Deezia v. City of Lincoln et al

Filing 91

MEMORANDUM AND ORDER - The Motions for Summary Judgment (Filing Nos. 73 , 74 , 75 ) filed by Defendants Graham, Peth, Wayne, Winkler, and Moore on Plaintiff's false-arrest claim are denied because such Defendants are not entitled to qualifi ed immunity on Plaintiff's false-arrest claim. The Motion for Summary Judgment (Filing No. 75 ) filed by Defendants Murphy and Drager as to Plaintiff's false-arrest claim is granted for lack of personal involvement in the constitutional vi olation at the arrest stage. The individual Defendants' Motions for Summary Judgment (Filing Nos. 73 , 74 , 75 ) on Plaintiff's excessive-force claim are denied because the Defendants are not entitled to qualified immunity on Plaintiff&# 039;s excessive-force claim. Defendant City of Lincoln's Motion for Summary Judgment (Filing No. 72 ) as to Plaintiff's negligence claim is granted because the negligence claim is barred by § 13-910(7) of the Nebraska Political Subdiv isions Tort Claims Act. The only claims remaining in this lawsuit are (a) Plaintiff's false-arrest claim against Defendant Lincoln Police Officers Graham, Peth, Wayne, Winkler, and Moore in their individual capacities, and (b) Plaintiff's excessive-force claim againstDefendant Lincoln Police Officers Graham, Peth, Wayne, Winkler, Moore, Murphy, and Drager in their individual capacities. Ordered by Senior Judge Richard G. Kopf. (LKO)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
BARINE DEEZIA,
Plaintiff,
v.
CITY OF LINCOLN, GREGORY
GRAHAM, Lincoln Police
Department Officer, AARON PETH,
Lincoln Police Department Officer,
TREY WAYNE, Lincoln Police
Department Officer, ANDREW
WINKLER, Lincoln Police
Department Officer, MARK
MOORE, Lincoln Police Department
Officer, PATRICK MURPHY,
Lincoln Police Department Officer,
and JASON DRAGER, Lincoln
Police Department Officer,
Defendants.

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4:17CV3033

MEMORANDUM
AND ORDER

Plaintiff brings this 42 U.S.C. § 1983 and negligence action against the City of
Lincoln, Nebraska, and several of its police officers for violations of his Fourth and
Fourteenth Amendment rights when the officers allegedly falsely arrested and used
excessive force in detaining and arresting him. After resolution of the Defendants’
Motion to Dismiss (Filing No. 31), the remaining claims in this suit are: (1) a falsearrest claim against the Defendant police officers in their individual capacities; (2) an
excessive-force claim against the Defendant police officers in their individual
capacities; and (3) a negligence claim against the City of Lincoln.
In four separate motions, Defendants move for summary judgment, arguing that
(1) the Defendant police officers are entitled to qualified immunity and to judgment

on the merits as to Plaintiff’s false-arrest and excessive-force claims (Filing Nos. 73,
74, 75); and (2) the City of Lincoln is entitled to sovereign immunity and to judgment
on the merits as to Plaintiff’s negligence claim (Filing No. 72). I shall grant the
motions in part and deny them in part.
I. STATEMENTS OF MATERIAL FACTS
Unhelpfully, both Plaintiff and Defendants have presented the court with their
own statements of material facts, Plaintiff has not properly controverted the
Defendants’ statement of facts pursuant to NECivR 56.1, and Defendants have not
responded in any fashion to Plaintiff’s statement of facts. While Rule 56.1(b)(1)1
allows me to consider Defendants’ statement of facts admitted under these

1

Nebraska Civil Rule 56.1 requires that a party opposing a summary judgment
motion must include in its responsive brief
a concise response to the moving party’s statement of material facts.
Each material fact in the response must be set forth in a separate
numbered paragraph, must include pinpoint references to affidavits,
pleadings, discovery responses, deposition testimony (by page and line),
or other materials upon which the opposing party relies, and, if
applicable, must state the number of the paragraph in the movant’s
statement of material facts that is disputed. Properly referenced material
facts in the movant’s statement are considered admitted unless
controverted in the opposing party’s response.
NECivR 56.1(b)(1) (emphasis in original). Here, Plaintiff has not followed this rule,
but has attempted to controvert Defendants’ statement of material facts by broadly
asserting that “many of the ‘facts’ cited by the City are disputed and contradicted by
the evidence” (Filing No. 82 at CM/ECF p. 9) and by including in its opposing briefs
a “Statement of Additional Material Facts That Preclude Summary Judgment” that,
as a practical matter, contradicts some of the Defendants’ statement of facts.
2

circumstances2, I am also bound to give due consideration to Plaintiff’s properly
referenced statement of facts presented in opposition to the Defendants’ Motions for
Summary Judgment. Jenkins v. Winter, 540 F.3d 742, 747 (8th Cir. 2008) (district
court erred in not considering statement of facts presented in opposition to summary
judgment motion). Therefore, I shall reproduce both statements of material facts
verbatim and discuss any relevant disputes of fact in the course of analyzing the
substance of the pending motions.

2

See Ballard v. Heineman, 548 F.3d 1132, 1133 (8th Cir. 2008) (“We follow the
district court in considering [the defendants’] statements of fact in support of their
motions for summary judgment ‘deemed admitted’ under Nebraska Local Civil Rule
56.1(b) because [the plaintiff] did not respond to those statements of fact.”); Libel v.
Adventure Lands of America, Inc., 482 F.3d 1028, 1033 (8th Cir. 2007) (district did
not abuse discretion in deeming admitted moving party’s statements of undisputed
facts where opposing party’s responses violated Iowa Local Rule 56.1 because the
“district court was not obliged to scour the record looking for factual disputes”); Jones
v. United Parcel Service, Inc., 461 F.3d 982, 991 (8th Cir. 2006) (district court did not
abuse discretion in deeming admitted defendants’ uncontroverted facts where
plaintiff’s response violated W.D. Missouri Local Rule 56.1; district court was not
required to give specific notice of rule violation before disregarding the response);
Northwest Bank and Trust Co. v. First Illinois Nat’l. Bank, 354 F.3d 721, 725 (8th Cir.
2003) (district courts may adopt local rules designed to streamline resolution of
summary judgment motions). See also Blair v. Douglas Cty., No. 8:11CV349, 2013
WL 12123890, at *5 (D. Neb. July 19, 2013) (pursuant to Nebraska Civil Rule
56.1(b)(1), court would consider as admitted statement of facts set forth by party
moving for summary judgment when opposing party did not “oppose each numbered
paragraph in [the moving party’s] statement of facts”); LOL Fin. Co. v. Paul Johnson
& Sons Cattle Co., 758 F. Supp. 2d 871, 878 (D. Neb. 2010) (deeming admitted
movant’s statement of material facts when opposing party failed to respond to
movant’s statement of facts, but instead responded “with their own 22-paragraph
statement of material facts”); Cordray v. 135-80 Travel Plaza, Inc., 356 F. Supp. 2d
1011, 1014-15 (D. Neb. 2005) (granting summary judgment based in part on opposing
party’s failure to address each numbered paragraph of moving party’s statement of
material facts).
3

The Defendants’ statement of material facts is as follows3:
1.
Plaintiff Barine Deezia was a resident of Lincoln, Nebraska,
on March 20, 2016, the date of the incident giving rise to this case.
2.
City of Lincoln is a political subdivision of the State of
Nebraska that provides law enforcement through police officers
employed at the Lincoln Police Department (“LPD”).
3.
Defendants Gregory Graham, Aaron Peth, Trey Wayne,
Andrew Winkler, Mark Moore, Patrick Murphy, and Jason Drager
(collectively “Defendants”) were police officers with LPD who were
acting in the scope of their employment during the incident giving rise
to this case.
4.
On Saturday, March 19, 2016, Nyakiam Domach
(“Domach”), Barine Deezia (“Plaintiff”), Elizabeth Grayer (“Grayer”)
and another male were at a housewarming party.
5.
evening.

Domach and Plaintiff[] had been drinking alcohol that

6.
On Sunday, March 20, 2016, at approximately 12:30 a.m.
Domach, Plaintiff, Grayer, and the other male went to “Main Street
Café,” a bar in downtown Lincoln, Nebraska, near 14th and O Streets.
7.
On Sunday, March 20, 2016, shortly after the close of the
bars in downtown Lincoln, Nebraska, at approximately 2:00 a.m. several
LPD officers, including Defendants, were monitoring the area of 14th
and O Streets.

3

Defendants’ four briefs (Filing Nos. 77-80) in support of their four Motions for
Summary Judgment (Filing Nos. 72-75) appear to contain identical Statements of
Material Facts. For purposes of conserving space, Defendants’ citations to the
pleadings and evidence have been deleted, but can be viewed in any of their four
briefs (Filing Nos. 77-80).
4

8.
At the same time, Domach, Plaintiff, Grayer, and the other
male left “Main Street Café.”
9.
Nearby the other Defendants were positioned in that area as
follows: Officers Graham, Peth, Winkler, and Moore, were on the
southwest corner of 14th and O Streets. Officer Wayne was standing on
the southeast corner of 14th and O Streets. Officers Murphy and Drager
were on the northeast corner of 14th and O Streets.
10. At that time, each Defendant was in his LPD uniform with
his police badge displayed.
11. Officers Graham, Winkler, Murphy, and Drager were
wearing body cameras on March 20, 2016.
12. Around 2:04 a.m. Officer Moore saw Domach, Plaintiff,
Grayer, and the other male near the southwest corner of 14th and O
Streets and commented to Officer Graham, Officer Peth, and Officer
Winkler about how drunk Domach appeared.
13. Officer Moore attempted to talk to the group, but they
refused to answer and walked away.
14. Moments later the Officers saw Ms. Domach being carried
across the street northbound by Plaintiff, Ms. Grayer, and the other male.
Ms. Domach appeared to be highly intoxicated and nearly unconscious.
15. Officer Graham and Officer Peth walked across the street
northbound in the crosswalk to attempt to contact the group. At the same
time, Officer Winkler trailed behind both groups with Juan Ramirez
(“Ramirez”), who was a civilian ride-along with Officer Winkler that
evening.
16. As the two groups walked across the street, Officer Graham
attempted to talk to Plaintiff’s group to ensure the wellbeing of Domach
and to see if medical attention was required.
17.

Plaintiff began to act in an overagitated manner and was
5

confrontational. Plaintiff stated that “she is fine, she is 21, she is not
driving.” Officer Graham explained that the group was not in trouble and
that the Officers simply wanted to make sure the Domach was okay,
whether she knew the individuals carrying her, if medical attention was
required, and what establishment they were coming from.
18. Once they reached the northwest corner, Officer Graham
asked the group to sit Ms. Domach in a patio chair in the Jimmy John’s
outdoor patio area. At that point, Officer Graham attempted to talk to
Grayer who appeared to be the calmest and most cooperative.
19. As this was going on, Officer Winkler and Ramirez stood
back approximately 15-20 feet away, but within eyesight.
20. As Officer Graham attempted to talk to Ms. Grayer,
Plaintiff became verbally aggressive and got in Officer Graham’s face
and began screaming “do not talk to her” and then yelled at Grayer
telling her “you will not talk to them” and “do not talk to them.”
21. Officer Graham asked Plaintiff several times to be quiet and
to step away. Graham also asked Plaintiff to calm down, that they would
not be in any trouble if he could simply determine if Domach was safe,
knew the group, and where they were coming from.
22.

The Officers told Deezia that they did not want to talk to

him.
23. While Plaintiff continued to be belligerent towards Officer
Graham, Domach remained unresponsive.
24. Because Plaintiff was making it impossible for Officer
Graham to get any information from Grayer, Officer Peth attempted to
redirect Plaintiff by asking Plaintiff to step away from the group.
25. Officer Peth placed his hand on Plaintiff’s torso to guide
him towards the building to separate him from the group.
26.

Plaintiff was immediately resistive to this and refused to
6

walk with Officer Peth by planting his feet and then pushing Officer Peth
in the chest.
27. After being pushed, Officer Peth grabbed Plaintiff’s hand
and told him to put his hands behind his back. Plaintiff ignored this
order.
28. Officer Winkler then approached Plaintiff and Officer Peth.
He told Plaintiff to put his hands behind his back as he grabbed one of
Plaintiff’s hands. Plaintiff did not put his hands behind his back and
resisted Officer Peth’s and Officer Winkler’s attempts to force them
behind his back.
29. While Officer Peth and Officer Winkler were doing this,
Officer Graham stayed next to Grayer, Domach and the other male to
ensure everyone’s safety and make sure no other individuals interfered
with Officer Peth or Officer Winkler.
30. Plaintiff continued to pull and push away from Officer Peth
and Officer Winkler, so Officer Peth and Officer Winkler attempted to
place Plaintiff on the ground in an effort to gain better control.
31. Once Plaintiff was on the ground, he continued to struggle
and was able to stand back up.
32. During this time, Officer Moore, who was still over on the
southwest corner, heard his name being called. When he turned around,
he saw Plaintiff fighting with Officer Peth and Officer Winkler. Officer
Moore then ran across the street and began assisting Officer Graham
with crowd control.
33. Officer Peth and Officer Winkler then attempted to back
Plaintiff up into the window of Jimmy John’s to gain better control of
Plaintiff. At the same time, Officer Peth and Officer Winkler told
Plaintiff to stop resisting and put his hands behind his back. Plaintiff
ignored these commands and continued to pull away from the Officers
and actively resisted efforts to be handcuffed.
7

34. Officer Winkler then attempted to strike Plaintiff’s right leg
with a closed fist to distract Plaintiff and get him to comply; however,
this attempt was unsuccessful and Plaintiff became even more aggressive
with Officer Peth and Officer Winkler.
35. Officer Peth then performed a balance displacement
technique to place Plaintiff on the ground a second time.
36. Once on the ground, Plaintiff continued to resist and
struggle with Officer Peth and Officer Winkler and was able to return to
his feet.
37. Plaintiff actively tried to get away from the Officers and
pulled his arms away.
38. At this time, from his position across the street, Officer
Wayne saw Officer Peth and Officer Winkler physically struggling with
Plaintiff and ran across the street to assist.
39. As Officer Wayne approached the scene, Officer Peth
performed a knee strike to Plaintiff’s left common peroneal with no
effect.
40. Seeing that the knee strike had no effect, Officer Wayne
then announced his presence and ordered Plaintiff to “stop fighting.”
Wayne repeated a second time “Police stop fighting.” When those orders
were ignored and Plaintiff continued to pull away and fight with the
Officers, Officer Wayne grabbed Plaintiff’s left wrist and arm above the
elbow.
41. At that time, Officer Wayne, who was at the eastern most
outside edge of the patio, pulled out his Taser and ordered that Plaintiff
stop or be tased.
42. Realizing that the Taser would not work in such close
quarters, Officer Wayne put away the Taser. As this happened, Officer
Murphy and Officer Drager saw what was going on and ran across the
street to help.
8

43. As Officer Drager and Officer Murphy reach[ed] the patio
area, Plaintiff moved towards the outside of the patio towards Officer
Wayne and the approaching officers. Upon reaching the patio, Plaintiff
moved to the east edge of the patio near Officer Murphy, so Officer
Murphy reached for Plaintiff’s arm, but was unable to grab ahold of it.
44. Plaintiff continued to move towards the patio’s exit, towards
Officer Drager, so Officer Drager grabbed Plaintiff’s head to pull him
forward towards the ground, but Plaintiff pushed and pulled away from
Officer Drager.
45. Breaking through to outside the gated patio, Plaintiff went
towards Officer Wayne and wrapped him up around his waist. Faced
with the option of either falling backwards on his back and being in an
extremely dangerous position, or counter Plaintiff’s forward momentum,
Officer Wayne took advantage of Plaintiff’s forward moment[um] and
performed an inside takedown to displace Plaintiff and get him to the
ground.
46. Plaintiff landed on the sidewalk hitting his head as he
landed. As Officer Winkler and Officer Murphy applied handcuffs, they
realized Plaintiff was unconscious due to hitting his head when he
landed. Officer Wayne and Officer Graham immediately called for
medical personnel while Officer Murphy and Officer Wayne moved
Plaintiff to his side in the recovery position.
47.

Medical personnel were dispatched to the scene at 2:05 a.m.

48. Medical personnel arrived and Plaintiff was ultimately
transported to Bryan West Medical Center by Lincoln Fire and Rescue.
49. Upon arrival at [the] hospital, Plaintiff continued to be very
combative, screaming and yelling.
50. While at the hospital Plaintiff was uncooperative and
noncompliant with the nurse and initially refused treatment. Medical
personnel did not allow Plaintiff to refuse treatment unless he tested .000
9

for breath alcohol content. Plaintiff attempted to calculate the amount of
time since his last drink to decide if he was going to allow testing of his
alcohol level and ultimately refused the test. After doing this and
repeated ongoing discussions with the medical providers, Plaintiff
eventually relented and allowed hospital personnel to evaluate and treat
him.
51. While at the hospital, Plaintiff told Officer Murphy and
medical personnel that he was at home when he got a telephone call from
a friend who was having issues with his girlfriend and needed help with
a ride from Main Street. Plaintiff explained he was only at Main Street
for a few minutes and did not drink there. He also initially denied
drinking at all that evening.
52. Plaintiff was ultimately treated at the hospital for a fractured
left scapula and discharged from the hospital at approximately 5:30 a.m.
53. From the hospital, Officer Wayne and Officer Peth then
transported Plaintiff to the Lancaster County Department of Corrections.
54. While being booked into jail, Plaintiff was given a
preliminary breath test which showed that Plaintiff had a breath alcohol
content of 0.114.
(Filing Nos. 77-80, Defs.’ Briefs Supp. Motions Summ J. (Statements of Material
Facts) (citations to pleadings and evidence omitted).)
Plaintiff’s “Statement of Additional Material Facts”4 is as follows:
1.
In the evening of Saturday, March 19, 2016, Plaintiff Barine
Deezia (“Mr. Deezia”) was at a housewarming party for two of his
friends, Nyakiam Domach (“Ms. Domach”) and Meelubari Maaloo (“Mr.
4

Plaintiff’s four briefs (Filing Nos. 82-85) in opposition to Defendants’ four
Motions for Summary Judgment (Filing Nos. 72-75) appear to contain identical
Statements of Additional Material Facts.
10

Maaloo”), with another friend, Elizabeth Grayer (“Ms. Grayer”).
2.
Shortly after midnight, Ms. Domach, Mr. Maaloo, Ms.
Grayer and Mr. Deezia went to Main Street Bar (“Main Street”) on O
Street, Lincoln, Nebraska where they stayed until a few minutes before
2:00 a.m.
3.
While at Main Street, none of the individuals in Mr.
Deezia’s party drank any alcohol as they had gone to the bar to enjoy the
music.
4.
As soon as the four individuals exited Main Street, they
were confronted by Lincoln Police Officers who asked Ms. Grayer and
Mr. Deezia if Ms. Domach was okay, to which they replied that she was.
5.
As the group walked down O Street toward North 14th
Street, another Lincoln Police Officer apparently thought Ms. Domach
appeared drunk and asked the group which bar made Ms. Domach so
drunk, to which the group responded that Ms. Domach did not have any
alcohol at a bar and that the group was going home.
6.
At the intersection of O Street and North 14th Street, the
group of friends stopped to wait for a cross-walk signal to cross the street
to the north.
7.
By the time the group reached the intersection, there were
four Lincoln Police Officers following them, including one of the
officers that had questioned them outside Main Street.
8.
While they were waiting for the cross-walk signal at O
Street and North 14th Street, an officer again asked if Ms. Domach was
okay. For a third time, the group explained that Ms. Domach was okay
and that they were going home. They also explained that Ms. Grayer was
the designated driver.
9.
Mr. Maaloo and Ms. Grayer helped Ms. Domach cross O
Street and the officers followed.
11

10. In the middle of the intersection, the officers again asked at
what bar the group had been.
11. Again, individuals in the group explained that Ms. Domach
was fine and that they were going home.
12. After they crossed O Street, they helped Ms. Domach sit
down in a chair in the outside dining area of Jimmy John’s Restaurant.
13.

None of the officers told the group to sit Ms. Domach down.

14. At the time when Ms. Domach sat down outside Jimmy
John’s, the group was under no obligation to speak to the officers.
15. The outside dining area of Jimmy John’s has a metal fence
around it with a small opening opposite the restaurant’s front entrance.
16. Mr. Maaloo, Ms. Domach, Ms. Grayer and Mr. Deezia were
all inside the enclosed area.
17. Defendants Officer Gregory Graham and Officer Aaron
Peth stopped to talk to the group again.
18. Officer Graham stood in the opening of the metal fence. At
the criminal trial, Officer Peth testified that at least two officers blocked
the entryway of the outside patio and that Mr. Deezia would have to
walk through the officers to leave. Officer Peth never told Mr. Deezia
that he was free to leave.
19. Officer Graham continued to ask the same questions to
which Mr. Deezia replied, “She’s fine. We are going home.”
20. Officer Graham said he did not want to talk to Mr. Deezia
and that he wanted to talk to Ms. Grayer so Mr. Deezia stopped talking
and took a step back to let the officers talk to Ms. Grayer.
21. Officer Graham asked Ms. Grayer the same questions to
which Ms. Grayer responded, “We are going home. We are taking her
12

home. I am the designated driver.”
22. During this conversation, Mr. Deezia did not interrupt Ms.
Grayer, move toward either officer, nor push or touch either officer.
23. Officer Graham again asked Ms. Grayer the same questions
that had been answered many times since the friends left Main Street.
24. Officer Graham admitted at the criminal trial that the
officers had been informed multiple times that Ms. Domach was okay.
25. After Officer Graham asked the same questions, Ms. Grayer
looked over at Mr. Deezia and Mr. Deezia told her, “You don’t have to
answer the question if you don’t want to.”
26. Officer Peth responded, “What did you say?” Mr. Deezia
repeated, “She doesn’t have to answer if she doesn’t want to.”
27. Officer Peth grabbed Mr. Deezia’s arm and repeated, “What
did you say?”
28. Mr. Deezia told Officer Peth not to touch him and tried to
move back, but Officer Peth began to push Mr. Deezia.
29. Before Officer Peth initiated physical contact, Mr. Deezia
was not physically aggressive, did not try to punch Officer Peth, and did
not make any direct threats toward Officer Peth.
30.
Graham.

Mr. Deezia was never physically aggressive with Officer

31. Officer Peth, Officer Andrew Winkler and one other officer
shoved Mr. Deezia against the front window of Jimmy John’s, causing
him to lose his balance and stumble.
32. As Mr. Deezia tried to regain his balance, Officer Trey
Wayne used a maneuver called an “inside takedown”, which caused Mr.
Deezia to be thrown to the ground and strike his head on the sidewalk.
13

33. When performing the inside takedown, Officer Wayne’s
body weight of 250 pounds fell on top of Mr. Deezia’s head.
34. When using an inside takedown, an officer is supposed to
go on his knees and not fall full weight on the other individual.
35. Mr. Deezia lost consciousness when his head struck the
sidewalk. When he regained consciousness, he was laying face down
with an officer’s knee in his back.
36. Officer Wayne did not know Mr. Deezia had lost
consciousness until after Mr. Deezia was already in handcuffs.
37. From the time he was thrown against the restaurant’s
window, Mr. Deezia was repeatedly struck by the officers’ fists, elbows,
and knees, which continued after Mr. Deezia had already been
handcuffed.
38. During the entire incident, none of the individual defendants
told Mr. Deezia that he was under arrest.
39. During the entire incident, Mr. Deezia did not hear any
officer say, “Put your hands behind your back.”
40. During the entire incident, Mr. Deezia did not hear any
officer say “stop fighting” or “stop resisting”.
41. Along with the loss of consciousness, Mr. Deezia suffered
a fracture of the coracoid[] process of his left shoulder, cuts, bruises,
scrapes, and contusions as a result of being thrown against the window,
thrown against the sidewalk, and struck by the officers’ hands, elbows,
and knees.
42. Mr. Deezia was arrested and charged with resisting arrest
and obstructing a peace officer.
43.

On November 10, 2016, after a three day trial, a jury
14

returned a unanimous verdict of “not guilty” to these charges within an
hour.
(Filing Nos. 82-85, Pl.’s Briefs Opp’n Motions Summ. J. (Statements of Additional
Material Facts) (citations to pleadings and evidence omitted).)
II. STANDARD OF REVIEW
The Defendant police officers claim they are entitled to qualified immunity and
to judgment on the merits on Plaintiff’s false-arrest and excessive-force claims. In yet
another factual wrinkle, “[w]hen qualified immunity is raised at the summary
judgment stage, the proper course is to view the facts and draw reasonable inferences
in the light most favorable to the plaintiff—which ‘usually means adopting . . . the
plaintiff’s version of the facts’—and then to assess the constitutionality of the
challenged conduct.” Shannon v. Koehler, 616 F.3d 855, 864 n.5 (8th Cir. 2010)
(quoting Scott v. Harris, 550 U.S. 372, 377-78 (2007)) (emphasis added).
“Determining the question of qualified immunity involves the following twostep inquiry: (1) whether the facts shown by the plaintiff make out a violation of a
constitutional or statutory right; and (2) whether that right was clearly established at
the time of the defendant’s alleged misconduct.” Santiago v. Blair, 707 F.3d 984, 989
(8th Cir. 2013). Courts may address either prong of the analysis first, Pearson v.
Callahan, 555 U.S. 223, 236 (2009), and “the defendants are entitled to qualified
immunity unless the answer to both of these questions is yes.” McCaster v. Clausen,
684 F.3d 740, 746 (8th Cir. 2012).
To be clearly established, a legal principle must have a sufficiently
clear foundation in then-existing precedent. The rule must be “settled
law,” which means it is dictated by controlling authority or a robust
consensus of cases of persuasive authority. It is not enough that the rule
is suggested by then-existing precedent. The precedent must be clear
enough that every reasonable official would interpret it to establish the
15

particular rule the plaintiff seeks to apply.
District of Columbia v. Wesby, 138 S. Ct. 577, 589 (2018) (internal quotation marks
and citations omitted).
Especially in the Fourth Amendment context, “[t]he clearly established standard
also requires that the legal principle clearly prohibit the officer’s conduct in the
particular circumstances before him” and “[t]he rule’s contours must be so well
defined that it is clear to a reasonable officer that his conduct was unlawful in the
situation he confronted.” Id. (internal quotations and citation omitted); see also White
v. Pauly, 137 S. Ct. 548, 551-52 (2017) (“clearly established law should not be
defined at a high level of generality. . . . [and] must be particularized to the facts of the
case”; “While this Court’s case law do[es] not require a case directly on point for a
right to be clearly established, existing precedent must have placed the statutory or
constitutional question beyond debate. In other words, immunity protects all but the
plainly incompetent or those who knowingly violate the law.”) (internal quotation
marks and citations omitted); Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (specificity
in defining clearly established law for qualified immunity purposes “is especially
important in the Fourth Amendment context, where the Court has recognized that [i]t
is sometimes difficult for an officer to determine how the relevant legal doctrine, here
excessive force, will apply to the factual situation the officer confronts”) (internal
quotation marks and citations omitted).
III. DISCUSSION
Plaintiff argues that what started as a consensual encounter—the officers’
questioning Plaintiff’s group as they crossed the street regarding Ms. Domach’s
welfare and what bar was responsible for over-serving her—turned into an
investigatory detention without reasonable articulable suspicion in violation of the
Fourth Amendment when Plaintiff’s group entered the fenced outdoor dining area of
16

Jimmy John’s and Officers Graham and Peth blocked the entrance to the dining area
such that the group could not leave.
In further violation of Plaintiff’s Fourth Amendment rights—and these are the
only claims asserted in Plaintiff’s Amended Complaint (Filing No. 26)—Plaintiff
claims that Defendants arrested him without probable cause and used excessive force
in doing so. (Filing No. 85 at CM/ECF pp. 13-14.) Finally, Plaintiff asserts that the
City of Lincoln negligently trained, screened, hired, and supervised its police officers.
A. False Arrest
1. Events Preceding Arrest
Chronologically dissecting the March 2016 event, it is clear that the officers
were lawfully permitted to ask Plaintiff’s group questions as they crossed the street
after exiting the bar. Fla. v. Bostick, 501 U.S. 429, 434-435 (1991) (“a seizure does
not occur simply because a police officer approaches an individual and asks a few
questions”; “when officers have no basis for suspecting a particular individual, they
may generally ask questions of that individual . . . as long as the police do not convey
a message that compliance with their requests is required”). Further, when Plaintiff
and his friends voluntarily seated themselves in the Jimmy John’s dining area,
Plaintiff had the right to refuse to answer the officers’ repeated questions and to advise
his friend, Elizabeth Grayer, that she need not continue to answer the officers’
repetitive inquires. Illinois v. Wardlow, 528 U.S. 119, 125 (2000) (“when an officer,
without reasonable suspicion or probable cause, approaches an individual, the
individual has a right to ignore the police and go about his business. And any refusal
to cooperate, without more, does not furnish the minimal level of objective
justification needed for a detention or seizure.”) (internal quotation marks and
citations omitted).

17

However, when Officer Graham positioned himself to block the only opening
to and from the fenced dining area, he “communicated to [Plaintiff and his friends that
they were] not free to decline the officers’ requests or otherwise terminate the
encounter,” Bostick, 501 U.S. at 439, thereby “seizing” Plaintiff within the meaning
of the Fourth Amendment. “Seizures” include both investigative stops and arrests, but
an investigative stop must be supported by individualized, reasonable, articulable
suspicion that the person detained is committing or is about to commit a crime,
whereas an arrest must be supported by probable cause. United States v. Bearden, 780
F.3d 887, 894 (8th Cir. 2015); United States v. Bloomfield, 40 F.3d 910, 916 (8th Cir.
1994).
As evidenced by the officers’ repeated questions to Plaintiff and his friends
concerning the bar that might have been responsible for Domach’s suspected drunken
condition, the officers had no individualized suspicion that Plaintiff himself was
committing, or about to commit, a crime. Navarette v. California, 572 U.S. 393, 39697 (2014) (“The Fourth Amendment permits brief investigative stops . . . when a law
enforcement officer has a particularized and objective basis for suspecting the
particular person stopped of criminal activity.”) (internal quotation marks and
citations omitted; emphasis added); Arizona v. Johnson, 555 U.S. 323, 326 (2009)
(police officer in an “on-the-street” encounter may execute an investigatory stop when
“the police officer reasonably suspects that the person apprehended is committing or
has committed a criminal offense”) (emphasis added); United States v. Cortez, 449
U.S. 411, 417-18 (1981) (“the detaining officers must have a particularized and
objective basis for suspecting the particular person stopped of criminal activity”)
(emphasis added); Buffkins v. City of Omaha, Douglas Cty., Neb., 922 F.2d 465, 470
(8th Cir. 1990) (“In order to constitute a reasonable articulable suspicion the known
facts must reasonably relate to the person about to be stopped and demonstrate a
reasonable suspicion that the person has engaged or will engage in criminal activity.”)
(emphasis added).

18

Even if the officers’ investigative detention of Plaintiff had been justified, “[i]f
the officer does not learn facts rising to the level of probable cause, the individual
must be allowed to go on his way.” Wardlow, 528 U.S. at 125. Construing the
evidence in favor of Plaintiff, after Plaintiff and his friends were seated in the Jimmy
John’s patio area, the officers continued asking the same questions they had asked at
least four times previously, receiving the same responses they had already
gotten—that is, Plaintiff and his friends had just exited the Main Street Café, Domach
was fine, and the group was heading home with the assistance of a designated driver.
At that point, the officers learned nothing establishing probable cause to arrest
Plaintiff.
Nevertheless, instead of allowing Plaintiff and his friends to go on their way,
Officer Peth grabbed Plaintiff’s arm after Plaintiff advised Ms. Grayer that she need
not continue answering the officer’s questions. Plaintiff then told Officer Peth to stop
touching him, tried to move back, and tried to get away from the officers, but Officer
Peth, and possibly other officers, pushed Plaintiff against the front window of Jimmy
John’s, causing him to lose his balance and stumble.
2. The Arrest
At this point, the Defendants admit that Plaintiff’s investigative detention
transformed into an arrest5, which is obviously the basis for Plaintiff’s false-arrest
claim.6 See United States v. Aquino, 674 F.3d 918, 924 (8th Cir. 2012) (“where an
5

Filing No. 79, Defs.’ Br. Supp. Summ. J. at CM/ECF pp. 17-19 (asserting that
Plaintiff pushed Officer Peth, and when he did so, encounter “admittedly amount[ed]
to an arrest under the Fourth Amendment”).
6

Even if the officers lacked reasonable articulable suspicion to detain Plaintiff
initially, as discussed above, Plaintiff’s response to “even an invalid . . . Terry stop
may constitute independent grounds for arrest” and therefore serve as a basis for
Plaintiff’s claim. United States v. Dawdy, 46 F.3d 1427, 1431 (8th Cir. 1995); United
19

officer exceeds the permissible scope of Terry, the investigatory detention is
transformed into an arrest”); United States v. Donnelly, 475 F.3d 946, 953 (8th Cir.
2007) (“An investigative detention may turn into an arrest . . . if officers use
unreasonable force.”) (internal quotation marks and citation omitted); Bloomfield, 40
F.3d at 916-17 (“Although there is no bright line of demarcation between investigative
stops and arrests, a de facto arrest occurs when the officers’ conduct is more intrusive
than necessary for an investigative stop.”) (internal quotation marks and citations
omitted).
Plaintiff claims Defendants lacked probable cause to arrest him, in violation of
the Fourth Amendment, and Defendants assert that they have qualified immunity from
such a claim. See Parsons v. McCann, 138 F. Supp. 3d 1086, 1106 (D. Neb. 2015) (a
false arrest is a violation of the Fourth Amendment right against the unreasonable
seizure of persons). “[A] false arrest claim under § 1983 fails as a matter of law where
the officer had probable cause to make the arrest.” Kurtz v. City of Shrewsbury, 245
F.3d 753, 758 (8th Cir. 2001). At the time of the incident at issue, “[i]t was clearly
established . . . that a warrantless arrest, unsupported by probable cause, violates the
Fourth Amendment,” Hoyland v. McMenomy, 869 F.3d 644, 652 (8th Cir. 2017)
(describing state of the law in 2013) (internal quotation marks and citations omitted),
and that an officer has probable cause to make a warrantless arrest only when the
totality of the circumstances at the time of the arrest are sufficient to lead a reasonable
person to believe that the defendant has committed or is committing an offense.
Borgman v. Kedley, 646 F.3d 518, 523 (8th Cir. 2011) (internal quotation marks and
citation omitted).7

States v. Blackmon, 662 F.3d 981, 985 (8th Cir. 2011) (same).
7

As was the case here, “[t]he fact that the person arrested is later found innocent
is not material.” Joseph v. Allen, 712 F.3d 1222, 1226 (8th Cir. 2013).
20

For qualified immunity purposes, the issue “is not probable cause in fact[,] but
arguable probable cause.” Smithson v. Aldrich, 235 F.3d 1058, 1062 (8th Cir. 2000)
(internal quotation marks and citation omitted). “Arguable probable cause exists even
where an officer mistakenly arrests a suspect believing it is based in probable cause
if the mistake is objectively reasonable.” Borgman, 646 F.3d at 523; see also Walker
v. City of Pine Bluff, 414 F.3d 989, 992 (8th Cir. 2005) (“Because the qualified
immunity privilege extends to a police officer who is wrong, so long as he is
reasonable, the governing standard for a Fourth Amendment unlawful arrest claim is
not probable cause in fact but arguable probable cause . . . that is, whether the officer
should have known that the arrest violated plaintiff’s clearly established right.”)
(internal quotation marks and citations omitted). “Under this objective legal
reasonableness standard, courts may not delve into the officers’ subjective motivation
for their actions.” Joseph, 712 F.3d at 1226 (internal quotation marks and citation
omitted).
First, Plaintiff has presented no evidence to suggest that Defendant Officers
Murphy and Drager were involved in arresting him. Specifically, Plaintiff has not
refuted Officer Murphy’s and Drager’s affidavits stating that they were standing on
the northeast corner of 14th and O Streets when they observed Officers Winkler, Peth,
and Wayne struggling with Plaintiff on the northwest corner of the intersection.
(Filing No. 76-7, Aff. Murphy ¶¶ 2-3; Filing No. 76-8, Aff. Drager ¶¶ 2-3.) Without
personal involvement in the alleged constitutional violation, these officers cannot be
liable on Plaintiff’s false-arrest claim. See Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009)
(“Because vicarious liability is inapplicable to Bivens and § 1983 suits, a plaintiff
must plead that each Government-official defendant, through the official’s own
individual actions, has violated the Constitution.”)8
8

It may be that other of the Defendant officers were not personally involved in
Plaintiff’s arrest, but it is unclear at this point due to Plaintiff’s testimony that he does
not recall what each of the Defendant police officers did during the events of March
20, 2016, (Filing No. 76-17, Dep. of Deezia at 109:22-111:6) and the lack of clarity
21

Second, as to the remaining Defendants, it is undisputed that Plaintiff was
arrested for obstructing a peace officer under Neb. Rev. Stat. § 28-906(1)(a) and
resisting arrest under Neb. Rev. Stat. § 28-904(1), both of which are misdemeanors.9
In Nebraska, “[a] person commits the offense of obstructing a peace officer, when, by
using or threatening to use violence, force, physical interference, or obstacle, he or she
intentionally obstructs, impairs, or hinders . . . the enforcement of the penal law or the
preservation of the peace by a peace officer . . .” Neb. Rev. Stat. § 28-906(1) (Westlaw
2018). “There must be some sort of affirmative physical act, or threat thereof, for a
violation of [Neb. Rev. Stat. § 28-906(1)(a)] to occur,” State v. Ellingson, 703 N.W.2d
273, 282 (Neb. App. 2005), including “[t]he mere act of running away from law
enforcement officers,” which alone “constitutes physical interference or obstacle
within the meaning of this provision.” United States v. Sledge, 460 F.3d 963, 967 (8th
Cir. 2006).
The other misdemeanor for which Plaintiff was arrested, resisting arrest, is an
offense which occurs when “he or she uses or threatens physical force or violence
against a peace officer while intentionally preventing or attempting to prevent the
peace officer from effecting an arrest of the actor or another.” State v. Heath, 838
N.W.2d 4, 17 (Neb. App. 2013). Verbal advisement of an attempted arrest is not
required; it is enough that the officer has begun to take actions to effectuate physical
control over the defendant. Id.
On these facts, construed in Plaintiff’s favor, a reasonable officer would not
of Plaintiff’s statement of material facts regarding which officers were responsible for
Plaintiff’s arrest (Plaintiff’s Statement of Fact No. 31 (“Officer Peth, Officer Andrew
Winkler and one other officer shoved Mr. Deezia”)). However, with regard to Officers
Murphy and Drager, Defendants have filed evidence of their lack of involvement at
the arrest stage, and Plaintiff has failed to refute that evidence.
9

Resisting arrest under Neb. Rev. Stat. § 28-904 is a misdemeanor if it is a first
offense, as was the case here. (Filing No. 81-2, Criminal Trial Tr. at 14:16-19.)
22

have believed they had arguable probable cause to arrest Plaintiff for either of these
misdemeanors or for any other crime. Elizabeth Grayer—the designated
driver—repeatedly testified that Plaintiff never physically inserted himself between
her and the officers who were questioning her. (Filing No. 81-2, Criminal Trial Test.
of Grayer at 581:10-12, 586:11-13, 606:23-24.) She testified that Plaintiff did not yell
at, threaten, push, or punch any of the officers before Plaintiff was pushed into the
Jimmy John’s window and before multiple officers “body slammed [him] to the
ground.” (Id. at 582:11-20, 586:14-16, 606:10-22, 609:4-24, 623:7-9; see also Filing
No. 81-2, Criminal Trial Test. of Maaloo at 536:17-19, 538:11-12, 542:5-7; Filing No.
81-2, Criminal Trial Test. of Hoefer at 396:23-24 (“I can’t honestly say I saw him
physically do anything to the officers.”).) Even Officer Peth testified that before he
made physical contact with Plaintiff, he was not physically aggressive, did not try to
punch him, and did not make any threats. (Filing No. 81-2, Criminal Trial Test. of
Peth at 89:17-90:4.) Officer Peth also stated that the situation did not escalate until he
made physical contact with Plaintiff. (Id. at 90:2-4.) Officer Graham concurred that,
prior to Officer Peth making physical contact, Plaintiff did not make any threats and
had not thrown any punches at the officers. (Filing No. 81-2, Criminal Trial Test. of
Graham at 152:22-25.)
All Plaintiff had done at the time officers shoved him into the Jimmy John’s
window, and therefore arrested him, was instruct Grayer to refuse to provide
information already conveyed to the officers four times previously. “[T]he mere
verbal refusal to provide information to an officer does not constitute an obstacle to
the enforcement of the penal laws as contemplated by § 28-906.” State v. Yeutter, 566
N.W.2d 387, 391 (Neb. 1997).
Under these factual circumstances—that is, where Plaintiff did not use, or
threaten to use, violence, force, physical interference, or other type of obstacle against
the officers in their attempt to confirm the safety of Ms. Domach (not Plaintiff) and
investigate a possible tavern violation (also not involving Plaintiff), and where
23

Plaintiff had not committed a violation of penal law that officers were attempting to
enforce against him—it was not objectively reasonable for a police officer to believe
that he had probable cause to arrest Plaintiff for obstructing a peace officer under Neb.
Rev. Stat. § 28-906(1), for resisting arrest under Neb. Rev. Stat. § 28-904(1), or for
any other crime.
Accordingly, Defendant Murphy and Drager’s Motion for Summary Judgment
(Filing No. 75) will be granted as to Plaintiff’s false-arrest claim for lack of personal
involvement in the constitutional violation. Because the remaining Defendant officers
are not entitled to qualified immunity on Plaintiff’s false-arrest claim, and their
Motions for Summary Judgment shall be denied in this respect.
B. Excessive Force
The Fourth Amendment’s right to freedom from unreasonable searches and
seizures encompasses the right to be free from the use of excessive force. Graham v.
Connor, 490 U.S. 386, 394-95 (1989). “[T]he right to be free from excessive force in
the context of an arrest has been clearly established for some time.” Wilson v. Spain,
209 F.3d 713, 716 n.3 (8th Cir. 2000).
To show a Fourth Amendment violation by the use of force, a plaintiff must
establish (1) that he was “seized” within the meaning of the Fourth Amendment and
(2) 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), and “without regard to their underlying intent or motivation.”
Ellison v. Lecher, 796 F.3d 910, 916 (8th Cir. 2015) (internal quotation marks and
citation omitted).
As discussed above, Defendants concede that Plaintiff was arrested, and
24

therefore seized, at the point when officers pushed Plaintiff against the front window
of Jimmy John’s. See Sledge, 460 F.3d at 967 (the officers’ “grabbing” Plaintiff
“constituted an actual seizure of [his] person, or, in other words, an arrest”); see also
Atkinson v. City of Mountain View, Mo., 709 F.3d 1201, 1208 (8th Cir. 2013) (to
constitute a Fourth Amendment “seizure,” there must be willful or intentional
application of physical force, as determined by the “officer’s objective behavior,” or
plaintiff’s submission to the police officer’s show of authority).
As to the objective reasonableness of the officers’ use of force against Plaintiff,
relevant factors include:
the relationship between the need for the use of force and the amount of
force used; the extent of the plaintiff’s injury; any effort made by the
officer to temper or to limit the amount of force; the severity of the
security problem at issue; the threat reasonably perceived by the officer;
and whether the plaintiff was actively resisting.
Kingsley v. Hendrickson, 135 S. Ct. 2466, 2473 (2015) (citing Graham v. Connor, 490
U.S. 386, 396 (1989)). “[I]t is clearly established that force is least justified against
nonviolent misdemeanants who do not flee or actively resist arrest and pose little or
no threat to the security of the officers or the public.” Brown v. City of Golden Valley,
574 F.3d 491, 499 (8th Cir. 2009).
Construing the facts in favor of Plaintiff, here we have a man who was tired of
answering the same questions he and his friends had been asked at least four times by
Lincoln police officers after exiting a downtown bar regarding the level of
intoxication of one of Plaintiff’s friends; who told one of his friends she need not
continue answering such questions; who told Officer Peth not to touch him as Peth
tried to physically guide Plaintiff away from his friends during continued questioning;
and who did not yell at, threaten, push, or punch any of the officers. In response,
Officer Peth, Officer Winkler, and one other officer shoved Plaintiff against the front
window of Jimmy John’s, causing him to lose his balance and stumble. He was then
25

repeatedly struck by officers’ fists, elbows, and knees, and 250-pound Officer Wayne
ultimately slammed Plaintiff’s head into the sidewalk while attempting to perform an
“inside takedown” maneuver, causing Plaintiff to lose consciousness and suffer a
fracture of the coracoid process of his left shoulder, cuts, bruises, scrapes, and
contusions. When Plaintiff regained consciousness, he was lying face-down in a pool
of blood with an officer’s knee in his back.
The offenses with which Plaintiff was charged as a result of this incident are
Class I misdemeanors under Nebraska law. Neither the Plaintiff nor his friends
appeared to be armed, dangerous, or a threat to the security of the officers or the
public. And while Plaintiff admits that he tried to “get away” from the officers,
Officer Wayne himself confirmed that Plaintiff was “not running” from the scene.
(Filing No. 81-3, Dep. Wayne at 86:16-24.)
Plaintiff has presented sufficient proof in support of his claim, if believed, to
allow a reasonable jury to find that after “seizing” Plaintiff within the meaning of the
Fourth Amendment, the officers used a degree of force in arresting him for two
misdemeanors that was not “objectively reasonable.” For qualified immunity
purposes, the question then becomes whether the law at the time of the incident clearly
established that the level of force used in this context constituted excessive force.
Ehlers v. City of Rapid City, 846 F.3d 1002, 1012 (8th Cir. 2017).
In March of 2016, “several cases establish[ed] that every reasonable officer
would have understood that he could not forcefully take down . . . a nonviolent,
nonthreatening misdemeanant who was not actively resisting arrest or attempting to
flee . . . in the allegedly violent and uncontrolled manner that [the Defendant officers]
did.” Karels v. Storz, No. 17-2527, __ F.3d __, 2018 WL 4957704, at *5 (8th Cir. Oct.
15, 2018) (officer not entitled to qualified immunity on excessive force claim when
officer grabbed arrestee’s wrist, twisted her arm, and applied handcuffs in such a
manner than arrestee fractured humerus bone and required emergency surgery) (citing
26

Small v. McCrystal, 708 F.3d 997, 1005 (8th Cir. 2013); Montoya v. City of
Flandreau, 669 F.3d 867, 873 (8th Cir. 2012); Shannon v. Koehler, 616 F.3d 855,
864-65 (8th Cir. 2010); Michael v. Trevena, 899 F.3d 528, 533 (8th Cir. 2018);
Rokusek v. Jansen, 899 F.3d 544, 548 (8th Cir. 2018); Atkinson v. City of Mountain
View, 709 F.3d 1201, 1213 (8th Cir. 2013); Brown v. City of Golden Valley, 574 F.3d
491, 499 (8th Cir. 2009); Rohrbough v. Hall, 586 F.3d 582, 586-87 (8th Cir. 2009),
and recognizing that although such cases “present different facts and circumstances,
there is no requirement that [the plaintiff] must find a case where the very action in
question has previously been held unlawful, so long as existing precedent [has] placed
the statutory or constitutional question beyond debate” (internal quotation marks and
citations omitted)).
Whether a reasonable officer would have interpreted Plaintiff’s actions as
“active resistance” or an “attempt to flee” is a disputed question of fact that a jury
must decide. Karels, 2018 WL 4957704, at *5. Accordingly, the Defendants10 are not
entitled to qualified immunity on Plaintiff’s excessive-force claim, and Defendants’
Motion for Summary Judgment on such claim against Defendants in their individual
capacities will be denied.
C. Negligence

10

Plaintiff’s evidence establishes that Officers Peth, Winkler, and one other
officer pushed him into the restaurant window and that Officer Wayne performed the
inside takedown that propelled his head into the concrete. However, and as might be
expected, Plaintiff’s testimony is unclear as to which particular officers kneed him in
the back as he was regaining consciousness and which officers repetitively struck him
with their fists, elbows, and knees after they handcuffed them. While it is obvious that
each Defendant may only be liable under § 1983 for their “own individual actions,”
Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009), it is unclear at this point what actions
every named officer took in applying force to Plaintiff. Accordingly, I am unable to
grant any of the Defendants’ Motions for Summary Judgment for lack of personal
participation in the use of force against Plaintiff.
27

Finally, Plaintiff alleges that the City of Lincoln was negligent in the following
ways:
(a) Failing to implement policies, customs, and practices to
prevent excessive use of force by Lincoln Police Officers in general, and
specifically those officers assigned to downtown bar closing at 2:00 a.m.
and prior thereto;
(b) Failing to properly screen applicants applying for jobs with the
Lincoln Police Department for service in the alcohol unit patrolling
downtown Lincoln’s bar district on “O” Street from dusk to the 2:00 a.m.
closings;
(c) Failing to properly train Lincoln Police Officers, and in
particular those officers assigned to patrol the bar district where large
crowds emerge at 2:00 a.m. after consuming alcohol; and
(d) Failing to properly supervise Lincoln Police Officers in the
performance of their duties.
(Filing No. 26, Amended Complaint ¶ 84.)
The Nebraska Political Subdivisions Tort Claims Act (“NPSTCA”) authorizes
tort claims against municipalities, Neb. Rev. Stat. § 13-908 (Westlaw 2018), subject
to certain exceptions, including “[a]ny claim arising out of assault, battery, false arrest
. . . . ,” sometimes referred to as the intentional-torts exception. Neb. Rev. Stat. § 13910(7) (Westlaw 2018). “Statutes that purport to waive the protection of sovereign
immunity of the State or its subdivisions are strictly construed in favor of the
sovereign and against its waiver. A waiver of sovereign immunity is found only where
stated by the most express language of a statute or by such overwhelming implication
from the text as will allow no other reasonable construction.” Britton v. City of
Crawford, 803 N.W.2d 508, 514-15 (Neb. 2011).
The Nebraska Supreme Court has repeatedly found that a plaintiff cannot avoid
28

the intentional-torts exception by “‘framing [his] complaint in terms of negligent
failure to prevent the assault and battery.’” Britton, 803 N.W.2d at 517 (quoting
United States v. Shearer, 473 U.S. 52 (1985)). The exception “‘does not merely bar
claims for assault or battery; in sweeping language it excludes any claim arising out
of assault or battery. We read this provision to cover claims like [the plaintiff’s] that
sound in negligence but stem from a battery committed by a Government employee.’”
Id. at 517 (emphasis in original) (quoting Shearer, 473 U.S. 52).
“Battery” under Nebraska law is “an actual infliction of an unconsented injury
upon or unconsented contact with another” or “any intentional, unlawful physical
violence or contact inflicted on a human being without his consent.” Britton, 803
N.W.2d at 515 (internal quotation marks and citations omitted). “A harmful contact
intentionally done is the essence of battery.” Id.
Here, although Plaintiff alleges that the City of Lincoln negligently trained,
screened, hired, and supervised its police officers, the injuries for which Plaintiff sues
“arose out of” the officers’ intentional, physical contact with Plaintiff without his
consent. This constitutes “arising out of . . . battery” within the meaning of Neb. Rev.
Stat. § 13-910(7). Although Plaintiff’s claims are “grounded in negligence, . . . the
alleged negligence was inextricably linked to a battery, and . . . this suit is thus barred
by the Nebraska Political Subdivisions Tort Claims Act.” Westcott v. City of Omaha,
901 F.2d 1486, 1490 (8th Cir. 1990) (in action against city for death of decedent, who
was shot by police officer, district court correctly dismissed action when facts
alleged—although cast as a negligence claim—amounted to battery under Nebraska
law, and NPSTCA allows municipalities to “plead the defense of sovereign immunity
to avoid any state-law claims arising out of an assault or battery”); see also Policky
v. City of Seward, Neb., 433 F. Supp. 2d 1013, 1027 (D. Neb. 2006) (city was immune
from suit under NPSTCA when complaint alleged city was negligent in failing to
properly train officer as to “the proper procedures when using a taser gun, restraining
Plaintiff with unreasonable force, and . . . how to determine what facts and
29

circumstances merit the use of force” because city’s alleged negligent failure to train
was directly related to officer’s employment as police officer and to his alleged
intentional torts of unlawfully arresting and assaulting plaintiff); Johnson v. State, 700
N.W.2d 620 (Neb. 2005) (intentional torts exception in State Tort Claims Act—which
was identical to the NPSTCA exception in Neb. Rev. Stat. § 13-910(7)—encompassed
negligence claim asserted against state for failure to supervise, hire, and discipline
because such claim arose out of assault and battery by state correctional employee,
and plaintiff simply reframed the claim); Hawkins v. Gage Cty., No. 4:13CV3009,
2013 WL 12073803, at *19 (D. Neb. Sept. 3, 2013), aff’d, 759 F.3d 951 (8th Cir.
2014) (“The creative use of negligence pleading cannot resurrect a claim that is
otherwise barred by the intentional tort exception of the Nebraska Political
Subdivisions Tort Claims Act.”).
Because Plaintiff’s negligence claim against the City of Lincoln is barred by §
13-910(7) of the Nebraska Political Subdivisions Tort Claims Act, the City of
Lincoln’s Motion for Summary Judgment will be granted.
IV. CONCLUSION
For the reasons discussed above, the Motion for Summary Judgment filed by
Defendant Officers Murphy and Drager as to Plaintiff’s false-arrest claim will be
granted for lack of personal involvement in the constitutional violation at the arrest
stage; the Motions for Summary Judgment filed by Defendants Graham, Peth, Wayne,
Winkler, and Moore on Plaintiff’s false-arrest claim will be denied because such
Defendants are not entitled to qualified immunity on that claim; and all of the
individual Defendants’ Motions for Summary Judgment on Plaintiff’s excessive-force
claim will be denied because the Defendants are not entitled to qualified immunity on
that claim. Defendant City of Lincoln’s Motion for Summary Judgment as to
Plaintiff’s negligence claim will be granted, as the negligence claim is barred by § 13910(7) of the Nebraska Political Subdivisions Tort Claims Act. Accordingly,
30

IT IS ORDERED:
1.
The Motions for Summary Judgment (Filing Nos. 73, 74, 75) filed by
Defendants Graham, Peth, Wayne, Winkler, and Moore on Plaintiff’s false-arrest
claim are denied because such Defendants are not entitled to qualified immunity on
Plaintiff’s false-arrest claim;
2.
The Motion for Summary Judgment (Filing No. 75) filed by Defendants
Murphy and Drager as to Plaintiff’s false-arrest claim is granted for lack of personal
involvement in the constitutional violation at the arrest stage;
3.
The individual Defendants’ Motions for Summary Judgment (Filing Nos.
73, 74, 75) on Plaintiff’s excessive-force claim are denied because the Defendants are
not entitled to qualified immunity on Plaintiff’s excessive-force claim;
4.
Defendant City of Lincoln’s Motion for Summary Judgment (Filing No.
72) as to Plaintiff’s negligence claim is granted because the negligence claim is barred
by § 13-910(7) of the Nebraska Political Subdivisions Tort Claims Act; and
5.
The only claims remaining in this lawsuit are (a) Plaintiff’s false-arrest
claim against Defendant Lincoln Police Officers Graham, Peth, Wayne, Winkler, and
Moore in their individual capacities, and (b) Plaintiff’s excessive-force claim against
Defendant Lincoln Police Officers Graham, Peth, Wayne, Winkler, Moore, Murphy,
and Drager in their individual capacities.
DATED this 29th day of October, 2018.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge
31