Stephenson v. Bruno et al

Filing 32

MEMORANDUM AND ORDER - The defendants' motion (Filing No. 28 ) to dismiss the amended complaint (Filing No. 16 ) pursuant to Federal Rule of Civil Procedure 12(b)(5) is denied without prejudice. The defendants' motion (Filing No. 28 ) to dismiss the amended complaint (Filing No. 16 ) pursuant to Federal Rule of Civil Procedure 12(b)(6) is denied without prejudice. Plaintiff's motion (Filing No. 31 ) is denied. Ordered by Senior Judge Lyle E. Strom. (Copy mailed to pro se party)(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 the motion (Filing
No. 28) of the defendants to dismiss the plaintiff’s amended
complaint (Filing No. 16) pursuant to Federal Rules of Civil
Procedure 12(b)(5) and 12(b)(6).

Plaintiff Eric Stephenson

(“Stephenson”) appears pro se and is proceeding in forma
pauperis.

Stephenson has filed an timely response which does not

address the issues.1
I.

The Court finds as follows.

BACKGROUND
Stephenson filed his original complaint (Filing No. 1)

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

He named the

David Bruno, C.J.

Roberts, Lincoln Police Department (“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
1

The Court will not appoint the plaintiff a public
defender (Filing No. 31, at 2). This matter is a civil case and
Stephenson is not a criminal defendant. “Indigent civil
litigants do not have a constitutional or statutory right to
appointed counsel.” Davis v. Scott, 94 F.3d 444, 447 (8th Cir.
1996) (citing Edgington v. Missouri Dep't of Corrections, 52 F.3d
777, 780 (8th Cir. 1995).

steps to remove Stephenson’s five-week-old 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.

In addition, his parental rights to M.S. were

terminated (Filing No. 1, at

2-7; see also Filing No. 14, at 1-

4).
Stephenson alleged in the original 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

Miranda rights following his arrest (Filing No. 1, at 8-9).
This Court reviewed Stevenson’s original complaint
(Filing No. 14).

The Court granted Stephenson leave to file an

amended complaint.

This Court then evaluated Stevenson’s amended

complaint (Filing No. 21).

In the amended complaint, Stephenson

named as defendants Deputy County Attorney Holly Parsley, LPD
Officers Dustin Lind, Craig Price, Jacob Wilkinson, and Angela
-2-

Morehouse (Id. at 3).

The Court dismissed a number of claims and

some defendants with prejudice.

The Court allowed Stephenson to

pursue a § 1983 action for violation of his Fourth Amendment
protection against excessive force against defendants LPD
officers Dustin Lind (“Lind”), Craig Price (“Price”), and Jacob
Wilkinson (“Wilson”) (collectively, the “defendants”) in their
individual capacities.
On November 12, 2014, the Court instructed Stephenson
(Filing No. 21, at 9-11) to perfect service of process on the
remaining defendants within 120 days of that order, which would
be approximately March 13, 2015.

Stephenson attempted to perfect

service on or about November 26, 2014 (Filing No. 23).

Each of

the three summons were returned “executed upon defendant” Lind,
Price, and Wilkinson (Filing No. 24, Filing No. 25, and Filing
No. 26).

The returned summons all bear the signature of Captain

Morrow, who checked a box certifying he was designated by law to
accept service of process on behalf of the LPD, where the
defendants work.
Defendants raise two issues:

first, that Stephenson

failed to perfect service against the defendants in their
individual capacities and second, that Stephenson failed to
sufficiently plead his case against the defendants.
II.

LEGAL STANDARD
Federal Rule of Civil Procedure 12(b)(5) requires a

plaintiff to follow the procedures set forth in Federal Rule of
Civil Procedure 4.

“If a defendant is improperly served, a
-3-

federal court lacks jurisdiction over the defendant.”

Printed

Media Servs., Inc., v. Solna Web, Inc., 11 F.3d 838, 843 (8th
Cir. 1993).
Pursuant to Federal Rule Civil Procedure 12(b)(6), the
Court must determine whether the complaint lacks a “cognizable
legal theory” or “sufficient facts alleged under a cognizable
legal theory.”

Balisteri v. Pacifica Police Dept., 901 F.2d 696,

699 (9th Cir. 1990).

The Court generally accepts as true the

allegations in the complaint, construes the pleading in the light
most favorable to the party opposing the motion, and resolves all
doubts in the pleader's favor.

Palmer v. Illinois Farmers Ins.

Co., 666 F.3d 1081 (8th Cir. 2012).

Pro se complaints are held

to a less stringent standard than those drafted by attorneys and
courts are charged with liberally construing a complaint filed by
a pro se litigant to allow for the development of a potentially
meritorious case.

Jackson v. Nixon, 747 F.3d 537, 544 (8th Cir.

2014); see Hughes v. Rowe, 449 U.S. 5, 9 (1980).

Liberal

construction, however, does not mean a court can ignore a clear
failure to allege facts which set forth a claim currently
cognizable in a federal district court.

Stringer v. St. James

R-1 School Dist., 446 F.3d 799 (8th Cir. 2006).
To survive a motion to dismiss pursuant to Federal Rule
of Civil Procedure 12(b)(6), the plaintiff must allege “enough
facts to state a claim to relief that is plausible on its face.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
Determining whether a complaint states a plausible claim for
-4-

relief is “a context-specific task” that requires the court “to
draw on its judicial experience and common sense.”

Id. at 556.

Under Twombly, a court considering a motion to dismiss may begin
by identifying pleadings that, because they are no more than
conclusions, are not entitled to the assumption of truth.
Ashcroft v. Iqbal, 556 U.S. 662, 664 (2009).

Although legal

conclusions “can provide the framework of a complaint, they must
be supported by factual allegations.”

Id.

Accordingly, the

Supreme Court has prescribed a “two-pronged approach” for
evaluating Rule 12(b)(6) challenges.

Id.

First, a court should

divide the allegations between factual and legal allegations;
factual allegations should be accepted as true, but legal
allegations should be disregarded.

Id.

Second, the factual

allegations must be examined for facial plausibility.

Id.

“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.”

Id. at 677-78 (stating that the

plausibility standard does not require a probability, but asks
for more than a sheer possibility that a defendant has acted
unlawfully).

A court must find “enough factual matter (taken as

true) to suggest” that “discovery will reveal evidence” of the
elements of the claim.

Twombly, 550 U.S. at 558, 556.

When the

allegations in a complaint, however true, could not raise a claim
of entitlement to relief, the complaint should be dismissed for

-5-

failure to state a claim under Federal Rule of Civil Procedure
12(b)(6).

Id. at 558; Iqbal, 556 U.S. at 679.

III. DISCUSSION
A.

SERVICE OF PROCESS
The Court notes that the defendants’ service-of-process

argument is premature.

The Court granted Stephenson until the

middle of March to perfect services of process.

The defendants

filed their motion to dismiss on December 24, 2014 (Filing No.
30).

It is now early February.

Therefore, assuming that

Stephenson’s service of process on the defendants was deficient,
Stephenson has time to correct that deficiency pursuant to this
Court’s order (Filing No. 21).

The defendants seek dismissal in

direct opposition to this Court’s previous order and the Court
will deny the motion to dismiss pursuant to Federal Rule of Civil
Procedure 12(b)(5).
However, the Court will go a step further to address
the merits of the defendants’ service-of-process arguments.
There is no doubt that Stephenson failed to perfect service under
Federal Rule of Civil Procedure 4(e)(2), but the Court disagrees
with the defendants that Stephenson’s attempted service of
process failed to satisfy Federal Rule of Civil Procedure 4(e)(1)
through Nebraska Revised Statutes Section 25-508.01.
The defendants rely upon a Nebraska Supreme Court case
from 1899, last cited by a court in 1946.

Filing No. 30, at 4-6

(citing Wittstruck v. Temple, 58 Neb. 16, 16, 78 N.W. 456, 457
(1899)); De Lair v. De Lair, 146 Neb. 771, 776, 21 N.W.2d 498,
-6-

501 (1946) (citing Wittstruck for an unrelated matter).

That

case held “summons could not be legally served upon [a defendant
in his individual capacity] by leaving a copy [of the summons and
complaint] at his usual place of business.

Service could only be

made by delivering a copy to him personally, or by leaving one at
his usual place of residence.”

Wittstruck, 58 Neb. at 16, 78

N.W. 456, 457 (citing Aultman & Taylor Co. v. Steinan, 8 Neb.
109).

This Nineteenth Century opinion does not withstand the

test of time, particularly in light of more recent precedent.
In 2010 in Doe v. Board of Regents of the University of
Nebraska, the Nebraska Supreme Court considered sufficiency of
process.

Plaintiff Doe sued the University of Nebraska Medical

Center (“UNMC”) faculty in their individual capacities.

Doe v.

Board of Regents of the University of Nebraska (“Doe I”), 280
Neb. 492, 508, 788 N.W.2d 264, 279 (2010).

However, Doe did not

serve the defendants at their personal residences; he served the
defendants “individually by sending the complaint, by certified
mail, to the risk management office at UNMC.”
280.

Id., 788 N.W.2d at

Though the district court found that such service of

process was insufficient, the Supreme Court reversed and remanded
the case to the district court.

The Supreme Court adopted the

following analysis:
[Nebraska Revised Statutes] Section
25–505.01 governs service by
certified mail. Section
25–505.01(c)(I) requires that
service of summons be made “within
ten days of issuance, sending the
summons to the defendant by
certified mail with a return
-7-

receipt requested showing to whom
and where delivered and the date of
delivery.”
Unlike many state statutes that
permit certified mail service,
§ 25–505.01 does not require
service to be sent to the
defendant's residence or restrict
delivery to the addressee. But due
process requires notice to be
reasonably calculated to apprise
interested parties of the pendency
of the action and to afford them
the opportunity to present their
objections. As stated, the
district court made no findings
regarding service, and we cannot
determine from the record whether
sending the summons to UNMC's risk
management office was reasonably
calculated to notify each defendant
that he or she had been sued in his
or her individual capacity.
. . .
So, the only issue regarding
individual service is whether
service by certified mail at UNMC's
risk management office was
reasonably calculated to notify the
defendants in their individual
capacities. We conclude that this
question presents an issue of fact,
and we remand the cause for that
determination.
Id. at 508-09, 788 N.W.2d at 280 (citing John P. Lenich, Nebraska
Civil Procedure § 10:9 (2008); 62B Am. Jur. 2d Process § 211
(2005); County of Hitchcock v. Barger, 275 Neb. 872, 750 N.W.2d
357 (2008)).
In 2012, Doe v. Board of Regents of the University of
Nebraska was again before the Nebraska Supreme Court, and the
Court reviewed the district court’s granting of summary judgment
-8-

in favor of the defendants in their official and individual
capacities.

Doe v. Board of Regents of the University of

Nebraska (“Doe II”), 283 Neb. 303, 307, 809 N.W.2d 267, 268
(2012).

The opinion is silent on the issue of service of

process; however, the individual claims against the defendants
remained despite service of the individual defendants at their
place of business by certified mail.
Doe I and Doe II are similar to the facts in this case.
The United States Marshal’s office sent the service of process by
certified mail to the defendants’ place of business within ten
days of the summons issuance.

See Filing No. 23 (November 26,

2014), Filing Nos. 24-26 (December 11, 2014), Fed. R. Civ. P.
6(a)(1)(A)-(C); Filing No. 21, at 10, ¶ 3 (“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 sufficiency of

service in this case, therefore, is whether the service “was
reasonably calculated to notify each defendant that he or she had
been sued in his or her individual capacity.”
509, 788 N.W.2d at 280.
fact.”

Id.

Doe I, 280 Neb. at

This question “presents an issue of

A motion to dismiss pursuant to Federal Rule of

Civil Procedure 12(b)(5) requires a defendant to demonstrate that
the plaintiff failed to follow the procedures set forth in
Federal Rule of Civil Procedure 4.

Because the defendants have

not addressed whether the service was reasonably calculated to
-9-

notify each defendant that he or she had been sued in his or her
individual capacity, the defendants have failed their burden.
For this reason, the Court will deny the defendants’ motion to
dismiss the complaint pursuant to Federal Rule of Civil Procedure
12(b)(5).
B.

SECTION 1983 CAUSES OF ACTION
In their motion to dismiss the complaint pursuant to

Federal Rule of Civil Procedure 12(b)(6), the defendants address
three causes of action:

violation of the Fourth Amendment

protection against excessive force, violation of the Fifth and
Fourteenth Amendment protections of due process, and violation of
the Fourteenth Amendment protection of equal protection.
No. 30, 11-13.

Filing

The Court will not address the excessive force

claim again at this time.

See Filing No. 21, at 5-7 (addressing

the excessive force claim at length).

Also, the Court struck

Stephenson’s due process and equal protection claims.
Stephenson has a single cause of action:

Id.

his claim of excessive

use of force against the defendants in their individual
capacities.

Therefore, the Court will deny the defendants’

motion to dismiss the complaint pursuant to Federal Rule of Civil
Procedure 12(b)(6).

-10-

IT IS ORDERED:
1) The defendants’ motion (Filing No. 28) to dismiss
the amended complaint (Filing No. 16) pursuant to Federal Rule of
Civil Procedure 12(b)(5) is denied without prejudice.
2) The defendants’ motion (Filing No. 28) to dismiss
the amended complaint (Filing No. 16) pursuant to Federal Rule of
Civil Procedure 12(b)(6) is denied without prejudice.
3) Plaintiff’s motion (Filing No. 31) is denied.
DATED this 6th day of February, 2015.
BY THE COURT:
/s/ Lyle E. Strom
____________________________
LYLE E. STROM, Senior Judge
United States District Court

-11-