Ogden v. United States of America et al
MEMORANDUM AND ORDER - The defendants' motion to strike (filing 20 ) is granted. The plaintiff's second amended complaint (filing 19 ) is stricken. The defendants' motion to dismiss (filing 8 ) is granted. The plaintiffs' claim s against Bickal, Donley, James, Kehler, Hyten, Allshouse, Reynolds, and John Does #1-4 are dismissed without prejudice. The plaintiff's constitutional claims are dismissed without prejudice. Bickal, Donley, James, Kehler, Hyten, Allshouse, Reyn olds, and John Does #1-4 are terminated as parties. The plaintiff's motion for leave to file an amended complaint (filing 15 ) is denied. The plaintiff's motion to extend (filing 14 ) is denied as moot. This case is referred to the United States Magistrate Judge for case progression. Ordered by Judge John M. Gerrard. (LKO)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
MICHELLE OGDEN, as Personal
Representative of the Estate of
MEMORANDUM AND ORDER
UNITED STATES OF AMERICA, et
This case presents relatively straightforward facts, but has become
procedurally complicated. So, this matter is before the Court on a motion to
dismiss (filing 8), motion to extend the time to complete service of process
(filing 14), motion for leave to file a second amended complaint (filing 15),
and a motion to strike (filing 20) a second amended complaint (filing 19) that
was filed without leave.
For the following reasons, the Court will grant the motion to dismiss,
dismissing the plaintiff's claims against the individual defendants for lack of
jurisdiction because they are were not served with process, and are immune
from suit in their official capacities. The Court will grant the motion to strike
the second amended complaint, and deny the plaintiff's motion for leave to
file an amended complaint because the proposed amendment would also be
futile. And the Court will deny the plaintiff's motion for an extension of time
to serve process, because that motion is moot.
The plaintiff in this case is Michelle Ogden, personal representative of
the Estate of Zachari Johnson. Filing 3 at 1. Johnson was tragically shot and
killed on the premises of Offutt Air Force Base, and his death is the
underlying cause of this litigation.
There are several defendants in this case, but they fall into four general
categories. The primary defendant is the United States government. Filing 3.
(The United States has answered the plaintiff's complaint, see filing 11, and
the plaintiff's claims against the United States are not at issue in this order.)
The next defendant is Douglas Bickal, the civilian security guard who shot
Johnson. Filing 3 at 3. The "Air Force Defendants" are Michael B. Donley,
Deborah Lee James, C. Robert Kehler, John E. Hyten, Michael J. Allshouse,
and Marty Reynolds, all of whom have held relevant positions in the Air
Force chain of command for Offutt AFB. Filing 3 at 3. And the "Unnamed
Defendants" are four John Doe defendants responsible for Offutt AFB's
security forces. Filing 3 at 3-4.
Johnson was shot and killed on June 4, 2012, after his (presumably
unauthorized) entry onto Offutt AFB's grounds. Filing 3 at 7.1 He entered
through the commercial truck entrance, and was pursued by Offutt AFB
Although many of the issues in this case are presented through other motions, disposing
of them will require the Court to determine whether the plaintiff pled a claim for relief.
Accordingly, the plaintiff will be given the procedural protections she would be entitled to
under Fed. R. Civ. P. 12(b)(6): the Court will accept as true all facts pleaded by the plaintiff,
and grant all reasonable inferences from the pleadings in her favor. Gallagher v. City of
Clayton, 699 F.3d 1013, 1016 (8th Cir. 2012). But a pleading that offers labels and
conclusions or a formulaic recitation of the elements of a cause of action will not do.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The complaint must contain sufficient factual
matter, accepted as true, to state a claim to relief that is plausible on its face. Id. at 678-79.
security and Bellevue, Nebraska police officers. Filing 3 at 7. Johnson
attempted to force his way off the base, and struck a parked vehicle and
concrete fixture at a gate. Filing 3 at 7.
Bickal was on duty at that gate, and approached Johnson's vehicle with
his sidearm drawn. Filing 3 at 8. Bickal was about 6 feet from Johnson's
driver's side door, and a Bellevue officer with his sidearm drawn was about
15 feet behind Johnson's vehicle. Filing 3 at 9. Johnson was unarmed. Filing
3 at 8. Bickal ordered Johnson to raise his hands, and Johnson complied.
Filing 3 at 8. But then Johnson's vehicle lurched forward, and Bickal fired his
weapon three times, killing Johnson. Filing 3 at 9.
The plaintiff lodged an administrative claim pursuant to the Federal
Tort Claims Act (FTCA), 28 U.S.C. §§ 1346 & 2671 et seq., and the Air Force
acknowledged receipt of the claim in a letter dated December 18, 2013. Filing
16-4; filing 16-5. The Air Force denied the claim on June 22, 2016. Filing 168. The plaintiff filed this case on December 21, 2016, just before the 6-month
post-denial statute of limitations for her FTCA claim expired. Filing 1; see 28
U.S.C. § 2401(b). No summons was requested on the initial complaint, and
the plaintiff filed an amended complaint on February 3, 2017. Filing 3. That
complaint alleged eight claims for relief: three constitutional tort claims
(excessive force, failure to train, and failure to supervise) and five state-law
tort claims (wrongful death, "fear of impending death," negligent hiring,
negligent supervision and entrustment, and negligence).2 Filing 3.
On June 20, the United States answered, filing 11, and the Air Force
Defendants moved to dismiss, filing 8, arguing in part that the case should be
Although the constitutional claims are presented under the heading of "42 U.S.C. §1983
Constitutional Violations," filing 3 at 12, it is apparent from the complaint that they are
brought pursuant to Bivens v. Six Unknown Agents, 403 U.S. 388 (1971), filing 3 at 1.
dismissed pursuant to Fed. R. Civ. P. 4(m) for failure to complete service on
them within 90 days of filing the complaint, filing 10 at 3-5. By that time, it
was 7 months since the case had been filed.3 And the motion also argued for
dismissal of all the individual defendants, including Bickal, for failure to
state a claim. Filing 10.
The Air Force Defendants argued, in part, that extending the plaintiff's
time to serve process would be futile, because the complaint did not state a
claim against them. Filing 10 at 4-5. The plaintiff argued otherwise. Filing
16. The plaintiff also filed a separate motion for an extension of time to effect
service. Filing 14. And the plaintiff moved for leave to file a second amended
complaint, which would have added a reference to the Fourth Amendment
and clarified that the Air Force Defendants and Unnamed Defendants were
being sued in their individual capacities. Filing 15. But before that motion
was ruled on—indeed, just 5 days later—the plaintiff filed her second
amended complaint without leave to do so. Filing 19. The individual
defendants moved to strike the second amended complaint. Filing 20.
It is important to clarify, at the outset, who the parties are, and what
the claims are. But to do that, it is first necessary to clarify what the
pleadings are, which is the issue presented by the defendants' motion to
strike (filing 20).
An amended complaint does not toll the service period or reset it as to defendants named
in the original complaint. Lee v. Airgas Mid-S., Inc., 793 F.3d 894, 898 (8th Cir. 2015).
1. MOTION TO STRIKE
The plaintiff filed her initial complaint on December 21, 2016. Filing 1.
The plaintiff could amend her complaint once as a matter of course within 21
days after serving it. Fed. R. Civ. P. 15(a)(1)(A). So—not having served it at
all—she filed her amended complaint on February 3, 2017. Filing 3.
She filed a motion for leave to file a second amended complaint on July
26 but, without waiting for leave, filed her second amended complaint on
August 1. At that point, though, she had already used her single amendment
as of right. See Rule 15(a)(1). So, she could amend her pleading "only with the
opposing party's written consent or the court's leave." Rule 15(a)(2). She had
neither. And she has not explained filing the second amended complaint,
because she did not respond to the defendants' motion to strike it (filing 20).
The Court will, therefore, grant the motion to strike, and strike the
second amended complaint (filing 19). The plaintiff's operative complaint is
her first amended complaint (filing 3).
2. MOTION TO DISMISS
The plaintiff's operative complaint lists the parties set forth above: the
United States, Bickal, the Air Force Defendants, and the Unnamed
Defendants. Filing 3. But the complaint is silent as to the capacity in which
Bickal, the Air Force Defendants, and the Unnamed Defendants are sued.
Filing 3. In other words, the complaint does not say whether they are being
sued in their official capacities or their personal, individual capacities. See,
generally, Kentucky v. Graham, 473 U.S. 159, 165-66 (1985). And if a
plaintiff's complaint is silent about the capacity in which she is suing a public
official, the Court interprets the complaint as including only official-capacity
claims. Baker v. Chisom, 501 F.3d 920, 923 (8th Cir. 2007). It must be
presumed that the defendants are sued only in their official capacities. Id.4
So, the defendants to the operative complaint are the United States and a
number of individual defendants in their official capacities, and only their
The complaint also asserts the eight claims for relief set forth above,
but is not always clear about which claims are asserted against which
defendants. The first claim—"use of excessive force"—is clearly directed
solely at Bickal. The remaining seven claims, however, are simply asserted
against the "defendants" generally.
But the United States is not a proper defendant for the plaintiff's
constitutional claims. Bivens claims cannot be brought against the United
States itself. F.D.I.C. v. Meyer, 510 U.S. 471 (1994). And constitutional claims
cannot be remedied through the FTCA. Washington v. Drug Enf't Admin.,
183 F.3d 868, 873 (8th Cir. 1999). So, the plaintiff's Bivens claims can be
asserted only against individual defendants.
The plaintiff's state-law claims, however, can only be asserted against
the United States, and not any individual defendants. When someone is
injured by a tort committed by an employee of the United States who is
acting within the scope of his employment, that employee cannot be sued—
rather, the injured person must sue the United States which is liable in its
employee's stead. Knowles v. United States, 91 F.3d 1147, 1150 (8th Cir.
The Court is aware of the circumstances in which this stringent pleading rule may be
treated with some flexibility. See Wealot v. Brooks, 865 F.3d 1119, 1124 n.4 (8th Cir. 2017).
But here, the defendants have specifically asserted both the deficiency of the complaint and
their immunity defense. See filing 10 at 8-9. And, as will be explained below, the plaintiff's
potential individual-capacity claims would lack merit in any event.
1996); see United States v. Smith, 499 U.S. 160, 161-62 (1991); see also
Simmons v. Himmelreich, 136 S. Ct. 1843, 1850 (2016).
In short, victims of purposeful wrongdoing on the part of federal
officers can bring (1) constitutional tort claims against those officers under
Bivens, and (2) specified intentional tort claims against the United States
under the FTCA. Washington, 183 F.3d at 873. As noted above, the United
States has answered, and the FTCA claims brought against the United
States are not implicated in this set of motions. It is the individual
defendants, and the constitutional claims, with which the Court is concerned.
The motion to dismiss (filing 8) raises a number of issues, but the Court will
grant the motion on the jurisdictional grounds that it is obliged to consider
first. See Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 93-102 (1998);
Wong v. Wells Fargo Bank N.A., 789 F.3d 889, 895 (8th Cir. 2015).
First, the Air Force Defendants have not been served and, as a result,
the Court lacks jurisdiction over them. Printed Media Servs., Inc. v. Solna
Web, Inc., 11 F.3d 838, 843 (8th Cir. 1993); see Murphy Bros. v. Michetti Pipe
Stringing, Inc., 526 U.S. 344, 350 (1999). When process and service of process
are questioned on a pretrial motion to dismiss, it is the plaintiff's burden to
establish a prima facie case. Northrup King Co. v. Compania Productora
Semillas Algodoneras Selectas, S.A., 51 F.3d 1383, 1387 (8th Cir. 1995). And
here, the plaintiff cannot do so, conceding that she has failed to effect service
on the Air Force Defendants. Filing 16 at 5.
Second, as explained above, the complaint only pleads claims against
the individual defendants in their official capacities. A suit against federal
officials in their official capacities is treated as a suit against the United
States, and "a Bivens action cannot be prosecuted against the United States
and its agencies because of sovereign immunity." Buford v. Runyon, 160 F.3d
1199, 1203 (8th Cir. 1998); see Searcy v. Donelson, 204 F.3d 797, 798 (8th Cir.
2000); Phelps v. U.S. Fed. Gov't, 15 F.3d 735, 739 (8th Cir. 1994). And
sovereign immunity is jurisdictional. Meyer, 510 U.S. at 475. Accordingly, the
Court lacks jurisdiction over all the individual defendants in their official
capacities—which is, again, the only capacities in which they were sued in
the plaintiff's operative complaint.
On those grounds, the Court will dismiss the plaintiff's claims against
all of the individual defendants—Bickal, the Air Force Defendants, and the
Unnamed Defendants—without prejudice.
3. MOTION FOR LEAVE TO AMEND
Recognizing the problems presented by her failure to specify that the
individual defendants were being sued in their individual capacities, the
plaintiff has filed a motion for leave to amend her complaint. Filing 15. The
only meaningful difference between the operative complaint and the proposed
second amended complaint is that in the proposed second amended
complaint, all the individual defendants are sued in their individual (and
only their individual) capacities. Compare filing 3 with filing 15 at 3-20.5
In general, courts are encouraged to allow amendments liberally. Shen
v. Leo A. Daly Co., 222 F.3d 472, 478 (8th Cir. 2000). "[A]bsent a good reason
for denial—such as undue delay, bad faith or dilatory motive, repeated
failure to cure deficiencies by amendments previously allowed, undue
prejudice to the non-moving party, or futility of amendment—leave to amend
should be granted." Kozohorsky v. Harmon, 332 F.3d 1141, 1144 (8th Cir.
The proposed amended complaint also adds a new reference to the Fourth Amendment,
compare filing 15 at 3 with filing 3 at 1, but because the Fourth Amendment was always
cited in the complaint itself, see filing 3 at 13, that amendment is not substantive.
2003). But there is no absolute right to amend a pleading. Hammer v. City of
Osage Beach, 318 F.3d 832, 844 (8th Cir. 2003). And the Court should deny a
motion for leave to amend where the amendment would be futile, because the
amended complaint could not withstand a motion to dismiss pursuant to Rule
12(b)(6). Zutz v. Nelson, 601 F.3d 842, 850-51 (8th Cir. 2010). The proposed
amendment here—the addition of individual-capacity Bivens claims—would
be futile for two reasons: (a) the Bivens claims are time-barred, and (b) the
plaintiff's allegations are insufficient to establish supervisory liability of the
Air Force Defendants or Unnamed Defendants.
(a) Statute of Limitations
The limitations period for a Bivens action, like that of a § 1983 action,
is governed by the statute of limitations for personal injury actions in the
state in which the claim accrues. Sanchez v. United States, 49 F.3d 1329,
1330 (8th Cir. 1995). In Nebraska, that's a 4-year limitations period.
Bridgeman v. Nebraska State Pen, 849 F.2d 1076, 1077-78 (8th Cir. 1988)
(citing Neb. Rev. Stat. § 25-207); Bauers v. City of Lincoln, 514 N.W.2d 625,
647 (Neb. 1994). There is no dispute that this case, which was filed on
December 21, 2016, was filed more than 4 years after the defendant's June 4,
The Court assumes, without deciding, that any amended complaint adding individual-
capacity defendants would relate back to the original complaint. See Hayes v. Faulkner Cty.,
Ark., 388 F.3d 669, 675-76 (8th Cir. 2004). That said, there is at least a colorable argument,
particularly given the lack of service, that the individual defendants still haven't been sued.
See Marchant v. City of Little Rock, Ark., 741 F.2d 201, 206 (8th Cir. 1984). That's
particularly true for the Unnamed Defendants. See Foulk v. Charrier, 262 F.3d 687, 696
(8th Cir. 2001); cf. Lee, 793 F.3d at 987-98.
But the plaintiff argues that the statute of limitations was tolled by her
administrative claim. The Court looks to state law for tolling rules, just as it
does for the length of statutes of limitations, Wallace v. Kato, 549 U.S. 384,
394-95 (2007); Bridgeman, 849 F.2d at 1078. The plaintiff points to the
Nebraska Supreme Court's decision in Bauers, 514 N.W.2d 625.
In Bauers, several former Lincoln firefighters sought reimbursement
from the city for amounts paid to pension funds and deductions made for
workers' compensation payments. Id. at 627-29. They began by presenting
claims to the city pursuant to Neb. Rev. Stat. § 15-840. Id. at 629-30. When
the city denied their claims, they sued, in part asserting pursuant to § 1983
that the city had denied their constitutional rights by depriving them of their
property. Id. at 628-29. The state district court dismissed the claims as timebarred, but the Nebraska Supreme Court reversed, explaining:
After applying the 4-year statute of limitations to the dates on
which the firefighters' claims accrued, we find that several of the
firefighters have viable claims under their § 1983 causes of
action. As stated above, we find that the firefighters' § 1983
actions were properly raised for the first time in their appeals to
the district court. The statute of limitations applicable to the §
1983 actions was tolled when the firefighters filed their claims
with the City. Had the City paid the claims, the firefighters' §
1983 actions would have been extinguished. We therefore find
that the statute of limitations was tolled during the period in
which their claims were under consideration by the City.
Id. at 634.
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The plaintiff relies on Bauers to support her argument that the statute
of limitations for her individual-capacity constitutional claims was tolled
while her FTCA claim was under submission to the Air Force. Filing 16 at 58. But Bauers is clearly distinguishable.
Bauers carved out a narrow exception to more generally applicable
principles relating to statutes of limitations. For one thing, the fact that a
recovery on one claim for relief may be offset against the recovery for a
second claim for relief does not mean that pursuing the first claim for relief
tolls the statute of limitations for the second. See Tilt-Up Concrete, Inc. v.
Star City/Federal, Inc., 621 N.W.2d 502, 508 (Neb. 2001). If the plaintiff is
not barred from prosecuting its second claim for relief, the statute of
limitations is not tolled. See id.
Furthermore, the fact that a statute of limitations may be tolled as to
one defendant does not mean that it is tolled as to other defendants. See
Andres v. McNeil Co., 707 N.W.2d 777, 789 (Neb. 2005); Casey v. Levine, 621
N.W.2d 482, 489-90 (Neb. 2001); cf. Gurske v. Strate, 87 N.W.2d 703, 704
(Neb. 1958). So, for instance, in Andres, while one defendant was estopped by
fraudulent concealment from asserting the defense of the statute of
limitations, another defendant who had not participated in the concealment
was not barred from asserting the defense. 707 N.W.2d at 789. And in Casey,
the continuing representation doctrine did not toll the statute of limitations
for medical malpractice against a hospital, when the continuing treatment
was provided by an affiliated but independent physician. 621 N.W.2d at 489.
The difference between this case and Bauers, then, is twofold. First, in
Bauers, both the administrative claims and the constitutional claims were
seeking a return of the same property. In other words, the case involved a
wholly coextensive injury, not just the possibility of a setoff or credit against
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a recovery. But more importantly, the parties to whom the benefit of the
statute of limitations enures here—the individual defendants, in their
individual capacities—were not part of the administrative claim against the
Air Force. They were, in fact, just employees of the Air Force. Cf. Vincent v.
Peter Pan Bakers, Inc., 153 N.W.2d 849, 851 (Neb. 1967).
"The main purpose of the statute of limitations is to notify the
defendant of a complaint against it within a reasonable amount of time so
that the defendant is not prejudiced by having an action filed against it long
after the time it could have prepared a defense against the claim." W. Omaha
Invs. v. Sanitary & Imp. Dist. No. 48 of Sarpy Cty., 420 N.W.2d 291, 299
(Neb. 1988). A defendant's conduct in the processing of an administrative
claim can toll the statute of limitations as to itself. See Woodard v. City of
Lincoln, 588 N.W.2d 831, 837 (Neb. 1999); see CTS Corp. v. Waldburger, 134
S. Ct. 2175, 2183 (2014). But the plaintiff directs the Court to no authority
suggesting that the individual defendants, who were entitled to the notice
and protection provided by the statute of limitations, should be prejudiced by
the conduct of a party with whom they were not in privity, see Vincent, 153
N.W.2d at 851, and over whom they had no control.
The Court's task on this issue is to predict how the Nebraska Supreme
Court would rule. See Adams v. Toyota Motor Corp., 867 F.3d 903, 919 (8th
Cir. 2017). The Court has little doubt that if confronted with the question, the
Nebraska Supreme Court would conclude that Bauers, to the extent that
holding retains its vitality, is limited to situations in which the defendant
against whom the plaintiff's constitutional claim is brought is the same
defendant to which the administrative claim that tolled the statute of
limitations was submitted. That circumstance is not present here, so the
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plaintiff's claims against the individual defendants in their individual
capacities are time-barred.
(b) Supervisory Liability
In addition, the proposed second amended complaint does not state a
claim against the Air Force Defendants or the Unnamed Defendants, because
it does not allege a factual basis for supervisory liability. Government
officials may not be held liable for the unconstitutional conduct of their
subordinates under a theory of respondeat superior. Iqbal, 556 U.S. at 676.
The purpose of Bivens is to deter the officers, not to hold officers responsible
for acts of their subordinates. Ziglar v. Abbasi, 137 S. Ct. 1843, 1860 (2017).
So, because vicarious liability is inapplicable to Bivens suits, a plaintiff must
plead that each Government-official defendant, through the official's own
individual actions, has violated the Constitution. Iqbal, 556 U.S. at 676.
A supervisor may be held individually liable if he or she directly
participates in the constitutional violation or fails to train or supervise the
subordinate who caused the violation. Brockington v. City of Sherwood, 503
F.3d 667, 673 (8th Cir. 2007).7 The standard of liability for failure to train is
deliberate indifference. Brockington, 503 F.3d at 673. And the standard of
liability for failure to supervise is demonstrated deliberate indifference or
tacit authorization of the offensive acts. Id. It is these theories on which the
plaintiff relies in suing the Air Force Defendants and Unnamed Defendants.
But that poses the question, raised by the defendants, of whether they
are entitled to qualified immunity. Filing 21 at 8-10. Under the doctrine of
For these purposes, Bivens cases and § 1983 cases are interchangeable. See Iqbal, 556 U.S.
at 675-76; Mendoza v. United States Immigration & Customs Enf't, 849 F.3d 408, 415 n.3
(8th Cir. 2017).
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qualified immunity, government officials are generally immune from civil
liability so long as their conduct does not violate clearly established statutory
or constitutional rights of which a reasonable person would have known.
Mendoza, 849 F.3d at 416. It gives government officials breathing room to
make reasonable but mistaken judgments, and protects all but the plainly
incompetent or those who knowingly violate the law. Id.
To determine whether a government official is entitled to qualified
immunity, we must ask (1) whether the official's action violated a
constitutional right; and (2) whether the violated right was clearly
established. Id. The defendants are entitled to qualified immunity unless the
answer to both of these questions is yes. Id. A right is clearly established
when the contours of the right are sufficiently clear that a reasonable official
would understand that what he or she is doing violates that right. Id. at 41617. In other words, the right violated must have been established beyond
debate. Id. at 417.
More particularly, in the context of training and supervision, "there
must first be an obvious need for the training before a failure to have it will
be considered a constitutional violation." Id. at 420.
When a supervising official who had no direct participation in an
alleged constitutional violation is sued for failure to train or
supervise the offending actor, the supervisor is entitled to
qualified immunity unless plaintiff proves that the supervisor (1)
received notice of a pattern of unconstitutional acts committed by
a subordinate, and (2) was deliberately indifferent to or
authorized those acts.
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Id. (quotation omitted); see S.M. v. Krigbaum, 808 F.3d 335, 340 (8th Cir.
2015); Livers v. Schenck, 700 F.3d 340, 355-56 (8th Cir. 2012). In this context,
"deliberate indifference is a subjective standard that requires personal
knowledge of the constitutional risk posed by inadequate supervision[.]" S.M.
v. Lincoln Cty., 874 F.3d 581, 585 (8th Cir. 2017) (quotation omitted).8 "This
rigorous standard requires proof that the supervisor had notice of a pattern of
conduct by the subordinate that violated a clearly established constitutional
right. Allegations of generalized notice are insufficient." Krigbaum, 808 F.3d
at 340. And "[t]o impose supervisory liability, other misconduct must be very
similar to the conduct giving rise to liability." Livers, 700 F.3d at 356; accord
Krigbaum, 808 F.3d at 340.
There are no allegations of such a pattern here. The complaint alleges,
in fairly general terms, that Bickal had "displayed certain behaviors and
tendencies" and was "emotionally unstable and unreliable" such that he
should have been relieved of his duties. Filing 15 at 6-7. But that does not
meet the standard necessary to overcome a qualified immunity defense. Nor
do the plaintiff's conclusory allegations of the inadequacy of the "policies and
procedures in place to train Bickal" suffice. Filing 3 at 14. Those are the sort
of "bare assertions" that "amount to nothing more than a formulaic recitation
of the elements" of the claim. See Iqbal, 556 U.S. at 681. As such, they are not
entitled to the presumption of truth. Id. "In the context of determining
whether there is a violation of a clearly established right to overcome
qualified immunity, purpose rather than knowledge is required to impose
Bivens liability on . . . an official charged with violations arising from his or
The standard is subjective because the issue is qualified immunity from individual
liability for failure to train or supervise. Id. If a deliberate indifference claim is asserted
against, for instance, a municipality, then an objective standard applies. Id.
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her superintendent responsibilities." Id. at 677. The plaintiff's complaint
lacks the "well-pleaded factual allegations," id. at 679, necessary to support
an inference of such purpose.
And while the allegations are deficient with respect to all of the Air
Force Defendants and Unnamed Defendants, they are even more deficient
with respect to some. The Air Force Defendants are the former and current
Secretaries of the Air Force, commanders of the United States Strategic
Command, and commanders of the 55th Wing of the Air Force. Filing 15 at 5.
There is nothing, in the complaint or elsewhere, to connect their supervisory
duties to the performance of a civilian security guard at a particular Offutt
AFB gate. The Unnamed Defendants are the former and current commanders
of the 55th Security Forces Squadron, and two individuals who are described
only functionally: the individuals who were respectively "tasked with
implementing and administering" and "enforcing" the personnel reliability
program of the 55th Security Forces Squadron. Filing 15 at 5. In other words,
the complaint conclusorily asserts that Bickal's training and supervision were
inadequate, and then conclusorily describes the defendants as the people in
charge of training and supervision, whoever they were. Those allegations,
such as they are, assert nothing more than the sort of "supervisory liability"
that the Supreme Court has expressly rejected in a Bivens action. Id. at 677.9
In sum, all of the plaintiff's individual-capacity claims are barred by
the statute of limitations, and the plaintiff has not stated a claim against the
And there is even less of a basis—in fact, no conceivable basis at all—for trying to sue the
current Secretary of the Air Force and current commanders of the Strategic Command, 55th
Wing, and 55th Security Forces Squadron. The plaintiff concedes—in fact, alleges—that
they did not hold those positions at or before the time of the shooting. Filing 15 at 5. Even if
there was some basis for supervisory liability, defendants who weren't supervisors during
the relevant time period can't be held personally liable. Brockington, 503 F.3d at 675.
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Air Force Defendants or Unnamed Defendants because her allegations
establish no basis for supervisory liability.10 Accordingly, her proposed second
amended complaint would be futile, and the Court will deny leave to file it.
4. MOTION TO EXTEND TIME FOR SERVICE
Finally, the plaintiff has moved pursuant to Rule 4(m) for additional
time to serve the Air Force Defendants and Unnamed Defendants. Rule 4(m)
generally provides that an action should be dismissed without prejudice as to
any defendant not served within 90 days, but that "if the plaintiff shows good
cause for the failure, the court must extend the time for service for an
Rule 4(m) does not define good cause, and courts have not given
conclusive meaning to the phrase. Kurka v. Iowa Cty., 628 F.3d 953, 957 (8th
Cir. 2010) (citing 4B Charles Alan Wright & Arthur R. Miller, Federal
Practice and Procedure § 1137). But a showing of good cause requires at least
good faith and some reasonable basis for noncompliance with the rules. Id.
Good cause is likely (but not always) to be found when (1) the plaintiff's
failure to complete service in timely fashion is a result of the conduct of a
To be clear—to the extent that the defendants are arguing that Bickal would be entitled
to qualified immunity, filing 10 at 14, the Court is not persuaded by that argument. The
well-pleaded facts relating to the shooting, taken as true, at least plausibly "give rise to an
entitlement to relief" that would not be barred by qualified immunity. See Iqbal, 556 U.S. at
679. The proposed complaint alleges that Johnson was unarmed and compliant, and that
his vehicle was only rolling forward slowly and posed no threat to anyone. Filing 15 at 1011. If those facts were taken as true, they could describe a violation of clearly-established
law. See Tennessee v. Garner, 471 U.S. 1, 20-21 (1985). Perhaps the evidence would show a
risk sufficient to warrant use of deadly force, see Brosseau v. Haugen, 543 U.S. 194, 199-200
(2004), but qualified immunity for Bickal is not shown on the face of the proposed
complaint. The claim would, of course, still be time-barred.
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third person, (2) the defendant has evaded service of the process or engaged
in misleading conduct, (3) the plaintiff has acted diligently in trying to effect
service or there are understandable mitigating circumstances, or (4) the
plaintiff is proceeding pro se or in forma pauperis. Id. But whether or not the
standard of good cause has been satisfied is largely dependent upon the facts
of each individual case. Id.11
Beyond that, even if good cause is lacking, the Court still has discretion
to extend the time for service where the plaintiff's failure to serve was the
result of "excusable neglect." Id. at 958-59. Excusable neglect is an elastic
concept that empowers courts to provide relief where a party's failure to meet
a deadline is caused by inadvertence, mistake, or carelessness, as well as by
intervening circumstances beyond the party's control. Id. at 959. The
determination of whether neglect is excusable is at bottom an equitable one,
taking account of all relevant circumstances surrounding the omission. Id.
In determining whether neglect is excusable, the following factors are
particularly important: (1) the possibility of prejudice to the defendant, (2)
the length of the delay and the potential impact on judicial proceedings, (3)
the reason for the delay, including whether the delay was within the party's
reasonable control, and (4) whether the party acted in good faith. Id. And the
The Air Force Defendants argue that the Court should deny an extension of time because
it would be futile. Filing 10 at 4-5; filing 21 at 5. Futility may be a relevant consideration
when process was served but insufficient, and the Court must decide whether to dismiss the
case or merely quash the service and permit the plaintiff a chance to re-serve. See Dahl v.
Kanawha Inv. Holding Co., 161 F.R.D. 673, 681 (N.D. Iowa 1995) (citing Gregory v. United
States Bankruptcy Court, 942 F.2d 1498, 1500 (10th Cir. 1991)); see also Marshall v.
Warwick, 155 F.3d 1027, 1032 (8th Cir. 1998). But when no service was effected, under Rule
4(m), the Court "must focus primarily on the plaintiff's reasons for not complying with the
time limit in the first place." Kurka, 628 F.3d at 958.
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Court must weigh the effect on the party requesting the extension against the
prejudice to the defendant. Id.
Neither party has directed its briefing at this relevant Eighth Circuit
authority explaining Rule 4(m). See filing 14; filing 21. Accordingly, there is
no contention here that "excusable neglect" can be found. But the plaintiff,
citing two out-of-jurisdiction district court cases, does contend that "good
cause" exists for her failure to effect service. Filing 14 at 2. Her argument is
best understood as asserting that she "has acted diligently in trying to effect
service" but that "there are understandable mitigating circumstances."
Kurka, 628 F.3d at 957. Her evidence is intended to establish, essentially,
that despite the best efforts of her counsel, she has not served the Air Force
Defendants because she cannot locate them, and has not served the
Unnamed Defendants because she cannot identify them. See filing 14-1.
But the plaintiff's evidence still leaves the Court with questions about
her diligence in attempting to effect service. Her difficulty in locating some of
the defendants does not, for instance, explain why summons was not
requested as to any of the defendants until 44 days after her initial complaint
was filed. See filing 4. Nor does it explain why that summons was not served
on the United States for another 49 days, or Bickal for another 56 days. See
filing 6.12 While that is only a few days past the 90-day deadline of Rule 4(m),
it does pose a fair question about whether the plaintiff was diligently
pursuing service from the start. If, indeed, it is "abundantly clear that [the
plaintiff] will not be able to determine the necessary information to complete
Although no return of service has been filed, the Court can infer from the answer
deadlines represented in the defendants' motion for an extension of time to respond (filing
6) that the United States was served on or about March 24, 2017, and Bickal was served on
or about March 31. See Rule 12(a)(1)(A)(i).
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service on these individuals without information or discovery from the
Defendant the United States of America to whom the information is readily
available[,]" filing 14-1 at 2, then that would suggest that diligence required
serving the United States as promptly as possible.
Nor did the plaintiff request expedited discovery in aid of service. See
Wachovia Sec., L.L.C. v. Stanton, 571 F. Supp. 2d 1014, 1049-50 (N.D. Iowa
2008); see also Oglala Sioux Tribe v. Van Hunnik, 298 F.R.D. 453, 455-56
(D.S.D. 2014). And while the Air Force Defendants' home addresses might be
hard to find, there is at least the possibility that some of them—particularly
those who are currently serving in relevant positions—could have been served
at work. See Rule 4(i)(3) (permitting service on an individual-capacity
defendant under state law pursuant to Rule 4(e)(1)); Neb. Rev. Stat. § 25508.01(1); Anthony K. v. State, 855 N.W.2d 802, 811 (Neb. 2014) (service by
certified mail must be reasonably calculated to notify the defendants, in their
individual capacities, of the lawsuit). Of course, a request for expedited
discovery might have been denied, and trying to serve the Air Force
defendants at their place of employment might have been ineffective. See
Anthony K., 855 N.W.2d at 811. But there is a colorable argument to be made
that "act[ing] diligently in trying to effect service[,]" Kurka, 628 F.3d at 957,
at least required the attempt.
That said, what the Court finds dispositive with respect to the
plaintiff's motion to extend is that, as the Court understands the plaintiff's
position, the motion is moot. The operative complaint names the United
States and the individual defendants, in their official capacities, as
defendants. The official-capacity defendants weren't served, but they've been
dismissed on jurisdictional grounds that the Court was obliged to consider
sua sponte, even pre-service. See Rule 12(h)(3); Givins v. Brisco, 515 F. App'x
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624, 624-625 (8th Cir. 2013); Hart v. United States, 630 F.3d 1085, 1089 (8th
Cir. 2011). And when the plaintiff's opposition brief is read in conjunction
with her motion for leave to amend her pleading, it is apparent that the
plaintiff is abandoning any official-capacity claims. See filing 15; filing 16 at
10-11. No defendants have been served in their individual capacities, either—
but then, no individual-capacity defendants have been named in an operative
pleading, and the Court has denied the plaintiff leave to name them.
In short, for reasons wholly separate from failure to serve process, the
only remaining defendant is the United States. And the United States has
been served and has answered. See filing 11. Because the only proper
defendant in the operative pleading has been served, the plaintiff's motion for
an extension of time to serve process is moot, and will be denied as such.
To summarize: Bickal, the Air Force Defendants, and the Unnamed
Defendants, in their official capacities, are dismissed as parties. That means
that the plaintiff's constitutional claims, which can only be asserted against
individual defendants, are dismissed as well. The remaining parties are the
plaintiff and the United States, and the plaintiff's remaining claims are her
five state-law tort claims (wrongful death, "fear of impending death,"
negligent hiring, negligent supervision and entrustment, and negligence).
IT IS ORDERED:
The defendants' motion to strike (filing 20) is granted.
The plaintiff's second amended complaint (filing 19) is
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The defendants' motion to dismiss (filing 8) is granted.
The plaintiffs' claims against Bickal, Donley, James,
Kehler, Hyten, Allshouse, Reynolds, and John Does #1-4
are dismissed without prejudice.
The plaintiff's constitutional claims are dismissed without
Bickal, Donley, James, Kehler, Hyten, Allshouse, Reynolds,
and John Does #1-4 are terminated as parties.
The plaintiff's motion for leave to file an amended
complaint (filing 15) is denied.
The plaintiff's motion to extend (filing 14) is denied as
This case is referred to the United States Magistrate Judge
for case progression.
Dated this 14th day of February, 2018.
BY THE COURT:
John M. Gerrard
United States District Judge
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