Guerry v. Bellevue Police Department Criminal Investigation Bureau of the Law Enforcement Agency et al

Filing 19

MEMORANDUM OPINION that this action is dismissed without prejudice so that plaintiff will be able to renew the claims that he is attempting to bring here if the conviction at issue is ever vacated in a proper forum. Because the Court will dismiss the claims over which it has original jurisdiction, the Court declines to exercise supplemental jurisdiction over plaintiff's state law claims. A separate order will be entered in accordance with this memorandum opinion. Ordered by Senior Judge Lyle E. Strom. (Copy mailed to pro se party) (JSF)

IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEBRASKA
BRIAN FRANK GUERRY,

)
)
Plaintiff,
)
)
v.
)
)
BELLEVUE POLICE DEPARTMENT
)
CRIMINAL INVESTIGATION BUREAU )
OF THE LAW ENFORCEMENT AGENCY,)
JOHN STACEY, Chief of Police )
in 2006 and 2010, Individually)
and in his official capacity, )
LAURIE SYNOWIECKI, Detective, )
Individually and in her
)
official capacity, and DEREK )
BEES, Detective, Individually )
and in his official capacity, )
)
Defendants.
)
______________________________)

4:14CV3074

MEMORANDUM OPINION

Plaintiff Brian Guerry filed his complaint in this
matter on April 4, 2014 (Filing No. 1).

Thereafter, plaintiff

filed three “Motion[s] to Add to the Complaint.”
Filing No. 15, and Filing No. 16.)

(Filing No. 14,

The Court considers these

pleadings supplemental to plaintiff’s original complaint.

See

NECivR 15.1(b) (stating, in pro se cases, Court may consider
amended pleadings as supplemental to, rather than as superseding,
the original pleading).
This Court has given plaintiff leave to proceed in
forma pauperis (Filing No. 8).

The Court now conducts an initial

review of plaintiff’s complaint and supplemental pleadings to

determine whether summary dismissal is appropriate under 28
U.S.C. §§ 1915(e)(2) and 1915A.
I.

SUMMARY OF COMPLAINT

Plaintiff brings this action pursuant to 28 U.S.C. §
1983 alleging violations of his constitutional rights.

Plaintiff

also raises various state law claims, including a claim that he
is entitled to relief under the Nebraska Claims for Wrongful
Conviction and Imprisonment Act.
Plaintiff is incarcerated at the Tecumseh State Prison
in Tecumseh, Nebraska.

The Court takes judicial notice of

Nebraska Department of Correctional Services public records,
which show that plaintiff was convicted of incest and third
degree sexual assault of a child in Sarpy County, Nebraska, and
began his sentence on October 4, 2010.

See Stutzka v.

McCarville, 420 F.3d 757, 761, n.2 (8th Cir. 2005) (court may
take judicial notice of public records).
Plaintiff argues that defendant law enforcement
officers violated his constitutional rights when they (1)
interviewed him in 2006 without advising him of his so-called
Miranda rights1 (Filing No. 1 at CM/ECF pp. 3-4), and (2) used
“2006 reports[] and statements” against him that were “expunged

1

See Miranda v. Arizona, 384 U.S. 436 (1966).
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on March 21, 2008” (Filing No. 15 at CM/ECF p. 1).

While

plaintiff’s allegations themselves are vague, the documents
plaintiff has attached to his complaint provide much-needed
clarification.

These documents, which plaintiff incorporated by

reference into his complaint, include two investigative reports
of the Bellevue Police Department, a motion filed by the State of
Nebraska in plaintiff’s 2009 criminal case, and correspondence
from the Nebraska Department of Health and Human Services
addressed to plaintiff.

(See Plaintiff’s Exhibits A, B, C, and D

at Filing No. 1-1, Filing No. 1-2, Filing No. 1-3, and Filing No.
1-4.)
Plaintiff’s Exhibit A is a police report dictated by
defendant Laurie Synowiecki.

It reflects that Synowiecki

interviewed plaintiff on May 1, 2006, at the Bellevue Police
Department’s Criminal Investigations Bureau (Filing No. 1-1 at
CM/ECF p. 7).

She questioned plaintiff about allegations that he

had sexually assaulted his stepdaughter, a four-year-old minor
with the initials B.B. (hereinafter referred to as “B.B.”). (Id.
at CM/ECF pp. 1-10.)

Synowiecki determined based on her

investigation that there was no substantial evidence to indicate
that plaintiff had sexually assaulted B.B.
10.)

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(Id. at CM/ECF p.

Plaintiff’s Exhibit B is a report dictated by defendant
Derek Bees.

It reflects that Bees interviewed B.B. on June 29,

2010, as a “follow-up” to the investigation that had been
conducted in 2006 (Filing No. 1-2 at CM/ECF p. 4).

Bees

determined based on his investigation that the report should be
forwarded to the county attorney’s office for possible criminal
charges against plaintiff.

(Id. at CM/ECF p. 6.)

Plaintiff’s Exhibit C is what appears to be a motion
filed by the State of Nebraska in a 2009 criminal case involving
plaintiff.

The motion was filed in a case in which plaintiff was

charged with first degree sexual assault of a child and incest
involving his daughter, a seven-year-old with the initials M.Y.
(See Filing No. 1-3 at CM/ECF p. 1.)

The motion set forth that

the State sought to “admit evidence of defendant’s commission of
another offense or offenses of sexual assault.”

According to the

information set forth in the motion, the State sought to prove
that plaintiff “sexually assaulted B.B., a four year old child,
between 2005 and 2006.”

(Id.)

The motion also set forth that,

based on the assault of B.B., plaintiff was being charged with
“First Degree Sexual Assault of a Child, Incest, and Third Degree
Sexual Assault of a Child.”

(Id.)

Finally, plaintiff’s Exhibit D is a series of documents
that shed light on plaintiff’s allegations that defendants used
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“2006 reports[] and statements” against him that were “expunged
on March 21, 2008.”

(Filing No. 15 at CM/ECF p. 1.)

These

documents reflect that, on March 21, 2008, the Nebraska
Department of Health and Human Services approved plaintiff’s
request that it expunge certain reports of child abuse and
neglect from its central registry.

(Filing No. 1-4.)

Plaintiff seeks monetary relief from Synowiecki in the
amount of $400,000.00 for her “fail[ure] to read the plaintiff
his Miranda Warnings in violation of his 14th Amendment Right to
Due Process.”

(Filing No. 1 at CM/ECF p. 5.)

He seeks monetary

relief from Bees in the amount of $1,300,000.00 for his use of “a
tainted statement . . . for the sole purpose of an investigation,
in violation of [the] plaintiff[’s] 14th Amendment Right.”

(Id.)

He seeks monetary relief from John Stacey in the amount of
$2,600,000.00 for his failure to supervise Synowiecki and Bees.
(Id.)

Finally, plaintiff seeks monetary relief from the Bellevue

Police Department Criminal Investigation Bureau in the amount of
$10,400,000.00.
II.

(Id. at CM/ECF p. 6.)

APPLICABLE LEGAL STANDARDS ON INITIAL REVIEW

The Court is required to review in forma pauperis
complaints to determine whether summary dismissal is appropriate.
See 28 U.S.C. § 1915(e)(2).

The Court must dismiss a complaint

or any portion thereof that states a frivolous or malicious
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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).

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”
for failing to state a claim upon which relief can be granted.
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 70 (2007); see also
Ashcroft v. Iqbal, 556 U.S. 662, 676 (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.”).

Regardless of

whether a plaintiff is represented or is appearing pro se, the
plaintiff’s complaint must allege specific facts sufficient to
state a claim.
Cir. 1985).

See Martin v. Sargent, 780 F.2d 1334, 1337 (8th

However, a pro se plaintiff’s allegations must be

construed liberally.

Burke v. North Dakota Dep’t of Corr. &

Rehab., 294 F.3d 1043, 1043-44 (8th Cir. 2002) (citations
omitted).
III.

DISCUSSION OF CLAIMS

Plaintiff argues that defendant law enforcement
officers violated his constitutional rights when they (1)
interviewed him in 2006 without advising him of his so-called
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Miranda rights (Filing No. 1 at CM/ECF pp. 3-4), and (2) used
“2006 reports[] and statements” against him that were “expunged
on March 21, 2008” (Filing No. 15 at CM/ECF p. 1).
A prisoner may not recover damages in a § 1983 suit
where the judgment would necessarily imply the invalidity of his
conviction, continued imprisonment, or sentence unless the
conviction or sentence is reversed, expunged, or called into
question by issuance of a writ of habeas corpus.

Heck v.

Humphrey, 512 U.S. 477, 486-87 (1994); Schafer v. Moore, 46 F.3d
43, 45 (8th Cir. 1995); Anderson v. Franklin County, Mo., 192
F.3d 1125, 1131 (8th Cir. 1999).
Plaintiff was convicted of incest and third degree
sexual assault of a child.

Plaintiff alleges that law

enforcement officers and the prosecutor “brought back up”
allegations from 2006, which resulted in “addictional [sic]
charges.”

(Filing No. 14 at CM/ECF p. 1.)

Plaintiff argues

these allegations or “reports” should not have been used against
him because he was not read his Miranda rights during the 2006
interview, and because the Nebraska Department of Health and
Human Services expunged reports from 2006 from the Nebraska Child
Abuse and Neglect Central Register.
These claims necessarily call into question the
validity of plaintiff’s conviction and are barred under Heck.
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(See Filing No. 1 at CM/ECF pp. 3-4 (“At the point of junction,
when Brian Guerry (being guilty or not guilty) is convicted of
any crime inside the Judicial System, and Brian Guerry said
rights are broken, It becomes a wrongfull [sic] conviction. . . .
Rights violated may become the basis for dismissal of Evidence
and Criminal Charges, especially at the appellate level.”).)
Indeed, plaintiff argues he is entitled to relief under the
Nebraska Claims for Wrongful Conviction and Imprisonment Act.
(See Filing No. 16.)
Plaintiff’s allegations that reports underlying the
allegations of abuse have been “expunged” from the civil registry
do nothing to overcome the Heck bar in this matter.

Pursuant to

Nebraska statutory law, a person who is the subject of a central
registry report of child abuse or neglect may request expunction
of the central registry report.

Neb. Rev. Stat. § 28-721.

The

Department of Health and Human Services may amend, expunge, or
remove from the registry any record upon a showing of good cause.
Id.; see Benitez v. Rasmussen, 626 N.W.2d 209, 216 (Neb. 2001).
This administrative vehicle for removing one’s name from the
civil registry does not constitute expunction of a criminal
conviction.
Plaintiff’s current civil rights action is plainly
barred by Heck, and this case must be summarily dismissed for
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failure to state a cause of action on which relief can be
granted.

However, the Court will dismiss this action without

prejudice so that plaintiff will be able to renew the claims that
he is attempting to bring here if the conviction at issue is ever
vacated in a proper forum.

See Schafer, 46 F.3d at 45 (action

barred by Heck should be dismissed without prejudice).

Because

the Court will dismiss the claims over which it has original
jurisdiction, the Court declines to exercise supplemental
jurisdiction over plaintiff’s state law claims.

A separate order

will be entered in accordance with this memorandum opinion.
DATED this 29th day of July, 2014.
BY THE COURT:
/s/ Lyle E. Strom
____________________________
LYLE E. STROM, Senior Judge
United States District Court

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