Villanueva v. City of Scottsbluff et al

Filing 19

MEMORANDUM AND ORDER- Defendants Motion to Dismiss (filing 13 ) is denied. Villanuevas amended complaint (filing 8 ) fails to state a claim upon which relief may be granted. However, Villanueva shall have until March 7, 2012, to file a second ame nded complaint in accordance with this memorandum and order. If Villanueva fails to file a second amended complaint, I will dismiss her claims against Defendants without prejudice and without further notice. Defendants motion to strike (filing 9 ) is denied without prejudice to reassertion. Ordered by Senior Judge Richard G. Kopf. (MKR)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
TAMARA VILLANUEVA,
Plaintiff,
v.
CITY OF SCOTTSBLUFF, and
ALEX MORENO, Individually and
in his official capacity as Chief of
Police,
Defendants.

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4:11CV3185

MEMORANDUM
AND ORDER

This matter is before the me on Defendants’ motion to dismiss. (Filing 13.)
Also pending is Defendants’ motion to strike. (Filing 9.) As set forth below,
Defendants’ motion to dismiss is denied and Plaintiff will be permitted to file a second
amended complaint.
I. BACKGROUND
Plaintiff Tamara Villanueva (“Villanueva”) filed an amended complaint in this
matter on November 10, 2011, against the City of Scottsbluff (“Scottsbluff”) and
Scottsbluff police chief Alex Moreno (“Moreno”). (Filing 8.) Villanueva sues
Moreno in both his individual and official capacities. (Id. at CM/ECF p. 2.)
Villanueva’s amended complaint asserts two causes of action. (Id. at CM/ECF
pp. 9-12.) The first cause of action is a Fourteenth Amendment equal protection claim
against Scottsbluff and Moreno for “implementing a policy of treating domestic
assaults differently than non-domestic assaults.”

(Id. at CM/ECF p. 10.)

This

allegation stems from Defendants’ failure to respond to Villanueva’s reports of assault
and harassment. (Id. at CM/ECF pp. 2-10.)

The second cause of action is a negligent infliction of emotional distress claim
against Moreno.

(Id. at CM/ECF pp. 10-11.)

In October 2010, Moreno and

Villanueva began a consensual sexual relationship. (Id.) However, on November 25,
2010, Moreno sent Villanueva “graphic, lewd, sexual references” and she decided to
end the relationship. (Id. at CM/ECF p. 5) Thereafter, Villanueva experienced
harassing phone calls and observed suspicious activity outside of her home. (Id. at
CM/ECF pp. 5-11.) Villanueva seems to suggest that Moreno took advantage of her
because he knew that she had a “vulnerable state of mind as a victim of domestic
violence.” (Id.) Villanueva seeks equitable relief, compensatory damages, punitive
damages and reasonable attorney’s fees. (Id. at CM/ECF pp. 11-12.)
On December 5, 2011, Defendants filed a motion to strike, asking the court to
strike Villanueva’s requests for punitive damages.

(Filing 9.)

That same day,

Defendants filed a motion to dismiss along with a brief in support. (Filings 13 and
14.) Villanueva filed a brief in opposition to the motion to strike and the motion to
dismiss on December 19, 2011. (Filing 17.)
II. ANALYSIS
A.

Motion to Dismiss
1.

Standard of Review

“To survive a motion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to state a claim to relief that is plausible on its face. 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.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (internal citations &
quotations omitted). This “plausibility standard” is not one of probability, “but it asks
for more than a sheer possibility that a defendant has acted unlawfully. Where a
complaint pleads facts that are merely consistent with a defendant’s liability, it stops
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short of the line between possibility and plausibility of entitlement to relief.” Id.
(internal citations & quotations omitted).
“Determining whether a complaint states a plausible claim for relief will . . . be
a context-specific task that requires the reviewing court to draw on its judicial
experience and common sense. But where 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.’” Id. at 1950
(internal citation omitted; 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. “Threadbare recitals of the elements of a cause of action, supported
by mere conclusory statements, do not suffice.” Id. at 1949.
2.

Federal Claims

Defendants argue that Villanueva has failed to state a Fourteenth Amendment
equal protection claim upon which relief may be granted. (Filing 14 at CM/ECF pp.
2-5.) For the reasons discussed below, the court agrees.
“The Equal Protection Clause of the Fourteenth Amendment commands that no
State shall deny to any person within its jurisdiction equal protection of the laws,
which is essentially a direction that all persons similarly situated should be treated
alike.” City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985). As a
threshold matter, to state an equal protection claim, Villanueva must allege that she
“was treated differently from others similarly situated.”

Creason v. City of

Washington, 435 F.3d 820, 823 (8th Cir. 2006).
Here, Villanueva alleges that Defendants violated her equal protection rights
because they implemented “a policy of treating domestic assaults differently than
non-domestic assaults.” (Filing 8 at CM/ECF p. 10.) This allegation stems from
Defendants’ failure to respond to Villanueva’s reports of assault and harassment. (Id.
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at CM/ECF pp. 2-10.) However, Villanueva does not allege that she is a member of
a suspect class, nor does she allege that she was treated differently from others
similarly situated. (Id.) In addition, Villanueva’s allegations are not sufficient to state
a class-of-one equal protection claim. See Flowers v. City of Minneapolis, 558 F.3d
794, 799 (8th Cir. 2009) (concluding “while a police officer’s investigative decisions
remain subject to traditional class-based equal protection analysis, they may not be
attacked in a class-of-one equal protection claim”); see also Enquist v. Or. Dep’t of
Agric., 553 U.S. 559, 603 (2008) (finding that, in the police investigation context, “the
rule that people should be ‘treated alike, under like circumstances and conditions’ is
not violated when one person is treated differently from others, because treating like
individuals differently is an accepted consequence of the discretion granted” police
officers).
In her brief in opposition to Defendants’ motion to dismiss, Villanueva
acknowledges that her equal protection claim needs to be amended. (Filing 17 at
CM/ECF p. 3.) However, she also argues that her amended complaint should not be
dismissed because the alleged facts are sufficient to state a due process claim against
Moreno for stalking and harassing her. (Id.) This argument lacks merit. To start,
Villanueva did not assert a due process claim in her amended complaint. (See Filing
8.) Even if she had, her stalking and harassment allegations do not amount to conduct
that “shocks the conscience.” Fields v. Abbott, 652 F.3d 886, 891 (8th Cir. 2011)
(concluding that to state a substantive due process claim under a state-created danger
theory, a plaintiff must show “(1) that she was a member of a limited, precisely
definable group, (2) that the municipality’s conduct put her at a significant risk of
serious, immediate, and proximate harm, (3) that the risk was obvious or known to the
municipality, (4) that the municipality acted recklessly in conscious disregard of the
risk, and (5) that in total, the municipality’s conduct shocks the conscience” (internal
quotations omitted)); see also Darbonne v. Gaudet, No. Civ.A. 03-1989, 2005 WL
1523328, at *7-8 (W.D. La. June 22, 2005) (concluding plaintiff’s allegations that a
sheriff’s acts of driving by plaintiff’s house, watching plaintiff, and using his sheriff’s
vehicle to “peel out” did not rise to the level of “conscience shocking”); see also
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DeShaney v. Winnebago Cnty. Dep’t. of Soc. Servs., 489 U.S. 189, 194 (1989) (stating
“nothing in the language of the Due Process Clause itself requires the State to protect
the life, liberty, and property of its citizens against invasion by private actors”).
In short, Villanueva’s amended complaint fails to state a federal claim upon
which relief may be granted. However, I will provide Villanueva with an opportunity
to file a second amended complaint. If Villanueva fails to file a second amended
complaint by March 7, 2012, I will dismiss this matter without further notice for
failure to state a claim upon which relief may be granted.
3.

State Law Claims

Villanueva may also have state law claim against Moreno. Pending amendment
of the complaint as set forth in this memorandum and order, I make no finding
regarding the court’s jurisdiction over any potential state law claims. In the event that
Villanueva abandons her state law claims or fails to file a second amended complaint
in accordance with this memorandum and order, the court will not retain jurisdiction
over any state law claims and I will dismiss them without prejudice to reassertion in
state court.
B.

Motion to Strike
Because I am providing Villanueva with an opportunity to file a second

amended complaint, and because her first amended complaint fails to state a federal
claim upon which relief may be granted, Defendants’ motion to strike is denied
without prejudice to reassertion.
IT IS THEREFORE ORDERED that:
1.

Defendants’ Motion to Dismiss (filing 13) is denied.

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2.

Villanueva’s amended complaint (filing 8) fails to state a claim upon

which relief may be granted. However, Villanueva shall have until March 7, 2012,
to file a second amended complaint in accordance with this memorandum and order.
If Villanueva fails to file a second amended complaint, I will dismiss her claims
against Defendants without prejudice and without further notice.
3.

Defendants’ motion to strike (filing 9) is denied without prejudice to

reassertion.
DATED this 21 st day of February, 2012.
BY THE COURT:
s/Richard G. Kopf
Senior United States District Judge

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