Perez et al v. The City of Hastings, Nebraska et al
MEMORANDUM AND ORDER - The dispositive motions filed by the State (Filing No. 9 ), the County defendants (Filing No. 12 ), and the City defendants (Filing No. 15 ) are granted in part and denied in part as discussed above. The plaintiffs' 42 U.S.C. § 1983 claims are dismissed with prejudice as to the State and dismissed without prejudice as to all other defendants. The dispositive motions are denied in all other respects. The parties will bear their own attorney fees, costs, and expenses. This case is remanded to the District Court for Adams County, Nebraska. Ordered by Judge Robert F. Rossiter, Jr. (GJG)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
IRMA PEREZ, JOHN ESPINO, JOSHUA
ESPINO, JEREMY ESPINO, and
THE CITY OF HASTINGS, NEBRASKA;
ADAMS COUNTY, NEBRASKA; THE
STATE OF NEBRASKA; JOHN AND
JANE DOE(S) 1 THROUGH 10, in both
their official and individual capacities;
RICK SCHMIDT, in both his official and
individual capacity; RAELEE VAN
WINKLE, in both an official and individual
capacity; JERRY ESCH, in both his official
and individual capacity; MICHAEL
DOREMUS, in both his official and
individual capacity; KELLY SCARLETT,
in both his official and individual capacity;
ALYSON KEISER ROUDEBUSH, in both
her official and individual capacity; and
ALLEN DEDLAK, in both his official and
This case arises from what plaintiffs Irma Perez (“Perez”), John Espino, Joshua
Espino, Jeremy Espino, and Manuel Espino (collectively, “plaintiffs”) describe as a
“disturbance” that occurred in Hastings, Adams County, Nebraska, on August 13, 2011. 1
In the body of their Amended Complaint, the plaintiffs refer to “Plaintiff Juan
Anthony Espino” (hereinafter, “Espino”) and describe him as a central player in the
disturbance and subsequent events. However, unless the name “Juan Anthony Espino”
is an undisclosed alias for plaintiff John Espino (as the County defendants reasonably
venture to guess) it does not appear Espino is a named party in this case. See Fed. R. Civ.
P. 10(a); Williams v. Bradshaw, 459 F.3d 846, 849 (8th Cir. 2006).
In their Amended Complaint (Filing No. 1-1), the plaintiffs, all of whom are Hispanic,
assert state and federal claims against the defendants, alleging “the investigation, arrest,
confinement, and prosecution of the Plaintiffs” following the domestic disturbance were
unlawful and racially motivated.
Now before the Court are multiple dispositive motions filed by the various
Defendant the State of Nebraska (“State”) moves to dismiss the case
pursuant to Federal Rule of Civil Procedure 12(b)(1) and (6) (Filing No. 9). Defendants
Adams County, Nebraska and Alyson Keiser Roudebush (“Roudebush” and collectively,
“County defendants”) move to dismiss the case pursuant to Rule 12(b)(6) and (d) (Filing
No. 12). Defendants City of Hastings, Rick Schmidt (“Schmidt”), Raelee Van Winkle
(“Van Winkle”), Jerry Esch (“Esch”), Michael Doremus (“Doremus”), Kelly Scarlett
(“Scarlett”), and Allen Sedlak 2 (“Sedlak” and collectively, “City defendants”) move to
dismiss the plaintiffs’ federal claims pursuant to Rule 12(b)(6) and move for partial
summary judgment on the remaining claims pursuant to Federal Rule of Civil Procedure
56 (Filing No. 15). For the reasons stated below, the Court finds the plaintiffs’ federal
claims should be dismissed and their state claims should be remanded to state court.
In the early morning hours of August 13, 2011, Jennifer Lopez (“Lopez”), Espino,
and some of the plaintiffs’ other friends and family were involved in a domestic
disturbance in Hastings, Nebraska.
The police were called, and Hastings Police
Department Officers Schmidt, Van Winkle, Esch, Doremus, Kelly, and Scarlett
In the caption of their Amended Complaint, the plaintiffs identify “Allen Dedlak”
as a defendant. The body of the Amended Complaint and the Summons refer to “Allen
Sedlak.” The City defendants explain “Sedlak” is correct, so the Court uses that.
The factual background is primarily drawn from the Amended Complaint. In
evaluating a motion to dismiss for failure to state a claim under Rule 12(b)(6) and a facial
attack on subject-matter jurisdiction under Rule 12(b)(1), the Court accepts the factual
allegations in the complaint as true and construes all reasonable inferences in the
plaintiff’s favor. See, e.g., Carlsen v. GameStop, Inc., 833 F.3d 903, 908 (8th Cir. 2016).
responded. The officers interviewed witnesses and arrested Espino based on Lopez’s
During the disturbance, Perez telephoned Alma Rose Infante (“Infante”) for help
in settling the disturbance. The two went to the scene and spoke with the people
involved. “Infante’s mission was to determine the truth,” not to interfere with the police
investigation. Hoping to ensure “the underlying complaint against their family member
[would] be fairly and fully investigated,” the plaintiffs developed the “impression that the
investigating HPD Officers were more interested in coaching witnesses in order to build a
case against them or their family members, than they were interested in getting to the
truth about the Disturbance.”
On August 15, 2011, Espino was charged with domestic assault and was later
bound over for trial. That same day, Shawn Parks, who was at the scene of the domestic
disturbance and had a prior relationship with the police as a confidential informant,
participated in a conversation with Doremus during which Doremus stated, “Maybe if we
put pressure on them and you put enough pressure on them, they’ll get the hell out of this
On December 29, 2011, the plaintiffs were arrested by unspecified officers and
charged with conspiracy and witness tampering. The arrest warrants were based on
information that was more than ninety days old and the supporting documentation
“contained false and misleading information.” The plaintiffs were held “in maximum
security confinement” for five days.
Roudebush, the Adams County Deputy County Attorney, prosecuted the cases in
the District Court of Adams County, Nebraska (“Adams County District Court”). An
unspecified plaintiff was acquitted after a jury trial. The remaining plaintiffs filed pleas
in abatement, which were sustained in October 2012. In dismissing the charges, the trial
court “criticized the preliminary proceedings.”
According to the plaintiffs, their
“investigation, arrest, confinement and prosecution subjected them to a considerable
amount of ridicule and destroyed their good reputation.”
On April 7, 2016, the plaintiffs sued the defendants in Adams County District
Court, asserting claims under state and federal law. They filed an Amended Complaint
on September 27, 2016. In their Amended Complaint, the plaintiffs assert eight claims:
(4) intentional infliction of emotional distress; (5) libel and slander per se; (6) false-light
publicity; (7) joint-venture false-light publicity; and (8) deprivation of their “rights
guaranteed by the First, Sixth, Eighth, and Fourteenth Amendments to the Constitution of
the United States,” in violation of 42 U.S.C. § 1983. In describing their claims, the
plaintiffs make little effort to differentiate between the defendants.
On October 12, 2016, the defendants jointly removed the case to this Court
pursuant to 28 U.S.C. §§ 1441 and 1446. The defendants maintain this Court has federalquestion jurisdiction over the plaintiffs’ civil-rights claims under 42 U.S.C. § 1983 and
supplemental jurisdiction over their state-law claims. See 28 U.S.C. §§ 1331, 1367. The
plaintiffs did not challenge removal.
On November 18, 2016, the State moved to dismiss this case, asserting, among
other things, that the plaintiffs’ (1) state- and federal-law claims are barred by sovereign
immunity; (2) state-law claims are barred by the Nebraska State Tort Claims Act
(“NSTCA”), Neb. Rev. Stat. § 81-8,209 et seq.; and (3) negligence claims fail “to state a
cognizable cause of action.” See Fed. R. Civ. P. 12(b)(1), (6). The City defendants and
County defendants each followed suit on November 21, 2016, arguing, in part, that the
Amended Complaint fails to state a claim on various grounds.
plaintiffs failed to comply with the Nebraska Political Subdivisions Tort Claims Act
(“NPSTCA”), Neb. Rev. Stat. § 13-901 et seq., the City defendants also move for partial
summary judgment on the plaintiffs’ state-law claims. See Fed. R. Civ. P. 56.
The plaintiffs oppose dismissal, contending “What we have at this point are bald
assertions, in their respective briefs, that the State of Nebraska, Adams County, and the
City of Hastings are protected from Plaintiffs’ state law claims by reason of the” NSTCA
and NPSTCA. As the plaintiffs see it, “the assertions of immunity by the State, the
County, and the City, are insufficient for the purposes of a definitive ruling on their
respective motions.” With respect to their § 1983 claims, the plaintiffs maintain they
have “sufficiently alleged that individual Defendants, including those now being
denominated as John and Jane Doe, have violated Plaintiff’s rights to due process and
equal protection under the Fourteenth Amendment.”
The plaintiffs seek damages,
attorney fees, and costs.
Standards of Review
The party asserting subject-matter jurisdiction in the federal courts bears the
burden of proving jurisdiction is proper. See, e.g., Compart’s Boar Store, Inc. v. United
States, 829 F.3d 600, 604 (8th Cir. 2016). A motion to dismiss under Rule 12(b)(1) can
either attack the plaintiff’s claim of jurisdiction based on the face of the complaint or its
underlying factual basis. See, e.g., Titus v. Sullivan, 4 F.3d 590, 593 (8th Cir. 1993). In a
facial attack, “the court restricts itself to the face of the pleadings, and the non-moving
party receives the same protections as it would defending against a motion brought under
Rule 12(b)(6).” Osborn v. United States, 918 F.2d 724, 729 n.6 (8th Cir. 1990) (internal
citations omitted). “In a factual attack, the court considers matters outside the pleadings
and the non-moving party does not have the benefit of 12(b)(6) safeguards.” Id. (internal
Federal Rule of Procedure 8(a)(2) requires “a short and plain statement of the
claim showing that the pleader is entitled to relief.” “[T]he pleading standard Rule 8
announces does not require ‘detailed factual allegations,’ but it demands more than an
unadorned, the-defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678
(quoting Twombly, 550 U.S. at 555). “To survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’” Id. (quoting Twombly, 550 U.S. at 570).
“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. “The court accepts as true all factual allegations, but is ‘not
bound to accept as true a legal conclusion couched as a factual allegation.’” McAdams v.
McCord, 584 F.3d 1111, 1113 (8th Cir. 2009) (quoting Iqbal, 556 U.S. at 678). “A
pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of
a cause of action will not do.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at
555). “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for
more than a sheer possibility that a defendant has acted unlawfully. Where a complaint
pleads facts that are ‘merely consistent with’ a defendant’s liability, ‘it stops short of the
line between possibility and plausibility’” and must be dismissed. Id. (quoting Twombly,
550 U.S. at 556-57).
If a court considers matters outside the complaint in deciding a Rule 12(b)(6)
motion, “the motion must be treated as one for summary judgment under Rule 56.” Fed.
R. Civ. P. 12(d). Under Rule 56(a), the Court must “grant summary judgment if the
movant shows that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.”
The Doe Defendants
In the Amended Complaint, the plaintiffs name as defendants “John and Jane
Doe(s) 1 through 10, In Both Their Official And Individual Capacities.” The Federal
Rules of Civil Procedure do not contain any provisions for suing unknown parties, and it
is generally “impermissible to name fictitious parties as defendants” in federal court.
Estate of Rosenberg v. Crandell, 56 F.3d 35, 37 (8th Cir. 1995). However, “an action
may proceed against a party whose name is unknown if the complaint makes allegations
specific enough to permit the identity of the party to be ascertained after reasonable
The plaintiffs allege, without elaboration, that “John and Jane Doe(s) 1 through
10 are employees and/or agents of the City, the County, and/or the State, the full
identities of whom will be determined during discovery in this case. Each of them are
[sic] named herein in both their respective official and their individual capacities.” The
plaintiffs’ only other reference to the Doe defendants is regarding their claim under 42
U.S.C. § 1983, where they assert they bring the claim “for the purpose of having declared
and adjudged unconstitutional, the actions of the Defendants and John and Jane Doe(s)
1 through 10, with respect to Plaintiffs’ treatment.”
The County defendants and City defendants both move to dismiss this case on
behalf of John and Jane Doe(s) 1 through 10 without discussing the fact that the Does are
unknown and have been sued in both their official and individual capacities. For its part,
the State maintains any State “John and Jane Does have only been served in their official
capacities, and therefore actions against them are actions against the State.”
In response, the plaintiffs assert they have “made allegations specific enough . . .
to permit identification of the unnamed Defendants after reasonable discovery.” The
plaintiffs further contend “[t]he State of Nebraska John and Jane Does have been served
with a complaint that clear [sic] indicates they are being sued both in their official
capacities and in their individual capacities, putting them squarely on notice.” According
to the plaintiffs, “the State Does have been served in the only manner possible at this
stage, which is to say they were served, in both capacities, by service upon the State of
Nebraska, in the manner prescribed by law.”
The plaintiffs provide no support for their assertion that their purported service on
the broadly described Doe defendants by mail at work in their official capacities
automatically constitutes service on them in their individual capacities, even though their
identities remain unknown. See Fed. R. Civ. P. 4(e); Neb. Rev. Stat. § 25-508.01(1). It is
also not clear from the plaintiffs’ submissions that the plaintiffs’ broad allegations that
unnamed officials at some level of government may have participated at some point in an
allegedly unlawful “course of conduct” lasting more than a year are sufficiently detailed
to warrant an exception to the general rule restricting the use of fictitious defendants in
federal court. See Estate of Rosenberg, 56 F.3d at 37. The Court also questions whether
the named City and County defendants and their counsel have authority to respond for the
as yet unidentified Doe defendants in their individual capacities and seek dismissal on
Cf. Ballinger v. Cedar County, 810 F.3d 557, 559 (8th Cir. 2016)
(explaining the district court should not have included the John and Jane Does in its Rule
12(b)(6) dismissal “because the Does were never before the district court”).
In any event, the Court finds it unnecessary to resolve these issues at this time
given the Court’s disposition of this case, as discussed more fully below.
The plaintiffs’ only federal claims purportedly arise under § 1983. “A claim under
§ 1983 must allege that conduct of a defendant acting under color of state law deprived a
plaintiff of a right, privilege, or immunity secured by the constitution or the laws of the
United States.” Hott v. Hennepin County, 260 F.3d 901, 905 (8th Cir. 2001). “A suit
against a public employee in his or her official capacity is merely a suit against the public
employer.” Johnson v. Outboard Marine Corp., 172 F.3d 531, 535 (8th Cir. 1999).
A municipality “may not generally be held vicariously liable under section 1983
for the unconstitutional acts of its employees.” Id. A municipality can be liable under
§ 1983 for a constitutional violation only if the violation resulted from an official policy,
an unofficial custom, or “a deliberately indifferent failure to train or supervise.” Corwin
v. City of Independence, 829 F.3d 695, 699 (8th Cir. 2016).
An official policy results from “a deliberate choice to follow a course of action . . .
made from among various alternatives by the official or officials responsible for
establishing final policy with respect to the subject matter in question.” Pembaur v. City
of Cincinnati, 475 U.S. 469, 483 (1986). To establish liability based on an unofficial
custom, the plaintiff “must demonstrate: (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 a moving force behind the constitutional
violation.” Snider v. City of Cape Girardeau, 752 F.3d 1149, 1160 (8th Cir. 2014).
To establish § 1983 liability for a failure to train or supervise, the plaintiff must
show (1) the municipality’s training or supervision procedures were inadequate; (2) it
“was deliberately indifferent to the rights of others in adopting them, such that the
‘failure to train [or supervise] reflects a deliberate or conscious choice’”; and (3) the
alleged deficiency in the municipality’s training or supervision “procedures actually
caused the plaintiff’s injury.” Andrews v. Fowler, 98 F.3d 1069, 1076 (8th Cir. 1996)
(quoting City of Canton v. Harris, 489 U.S. 378, 389 (1989)). “In other words, the
plaintiff must demonstrate that the city ‘had notice that its procedures were inadequate
and likely to result in a violation of constitutional rights.’” Id. (quoting Thelma D. ex
rel. Delores A. v. Bd. of Educ. of City of St. Louis, 934 F.2d 929, 934 (8th Cir. 1991)).
In this case, the plaintiffs seek to redress alleged violations of “the rights
guaranteed by the First, Sixth, Eighth, and Fourteenth Amendments to the Constitution of
the United States.” As noted above, in pleading their various state and federal claims, the
plaintiffs make little effort to differentiate between the various governmental and
individual defendants they have named and the capacities in which they are sued. Most
often making blanket allegations against “the Defendants” as a group, the plaintiffs fail to
identify the degree to which any particular defendant is involved in the different
allegations of misconduct.
That failure makes it much more difficult to analyze the plaintiffs’ § 1983 claims
against each individual defendant. See, e.g., Morton v. Becker, 793 F.2d 185, 187 (8th
Cir. 1986) (explaining that a defendant can only be held liable for a constitutional
violation under § 1983 if their actions caused the constitutional violation). But the Court
is not without guidance.
The Court recently examined very similar § 1983 claims
brought by Infante based on, as the plaintiffs put it, “the same series of events about
which the Plaintiffs here complain.” See Infante v. City of Hastings, No. 4:15CV3047,
2015 WL 5167267, at *1 (D. Neb. Sept. 3, 2015). Indeed, the plaintiffs, who have the
same counsel as Infante, concede “[m]any of the core facts are the same” but suggest “the
Perez pleading is significantly amplified.”
In Infante, the Court dismissed the § 1983 claim against the State with prejudice
because “[n]either a state nor its employees acting in their official capacities are ‘persons’
under 42 U.S.C. § 1983.” Id. at *4. Noting the limitations on governmental liability, the
Court decided Infante’s factual allegations were insufficient to support a claim that she
was deprived of her constitutional rights “or that any policy or custom of the City of
Hastings or Adams County led to any such deprivation of rights.” Id. at *5 (quoting
Scheeler v. City of St. Cloud, 402 F.3d 826, 832 (8th Cir. 2005)). The Court found
Infante’s “allegations fail[ed] to provide grounds for relief, beyond mere speculation,”
and dismissed the claims without prejudice.
The Court reaches the same conclusions here. First, the plaintiffs do not squarely
address the Court’s previous recognition (and the State’s current argument) that the State
and its employees acting in their official capacities are not persons “against whom a
§ 1983 claim for money damages might be asserted.” Lapides v. Bd. of Regents, 535 U.S.
613, 617 (2002). The plaintiffs, for the first time in their brief opposing dismissal, raise
the possibility of seeking “prospective injunctive relief” at some point in the future. But
the plaintiffs made no mention of such relief in the Amended Complaint, seeking only
damages, attorney fees, and litigation costs in their prayer for relief. Section 1983 does
not support such a claim against the State.
Second, while the plaintiffs present additional claims and allegations against more
named defendants than Infante did, they still “have not nudged their claims across the
line from conceivable to plausible.” Twombly, 550 U.S. at 570. Like Infante, the
plaintiffs rely too heavily on labels, conclusions, and “mere speculation.” Infante, No.
4:15CV3047, 2015 WL 5167267, at *5. The plaintiffs’ blanket allegations fail to provide
sufficient factual support to state a plausible claim that any defendant deprived them of
their rights under the First, Sixth, Eighth, and Fourteenth Amendments, much less that
any policy, custom, or practice of any governmental entity “led to any such deprivation of
rights.” Id.; see also Ulrich v. Pope County, 715 F.3d 1054, 1061 (8th Cir. 2013)
(explaining “an isolated incident of alleged” misconduct, including a plaintiff’s “own
arrest and detention,” generally “cannot, as a matter of law, establish a municipal policy
or custom creating liability under § 1983”).
The plaintiffs point out their Amended Complaint is twice as long as Infante’s
complaint and assert their “pleading is significantly amplified,” but it suffers the same
deficiencies. The plaintiffs fail to effectively identify any new or “amplified” factual
allegations that materially change the analysis. Indeed, the heart of the plaintiffs’ § 1983
claims—though formatted differently—are nearly identical to the claims the Court found
insufficient and unduly speculative in Infante. “Where a complaint pleads facts that are
‘merely consistent with’ a defendant’s liability, ‘it stops short of the line between
possibility and plausibility’” and must be dismissed. Iqbal, 556 U.S. at 678 (quoting
Twombly, 550 U.S. at 556-57).
The plaintiffs’ § 1983 claims are dismissed without prejudice.
State Tort Claims
Having decided the plaintiffs’ § 1983 claims must be dismissed, the Court now
turns to their state tort claims. Under 28 U.S.C. § 1367(a) and (c)(3), the Court has
discretion to “decline to exercise supplemental jurisdiction over” related state-law claims
if the Court “has dismissed all claims over which it has original jurisdiction.” That
discretion enables the Court to retain jurisdiction over the plaintiffs’ state-law claims,
remand them to state court, or dismiss them. Carnegie-Mellon Univ. v. Cohill, 484 U.S.
343, 357 (1988). “[I]n the usual case in which all federal-law claims are eliminated
before trial, the balance of factors to be considered under the pendent jurisdiction
doctrine—judicial economy, convenience, fairness, and comity—will point toward
declining to exercise jurisdiction over the remaining state-law claims.” Id. at 350 n. 7;
accord Glorvigen v. Cirrus Design Corp., 581 F.3d 737, 749 (8th Cir. 2009) (explaining
that where “resolution of the remaining claims depends solely on a determination of state
law, the Court should decline to exercise jurisdiction” (quoting Farris v. Exotic Rubber
and Plastics of Minn., Inc., 165 F.Supp.2d 916, 919 (D. Minn. 2001))).
The Court has carefully reviewed the plaintiffs’ state-law claims and the relevant
factors and finds no compelling reason to exercise supplemental jurisdiction in this case,
particularly given the early stage of these proceedings and the nature of the claims the
plaintiffs raise against various governmental officials and agencies. Accordingly, the
Court will remand the plaintiffs’ state-law claims to state court.
IT IS ORDERED:
The dispositive motions filed by the State (Filing No. 9), the County
defendants (Filing No. 12), and the City defendants (Filing No. 15) are
granted in part and denied in part as discussed above.
The plaintiffs’ 42 U.S.C. § 1983 claims are dismissed with prejudice as to
the State and dismissed without prejudice as to all other defendants. The
dispositive motions are denied in all other respects.
The parties will bear their own attorney fees, costs, and expenses.
This case is remanded to the District Court for Adams County, Nebraska.
Dated this 21st day of March, 2017.
BY THE COURT:
s/ Robert F. Rossiter, Jr.
United States District Judge
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