Jerdan v. Bruns et al
MEMORANDUM AND ORDER granting in part and denying in part 14 Defendant's Motion to Dismiss. Plaintiff's state-law claims against Houston and Britten are dismissed. Plaintiff's Objection to Defendant's Motion for Discovery 26 is granted. Plaintiff's Motion for Recall of Mandate 23 and Motion for Discovery 25 are denied. Defendant shall file its answer no later than 14 days from the date of this Memorandum and Order and a separate progression order will be entered progressing this matter to final disposition. Ordered by Chief Judge Laurie Smith Camp. (Copy mailed to pro se party) (JSF)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
RANDOLPH EDWARD JERDAN,
BRUNS, Cpl., KELLY, Cpl, ALLEN,
Cpl, REINKE, Sgt, LANSCHANSKY,
Cpl, FRED BRITTEN, Warden, and
ROBERT B. HOUSTON, Director,
CASE NO. 4:12CV3168
This matter is before the court on Defendants’ Motion to Dismiss. (Filing No. 14.)
Also pending is Plaintiff’s Motion for Recall of Mandate (Filing No. 23), Plaintiff’s Motion for
Discovery (Filing No. 25), and Defendants’ Objection to Plaintiff’s Motion for Discovery
(Filing No. 26). As set forth below, Defendants’ Motion to Dismiss is granted in part and
denied in part, Defendants’ Objection is granted, and Plaintiff’s Motions are denied.
I. MOTION TO DISMISS
On February 25, 2013, the court performed a detailed initial review of Plaintiff’s
Complaint. (Filing No. 12.) In that Memorandum and Order, the court liberally construed
and analyzed each of Plaintiff’s claims. (Id.) Although the court dismissed several of
Plaintiff’s claims, it also determined that Plaintiff had set forth enough allegations to
“nudge” his Eighth Amendment claim against Bruns “across the line from conceivable to
plausible,” the same standard used to resolve a motion to dismiss filed under Federal Rule
of Civil Procedure 12(b)(6). (Id.) See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 569-70
(2007); see also Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950 (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.”); Burke v.
N.D. Dep’t of Corr. & Rehab., 294 F.3d 1043, 1043-44 (8th Cir. 2002), (holding that a pro
se complaint must be construed liberally). When liberally construed, Plaintiff also alleged
state-law claims against Defendants. (Filing Nos. 1 and 12.) Because the court permitted
Plaintiff’s Eighth Amendment claim against Bruns, in his individual capacity, to proceed,
it also let Plaintiff’s state-law claims proceed. (Id.)
Rather than file an answer, Defendants chose to file a Motion to Dismiss. (Filing No.
14.) In their Brief, Defendants make several arguments for the dismissal of Plaintiff’s
claims. (Filing No. 15.) First, Defendants argue that Plaintiff’s Complaint does not contain
any specific allegation against Houston or Britten. (Id. at CM/ECF p. 4.) Defendants are
correct; Plaintiff’s Complaint does not explain how Britten and Houston are involved in his
state-law claims. (Filing No. 1.) Accordingly, Plaintiff’s state-law claims against Houston
and Britten will be dismissed. See Ellis v. Norris, 179 F.3d 1078, 1079 (8th Cir. 1999)
(concluding that a complaint was properly dismissed because plaintiff failed to allege facts
supporting any individual defendant’s personal involvement or responsibility for violations);
see Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009), (stating that a plaintiff must plead factual
content that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged).
Second, Defendants argue that Plaintiff does not refer to Kelly, Laschansky, Reinke,
and Allen with sufficient particularity and “merely lists all the Defendants[’] names before
the allegation of choking.” (Filing No. 15 at CM/ECF pp. 3-4.) Contrary to Defendants’
argument, however, Plaintiff’s Complaint alleges “Cpl. Kelly, Cpl. Lachansky, Cpl. Allen,
and Cpl. Reinke were present at the time of the beating and had a chance to stop it and
they failed.” (Filing No. 1 at CM/ECF pp. 10, 29.) At this stage of the proceedings, and
considering Plaintiff’s pro se status, allegations of such inaction are sufficient to state a
negligence claim. See, e.g., Putman v. Gerloff, 639 F.2d 415, 423 (8th Cir. 1981), (“We
believe it is clear that one who is given the badge of authority of a police officer may not
ignore the duty imposed by his office and fail to stop other officers who summarily punish
a third person in his presence or otherwise within his knowledge.”)
Next, Defendants argue they are immune from Plaintiff’s assault and battery claims
under the Nebraska State Tort Claims Act, Neb. Rev. Stat. § 81-8,209. (Filing No. 15 at
CM/ECF p. 4.) The Nebraska Tort Claims Act provides that the “State of Nebraska shall
not be liable for the torts of its officers, agents, or employees, and no suit shall be
maintained against the state, any state agency, or any employee of the state on any tort
claim except to the extent, and only to the extent, provided by the State Tort Claims Act.”
Neb. Rev. Stat. § 81-8,209. Section § 81-8,219(4) further provides that the State Tort
Claims Act shall not apply to claims “arising out of assault, battery, false imprisonment,
false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation,
deceit, or interference with contract rights.” Neb. Rev. Stat. § 81-8,219(4). Moreover, the
Nebraska courts have held that the requirements of the State Tort Claims Act apply where
an individual is sued in his or her individual capacity and that individual is acting within the
scope of employment. See Bokjanski v. Foley, 798 N.W.2d 134, 143-44 (Neb. App. 2011).
Here, Plaintiff alleges Bruns “assault[ed]” him and punched him in the face three
times. (Filing No. 1 at CM/ECF pp. 6-7.) Because of these acts, Plaintiff requests
monetary damages against “Cpl. Bruns.” (Id. at CM/ECF p. 10.) In contrast, Plaintiff
requests monetary damages against “Kelly, Allen, Lashansky, [and] Reinke” for their failure
to “intervene” or “stop” Bruns from assaulting him. (Id.) Because Plaintiff’s allegations
of assault and battery, and his requests for relief with regard to these claims, pertain to
Bruns, the court will address Defendants’ arguments that they are immune from Plaintiff’s
assault and battery claims only as they pertain to Bruns.
Assault and battery, by their very nature, are the sort of claims that, if proven, would
occur outside the scope of public employment. See Beverly ex rel. Beverly v. Casey, No.
8:05CV393, 2006 WL 298810, at *3 n.5 (D. Neb. Feb. 6, 2006), (concluding tort-based
claims against individual defendants in their individual capacities, arising out of assault and
battery, are not subject to the provisions of the Nebraska Political Subdivisions Tort Claims
Act, nor are they barred by sovereign immunity). Thus, Defendants’ Motion to Dismiss is
denied with regard to Plaintiff’s assault and battery claims against Bruns in his individual
In short, Plaintiff has set forth sufficient facts to nudge his negligence claims against
Bruns, Kelly, Lachansky, Allen, and Reinke, and as his assault and battery claims against
Bruns, across the line from conceivable to plausible. While Plaintiff’s claims may not
ultimately withstand a motion for summary judgment, they are enough to withstand the
pending Motion to Dismiss.
II. MOTION FOR RECALL OF MANDATE
Also pending is Plaintiff’s Motion for Recall of Mandate. (Filing No. 23.) In this
Motion, Plaintiff asks the court to “recall the Mandate from Case No. 4:12CV3168, from
Johnson District Court.” (Id.) Even when liberally construed, it is unclear what relief
Plaintiff is requesting because a mandate has not issued in this case, which is the case
Plaintiff has identified by number. Plaintiff may be asking this court to review a state court
decision because he mentions “Johnson District Court.” (Id.) However, such a request is
barred by the Rooker-Feldman doctrine, which prohibits lower federal courts from
exercising appellate review of state court judgments. Rooker v. Fidelity Trust Co., 263
U.S. 413, 416 (1923); D.C. Court of Appeals v. Feldman, 460 U.S. 462, 482 (1983). In
fact, federal district courts do not have jurisdiction “over challenges to state-court decisions
. . . even if those challenges allege that the state court’s action was unconstitutional.”
Feldman, 460 U.S. at 486; see also Ballinger v. Culotta, 322 F.3d 546, 548-49 (8th Cir.
2003), (dismissing claims under Rooker-Feldman doctrine where the relief requested in the
complaint would effectively reverse or undermine the state court decision or void its ruling
and noting that “[f]ederal district courts thus may not ‘exercis[e] jurisdiction over general
constitutional claims that are ‘inextricably intertwined’ with specific claims already
adjudicated in state court’” (citation omitted)). Accordingly, Plaintiff’s Motion for Recall of
Mandate is denied.
III. MOTION FOR DISCOVERY AND DEFENDANTS’ OBJECTION
On August 14, 2013, Plaintiff filed a Motion for Discovery. (Filing No. 25.) In his
Motion, Plaintiff asks the court to order Defendants to produce pictures of injuries, incident
reports, medical records, and a witness list. (Id.) Defendants have filed an Objection,
arguing that Plaintiff’s Motion does not comply with Federal Rule of Civil Procedure
37(a)(1). This Rule requires a party seeking to compel disclosure of discovery to certify
that they “in good faith conferred or attempted to confer with the person or party failing to
make disclosure or discovery in an effort to obtain it without court action.” Fed. R. Civ. P.
37(a)(1). The court agrees with Defendants, as “this court only considers a discovery
motion in which the moving party, in the written motion, shows that after personal
consultation with opposing parties and sincere attempts to resolve differences, the parties
cannot reach an accord.” NECivR 7.1(i). Accordingly, Plaintiff’s Motion for Discovery is
denied and Defendants’ Objection is granted.
IT IS THEREFORE ORDERED that:
Defendant’s Motion to Dismiss (Filing No. 14) is granted in part and denied
in part in accordance with this Memorandum and Order;
Plaintiff’s state-law claims against Houston and Britten are dismissed;
Plaintiff’s Objection to Defendant’s Motion for Discovery (Filing No. 26) is
Plaintiff’s Motion for Recall of Mandate (Filing No. 23) and Motion for
Discovery (Filing No. 25) are denied;
In accordance with Federal Rule of Civil Procedure 12(a)(4)(A), Defendant
shall file its answer no later than 14 days from the date of this Memorandum
and Order; and
A separate progression order will be entered progressing this matter to final
DATED this 23rd day of September, 2013.
BY THE COURT:
s/Laurie Smith Camp
Chief United States District Judge
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