Marlin Jones v. City of North Platte

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 10-2236
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Marlin E. Jones, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* District of Nebraska
City of North Platte; Martin *
Gutschenritter, Chief of Police; Kendall * [UNPUBLISHED]
Allison, Police Officer; Jeanne Hinrich, *
*
Appellees. *
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Submitted: June 15, 2010
Filed: July 6, 2010
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Before MELLOY, BOWMAN, and SMITH, Circuit Judges.
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PER CURIAM
Appellant Marlin Jones filed his initial complaint on January 6, 2010, alleging
a cause of action under 42 U.S.C. § 1981. The district court1 then granted Jones leave
to amend his complaint to state a cause of action under 42 U.S.C. § 1983. In his
amended complaint, Jones named as defendants the City of North Platte, Nebraska and
two North Platte police officers, Martin Gutschenritter and Kendall Allison, referring
1
The Honorable Laurie Smith Camp, United States District Judge for the
District of Nebraska.
to the group as North Platte Defendants. Jones also named Jeanne Hinrich, a resident
of North Platte, as a defendant.
On April 20, 2010, the district court, through its own motion under 28 U.S.C.
§ 1915(e)(2)(B)(ii), found Jones’s complaint failed to a state a claim upon which relief
could be granted. The district court allowed Jones the opportunity to amend his
complaint a second time. Jones did amend the complaint, but the district court again
dismissed the complaint for failure to state a claim.
The initial complaint, as well as the amended complaint, allege the defendants
caused Jones mental anguish, for which he seeks $500,000 in damages. The
complaint details a police visit by defendants Gutschenritter and Allison to Jones’s
home on November 19, 2009. Jones alleges the officers came to his home to
investigate an informant’s tip that Jones planned to kill someone. When Jones denied
the allegation, the officers left. Jones claims that through these actions Gutschenritter
and Allison harassed and intimidated him. Also, Jones alleges he cannot obtain the
police reports on this incident, despite numerous attempts. Finally, Jones claims the
City of North Platte does not properly train its employees because these officers came
to his house without probable cause.
In his allegations against Hinrich, Jones claims that in 2009 Hinrich attempted
to obtain a protective order against him in Nebraska state court. Jones alleges Hinrich
knowingly lied under oath in an attempt to obtain the protective order. Jones requests
that Hinrich “be made to show cause why she should not be prosecuted for perjury.”
In dismissing the claim, the district court first determined that Jones was suing
the North Platte Defendants in their official capacities, which in effect meant that he
was suing the city. Because of this, the court found that to state a cause of action
under § 1983, Jones must make a showing that it was the policy or custom of the city
to engage in the acts that violated his rights. The district court found that Jones did
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not allege in any way that it was custom or policy for the city to engage in
unconstitutional conduct or that unconstitutional custom or policy led to his injuries.
Next, the district court dismissed the claim against Hinrich because, liberally
construed, the relief Jones appears to seek is prosecution of Hinrich for perjury for the
statements she made under oath. The district court found that a plaintiff in a civil suit
cannot compel a criminal prosecution.
We review the district court’s dismissal for failure to state a claim de novo,
accept all the facts in the complaint as true, and grant all reasonable inferences in
favor of the non-moving party. Stufflebeam v. Harris, 521 F.3d 884, 886 (8th Cir.
2008). We affirm the dismissal of the cause of action for the reasons stated by the
district court in its well-reasoned and thorough orders. See 8th Cir. Rule 47B.
The judgment of the district court is affirmed.
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