Merrell v. Douglas County, Nebraska et al

Filing 21

MEMORANDUM AND ORDER - The Defendants' Motion for Partial Dismissal (Filing No. 10 ) is granted in part, as follows: a. The Plaintiff's third theory of recovery is dismissed, without prejudice; and b. The Plaintiff's fourth theory of recovery is dismissed, without prejudice, as to the Defendant Douglas County, Nebraska. The Motion is otherwise denied. The Defendants will respond to the (Amended) Complaint on or before August 15, 2011. Ordered by Judge Laurie Smith Camp. (GJG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
JEFFREY L. MERRELL,
Plaintiff,
v.
DOUGLAS COUNTY, NEBRASKA,
JEFFERY NEWTON, BARBARA
GLAZER, WAYNE LOVETT, JOHN
SKANES, MICHAEL MYERS, and JOHN
DOES 1-50, and JANE DOES 1-50,
Defendants.

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CASE NO. 8:11CV74

MEMORANDUM
AND ORDER

This matter is before the Court on the Defendants' Motion for Partial Dismissal
(Filing No. 10). Having reviewed the (Amended) Complaint (Filing No. 9), and the parties'
briefs (Filing Nos. 11, 14-1, and 17), the Court will grant the Motion, in part.
FACTUAL BACKGROUND
Plaintiff Jeffrey L. Merrell ("Merrell") was employed by Defendant Douglas County,
Nebraska (the "County") from 1990 until his termination in 2009. In general, Merrell
complains that the individual Defendants "mistreated him and conspired against him"
because of his age, race, disability, and sex. ((Amended) Complaint at 9.) Liberally
construing his allegations, the Court infers that Merrell is a black male over the age of 40,
and that he developed severe depression starting on or about March 13, 2009, causing him
to be "permanently and totally disabled." (Id. at 5.)
Merrell presents four theories of recovery. First, he contends that the Defendants
mistreated him and conspired against him on the basis of his age, race, disability and sex.
Second, he contends that the Defendants harassed him, retaliated against him, and
terminated him, violating his rights of substantive and procedural due process. Third, he

contends that the "Defendant" (which the Court infers to be the County) "ritually violated
its practices and procedures resulting in Plaintiff being harassed, retaliated against, and
terminated in violation of applicable collective bargaining agreements." (Id. at 9-10.)
Fourth, he contends that "some or all of the various Defendants engaged in a conspiracy
to harass and terminate Plaintiff." (Id. at 10.) It is the third and fourth claims that the
Defendants have moved to dismiss, because the (Amended) Complaint does not contain
sufficient factual allegations from which it can be inferred that Merrell complied with
relevant conditions precedent for bringing such actions.
STANDARD OF REVIEW
Under the Federal Rules of Civil Procedure, a complaint must contain “a short and
plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P.
8(a)(2). “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need
detailed factual allegations, . . . a plaintiff’s obligation to provide the grounds of his
entitlement to relief requires more than labels and conclusions, and a formulaic recitation
of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555 (2007) (internal quotations and citations omitted).

The complaint’s “[f]actual

allegations must be enough to raise a right to relief above the speculative level.” Id.
Specifically, the complaint must contain “enough fact to raise a reasonable expectation that
discovery will reveal evidence” to substantiate the necessary elements of the plaintiff’s
claim. Id. at 556.
When ruling on a defendant's motion to dismiss, a judge must rule “on the
assumption that all the allegations in the complaint are true,” and “a well-pleaded complaint
may proceed even if it strikes a savvy judge that actual proof of those facts is improbable,
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and ‘that recovery is very remote and unlikely.’” Id. (quoting Scheuer v. Rhodes, 416 U.S.
232, 236 (1974)). The complaint, however, must still “include sufficient factual allegations
to provide the grounds on which the claim rests.” Gregory v. Dillard’s, Inc., 565 F.3d 464,
473 (8th Cir. 2009).
“Two working principles underlie . . . Twombly. First, the tenet that a court must
accept as true all of the allegations contained in a complaint is inapplicable to legal
conclusions. Threadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009)
(citing Twombly, 550 U.S. at 555). “Second, only a complaint that states a plausible claim
for relief survives a motion to dismiss.” Id. at 1950 (citing Twombly, 550 U.S. at 556).
“Determining whether a complaint states a plausible claim for relief will . . .

be a

context-specific task that requires the reviewing court to draw on its judicial experience and
common sense.” Id.
DISCUSSION
Merrell's third and fourth claims arise under state law. The County, as a political
subdivision, enjoys sovereign immunity from state-law actions except where such immunity
has been set aside expressly by the Nebraska legislature. See Cotton v. State, No. S-10114, 2011 WL 2586342, at *6 (Neb., July 1, 2011) ("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 the waiver.") Nebraska's legislature has waived
sovereign immunity for political subdivisions under a contract claims statute (Neb. Rev.
Stat. § 23-135 (Reissue 2007)) and under a tort claims act (Neb. Rev. Stat. § 13-901, et
seq. (Reissue 2007)).
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Merrell's third claim arises in contract. Nebraska Revised Statute § 23-135 provides
the exclusive procedure for contract claims against counties. Hoiengs v. County of Adams,
516 N.W.2d 223, 236 (Neb. 1994) ("[I]t has long been held that the statute applies to all
claims [against a political subdivision] arising from or out of a contract."). Under that
statutory procedure, such a claim must be submitted to the county clerk within 90 days
from the time the claim arises. (Neb. Rev. Stat. § 23-135(1).) Nothing in the (Amended)
Complaint suggests that Merrell submitted his contract claim to the County within 90 days
of the time it arose, or at any time before the filing of his initial Complaint -- more than one
year after his termination. Accordingly, Merrell's third claim is not plausible, and it will be
dismissed, without prejudice.
Merrell's fourth claim arises in tort. Nebraska's Political Subdivisions Tort Claims
Act ("PSTCA"), Neb. Rev. Stat. § 13-901, et seq., (Reissue 2007), provides the exclusive
procedure for tort claims against counties. See McKenna v. Julian, 763 N.W.2d 384, 389
(Neb. 2009) ("[T]ort actions against political subdivisions of the State of Nebraska are
governed exclusively by the PSTCA."). It also provides the exclusive procedure for tort
claims against county employees acting in the scope of their employment. Id. at 391
("Where a claim against an employee of a political subdivision is based upon acts or
omissions occurring within the scope of employment, it is governed by the provisions of the
PSTCA."). Under Neb. Rev. Stat. § 13-919(1), the claimant must submit a written claim
to the county within one year of the accrual of the claim, or it is barred. Again, nothing in
Merrell's (Amended) Complaint suggests compliance with the statutory mandate. Merrell
argues that his fourth claim against the individual Defendants should be construed as
alleging that they acted outside the scope of their employment when engaging in "a
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conspiracy to harass and terminate" him.

The Court will construe the (Amended)

Complaint liberally, and will dismiss the fourth claim only with respect to the County.
IT IS ORDERED:
1.

The Defendants' Motion for Partial Dismissal (Filing No. 10) is granted in
part, as follows:
a. The Plaintiff's third theory of recovery is dismissed, without prejudice; and
b. The Plaintiff's fourth theory of recovery is dismissed, without prejudice, as
to the Defendant Douglas County, Nebraska;

2.

The Motion is otherwise denied; and

3.

The Defendants will respond to the (Amended) Complaint on or before
August 15, 2011.

DATED this 28th day of July, 2011.

BY THE COURT:

s/Laurie Smith Camp
United States District Judge

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