff's rights under the Fourth Amendment to the United States Constitution. The Fourth Amendment protects against "unreasonable ... seizures" of persons and property. U.S. Const. amend. IV. To establish a violation of Fourth Amendment rights under 42 U.S.C. § 1983, a plaintiff must show that a seizure occurred and that it was unreasonable. Brower v. County of Inyo, 489 U.S. 593, 599 (1989). To state a claim under § 1983, a plaintiff must allege a violation of rights protected by the United States Constitution or created...
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