# Kimbrough v. Hogan

> District Court, D. Nebraska · February 28, 2024

URL: https://www.frixlaw.com/law-library/cases/10265027

## Case

- **Court:** District Court, D. Nebraska
- **Decided:** February 28, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA

QUINTAN J. KIMBROUGH,

Plaintiff, 8:23CV64

vs.
MEMORANDUM AND ORDER
A. HOGAN III, #2263 City of Omaha
Officers; JOHATHAN B. GORDEN, #1927
City of Omaha Officers; MICHAEL J.
MEYERS, #1307 City of Omaha Officers;
and CHRISTOPHER S. MILLER, #2272 City
of Omaha Officers;

Defendants.

Plaintiff Quintan J. Kimbrough, a prisoner currently confined in the custody of the
Bureau of Prisons (“BOP”), see Filing No. 18, filed a Complaint on February 17, 2023,
when he was a pretrial detainee incarcerated in the Douglas County Correctional Center
(“DCCC”). Filing No. 1. He has been given leave to proceed in forma pauperis. Filing
No. 7. 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.
I. SUMMARY OF COMPLAINT
Plaintiff claims he was subjected to excessive force by Omaha police officers A.
Hogan III, Jonathan B. Gorden, Michael J. Meyers, and Christopher S. Miller
(collectively “Defendants”) on April 18, 2020, while being transported to DCCC following
his arrest. Plaintiff alleges he was twice dragged from the back of the police cruiser
while in handcuffs, and was tased, punched, kneed, kicked, and choked as he was
face-down on concrete being searched. Plaintiff also alleges the car door was slammed
on his foot and head and his head was smashed into the cruiser’s divider window.
Plaintiff alleges he suffered numerous injuries, and he seeks money damages for those
injuries. Plaintiff also seeks to have Defendants removed from the Omaha police force
as well as expungement of criminal records and “downward departures of immediate
release from [the] FBOP sentences and post supervised release” for himself and other
individuals in federal BOP custody. Filing No. 1 at 8.

Plaintiff filed a previous lawsuit in this Court raising these same claims against
Defendants—Kimbrough v. Hogan et al, No. 8:20-cv-00262-JFB-PRSE (D. Neb. 2020)
(hereinafter “8:20CV262”). See Filing No. 1 at 14. In 8:20CV262, the Court concluded
Plaintiff alleged sufficient facts to state a Fourth Amendment excessive-force claim, but
Plaintiff failed to specify that Defendants were sued in their individual capacities and the
Complaint failed to allege a plausible claim against Defendants in their official
capacities. Kimbrough v. Hogan, No. 8:20CV262, 2020 WL 5407996 (D. Neb. Sept. 9,
2020); see also Filing No. 7, Case No. 8:20CV262. The Court gave Plaintiff leave to
amend his Complaint, but Plaintiff instead filed a motion to voluntarily dismiss his

complaint without prejudice. Filing No. 9, Case No. 8:20CV262. The Court granted
Plaintiff’s motion and dismissed 8:20CV262 on September 22, 2020. Filing Nos. 10 &
11, Case No. 8:20CV262.
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
Here, as in 8:20CV262, Plaintiff asserts a Fourth Amendment excessive-force
claim against Defendants arising out of his arrest on April 18, 2020. As the Court
previously explained,
Because Plaintiff was a post-arrest detainee at the time of the alleged
incidents, the Fourth Amendment's “objective reasonableness” standard
applies to his excessive-force claim. See Davis v. White, 794 F.3d 1008,
1011-12 (8th Cir. 2015). “Objective unreasonableness is ‘judged from the
perspective of a reasonable officer on the scene,’ in light of ‘the facts and
circumstances of each particular case, including the severity of the crime
at issue, whether the suspect poses an immediate threat to the safety of
the officers or others, and whether he is actively resisting arrest or
attempting to evade arrest by flight.’” Wilson v. Lamp, 901 F.3d 981, 989
(quoting Graham, 490 U.S. at 396, 109 S.Ct. 1865). The court may also
consider the result of the force. Smith v. Kansas City, Missouri Police
Dep’t, 586 F.3d 576, 581 (8th Cir. 2009). “Force may be objectively
unreasonable when a plaintiff does not resist, lacks an opportunity to
comply with requests before force is exercised, or does not pose an
immediate safety threat.” Wilson, 901 F.3d at 989 (citing Smith, 586 F.3d
at 581).

Kimbrough, 2020 WL 5407996, at *2.
Again, as with 8:20CV262, Plaintiff’s Complaint contains sufficient facts from
which to conclude he was subjected to an objectively unreasonable amount of force by
Defendants. Unfortunately, Plaintiff’s Complaint suffers from the same defect as his
complaint in 8:20CV262; namely, Plaintiff does not specify that Defendants are being
sued in their individual capacities. Filing No. 1 at 3–4 (boxes for “Individual capacity”
and “Official capacity” unchecked for each Defendant). Thus, the Court is forced to
assume Defendants are sued only in their official capacities. Kimbrough, 2020 WL
5407996, at *2 (citing Baker v. Chisom, 501 F.3d 920, 923 (8th Cir. 2007).
Plaintiff should be aware that because he has sued Defendants in their official
capacities only, such claims are actually asserted against Defendants’ employing entity,
the City of Omaha. Elder-Keep v. Aksamit, 460 F.3d 979, 986 (8th Cir. 2006) (“A suit
against a public official in his official capacity is actually a suit against the entity for
which the official is an agent.”); Parrish v. Luckie, 963 F.2d 201, 203 n.1 (8th Cir. 1992)
(“Suits against persons in their official capacity are just another method of filing suit
against the entity. A plaintiff seeking damages in an official-capacity suit is seeking a

judgment against the entity.”) (citation omitted).
The City of Omaha may only be liable under section 1983 if a “policy” or “custom”
of the City caused a violation of the Plaintiff’s constitutional rights. Doe By and Through
Doe v. Washington County, 150 F.3d 920, 922 (8th Cir. 1998) (citing Monell v.
Department of Soc. Servs., 436 U.S. 658, 694 (1978)). An “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
and Through Jane Doe B v. Special School Dist. of St. Louis County, 901 F.2d 642, 645
(8th Cir. 1990) (citing Pembaur v. City of Cincinnati, 475 U.S. 469, 483 (1986)). To

establish the existence of a governmental “custom,” a plaintiff must prove:
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 the moving force behind the
constitutional violation.

Jane Doe, 901 F.2d at 646.
Plaintiff’s Complaint fails to allege that any actions were taken pursuant to a
policy or custom of the City of Omaha or that his injuries resulted from a failure to train
or supervise the Defendant police officers. “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)).
Thus, as it stands, Plaintiff’s Complaint fails to state a claim upon which relief

may be granted against Defendants and is subject to dismissal under 28 U.S.C. §§
1915(e)(2) and 1915A(b). However, on the Court’s own motion, Plaintiff will be given
leave to file an amended complaint to allege his claims against each Defendant in his
individual capacity.
If Plaintiff files an amended complaint, he should be aware that much of the relief
sought in his Complaint is not available to Plaintiff even if Defendants are sued in their
individual capacities. The Prison Litigation Reform Act (PLRA), 18 U.S.C. § 3626, limits
prospective relief to an order correcting the violation. See Farner v. Duncan, No. 16-
CV-310-NJR, 2016 WL 3254519, at *4 (S.D. Ill. June 14, 2016) (citing 18 U.S.C. §

3626(g)(9), (g)(7); Rowe v. Jones, 483 F.3d 791, 795 (11th Cir. 2007)). Prospective
relief is defined as including “all relief other than compensatory monetary damages.” 18
U.S.C. § 3626(g)(7). Therefore, to the extent Plaintiff seeks termination of Defendants’
employment, limitations on future employment, expungement of records, and a
downward sentence departure, such relief is outside the scope of this Court’s authority
under the PLRA. Further, Plaintiff seeks relief on behalf of other federal inmates who
are not parties to this action, Filing No. 1 at 8, which he is prohibited from doing. See
Martin v. Sargent, 780 F.2d 1334, 1337 (8th Cir. 1985). As such, any relief sought for
any of the non-party inmates mentioned in Plaintiff’s Complaint also cannot be
addressed by this Court in this action.
IV. OTHER PENDING MOTIONS
A. Motion for Prayer for Relief
Plaintiff filed a “Motion for Prayer for Relief” in which he asks the Court “for a

general prayer, prayer of process in the above[] docket in all aspects of procedurals to
move this honorable court, bar to time of process response.” Filing No. 11 (spelling
corrected). The Court is uncertain as to what relief Plaintiff seeks in this motion. To the
extent Plaintiff asks the Court to issue process, or summons, on Defendants, Plaintiff’s
request is premature as the Court has not yet determined that this matter may proceed
to service of process. Plaintiff’s motion is, therefore, denied.
B. Motion to Strip Immunity
Plaintiff filed his “Motion to Strip Immunity,” Filing No. 12, presumably seeking the
removal of any immunity defenses which may be applicable to Defendants. Plaintiff’s

Motion to Strip Immunity must be denied for at least two reasons.
First, while qualified immunity can be defeated in some scenarios, see Pearson v.
Callahan, 555 U.S. 223, 231 (2009) (qualified immunity protects government officials
only to extent that their conduct does not violate clearly established rights of which a
reasonable person should have known), specific facts need to be alleged to support
such a finding, Corman v. Stenehjem, No. 3:12-CV-53, 2013 WL 248100, at *3 (D.N.D.
Jan. 23, 2013). Plaintiff alleges no fact in support of his position.
Second, and more importantly, Plaintiff’s Complaint requires amendment for any
claim to proceed. Therefore, no immunity defenses have been presented, rendering
Plaintiff’s Motion to Strip Immunity premature. As such, Plaintiff’s Motion to Strip
Immunity shall be denied without prejudice.
C. Motion of Protection
Plaintiff filed a “Motion of Protection” seeking protection from “malice or prejudice
that is forced upon [him] by defendants” and asking for a “restraining order, permanent

protective order be granted to [Plaintiff] immediately, indefinitely.” Filing No. 13.
In determining whether a preliminary injunction should issue, the Court is
required to consider the factors set forth in Dataphase Systems, Inc. v. C.L. Sys. Inc.,
640 F.2d 109, 114 (8th Cir.1981) (en banc). A district court should weigh “(1) the threat
of irreparable harm to the movant; (2) the state of the balance between this harm and
the injury that granting the injunction will inflict on other parties litigant; (3) the probability
that movant will succeed on the merits; and (4) the public interest.” Id. A preliminary
injunction is considered an extraordinary remedy, and the burden of proving each of the
Dataphase factors lies with the party seeking the injunction. Watkins v. Lewis, 346 F.3d

841, 844 (8th Cir.2003).
Here, Plaintiff does not address any of the factors required for issuance of an
injunction. Accordingly, his Motion of Protection shall be denied without prejudice.
D. Motions for Discovery
Plaintiff filed two subpoenas, which the Court docketed as Motions for Discovery,
seeking body, dash, and cruiser camera footage from the date of his arrest on April 18,
2020, from a non-party, Axon Manufacturing. Filing No. 14; Filing No. 16. The
discovery motions, however, are premature as the Court has yet to determine the
Complaint may proceed to service of process. See Jackson v. Herrington, 393 F. App'x
348, 353 (6th Cir. 2010) (“Rule 4 requires plaintiffs to serve each defendant with a
summons and a copy of the complaint. But district courts cannot issue summonses in
in forma pauperis prisoner cases until after screening the complaint for frivolousness
and other defects under 28 U.S.C. §§ 1915(e) and 1915A(b).”) (citation omitted). It
follows that no discovery may take place until after the Court determines this matter

may proceed to service of process, which cannot take place until Plaintiff files an
amended complaint and this Court determines that amended complaint, or a portion
thereof, may proceed. As such, the Motions for Discovery shall be denied without
prejudice.
E. Motion for Copies
On November 20, 2023, Plaintiff filed what the Court construed and docketed as
a Motion for Copies seeking, in relevant part, “copies” of all documents filed into the
instant matter as well as Case Number 8:23CV491 due to prison officials discarding or
misplacing most of his case materials in the process of transferring Plaintiff. Filing No.

19.
The statutory right to proceed in forma pauperis does not include the right to
receive copies of documents without payment. 28 U.S.C. § 1915; see also Haymes v.
Smith, 73 F.R.D. 572, 574 (W.D.N.Y.1976) (“The generally recognized rule is that a court
may not authorize the commitment of federal funds to underwrite the necessary
expenditures of an indigent civil litigant’s action.”) (citing Tyler v. Lark, 472 F.2d 1077,
1078 (8th Cir.1973)).

1 Plaintiff’s requests related to Case No. 8:23CV49 were addressed by separate order in that case. See
Filing No. 32, Case No. 8:23CV49.
While there is no right to copies without payment, the Court shall grant Plaintiff’s
motion only to the extent Plaintiff seeks a copy of his Complaint so that he may amend
his Complaint in compliance with this Memorandum and Order. Plaintiff is warned
that this is a one-time courtesy and all further requests for copies must be
directed to the Clerk’s Office. If Plaintiff requires copies of additional documents, he

should contact the Clerk’s Office to determine the proper method of requesting and
paying for copies.
V. CONCLUSION
The Court finds upon initial review that Plaintiff’s Complaint fails to state a claim
upon which relief may be granted, but Plaintiff shall have 30 days from the date of this
Memorandum and Order to file an amended complaint to allege his claims against
Defendants in their individual capacities. If Plaintiff fails to file an amended complaint in
accordance with this Memorandum and Order, the claims against Defendants will be
dismissed without prejudice and without further notice. The Court reserves the right to

conduct further review of Plaintiff’s claims pursuant to 28 U.S.C. § 1915(e)(2) after he
addresses the matters set forth in this Memorandum and Order.
IT IS THEREFORE ORDERED that:
1. Plaintiff shall have until March 29, 2024, to file an amended complaint that
clearly states a claim upon which relief may be granted against Defendants in their
individual capacities. Failure to file an amended complaint in accordance with this
Memorandum and Order will result in dismissal of this case without prejudice and
without further notice to Plaintiff.
2. The Court reserves the right to conduct further review of Plaintiff's claims
pursuant to 28 U.S.C. §§ 1915(e) and 1915A in the event he files an amended
complaint.
3. Plaintiff's Motion for Copies, Filing No. 19, is granted to the extent Plaintiff
seeks a copy of the Complaint, Filing No. 1.
4. The Clerk of the Court is directed to provide Plaintiff a copy of Filing No. 1
along with this Memorandum and Order.
5. Plaintiff's Motion for Prayer for Relief, Filing No. 11, Motion to Strip
Immunity, Filing No. 12, Motion of Protection, Filing No. 13, and Motions for Discovery,
Filing No. 14; Filing No. 16, are denied without prejudice.
6. The Clerk of Court is directed to set a pro se case management deadline
using the following text: March 29, 2024: check for amended complaint.
7. Plaintiff shall keep the Court informed of his current address at all times
while this case is pending. Failure to do so may result in dismissal without further
notice.

Dated this 28th day of February, 2024.

BY THE COURT:
Gs F Bhi
Joseph F. Bataillon
Senior United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10265027. Public record. Not legal advice.