Stephenson v. Bruno et al

Filing 21

MEMORANDUM AND ORDER - Stephenson's claims against Holly Parsley are dismissed with prejudice. Stephenson's claims against David Bruno, C.J. Roberts, and Angela Morehouse are dismissed without prejudice. Stephenson's official-capac ity claims against Dustin Lind, Craig Price, and Jacob Wilkinson are dismissed without prejudice. Stephenson's individual-capacity claims against Dustin Lind, Craig Price, and Jacob Wilkinson may proceed to service of process. The clerk's office is directed to update the Court's records to reflect that Dustin Lind, Craig Price, and Jacob Wilkinson are defendants in this matter. To obtain service of process on these individuals, Stephenson must complete and return the summons for ms that the Clerk of the Court will provide. The Clerk of the Court shall send three summons forms and three USM-285 forms to Stephenson, together with a copy ofthis Memorandum and Order. Stephenson shall, as soon as possible, complete the forms an d send the completed forms back to the Clerk of the Court. In the absence of the forms, service of process cannot occur. The Clerk of the Court is directed to set a case management deadline in this case with the following text: "March 14, 2015: Check for completion of service of summons." Stephenson's Objection (Filing No. 15 ) to the Courts Memorandum and Order dated August 18, 2014, is overruled. Ordered by Senior Judge Lyle E. Strom. (Copy mailed to pro se party with 3 summonses and 285 forms)(GJG)

IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEBRASKA
ERIC D. STEPHENSON,

)
)
Plaintiff,
)
)
v.
)
)
DAVID BRUNO, et al.,
)
)
Defendants.
)
______________________________)

4:14CV3097

MEMORANDUM AND ORDER

This matter is before the Court on review of Eric
Stephenson’s complaint (Filing No. 1) and amended complaint
(Filing No. 16) (together “complaints”).

Stephenson was granted

leave to proceed in forma pauperis in this matter.

The Court now

reviews the complaints in accordance with 28 U.S.C. § 1915(e).
For the reasons discussed below, the Court finds Stephenson’s
complaints state a plausible excessive-force claim against three
officers of the Lincoln Police Department (“LPD”).
I.
A.

BACKGROUND

Summary of Complaint
Stephenson filed his complaint (Filing No. 1) pursuant

to 28 U.S.C. § 1983 on May 12, 2014.
individuals as the defendants:

He named the following

David Bruno, C.J. Roberts, LPD

Officer D. Lind, and Deputy County Attorney Holly Parsley.

The

allegations in the complaint set forth that Bruno, acting as an
investigator for the Nebraska Department of Health and Human
Services (“DHHS”), took steps to remove Stephenson’s five-weekold infant (hereinafter referred to by his initials, “M.S.”) from
Stephenson’s care.

On October 30, 2012, the Juvenile Court of

Lancaster County, Nebraska, placed M.S. in the custody of DHHS.
Thereafter, LPD officers forced their way into a motel room
occupied by Stephenson, his girlfriend, and M.S.

The officers

forcibly removed M.S. from Stephenson’s arms by placing
Stephenson in a choke hold and twisting his arms.

Stephenson

later pled no contest to child abuse and was sentenced to 30 to
48 months imprisonment.
were terminated.1

In addition, his parental rights to M.S.

(Filing No. 1 at CM/ECF pp. 2-7.)

Stephenson alleged in the complaint that Bruno falsely
accused him of exposing M.S. to domestic violence and drug abuse,
his investigation into the allegations of abuse were negligent,
and he violated Stephenson’s right to substantive due process.
He also alleged that LPD officers violated his right to
substantive due process by “induc[ing]” him to commit child
abuse.

Finally, he alleged LPD officers failed to read him his

Miranda2 rights following his arrest.

(Filing No. 1 at CM/ECF

pp. 8-9.)
B.

Findings on Initial Review
The Court conducted an initial review of the complaint

on August 18, 2014 (Filing No. 14), and determined Stephenson’s
substantive due process claims against Bruno and unnamed LPD
officers failed to state a claim upon which relief could be

1

For a more detailed summary of plaintiff’s allegations in
the complaint, see the Court’s order on initial review dated
August 18, 2014 (Filing No. 14 at CM/ECF pp. 1-4).
2

See Miranda v. Arizona, 384 U.S. 436 (1966).
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granted.

The Court determined Stephenson had failed to state a

claim against Roberts and Lind because he had only listed their
names in the caption of the complaint without alleging they were
personally involved in any alleged misconduct.

In addition, the

Court determined Stephenson’s claims against Parsley failed
because they called into question the validity of Stephenson’s
conviction and because Parsley was entitled to prosecutorial
immunity.

Finally, the Court noted it lacked subject-matter

jurisdiction to conduct appellate review of the Nebraska state
courts’ orders convicting Stephenson of child abuse and
terminating his parental rights.

(See Filing No. 14 at CM/ECF

pp. 6-9.)
The Court gave Stephenson 30 days in which to amend his
complaint to clearly state a claim upon which relief may be
granted against the defendants.
9.)

(Filing No. 14 at CM/ECF pp. 6-

Stephenson filed an amended complaint (Filing No. 16) on

October 29, 2014.

Stephenson named the following individuals as

the defendants in his amended complaint:

Deputy County Attorney

Holly Parsley, and LPD Officers Dustin Lind, Craig Price, Jacob
Wilkinson, and Angela Morehouse.3

3

(Filing No. 16 at CM/ECF p.

Stephenson did not list Parsley, Lind, Price, Wilkinson,
and Morehouse in the caption of the amended complaint. However,
they are identified as “defendants” in the body of the pleading
and Stephenson made specific allegations against them.
Therefore, the Court will treat them as defendants. See Miller
v. Hedrick, 140 Fed. App’x 640, 641 (8th Cir. 2005) (citing Rice
v. Hamilton Air Force Base Commissary, 720 F.2d 1082, 1085 (9th
Cir. 1983) (“[A] party may be properly in a case if the
allegations in the body of the complaint make it plain that the
party is intended as a defendant.”)).
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1.)

Stephenson abandoned his claims against David Bruno and C.J.

Roberts.

(See Filing No. 16 at CM/ECF p. 6.)
II.

A.

DISCUSSION

Claims Against Parsley
Stephenson’s claims against Parsley may not proceed to

service of process for the reasons discussed in the Court’s
Memorandum and Order dated August 18, 2014.
at CM/ECF pp. 8-9.)

(See Filing No. 14

Specifically, the claims necessarily call

into question the validity of Stephenson’s conviction and are
barred under Heck v. Humphrey, 512 U.S. 477 (1994).

In addition,

she is entitled to prosecutorial immunity because Stephenson
alleges no facts against her that would fall outside of her
duties in initiating and pursuing a criminal prosecution.

See

Brodnicki v. City of Omaha, 75 F.3d 1261, 1266 (8th Cir. 1996).
Accordingly, Stephenson’s claims against Parsley will be
dismissed.
B.

Claims for Violations of Miranda
Stephenson alleged LPD officers “failed to read him his

Miranda rights.”

(Filing No. 16 at CM/ECF p. 5.)

cognizable claim in a § 1983 action.

This is not a

Warren v. City of Lincoln,

Nebraska, 864 F.2d 1436, 1442 (8th Cir.) (en banc), cert. denied,
490 U.S. 1091 (1989).

“The remedy for [an] alleged Miranda

violation is the exclusion from evidence of any compelled
self-incrimination, not a civil rights action.”

Brock v. Logan

Cnty. Sheriff’s Dep’t of Arkansas, 3 F.3d 1215, 1217 (8th Cir.

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1993) (per curiam); see also Hannon v. Sanner, 441 F.3d 635, 637
(8th Cir. 2006) (citing Warren and Brock).
Moreover, even if Stephenson’s Miranda claim were
cognizable in this action, he has not alleged that he made any
statements after being subjected to interrogation.

Rather, he

alleged only that he was taken into custody and not given a
Miranda warning.

See United States v. Bazile, No. 13-20173-CR,

2013 WL 3776271, at *10 (S.D. Fla. July 17, 2013) (“Despite
popular misconceptions, the police . . . don’t always have to
give an interviewee a Miranda warning.

Rather, Miranda is

required only when a person is (1) in custody and (2) under
interrogation.”).
C.

Individual-Capacity Claims Against Lind, Price, and

Wilkinson
Liberally construed, Stephenson alleged in his
complaint and amended complaint that LPD officers used excessive
force when they executed a warrant authorizing them to take
physical custody of M.S.

To show a Fourth Amendment violation by

the use of force, a plaintiff must establish that an officer’s
use of force was objectively unreasonable given the facts and
circumstances of the incident as “judged from the perspective of
a reasonable officer on the scene.”

Bishop v. Glazier, 723 F.3d

957, 961 (8th Cir. 2013) (internal quotation and citation
omitted); see also Rohrbough v. Hall, No. 4:07CV00996 ERW, 2008
WL 4722742, at *4 (E.D. Mo. Oct. 23, 2008) (“The Court must
consider factors such as the severity of the suspected crime,
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whether the suspect poses an immediate threat to the safety of
the officer or others, and whether he is actively resisting or
attempting to evade arrest.”).
According to Stephenson’s complaints, officers had a
warrant to use forceful entry at any hour to obtain physical
custody of M.S.

Stephenson alleged he did not know about the

warrant when officers forced their way into a motel room occupied
by him, his girlfriend, and M.S.

When the officers forcefully

entered the room, Stephenson, who was holding M.S., ran into the
bathroom to protect him from being harmed.

After officers

pursued him, he backed out slowly toward the officers, at which
time Officer Dustin Lind placed Stephenson in a choke hold while
Officer Craig Price twisted Stephenson’s right arm behind him and
Officer Jacob Wilkinson pulled Stephenson’s left arm.

Stephenson

alleges the officers’ use of force resulted in multiple injuries
including a sprained neck.

(See generally Filing Nos. 1 and 16.)

The documents attached to Stephenson’s amended
complaint paint a much different picture.

The warrant to take

physical custody of M.S. set forth the following:

“The child’s

father[, Stephenson,] has an extensive violent criminal history
and he has said that officers would have to kill him in order to
take his son pursuant to this Court’s order.”
CM/ECF p. 70.)

(Filing No. 16 at

According to the police reports attached to the

amended complaint, Stephenson refused to turn over M.S. to police
upon being notified of the warrant, refused to open the door for
officers, attempted to flee from the officers while holding M.S.,
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and actively resisted arrest while holding M.S.

(Filing No. 16

at CM/ECF pp. 12-13.)
The police reports attached to the amended complaint
suggest LPD officers’ use of force was reasonable in light of the
circumstances.

However, when liberally construed, Stephenson’s

complaints dispute the veracity of portions of the police
reports.

Specifically, Stephenson alleged he attempted to

negotiate with the officers prior to their forceful entry into
the room, he backed out slowly toward them, and he merely held
M.S. close to his chest in order to protect him from harm.

In

addition, Stephenson made notations throughout the police reports
attached to the amended complaint disputing the statements made
within those reports.

(See, e.g., Filing No. 16 at CM/ECF p.

17.)
In light of the liberal construction afforded to pro se
litigants’ pleadings, the Court finds that Stephenson has
sufficiently alleged Fourth Amendment excessive-force claims
against Lind, Price, and Wilkinson in their individual
capacities.

The Court cautions Stephenson that this is only a

preliminary determination based solely on the allegations in the
complaints.

This is not a determination of the merits of

Stephenson’s claims or potential defenses thereto.
D.

Official-Capacity Claims Against Lind, Price, and Wilkinson
Stephenson has not stated a plausible claim for relief

against Lind, Price, and Wilkinson in their official capacities.
The Court construes Stephenson’s claims against them in their
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official capacities as being a suit against the City of Lincoln,
Nebraska.

The City of Lincoln may only be liable under Section

1983 if its “policy” or “custom” caused a violation of
plaintiff’s constitutional rights.

Doe By and Through Doe v.

Washington Cnty., 150 F.3d 920, 922 (8th Cir. 1998) (citing
Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978)).
Stephenson has not alleged a policy or custom was the moving
force behind the officers’ actions.

Accordingly, his claims

against Lind, Price, and Wilkinson in their official capacities
will be dismissed.
E.

Claims Against Morehouse
Stephenson also raised an excessive-force claim against

Morehouse for “excessively pull[ing]” on M.S.’s arm.
16 at CM/ECF p. 3.)

(Filing No.

However, pro se litigants may not represent

the interests of other parties.

Litschewski v. Dooley, No. 11-

4105-RAL, 2012 WL 3023249, at *1 n. 1 (D.S.D. July 24, 2012),
aff’d, 502 Fed.Appx. 630 (8th Cir. 2013).

Indeed, even if

Stephenson’s parental rights were intact, “[n]on-attorney parents
generally may not litigate the claims of their minor children in
federal court.”

Nunley v. Erdmann, No. C14-4016-MWB, 2014 WL

5020253, at *4 (N.D. Iowa Oct. 8, 2014) (quoting Myers v. Loudoun
Cnty. Public Schools, 418 F.3d 395, 401 (4th Cir. 2005) (citing
cases in other circuits)).

“While there are some situations in

which parents may bring pro se claims on behalf of their children
-- such as an application for Social Security benefits -- ‘no
comparable exception has ever been recognized for a lawsuit based
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on § 1983 or general state tort law.’”

Id. (quoting Elustra v.

Mineo, 595 F.3d 699, 705 (7th Cir.2010)).

For these reasons,

Stephenson may not assert claims on behalf of M.S.

Therefore,

Stephenson’s claims against Morehouse will be dismissed.
IT IS ORDERED:
1.

Stephenson’s claims against Holly Parsley are

dismissed with prejudice.

Stephenson’s claims against David

Bruno, C.J. Roberts, and Angela Morehouse are dismissed without
prejudice.

Stephenson’s official-capacity claims against Dustin

Lind, Craig Price, and Jacob Wilkinson are dismissed without
prejudice.
2.

Stephenson’s individual-capacity claims against

Dustin Lind, Craig Price, and Jacob Wilkinson may proceed to
service of process.

The clerk’s office is directed to update the

Court’s records to reflect that Dustin Lind, Craig Price, and
Jacob Wilkinson are defendants in this matter.

To obtain service

of process on these individuals, Stephenson must complete and
return the summons forms that the Clerk of the Court will
provide.

The Clerk of the Court shall send three summons forms

and three USM-285 forms to Stephenson, together with a copy of
this Memorandum and Order.

Stephenson shall, as soon as

possible, complete the forms and send the completed forms back to
the Clerk of the Court.

In the absence of the forms, service of

process cannot occur.

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3.

Upon receipt of the completed forms, the Clerk of

the Court will sign the summons forms, to be forwarded with a
copy of the complaint and amended complaint to the U.S. Marshal
for service of process.

The Marshal shall serve the summonses

and the complaint and amended complaint without payment of costs
or fees.

Service may be by certified mail pursuant to Federal

Rule of Civil Procedure 4 and Nebraska law in the discretion of
the Marshal.

The Clerk of the Court will copy the complaint and

amended complaint, and Stephenson does not need to do so.
4.

Federal Rule of Civil Procedure 4 requires service

of the complaint on a defendant within 120 days of filing the
complaint.

However, because in this order Stephenson is informed

for the first time of these requirements, Stephenson is granted,
on the Court’s own motion, an extension of time until 120 days
from the date of this order to complete service of process.
5.

Stephenson is hereby notified that failure to

obtain service of process on a defendant within 120 days of the
date of this order may result in dismissal of this matter without
further notice as to such defendant.
6.

The Clerk of the Court is directed to set a case

management deadline in this case with the following text:
14, 2015:

“March

Check for completion of service of summons.”
7.

The parties are bound by the Federal Rules of

Civil Procedure and by the Local Rules of this Court.

Plaintiff

shall keep the Court informed of his current address at all times
while this case is pending.
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8.

Stephenson’s Objection (Filing No. 15) to the

Court’s Memorandum and Order dated August 18, 2014, is overruled.
DATED this 12th day of November, 2014.
BY THE COURT:
/s/ Lyle E. Strom
____________________________
LYLE E. STROM, Senior Judge
United States District Court

* 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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