Taylor v. Holtmeyer et al

Filing 29

ORDER - Plaintiff's Motion for Leave to File anAmended Complaint (Filing No. 27 ) is denied without prejudice to reassertion. Ordered by Judge John M. Gerrard. (Copy mailed to pro se party) (NMW)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
DE-VAUNTE J. TAYLOR,
Plaintiff,
v.
JAMES E. HOLTMEYER,
Defendant.

)
)
)
)
)
)
)
)
)

4:14CV3127

MEMORANDUM
AND ORDER

This matter is before the court on Plaintiff’s Motion for Leave to File an Amended
Complaint (Filing No. 27). Plaintiff seeks leave to amend his complaint to add two
additional defendants, the Omaha Police Department and Omaha Police Department Chief
Todd Schmaderer. The court has carefully reviewed Plaintiff’s proposed amended
complaint (see Filing No. 27 at CM/ECF pp. 3-7) and, for the reasons explained below,
it finds that leave to amend should be denied.
Rule 15 of the Federal Rules of Civil Procedure provides “[t]he court should freely
give leave [to amend] when justice so requires.” Fed. R. Civ. P. 15(a)(2). The applicable
standard is summarized in Foman v. Davis, 371 U.S. 178, 182 (1962), which states:
If the underlying facts or circumstances relied upon by a plaintiff may be a
proper subject of relief, he ought to be afforded an opportunity to test his
claims on the merits. In the absence of any apparent . . . reason—such as
undue delay, bad faith or dilatory motive on the part of the
movant, . . . undue prejudice to the opposing party by virtue of allowance
of the amendment, futility of amendment, etc.—the leave sought should, as
the rules require, be “freely given.”
Id. Here, the amendments Plaintiff proposes are futile.
First, Plaintiff seeks leave to name the Omaha Police Department as a defendant.
The court construes a suit against the police department as being a suit against the City
of Omaha, Nebraska. For a municipality to be found liable under § 1983, there must be

a showing a governmental employee was acting in accordance with a government policy
or custom.
“Official policy involves ‘a deliberate choice to follow a course of action made
from among various alternatives’ by an official who has the final authority to establish
governmental policy.” Jane Doe A By and Through Jane Doe B v. Special Sch. Dist. of
St. Louis Cnty., 901 F.2d 642, 645 (8th Cir. 1990)(quoting Pembaur v. City of Cincinnati,
475 U.S. 469, 483 (1986)). In order to establish the existence of a governmental custom,
a plaintiff must prove:
1)

The existence of a continuing, widespread, persistent pattern of
unconstitutional misconduct by the governmental entity’s employees;

2)

Deliberate indifference to or tacit authorization of such conduct by
the governmental entity’s policymaking officials after notice to the
officials of that misconduct; and

3)

That plaintiff was injured by acts pursuant to the governmental
entity’s custom, i.e., that the custom was the moving force behind the
constitutional violation.

Jane Doe, 901 F.2d at 646.
Here, Plaintiff does not assert that Defendant James Holtmeyer was acting in
accordance with official government policy when he allegedly assaulted him. In addition,
Plaintiff does not allege there was a continuing, widespread, persistent pattern of
unconstitutional misconduct by the City of Omaha or its employees, or that City of
Omaha policymaking officials were deliberately indifferent to or tacitly authorized any
unconstitutional conduct. Finally, Plaintiff does not allege that an unconstitutional
custom was the moving force behind his injuries. Accordingly, he has failed to state a
claim for relief against the City of Omaha.
Second, Plaintiff seeks leave to name Omaha Police Department Chief Todd
Schmaderer as a defendant. However, he alleges solely that Schmaderer “failed to ensure

2

that Officer Holtmeyer was trained properly and understood his training.” (Filing No. 27
at CM/ECF p. 4.) A supervisor may not be held liable under § 1983 for the constitutional
violations of a subordinate on a respondeat superior theory. Tlamka v. Serrell, 244 F.3d
628, 635 (8th Cir. 2001) (citing Boyd v. Knox, 47 F.3d 966, 968 (8th Cir. 1995)). Rather,
a supervisor’s liability arises if:
he directly participates in a constitutional violation or if a failure to properly
supervise and train the offending employee caused a deprivation of
constitutional rights. The plaintiff must demonstrate that the supervisor was
deliberately indifferent to or tacitly authorized the offending acts. This
requires a showing that the supervisor had notice that the training
procedures and supervision were inadequate and likely to result in a
constitutional violation.
Tlamka, 244 F.3d at 635 (quoting Andrews v. Fowler, 98 F.3d 1069, 1078 (8th Cir.
1996)).
Plaintiff did not allege Schmaderer directly participated in violating Plaintiff’s
constitutional rights or that he had notice that training procedures and supervision were
inadequate. Accordingly, his facts, as alleged, fail state a claim upon which relief may
be granted against Schmaderer.
IT IS THEREFORE ORDERED that: Plaintiff’s Motion for Leave to File an
Amended Complaint (Filing No. 27) is denied without prejudice to reassertion.

3

DATED this 17th day of February, 2015.
BY THE COURT:
s/ John M. Gerrard
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.

4