Villanueva v. City of Scottsbluff et al

Filing 83

MEMORANDUM AND ORDER - Defendants' Motion to Strike (filing no. 72 ) is denied. Defendants' Motion for Summary Judgment (filing no. 63 ) is granted in part. Villanueva's equal protection and substantive due process claims are di smissed with prejudice. Villanueva's state law claim for negligent infliction of emotional distress is dismissed without prejudice. A separate judgment will be entered in accordance with thismemorandum and order. 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 me on Defendants’ Motion for Summary Judgment.
(Filing No. 63.) Also pending is Defendants’ Motion to Strike. (Filing No. 72.) For
the reasons discussed below, I will deny the Motion to Strike and grant the Motion for
Summary Judgment in part.
I. BACKGROUND
Plaintiff Tamara Villanueva (“Villanueva”) brings this 42 U.S.C. § 1983 action
against the City of Scottsbluff, Nebraska (the “City”), and its chief of police, Alex
Moreno (“Moreno”), in his individual and official capacities for alleged violations of
her rights to equal protection and substantive due process, as well as for negligent
infliction of emotional distress under Nebraska law. (Filing No. 20.) Villanueva’s
claims stem from Defendants’ alleged failure to respond to her reports of assault and
harassment by her ex-husband, as well as harassment and serious threats directed at
Villanueva and her family that were supposedly orchestrated by Moreno. (Id.)
On March 16, 2012, Defendants filed a Motion to Dismiss (filing no. 21) and
Motion to Strike (filing no. 23) Villanueva’s claims for punitive damages. On June
25, 2012, I granted Defendants’ Motion to Dismiss in part and dismissed Villanueva’s

claim for negligent infliction of emotional distress against Moreno for acts taken
within the scope of his employment. (Filing No. 27 at CM/ECF p. 13.) I also granted
Defendants’ Motion to Strike and struck Villanueva’s claims for punitive damages
against all Defendants for acts alleged to constitute negligent infliction of emotional
distress under Nebraska law. (Id. at CM/ECF p. 14.)
On September 12, 2013, Defendants filed a Motion for Summary Judgment
along with a Brief and Index of Evidence in Support. (Filing Nos. 63, 64, and 65.)
Villanueva responded by filing a Brief and Index of Evidence in Opposition. (Filing
Nos. 66, 67, and 68.) Thereafter, Defendants filed a Motion to Strike certain
statements and audio recordings in Villanueva’s Index of Evidence, as well as portions
of Villanueva’s Brief. (Filing No. 72.) Defendants filed a Brief in Support of this
Motion and as a Reply to Villanueva’s Brief in Opposition, as well as another Index
of Evidence. (Filing Nos. 73 and 74.) Villanueva filed a Brief in Opposition to the
Motion to Strike (filing no. 75) and Defendants filed an additional Reply Brief (filing
no. 76). Defendants’ Motion to Strike and Motion for Summary Judgment are now
ripe for a decision.
II. MOTION TO STRIKE
On October 25, 2012, Defendants filed a Motion to Strike. (Filing No. 72.) In
the Motion, Defendants argue that certain statements and audio recordings in
Villanueva’s Index of Evidence, as well as portions of Villanueva’s Brief, are
inadmissable “hearsay, lack sufficient foundation, immaterial, and/or lack veracity.”
(Id. at CM/ECF pp. 1-2.) Defendants ask me to strike these statements, audio
recordings, and portions of Villanueva’s Brief. (Id. at CM/ECF p. 3.)
Under Federal Rule of Civil Procedure 56(c)(2), “[a] party may object that the
material cited to support or dispute a fact cannot be presented in a form that would be
admissible in evidence.” Fed. R. Civ. P. 56(c)(2). However, “the standard is not
whether the evidence at the summary judgment stage would be admissible at trial–it
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is whether it could be presented at trial in an admissible form.” Gannon Int’l, Ltd. v.
Blocker, 684 F.3d 785, 793 (8th Cir. 2012) (emphasis in original) (concluding the
district court did not abuse its discretion in overruling an objection to evidence based
on hearsay where the objecting party failed to argue that the information could not
have been presented in an admissible form at trial); see also Jones v. UPS Ground
Freight, 683 F.3d 1283, 1293-94 (11th Cir. 2012) (concluding “a district court may
consider a hearsay statement in passing on a motion for summary judgment if the
statement could be reduced to admissible evidence at trial or reduced to admissible
form”); Stelwagon Mfg. Co. v. Tarmac Roofing Sys., Inc., 63 F.3d 1267, n.17 (3d Cir.
1995) (stating the rule in the Third Circuit “is that hearsay statements can be
considered in a motion for summary judgment if they are capable of being admissible
at trial”). Indeed, Rule 56 “permits a party to object to evidence cited by the other
party at the summary judgment stage and requires the Court to make a determination
regarding whether the evidence could be presented at trial in an admissible form.”
Wiley v. RockTenn CP, LLC, No. 4:12-cv-00266-KGB, 2013 WL 5567966, at *11
(E.D. Ark. Oct. 9, 2013); See Fed. R. Civ. P. 56(c)(2).
Here, Defendants assert that numerous statements, audio recordings, or portions
of Villanueva’s Brief are either “hearsay, lack foundation, immaterial, and/or lack
veracity.” (Filing No. 72 at CM/ECF p. 2; Filing No. 76 at CM/ECF pp. 5-26.)
Defendants’ arguments are based on Villanueva’s evidence in its current form, but
they have not shown, nor do they argue, that Villanueva cannot present the evidence
in a form that would be admissible at trial. Indeed, Villanueva does not rely on
evidence, that, on its face, presents evidentiary obstacles that would prove
insurmountable at trial. Moreover, as discussed below, even if I consider the evidence
in accordance with the summary judgment standards, Defendants are entitled to
summary judgment on Villanueva’s federal claims. Accordingly, Defendants’ Motion
to Strike is denied.

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III. MOTION FOR SUMMARY JUDGMENT
A.

Summary Judgment Standard

“Summary judgment is proper if the pleadings, the discovery and disclosure
materials on file, and any affidavits show that there is no genuine issue as to any
material fact and that the movant is entitled to judgment as a matter of law.” Jackson
v. United Parcel Serv., Inc., 643 F.3d 1081, 1085 (8th Cir. 2011) (quoting Torgerson
v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc)). After the
movant has demonstrated the absence of a genuine issue of material fact, the
nonmovant must respond by submitting evidence that sets out specific facts showing
that there is a genuine issue for trial. Id. In doing so, the nonmovant must
substantiate her allegations with “sufficient probative evidence [that] would permit a
finding in [her] favor on more than mere speculation, conjecture, or fantasy.” Moody
v. St. Charles Cnty., 23 F.3d 1410, 1412 (8th Cir. 1994) (quoting Gregory v. City of
Rogers, 974 F.2d 1006, 1010 (8th Cir. 1992)). “A mere scintilla of evidence is
insufficient to avoid summary judgment.” Id. “The basic inquiry is whether the
evidence presents a sufficient disagreement to require submission to a jury or whether
it is so one-sided that one party must prevail as a matter of law.” Diesel Mach., Inc.
v. B.R. Lee Indus., Inc., 418 F.3d 820, 832 (8th Cir. 2005) (internal quotation marks
and citations omitted). “Where the record taken as a whole could not lead a rational
trier of fact to find for the nonmoving party, there is no genuine issue for trial.”
Jackson, 643 F.3d at 1085 (quoting Torgerson, 643 F.3d at 1042).
B.

Undisputed Material Facts

1. Plaintiff Tamara Villanueva is a female citizen and resident of the City.
(Filing No. 20 at CM/ECF p. 2.)

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2.
Villanueva has lived in Scottsbluff for 41 years. (Filing No. 65-2 at
CM/ECF p. 1.) She has lived at 1409 East 15th Street in Scottsbluff since August 28,
1998. (Id.)
3.
The City is a political subdivision duly formed and existing under
Nebraska law. (Filing No. 20 at CM/ECF p. 2; Filing No. 29 at CM/ECF p. 2.)
Defendant Alex Moreno served as the Chief of Police for the City from September
2005 to October 1, 2012. (Filing No. 65-5 at CM/ECF pp. 3-5.)
4.
During the summer of 2008, Villanueva complained about her thenhusband to the Scottsbluff Police Department communications and two officers
responded. (Filing No. 65-2 at CM/ECF p. 4.) Villanueva told the responding
officers that her husband Alvaro Villanueva Jr. had gotten mad at her, threw an Old
Spice deodorant stick at her, hitting her in the ankle, and told her “if he couldn’t have
me, nobody would, and he was going to kill me. He was going to smash my head in.”
(Id. at CM/ECF pp. 4-5.)
5.
In October 2008, Villanueva and a friend first thought about setting up
a neighborhood watch group. (Id. at CM/ECF p. 8.) From October 2008 to February
2009, Villanueva worked with then-Police Chief Moreno to establish the group and
set up their first meeting, which took place on March 26, 2009. (Id. at CM/ECF p. 9.)
Moreno appointed Villanueva as the contact person for the group. (Id.) Moreno also
set the boundaries for the neighborhood watch area. (Id. at CM/ECF p. 10.)
6.
As the contact person for the neighborhood group, Villanueva made
frequent calls to the Police Department and those calls were acted upon by the Police
Department. (Filing No. 20 at CM/ECF p. 3.)
7.
From March 2009 until February 2, 2011, when Villanueva resigned as
the contact person for the neighborhood watch group, she made more than 100 calls.
(Filing No. 65-2 at CM/ECF pp. 9-10.)
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8.
On or about late August 2010, Villanueva met with Moreno in his office
and disclosed that she had been abused by her ex-husband. (Filing No. 20 at CM/ECF
p. 3; Filing No. 29 at CM/ECF p. 2.) Villanueva also talked with Moreno about her
personal history with domestic violence. (Filing No. 65-5 at CM/ECF pp. 12-13.)
9.
In October 2010, Villanueva and Moreno attended a neighborhood watch
meeting at a local church. (Filing No. 20 at CM/ECF p. 4; Filing No. 29 at CM/ECF
p. 3.)
10. Villanueva claims Moreno kissed her at the neighborhood watch meeting,
and thereafter started sending her sexually explicit text messages. (Filing No. 65-2 at
CM/ECF p. 14; Filing No. 20 at CM/ECF p. 4.) Villanueva continued to talk to
Moreno, text him, and have contact with him. (Filing No. 65-2 at CM/ECF pp. 1516.)
11. On October 26, 2010, Villanueva had an affair with Moreno at a lake
house. (Id. at CM/ECF p. 16.) Moreno organized where and when they would meet.
(Id.) Villanueva thought about not going, but ultimately decided to have the affair.
(Id. at CM/ECF p. 17.) Moreno took that day off and drove his personal car to the
lake house. (Filing No. 65-5 at CM/ECF pp. 14-16.)
12. On or about November 15, 2010, Moreno emailed Villanueva to arrange
for them to have sex again. Moreno and Villanueva had sex that afternoon at the same
lake house. (Filing No. 20 at CM/ECF p. 5; Filing No. 29 at CM/ECF p. 3; Filing No.
65-2 at CM/ECF p. 19.)
13. On or about November 18, 2010, Moreno contacted Villanueva
indicating that he was “all jacked up and you on my mind!” (Filing No. 20 at
CM/ECF p. 5; Filing No. 29 at CM/ECF p. 3.)

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14. On or about November 25, 2010, Moreno and Villanueva e-mailed back
and forth messages of a sexual content. (Filing No. 20 at CM/ECF p. 5.)
15. However, after November 15, 2010, Villanueva refused to have sex
again. (Id.; Filing No. 65-2 at CM/ECF p. 20.)
16. Villanueva claims she started receiving phone calls threatening her to
stay away from Moreno in December 2010 or January 2011, but she was not able to
recognize who called her and did not report the calls. (Filing No. 65-2 at CM/ECF p.
24.)
17. In January 2011, Villanueva told a woman in her neighborhood watch
group about her affair with Moreno. (Id. CM/ECF pp. 21-22.)
18. On or about February 2, 2011, Villanueva resigned as the contact person
position for the neighborhood watch group because she needed to protect her mental
and physical health. (Filing No. 20 at CM/ECF p. 6; Filing No. 29 at CM/ECF p. 4.)
19. On February 25, 2011, Villanueva sent an email to Moreno stating she
was no longer attracted to Moreno but wanted to continue to be friends. (Filing No.
65-3 at CM/ECF p. 37; Filing No. 65-2 at CM/ECF pp. 38-39.)
20. In March 2011, the woman who knew about Villanueva’s affair with
Moreno told Villanueva’s ex-husband about the affair. (Filing No. 65-2 at CM/ECF
p. 23.)
21. On March 7, 2011, Villanueva and three other neighborhood watch
representatives met with City Manager Rick Kuckkahn to inform him of problems in
the neighborhood watch group and with Moreno. (Filing No. 65-6 at CM/ECF pp. 311, 18-19.) Kuckkahn met with Moreno the next day to discuss the meeting. (Id. at
CM/ECF pp. 20-21.)
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22. At some point, Villanueva also reported to Kuckkahn her concerns that
when she would call the Police Department, they would not record her calls. (Id. at
CM/ECF p. 12.)
23. Between October 1999 and August 31, 2011, Villanueva made 219 calls
to the Police Department to report suspicious activity and as the neighborhood watch
person for her neighborhood. (Filing No. 20 at CM/ECF p. 7; Filing No. 29 at
CM/ECF p. 4.)
24. Between December 1, 2010, and May 26, 2011, Villanueva called the
Scotts Bluff County Communications Center 17 times. (Filing No. 65-8 at CM/ECF
p. 2; Filing No. 65-9 at CM/ECF pp. 3-38.)
25. Between June 20, 2011, and July 6, 2012, Villanueva called the
Communications Center 17 times. (Filing No. 65-8 at CM/ECF p. 2; Filing No. 65-9
at CM/ECF pp. 3-38.)
26. In her Second Amended Complaint, Villanueva claims that “on or about
March 16, 2011, while the Villanueva was out of town, she received a call that there
were various vehicles parked in front of the Plaintiff’s home, watching the house.
When the Villanueva returned home, the vehicle pulled away. The Plaintiff called to
report the suspicious activity. No action was taken by the police.” The Police
Department has a report about Villanueva’s call and Officer Herbel’s response to the
call. (Filing No. 20 at CM/ECF pp. 7-8; Filing No. 65-9 at CM/ECF p. 39.)
27. In her Second Amended Complaint, Villanueva claims: “on or about
March 30 [, 2011,] the Plaintiff received another harassing phone call. The caller
stated ‘you better be keeping your mouth shut, we know where you are.’ The Plaintiff
reported this to the police, no action was taken.” There is a report on this incident by
Police Officer Wescher. The officer reported that “Tamara Villanueva did not

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recognize the voice. No evidence/suspects available.” (Filing No. 20 at CM/ECF p.
8; Filing No. 65-9 at CM/ECF pp. 41-42.)
28. In March 2011, Villanueva complained to the State of Nebraska Office
of Public Counsel/Ombudsman regarding Villanueva telling “a friend about the affair
[with the Scottsbluff Police Chief] and the friend told [her] ex-husband who then
texted and harassed Mr. Moreno about the situation.” The State Office of Public
Counsel/Ombudsman informed Villanueva that her complaint was not “within our
jurisdiction.” (Filing No. 65-2 at CM/ECF p. 47; Filing No. 65-3 at CM/ECF p. 38.)
29. In May 2011, Villanueva complained to the Office of the Nebraska
Attorney General about Moreno and the Police Department not responding to her
calls. On August 2, 2011, the Attorney General’s office told her they could not do
anything because it was a “private civil matter.” (Filing No. 65-2 at CM/ECF p. 36;
Filing No. 65-3 at CM/ECF p. 15; Filing No. 65-4 at CM/ECF p. 1.)
30. On May 11, 2011, Villanueva filed a petition and affidavit to obtain a
harassment protection order against Moreno. (Filing No. 65-3 at CM/ECF pp. 19-24.)
The court denied the petition because it contained “insufficient factual allegations.”
(Id. at CM/ECF p. 23.)
31. On June 22, 2011, Kuckkahn received copies of e-mails from Villanueva
between her and Moreno that substantiated her claim that Moreno and Villanueva had
an intimate relationship. Before this meeting, Kuckkahn had not heard from anyone
that Moreno and Villanueva had been involved in an intimate relationship. (Filing
No. 65-6 at CM/ECF pp. 13-14.)
32. After Kuckkahn learned of the tension between Moreno and Villanueva,
he contacted the police captains and asked “are we servicing this woman in a way that

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we would service anybody else,” and their response was “yes, we were.” (Id. at
CM/ECF pp. 15-16.)
33. Kuckkahn asked the captains to look at the example dates that Villanueva
reported a lack of response to her complaints. Kuckkahn was satisfied with the
response Captain Spencer gave him. (Id. at CM/ECF pp. 16-17, 25.)
34. On June 23, 2011, Villanueva sought a harassment protection order
against her ex-husband in the District Court of Scotts Bluff County, Nebraska. (Filing
No. 65-2 at CM/ECF p. 30; Filing No. 65-3 at CM/ECF pp. 9-14.) The court issued
the protection order that same day. (Filing No. 65-10 at CM/ECF p. 12.)
35. In June 2011, Villanueva contacted the North Platte office of the Federal
Bureau of Investigation (“FBI”) regarding a complaint against Moreno. (Filing No.
65-4 at CM/ECF pp. 2-55.) The FBI finished their investigation of Moreno at the end
of 2011 and no charges were brought against Moreno. (Filing No. 65-3 at CM/ECF
p. 3.)
36. On August 15, 2011, Villanueva called the Police Department regarding
a domestic violence complaint. Officer Broderick arrested Villanueva’s ex-husband,
transported him to the Scotts Bluff County jail, and prepared a report. (Filing No. 658 at CM/ECF p. 5; Filing No. 65-10 at CM/ECF pp. 9-13.)
37. The last meeting of the neighborhood watch group was held on October
27, 2011. (Filing No. 65-2 at CM/ECF p. 41.)
38. Villanueva never missed a neighborhood watch meeting from the
beginning until it ended. (Id. at CM/ECF p. 40.)

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39. On or about January 3, 2012, Villanueva came to the Police Department
to make a report about threatening phone calls that she believed were made either by
Moreno or someone at his bequest. Villanueva also reported her concerns to the
Nebraska State Patrol. (Filing No. 20 at CM/ECF p. 9; Filing No. 29 at CM/ECF p.
6.)
40. Villanueva has no audio recording or written statements from Moreno
making any defamatory statements about her. (Filing No. 65-2 at CM/ECF p. 42.)
No one has told Villanueva that Moreno asked people to harass her. (Id. at CM/ECF
p. 25.)
41. Villanueva testified that the incidents underlying her complaints stopped
at the beginning of 2012, after the State Patrol got involved and they were no longer
reported to the Police Department. (Id. at CM/ECF p. 26.)
42. In her Second Amended Complaint, Villanueva claims “[o]n January 14,
2012, someone was trying to break into the plaintiff’s home while she was home with
the children. Plaintiff called the state patrol immediately and was instructed to call
the local police department for a uniformed officer. When ‘Plaintiff called the police
department she was placed on hold for six minutes, thirty-seven seconds and then was
hung up on. When she called back, she was informed that it was shift change and an
officer would come when they were done with the shift change.” According to the the
Communications Center record, a Scottsbluff police officer arrived at Villanueva’s
residence within one minute and 20 seconds after being dispatched. (Filing No. 20 at
CM/ECF p. 9; Filing No. 65-8 at CM/ECF p. 4; Filing No. 65-10 at CM/ECF p. 1.)
43. The Police Department has a policy on domestic violence and abuse.
(Filing No. 65-5 at CM/ECF p. 6.) The policy was in existence before Moreno
became Police Chief, and he later updated it. (Id.) This policy establishes guidelines

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for officers in responding to domestic violence calls. Officers are expected to do the
following pursuant to this policy:
a.

Establish arrests and prosecution as a preferred means of police response
to domestic violence.

b.

Take appropriate action for any violation of permanent, temporary, or
emergency orders of protection.

c.

Afford protection and support to adult and child victims of domestic
violence.

d.

Promote the safety of law enforcement personnel responding to incidents
of domestic violence.

e.

Provide victims or witnesses of domestic violence with support and
assistance through cooperative efforts with intervention and prevention
organizations in order to prevent further abuse and harassment or both.

f.

Complete thorough investigations and affect arrest of the predominant
aggressor upon the establishment of probable cause.

(Filing No. 65-8 at CM/ECF pp. 4-5; Filing No. 65-10 at CM/ECF pp. 2-7.)
44. On March 18, 2010, Dr. Kent Lacey (“Lacey”) diagnosed Villanueva
with depression. In doing so, he discussed at length the stressors in her life and her
coping mechanisms. He encouraged continued exercise with a stationary bike and
removal of existing stress. He discussed treatment options like antidepressants and
counseling. However, Villanueva indicated she was not interested in antidepressants

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and that counseling had not been effective in the past. (Filing No. 65-4 at CM/ECF
p. 55.)
45. On May 26, 2010, Villanueva followed up with Dr. Lacey. She was still
depressed, had lots of stress, was having headaches, and had gained weight. (Id. at
CM/ECF p. 54.)
46. On July 15, 2010, Villanueva followed up with Dr. Lacey regarding her
weight. Lacey diagnosed her as overweight and depressed. (Id. at CM/ECF p. 53.)
47. Villanueva visited Dr. Lacey on February 10, 2012; April 9, 2012; June
7, 2012; and August 6, 2012. During those visits, Villanueva was oriented to time,
place, person, and situation. She had normal insight, exhibited normal judgment, and
demonstrated appropriate mood and effect. (Id. at CM/ECF pp. 44-52.)
48. Villanueva worked part-time for the Scottsbluff Public Schools until
March 2012, when she quit because Moreno came to the school as part of the
TeamMates program to mentor a student. (Filing No. 65-2 at CM/ECF pp. 45-46.)
Since April 2012, Villanueva has been working 24 to 32 hours a week for a private
company. (Id. at CM/ECF pp. 43-44.)
49. Kathleen Youngs, a licensed professional counselor and a licensed mental
health practitioner, began counseling Villanueva in May 2011. (Filing No. 65-7 at
CM/ECF pp. 3-5.)
50. Youngs is not a licensed psychiatrist or licensed psychologist and cannot
prescribe medication. (Id. at CM/ECF p. 13.)

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51. Youngs diagnosed Villanueva as having anxiety with depression in May
2011. (Id. at CM/ECF p. 6.) Villanueva stopped seeing Youngs in April 2012, but
resumed counseling with Youngs in June 2012. (Id. at CM/ECF pp. 9-11.)
52. On June 19, 2012, Youngs diagnosed Villanueva as having
post-traumatic stress disorder. (Id. at CM/ECF p. 8.) Youngs found the severe abuse
by Villanueva’s ex-husband contributed to her PTSD. (Id. at CM/ECF pp. 11-12.)
Youngs found the death of Villanueva’s father, death of her sister, and the end of her
marriage contributed to Villanueva’s depression. (Id.)
53. Youngs stopped counseling Villanueva in October 2012, but has since
provided occasional counseling when Villanueva can afford to pay her private-pay
rate. (Id. at CM/ECF p. 14.) Since October 2012, Youngs found Villanueva’s
condition had “improved,” as she is engaging in outside activities and is employed.
(Id. at CM/ECF p. 15.)
54. During counseling with Youngs, Villanueva never claimed that Moreno
raped her, but rather indicated it was a consensual relationship. (Id. at CM/ECF p.
16.)
55. Villanueva told Youngs that when she had sex with Moreno she did not
say “no.” (Id. at CM/ECF p. 17.)
C.

Analysis

Defendants argue they are entitled to summary judgment because Villanueva
has failed to prove the elements of (1) an equal protection claim, (2) a substantive due
process claim, and (3) a claim for negligent infliction of emotional distress. (Filing
64 at CM/ECF pp. 19-42.) For the reasons discussed below, I agree with Defendants
with respect to Villanueva’s federal claims and will decline to exercise supplemental
jurisdiction over Villanueva’s remaining state law claim.
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1.

Equal Protection

Villanueva alleges that the City and Moreno violated her equal protection rights
by implementing a policy of treating domestic assaults differently than non-domestic
assaults. (Filing No. 20 at CM/ECF pp. 10-11.) Villanueva further alleges that this
policy was motivated by an intent to discriminate against women. (Id.)
In order to survive a motion for summary judgment on her equal protection
claim, Villanueva must:
proffer sufficient evidence that would allow a reasonable jury to infer
that it is the policy or custom of the police to provide less protection to
victims of domestic violence than to other victims of violence, that
discrimination against women was a motivating factor, and that the
plaintiff was injured by the policy or custom.
Ricketts v. City of Columbia, Mo., 36 F.3d 775, 779 (8th Cir. 1994).
In Ricketts, an expert gathered statistics indicating that the Columbia Police
Department made fewer arrests in domestic abuse cases than in nondomestic cases.
Id. at 781. The expert then testified that this custom aversely impacted women
because women were the victims in 90% of domestic abuse cases. Id. On appeal, the
Eighth Circuit considered these statistics and acknowledged that they “took into
account some of the variables that affect a decision to arrest in domestic disputes.”
Id. at 781–82. However, the Eighth Circuit ultimately concluded that “not all of the
differences that enter into the discretionary decision of whether to arrest can be
properly assessed and quantified through statistics.” Id. at 782. In doing so, the
Eighth Circuit stated that “[p]olice discretion is essential to the criminal justice
process” and declined to “assume that what is unexplained is invidious.” Id. (internal
quotations omitted). The Eighth Circuit also noted that “a more accurate indicator of
intent to discriminate in this type of case would be a comparison of the arrest rate
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when men are the victims of domestic abuse with the arrest rate when women are the
victims.” Id. at n.2.
Because statistical disparity alone did not signal an intent to discriminate
against women, the Eighth Circuit moved on to consider other evidence in Ricketts.
Indeed, “when determining whether there is a showing of discriminatory intent,
disproportionate impact is but one factor to consider along with the inferences that
rationally may be drawn from the totality of the other relevant facts.” Id. at 781. The
other evidence included hearsay statements “allegedly made by a police officer to the
effect that one man accused of domestic abuse should have been arrested before but
was not,” and evidence of a historic tolerance of domestic abuse in society. Id.
Ultimately, the Eighth Circuit concluded that this evidence did not “combine to create
a submissible inference of discriminatory animus toward women by the Columbia
police department.” Id.
To support her claim that the City and Moreno have an intent to discriminate
against women, Villanueva argues that they failed to properly respond to (a) her
reports of domestic abuse by her ex-husband, (b) her reports of harassment, (c) a
report that Megan Mitchell (“Mitchell”) was being harassed, and (d) a report of sexual
assault made by Hayley Loch (“Loch”). I will consider each assertion in turn.
a.

Villanueva’s Reports of Domestic Abuse

It is undisputed that in late August 2010, Villanueva met with Moreno in his
office and disclosed that she had been abused by her ex-husband. (Filing No. 20 at
CM/ECF p. 3; Filing No. 29 at CM/ECF p. 2; see also Filing No. 66-3 at CM/ECF
pp. 6-7.) It is also undisputed that Villanueva talked with Moreno about her personal
history with domestic violence at this meeting. (Filing No. 65-5 at CM/ECF pp.
12-13.) Villanueva has submitted evidence suggesting she informed Moreno that her
ex-husband had assaulted her the day before this meeting. This evidence also suggests
16

that Villanueva’s ex-husband later met with Moreno and confirmed the assault, but
Moreno failed to file a report. (Filing No. 66-3 at CM/ECF p. 2; Filing No. 65-2 at
CM/ECF pp. 11-12; Filing No. 66-4 at CM/ECF pp. 1-2.)
Despite Moreno’s alleged failure, the undisputed evidence also shows at least
two instances when Police Department did respond to Villanueva’s domestic
complaints. The first occurred in the summer of 2008 when Villanueva complained
about her husband to the Communications Center and two officers responded. (Filing
No. 65-2 at CM/ECF p. 4.) The second occurred on August 15, 2011, when Officer
Broderick responded to Villanueva’s domestic violence call, arrested her ex-husband,
and transported him to the Scotts Bluff County jail. (Filing No. 65-8 at CM/ECF p.
5; Filing No. 65-10 at CM/ECF pp. 9-13.)
b.

Villanueva’s Reports of Harassment

Villanueva submitted evidence suggesting that Moreno and the Police
Department may have failed to respond to some of her reports of harassment (i.e.
harassment regarding her relationship with Moreno). (See, e.g., Filing No. 66-1 at
CM/ECF pp. 32-33, 35-36; Filing No. 66-3 at CM/ECF pp. 4, 14-23.) Because
Moreno and Villanueva had an intimate relationship, threats and harassment
orchestrated by Moreno could arguably be considered domestic in nature. See
generally Neb. Rev. Stat. § 28-323 (providing that within the context of domestic
assault statute, an “intimate partner” can include someone in a dating relationship,
defined by frequent, intimate associations primarily characterized by the expectation
of affectional or sexual involvement). However, Villanueva has submitted no
evidence, other than her own speculation, to suggest that Moreno was behind the
alleged threats and harassment. Indeed, on May 11, 2011, Villanueva filed a petition
and affidavit to obtain a harassment protection order against Moreno. (Filing No. 653 at CM/ECF pp. 19-24.) The court denied the petition because it contained
“insufficient factual allegations.” (Id. at CM/ECF p. 23.) Speculation and conjecture
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are insufficient to defeat summary judgment. See Beaulieu v. Ludeman, 690 F.3d
1017, 1024 (8th Cir. 2012).
c.

Report that Megan Mitchell was Being Harassed

Villanueva has also submitted an affidavit from Doni Abreu (“Abreu”). (Filing
No. 66-6.) In this affidavit, Abreu states that in the fall of 2010, he talked with
Moreno about a problem his friend Mitchell was having with her ex-boyfriend
Dominic Marquez (“Marquez”). (Id.) Abreu reported that Mitchell was being
harassed by individuals who were “threatening her on Dominic’s behalf.” (Id. at
CM/ECF p. 2.) Abreu reported that these individuals followed Mitchell from
Scottsbluff to her home in Torrington, Wyoming, and raped her. (Id.) After
informing Moreno of the situation, Abreu states that he told Moreno to contact
detective Weeks with the Torrington Police Department. (Id.)
After this initial report, Abreu states that he had another conversation with
Moreno and reported that “individuals were still harassing and following [Mitchell]
in Scottsbluff.” (Id.) He asked “Moreno if the police could make a presence at our
place of work to get the individuals to stop waiting for [Mitchell] there.” (Id.) Abreu
states that the Police Department did not send anyone to address the situation. (Id. at
CM/ECF pp. 2-3.)
Ultimately, Daniel Morgan (“Morgan”), who began dating Mitchell in July
2010, shot and killed Marquez on May 13, 2011. See State v. Morgan, 837 N.W.2d
543, 547-48 (Neb. 2013). Villanueva has submitted a transcript from Morgan’s trial
indicating that Moreno was aware of the tension between Morgan and Marquez and
had advised Morgan to stay away from Marquez. (Filing No. 66-7 at CM/ECF p. 7.)

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Overall, Villanueva argues that Moreno’s handling of the Mitchell situation
shows that he did not take complaints of domestic violence seriously. (Filing No. 67
at CM/ECF p. 23.) Although Villanueva may disagree with the level of service
Moreno provided to Mitchell, she fails to adequately explain how his actions
demonstrate a policy or custom to provide less protection to victims of domestic
violence. Indeed, the evidence shows that Moreno did not ignore the situation.
Rather, he advised Abreu to report the alleged rape that occurred in Torrington,
Wyoming, to a Torrington detective, and he advised Morgan to stay away from
Marquez. (Filing No. 66-6 at CM/ECF p. 2; Filing No. 66-7 at CM/ECF p. 7.)
d

Report of Sexual Assault by Hayley Loch

Villanueva also argues that the Police Department failed to take seriously a
sexual assault complaint by another individual, Hayley Loch (“Loch”). (Filing No.
67 at CM/ECF p. 23.) However, Villanueva’s evidence regarding Loch’s complaint
contains a letter from the Scotts Bluff County Attorney’s Office declining to file
assault charges because Loch “made a false report.” (Filing No. 33.)
In short, the evidence in this matter, as it pertains to an equal protection claim,
is less substantial than the evidence submitted by the plaintiffs in Ricketts. Villanueva
has not presented any statistics showing that the City’s alleged polices or customs
adversely affected women. Moreover, the evidence presented does not combine to
create a submissible inference of discriminatory animus toward women by Moreno
or the City. Accordingly, no reasonable juror could find that Villanueva was injured
as a result of a widespread policy or custom that was intended to discriminate against
women.

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2.

Substantive Due Process

In addition to her equal protection claim, Villanueva asserts substantive due
process claims against the City and Moreno. (Filing No. 20.) These claims can be
fairly described as follows: (a) Moreno failed to report Villanueva’s claim of domestic
abuse, leaving her more vulnerable to the danger of her ex-husband’s abuse or some
other potential harm, and (b) Moreno engaged Villanueva in a sexual relationship that
violated her bodily integrity and was shocking to the conscience. I will explore each
claim in detail below.
a.

Failure to Report

The Fourteenth Amendment’s Due Process Clause provides that “[n]o State
shall . . . deprive any person of life, liberty, or property, without due process of law.”
U.S. Const. Amend. XIV, § 1. However, “[a]s a general matter, . . . a State’s failure
to protect an individual against private violence simply does not constitute a violation
of the Due Process Clause.” DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs., 489
U.S. 189, 197 (1989) (holding that the failure of the county’s Department of Social
Services to provide a child with adequate protection against his father’s violence did
not violate the child’s substantive due process rights). Moreover, the Due Process
Clause does not “transform every tort committed by a state actor into a constitutional
violation.” Id. at 202.
The Eighth Circuit has recognized two exceptions to the general rule that a state
has no duty to protect its citizens. Beck v. Wilson, 377 F.3d 884, 888 (8th Cir. 2004).
These exceptions are known as the “special relationships” and “state-created danger”
exceptions. DeShaney, 489 U.S. at 197–202. Villanueva’s substantive due process
claim relating to Moreno’s failure to report or investigate her claim of domestic abuse
arises under the state-created danger doctrine. To succeed on a state-created danger
theory of liability, Villanueva must prove (1) that she was a member of “a limited,
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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.” Fields v. Abbott, 652 F.3d 886, 891 (8th Cir. 2011) (quoting Hart v. City
of Little Rock, 432 F.3d 801, 805 (8th Cir. 2005)).
Concerning the last factor—conduct that shocks the conscience—the Eighth
Circuit in Fields stated that:
[t]he constitutional concept of conscience shocking duplicates no
traditional category of common-law fault. Actionable substantive due
process claims involve a level of abuse of power so brutal and offensive
that they do not comport with traditional ideas of fair play and decency.
Under the state created-danger theory, negligence and gross negligence
cannot support a § 1983 claim alleging a violation of substantive due
process rights. And proof of intent to harm is usually required, but in
some cases, proof of deliberate indifference, an intermediate level of
culpability, will satisfy this substantive due process threshold.
Id. (internal quotations, citations, and brackets omitted).
As discussed above, Villanueva submitted evidence suggesting that in late
August 2010, she informed Moreno that her ex-husband had assaulted her and that
Moreno failed to file a report. (Filing No. 66-3 at CM/ECF p. 2; Filing No. 65-2 at
CM/ECF pp. 11-12; Filing No. 66-4.) Villanueva alleges this failure placed her “at
a significant risk of serious, immediate, and proximate harm.” (Filing No. 20 at
CM/ECF p. 12.) However, Moreno’s failure to file a report was not an affirmative
act; it was an omission.1 Stated another way, Moreno’s failure did not increase the

Villanueva also argues that Moreno “made no efforts to contact” her exhusband regarding the report. (Filing No. 67 at CM/ECF p. 4.)
1

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danger of significant harm to Villanueva, it merely placed her in the same situation
that she was in when she reported the domestic abuse. The state-created danger
doctrine requires an affirmative act or conduct placing someone in danger that he or
she would not otherwise have faced. See, e.g., S.S. v. McMullen, 225 F.3d 960, 96263 (8th Cir. 2000) (discussing the distinction between action and inaction; concluding
that three employees of the Missouri Division of Family Services did not violate a
S.S.’s due process rights when they released her from state custody and returned her
to her father’s custody, even though they knew that her father was allowing her to
have contact with a known pedophile who subsequently sodomized her on at least two
occasions); see also Robinson v. Lioi, 536 Fed. App’x. 340, 344 (4th Cir. 2013)
(acknowledging that the state-created danger exception is a narrow one; for the
doctrine to apply there must be an affirmative act); Culp v. Rutlege, 343 Fed. App’x.
128, 136 (6th Cir. 2009) (stating “any failure by Sergeant Cooper to follow up on
Jamika’s domestic violence claim constitutes inaction, which does not qualify as an
affirmative act under a state-created danger theory”); Jones v. Reynolds, 438 F.3d 685,
691-92 (6th Cir. 2006) (stating a “failure to act is not an affirmative act under the
state-created danger theory” (collecting cases)). Accordingly, Moreno’s failure to
report or act upon Villanueva’s claim of domestic abuse did not violate her
substantive due process rights because it did not place her place her at a significant
risk of serious, immediate, and proximate harm.
To the extent Villanueva alleges that the City or Moreno placed her in danger
by failing to respond to her reports of threats and harassment from individuals other
than her ex-husband, such allegations also fail to establish a substantive due process
violation. Indeed, Villanueva has not presented any evidence identifying who
threatened or harassed her. Although she alleges that Moreno directed people to
harass her and discouraged police responses to her harassment complaints (see filing
no. 20 at CM/ECF p. 9; filing no. 67 at CM/ECF p. 27), Villanueva has submitted no
evidence, other than her own uncorroborated speculation, to support these allegations.
See Beaulieu, 690 F.3d at 1024 (explaining “‘speculation and conjecture are
22

insufficient to defeat summary judgment’” (quoting Bloom v. Metro Heart Grp. of St.
Louis, Inc., 440 F.3d 1025, 1028 (8th Cir. 2006))).
b.

Sexual Relationship

Villanueva also alleges that Moreno violated her substantive due process rights
by engaging in a sexual relationship with her. (Filing No. 20 at CM/ECF p. 12; Filing
No. 67 at CM/ECF p. 26.) To establish a substantive due process rights violation,
Villanuvea must show that Moreno violated one or more fundamental constitutional
rights and that his conduct was shocking to the contemporary conscience. Flowers v.
City of Minneapolis, 478 F.3d 869, 873 (8th Cir. 2007). In an effort to accomplish
this task, Villanueva cites Rogers v. City of Little Rock, 152 F.3d 790 (8th Cir. 1998).
(Filing No. 67 at CM/ECF p. 26.)
In Rogers, an officer stopped a woman for driving with a broken tail light and
discovered that she did not have the appropriate paperwork. Rogers, 152 F.3d at 793.
The officer initially called for a tow, but decided to cancel it, and followed the woman
to her house. Id. The woman was unable to locate the paperwork and the officer told
her he would let her off, but that she owed him one. Id. The officer then started
touching and kissing the woman. Id. He asked her to undress, forced her onto the
bed, and had sexual intercourse with her. Id. at 793-94. The woman testified that she
was in shock and afraid during the encounter and was intimidated by the officer’s gun
and badge. Id. at 794.
The district court concluded the officer was liable under § 1983 because he
violated the woman’s due process right to be free from physical abuse. Id. On appeal,
the Eighth Circuit agreed, concluding that the evidence supported a conclusion that
the woman suffered a violation of her right to intimate bodily integrity that was
conscience-shocking. Id. at 797. The Eighth Circuit also said the case involved an
“egregious, nonconsensual entry into the body which was an exercise of power
23

without legitimate governmental objective.” Id. (emphasis added). “It therefore
violated Rogers’ substantive due process right.” Id.
In contrast to Rogers, Villanueva’s encounter with Moreno was not the result
of a traffic stop or any other legal violation. Indeed, it started in October 2008 when
Villanueva began working with Moreno to establish a neighborhood watch group.
(Filing No. 65-2 at CM/ECF p. 8.) This relationship eventually progressed to a kiss
at a neighborhood watch meeting in October 2010. (Id. at CM/ECF p. 14; Filing No.
20 at CM/ECF p. 4.) After this meeting, Villanueva continued to talk, text, and
otherwise communicate with Moreno. (Filing No. 65-2 at CM/ECF pp. 14-16; Filing
No. 20 at CM/ECF p. 4.) Moreno and Villanueva ultimately engaged in intercourse
on two separate occasions; each time Villanueva voluntarily met Moreno at a lake
house. (Filing No. 20 at CM/ECF p. 5; Filing No. 29 at CM/ECF p. 3; Filing No. 65-2
at CM/ECF p. 19.) After November 15, 2010, Villanueva refused to have intercourse
again with Moreno. (Filing No. 20 at CM/ECF p. 5; Filing No. 65-2 at CM/ECF p.
20.) Villanueva subsequently attended counseling sessions where she indicated that
her relationship with Moreno was consensual. (Filing No. 65-7 at CM/ECF p. 16.)
Despite the significant differences between Rogers and this case, Villanueva
argues that a substantive due process violation occurred because she was mentally
vulnerable and Moreno “used his role as the chief of police to continue contact with
[her] and to coerce her into a sexual relationship.” (Filing No. 67 at CM/ECF p. 31.)
However, Villanueva has failed to submit evidence showing that she did not have the
capacity to consent. In fact, the evidence shows the opposite. Villanueva reported to
her counselor that “she did not say no” during her sexual interactions with Moreno
and in the counselor’s opinion “that can only mean that it was consensual.” (Filing
No. 66-2 at CM/ECF p. 26; Filing No. 65-7 at CM/ECF p.16-17.) This counselor’s
opinion is the same one that Villanueva argues could form the basis for a jury’s
reasonable inference that Villanueva was “incapable of consenting.” (Filing No. 67
at CM/ECF p. 34.) Further, Villanueva demonstrated her ability to say “no” when she
24

refused to have intercourse with Moreno after November 15, 2010. (Filing No. 65-2
at CM/ECF p. 20.)
In sum, Villanueva has failed to submit evidence sufficient to (1) create an
inference of discriminatory animus toward women by Moreno or the City or (2)
suggest that Moreno or the City somehow violated her substantive due process rights.
Accordingly, I will grant Defendants’ Motion for Summary Judgment with respect to
Villanueva’s federal claims.
3.

Supplemental Jurisdiction

Villanueva’s remaining claim of negligent infliction of emotional distress is
brought pursuant to state law. I decline to exercise supplemental jurisdiction over this
claim because Defendants are entitled to summary judgment on all claims over which
the court had original jurisdiction. 28 U.S.C. § 1367(c)(3). However, I will dismiss
Villanueva’s negligent infliction of emotional distress claim without prejudice to
reassertion in the proper forum.
IT IS ORDERED:
1.

Defendants’ Motion to Strike (filing no. 72) is denied.

2.

Defendants’ Motion for Summary Judgment (filing no. 63) is granted in

part.
3.
Villanueva’s equal protection and substantive due process claims are
dismissed with prejudice.
4.
Villanueva’s state law claim for negligent infliction of emotional distress
is dismissed without prejudice.

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5.
A separate judgment will be entered in accordance with this
memorandum and order.
DATED this 4th day of March, 2014.
BY THE COURT:
Richard G. Kopf
Senior United States District Judge

*This opinion may contain hyperlinks to other documents or Web sites. The
U.S. District Court for the District of Nebraska does not endorse, recommend,
approve, or guarantee any third parties or the services or products they provide on
their Web sites. Likewise, the court has no agreements with any of these third parties
or their Web sites. The court accepts no responsibility for the availability or
functionality of any hyperlink. Thus, the fact that a hyperlink ceases to work or
directs the user to some other site does not affect the opinion of the court.
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