Abraham v. Douglas County

Filing 65

MEMORANDUM OPINION - A separate order will be entered in accordance with this memorandum opinion. Ordered by Senior Judge Lyle E. Strom. (Copy mailed to pro se party)(TCL)

IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEBRASKA
GARY LAMONT ABRAHAM,

)
)
Plaintiff,
)
)
v.
)
)
DOUGLAS COUNTY, NEBRASKA,
)
)
Defendant.
)
______________________________)

8:11CV302

MEMORANDUM OPINION

This matter is before the Court on defendant Douglas
County, Nebraska’s (“Douglas County” or “defendant”) Motion for
Summary Judgment (Filing No. 49).

For the reasons discussed

below, the Court finds that defendant is entitled to summary
judgment.
I.

BACKGROUND

Plaintiff Gary Abraham (“Abraham”) filed his complaint
in this matter on September 7, 2011, against the Douglas County
Sheriff’s Department (Filing No. 1 at CM/ECF p. 1).

The Court

conducted an initial review of Abraham’s complaint on October 14,
2011 (Filing No. 6).

On initial review, the Court determined

that Abraham had failed to state a claim upon which relief could
be granted and provided him with an opportunity to amend his
complaint.

(Id.)

Abraham filed an amended complaint on October

25, 2011, against Douglas County (Filing No. 7).

Abraham’s

amended complaint is the operative complaint in this matter.
his amended complaint, Abraham seeks to hold Douglas County

In

liable under 28 U.S.C. § 1983 for the allegedly unconstitutional
actions of Douglas County Officers Christopher Yordt (“Yordt”)
and Joseph Martinec (“Martinec”).
On November 21, 2012, defendant filed a Motion for
Summary Judgment and a Brief and Index of Evidence in support of
its Motion (Filing Nos. 49, 50, and 51).

Abraham filed a

Response to Defendant’s Motion on December 6, 2012 (Filing No.
53).
II.

DEFENDANT’S UNDISPUTED MATERIAL FACTS

The party seeking the entry of summary judgment in its
favor must set forth “a separate statement of material facts
about which the moving party contends there is no genuine issue
to be tried and that entitles the moving party to judgment as a
matter of law.”

NECivR 56.1(a)(1).

If the non-moving party

opposes the motion, that party must “include in its [opposing]
brief a concise response to the moving party’s statement of
material facts.”

NECivR 56.1(b)(1).

Such response must “address

each numbered paragraph in the movant’s statement and, in the
case of any disagreement, contain pinpoint references to
affidavits, pleadings, discovery responses, deposition testimony
(by page and line), or other materials upon which the opposing
party relies.”

Id.

“Properly referenced material facts in the

movant’s statement are considered admitted unless controverted in
the opposing party’s response.”

Id.

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Defendant submitted a statement of material facts in
accordance with the Court’s Local Rules.

Further, defendant

submitted evidence that was properly authenticated by affidavit.
Abraham filed a response to defendant’s Motion for Summary
Judgment, but the response did not include anything that could be
construed as a “concise response” to defendant’s statement of
materials facts under the court’s local rules.
53.)

(See Filing No.

The Court deems this matter fully submitted and adopts the

following relevant, undisputed material facts.
1.

At all times relevant to this action, Abraham

resided at 3327 North 163rd Plaza, Apartment 302, Omaha, Nebraska
(“Apartment 302”).
2.

Yordt, Martinec, Denise Rieder (“Rieder”), and

Matthew Martin (“Martin) are experienced law enforcement officers
with the Douglas County Sheriff’s Office (“DCSO”).

They were

each certified by the Nebraska Commission on Law Enforcement and
Criminal Justice to perform duties as law enforcement officers.
They completed training at the Nebraska Law Enforcement Training
Center in Grand Island, Nebraska, and they receive other, ongoing
training every year.
3.
DCSO.

Timothy Dunning (“Dunning”) is the sheriff of the

He is the ultimate decision and policy maker for the DCSO.
4.

The DCSO distributes all policies and procedures

to DCSO staff when they are hired and also as they are updated,

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including the policies regarding searches and seizures and the
administrative investigation of complaints.
5.

Prior to August 23, 2011, Yordt, Martinec, Rieder,

and Martin had been trained on the provisions of GO-7-2007, which
is the DCSO policy governing searches and seizures.

Accordingly,

they had been trained to afford all persons detained or arrested
the full use of their constitutional rights and to treat them in
a professional manner.

Moreover, they had been instructed that

(1) they could make an investigatory stop of an individual only
when they had reasonable suspicion supported by specific facts
that a crime had been or was about to be committed by the person
stopped; (2) they could conduct a pat-down search for weapons for
officer safety only when they reasonably believed that the
individual presented a potential danger to them; (3) they could
only cross the threshold of a private residence in an arrest
situation when exigent circumstances existed; (4) exigent
circumstances existed only when there was an emergency situation
requiring swift action to prevent imminent danger to life or
serious damage to property, or to forestall the imminent escape
of a suspect or destruction of evidence; (5) exigent entry was
only allowed to prevent destruction/loss of evidence or when
there is a danger to the public; and (6) they could search with
the voluntary consent of someone who has the authority to
relinquish that right.

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6.

Prior to August 23, 2011, Yordt, Martinec, Rieder,

and Martin had been trained on the provisions of GO-27-2011,
which is the DCSO policy governing codes of conduct.

They had

been trained to (1) conduct themselves in a manner that reflects
high ethical standards; (2) uphold, enforce, and administer the
law according to the United States Constitution and the Nebraska
Constitution so that equal protection of the law is guaranteed to
everyone; (3) not allow their consideration of the status of
others to alter or lessen this standard of treatment of others or
influence their decisions; (4) enforce the law courteously and
appropriately without fear or favor; (5) conduct themselves
toward the public in a courteous and professional manner that
fosters public respect and cooperation; (6) not express any
prejudice concerning race in the performance of duties; (7) treat
people with respect and courtesy; (8) guard against employing any
officious or overbearing attitude or language that may belittle,
ridicule, or intimidate the individual; (9) not make any search
or seizure that they know or should know is not in accordance
with law or DCSO procedures; and (10) stay abreast of current,
ever-changing, case law/court decisions regarding search and
seizure.

In addition, Officers Yordt, Martinec, Rieder, and

Martin receive ethics training at least biannually.

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7.

Prior to August 23, 2011, Yordt, Martinec, Rieder,

and Martin had been trained on the provisions of GO-27-2008,
which is the policy governing the investigation of complaints.
They had been trained to uphold the DCSO commitment to providing
citizens and employees with a fair and effective avenue for
redress of their legitimate complaints against employees of the
DCSO by conducting complete, thorough, and impartial
investigations pursuant to the standards set forth in G0-27-2008.
In addition, Yordt, Martinec, Rieder, and Martin understood that
the DCSO would impose appropriate disciplinary action, or remove
from employment, any employee who violated the policies and
procedures of the DCSO or proved to be unfit for service.
8.
were on-duty.

On August 23, 2011, Yordt, Martinec, and Rieder
They each responded to a robbery that had occurred

approximately four blocks from Abraham’s residence.

Robbery is a

felony crime against a person that includes the use of force.
9.

Yordt, Martinec, and Rieder were informed that the

suspect (a 6 foot tall, 190 pound possibly mixed race black or
Hispanic male and/or black male) ran approximately four blocks
westbound to the Cambury Hills apartment complex.

The officers

went to that location in pursuit of the suspect with their lights
and sirens activated.
10.

After arriving at the apartment complex, Yordt

stated over the DCSO dispatch radio that a maintenance person

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reported witnessing “a disturbance” that involved a black male
throwing a baseball bat off of the balcony of Apartment 302.
11.

Thereafter, Yordt and Martinec knocked on the door

of Apartment 302 because they believed they were in hot pursuit
of the robbery suspect, that the suspect was located inside
Apartment 302 and, because someone had thrown a bat off of the
balcony, the occupants of Apartment 302 were attempting to
destroy evidence.
12.

Yordt and Martinec did not have a warrant to

search Apartment 302.
13.
apartment.

Abraham was naked when he opened the door to his

Yordt and Martinec believed that Abraham opened the

door naked in an attempt to alter his appearance or create a
ruse.

However, Abraham alleges in his amended complaint that he

was in the shower when the officers knocked on his door.
14.

Abraham gave Yordt and Martinec “verbal consent”

to enter Apartment 302.
1

Upon entering the apartment, Yordt grabbed a pair of shorts

off of a couch that was positioned three feet behind Abraham.
Prior to handing the shorts to Abraham, Yordt checked the shorts
for weapons.

Finding none, he handed them to Abraham.

1

Abraham

Although not included in defendant’s statement of material
facts, the Court notes here that Yordt and Martinec’s guns were
drawn when they entered Apartment 302 (Filing No. 51-1 at CM/ECF
p. 5; Filing No. 51-2 at CM/ECF p. 4).
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put on these shorts within one minute of the officers’ entry into
his apartment.
15.

Yordt performed a protective sweep of the rooms in

Apartment 302 because he believed others may be in Apartment 302.
The search lasted less than one minute.
16.

Yordt and Martinec’s contact with Abraham began

within 10 minutes of the initial dispatch about the robbery, and
lasted a total of 5 to 10 minutes.
17.

Abraham filed a citizen complaint against Yordt

based on Yordt’s entry into his apartment.

Martin investigated

the complaint, but did not sustain Abraham’s claims.
18.

Except for the citizen complaint and this action

filed by Abraham, Yordt has never been the subject of a citizen
complaint alleging that he performed an unlawful search or
seizure, or that he discriminated against anyone.

Save for this

case, none of his employers have been the subject of a civil
claim or suit involving an allegation against him and his
conduct.
19.

Except for this action filed by Abraham, Rieder

and Martinec have never been the subject of a citizen complaint
or had a civil claim or suit brought against them.

In addition,

none of their employers have been the subject of a civil claim or
suit involving an allegation against them and their conduct.

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20.

At no time did the DCSO have a policy, custom, or

informal practice of conducting unlawful searches and seizures in
violation of the Fourth Amendment.

In addition, the DCSO does

not have a policy, custom, or informal practice of discrimination
based on race.
21.

In 2011, the Office of Professional Standards

investigated 17 cases, including 9 external, citizen complaints,
8 internal complaints of employee misconduct.

Of these

complaints, 32.3% of the cases were sustained and 67.7% were
unsustained or exonerated.

The number of complaints and ratio of

findings are substantially similar to the internal affairs
investigations in 2009 and 2010.
22.

Dunning was familiar with the policies, customs,

and practices of the DCSO as they existed throughout 2011.

At no

time was he on notice that the DCSO had a policy, custom, or
informal practice of conducting investigative detentions, patdown searches, or warrantless entries or searches and seizures
based on race in violation of the Fourth Amendment.

Dunning has

instituted rigorous CALEA compliant policies, and he ensures that
the law enforcement officers who serve under him are well versed
in and trained to uphold the Fourth Amendment.

Dunning never

has, nor would ever choose to be indifferent to constitutional
misconduct under the Fourth Amendment (Filing No. 50 at CM/ECF
pp. 2-8).

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III.
A.

ANALYSIS

Summary Judgment Standard
Summary judgment should be granted only “if the movant

shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.”
R. Civ. Pro. 56(a).

Fed.

It is not the Court’s function to weigh

evidence in the summary judgment record to determine the truth of
any factual issue.
242, 249-51 (1986).

Anderson v. Liberty Lobby, Inc., 477 U.S.
In passing on a motion for summary judgment,

the district court must view the facts in the light most
favorable to the party opposing the motion.

Dancy v. Hyster Co.,

127 F.3d 649, 652-53 (8th Cir. 1997).
In order to withstand a motion for summary judgment,
nonmoving parties must substantiate allegations with “‘sufficient
probative evidence [that] would permit a finding in [their] favor
on more than mere speculation, conjecture, or fantasy.’”

Moody

v. St. Charles Cnty., 23 F.3d 1410, 1412 (8th Cir. 1994) (quoting
Gregory v. City of Rogers, 974 F.2d 1006, 1010 (8th Cir. 1992)).
“A mere scintilla of evidence is insufficient to avoid summary
judgment.”

Id.

Essentially, the test is “whether the

evidence

presents a sufficient disagreement to require submission to a
jury or whether it is so one-sided that one party must prevail as
a matter of law.”

Anderson, 477 U.S. at 251-52.

In addition, in

order to survive a motion for summary judgment under § 1983, a
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plaintiff must raise a genuine issue of material fact as to
whether the alleged unlawful conduct by the state actor deprived
him of a constitutionally protected right.

Nauke v. City of

Parke Hills, 284 F.3d 923, 927 (8th Cir. 2002).
B.

Abraham’s Monell Claims
The essence of Abraham’s section 1983 claim is that

Douglas County is responsible for the alleged Fourth Amendment
violations he suffered on August 23, 2011, when Officers Yordt
and Martinec entered and searched his private residence without a
warrant.

Abraham’s claim implicates the principles set forth in

Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978).

In Monell,

the Supreme Court explained that municipal liability under
section 1983 may only attach where the “execution of a
government’s policy or custom, whether made by its lawmakers or
by those whose edicts or acts may fairly be said to represent
official policy, inflicts the injury” complained of.

Id. at 694.

Thus, Abraham must prove two basic elements: (1) that a
constitutional violation occurred, and (2) Douglas County is
responsible for the violation.

Here, the Court need not decide

whether Abraham suffered a deprivation of his Fourth Amendment
rights.

Even assuming that a constitutional violation occurred,

Douglas County cannot be held liable for it.
A governmental entity cannot be held vicariously liable
for its agent’s acts under section 1983.
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Id.

Rather, a

plaintiff must identify a governmental “policy or custom that
caused the plaintiff’s injury” to recover from a governmental
entity under section 1983.

Bd. of the Cnty. Comm’rs v. Brown,

520 U.S. 397, 403 (1997) (citations and quotations omitted).

A

governmental policy “involves a deliberate choice to follow a
course of action . . . made from among various alternatives by an
official who has the final authority to establish governmental
policy.”

Doe v. Special Sch. Dist., 901 F.2d 642, 645 (8th

Cir.1990) (quotations and citations omitted).

A governmental

custom involves “a pattern of ‘persistent and widespread’
. . . practices which bec[o]me so ‘permanent and well settled’ as
to have the effect and force of law.”

Id. at 646 (quoting

Monell, 436 U.S. at 691).
Abraham’s allegations focus almost entirely on whether
the DCSO officers violated his constitutional rights.
Abraham has sued Douglas County, not the officers.

However,

Thus, the

question before the Court is whether a policy or custom caused
Abraham’s alleged injuries.
are tenuous at best.

Abraham’s arguments on this issue

Indeed, even liberally construed, the only

allegation the Court can make out is that Douglas County should
be liable for showing deliberate indifference to DCSO’s custom,
pattern, or practice of failing to train and supervise its
officers on Fourth Amendment law.

However, Abraham has failed to

offer any evidence that the alleged violation of his Fourth

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Amendment rights was the result of an unconstitutional municipal
policy or custom.

Sheriff Dunning declared under penalty of

perjury that DSCO policy instructs officers not to subject
citizens of Douglas County to unreasonable searches and seizures,
to afford all persons detained or arrested the full use of their
constitutional rights, and to treat them in a professional manner
(Filing No. 51-5 at CM/ECF p. 2).

Moreover, Abraham’s general

and conclusory allegation that officers are not properly trained
is contradicted by Officers’ Yordt, Martinec, Rieder, and
Martin’s unrebutted testimony regarding the training they receive
as DCSO officers.

(See Filing No. 51, Attach. 1-5.)

offered no evidence to undermine this testimony.

Abraham

Further,

Sheriff Dunning declared that he has never been put on notice of
any custom or practice of conducting investigative detentions,
pat-down searches, or warrantless entries or searches and
seizures based on race in violation of the Fourth Amendment
(Filing No. 51-5 at CM/ECF p. 4).
Even if Abraham could prove that the search and seizure
he complains of involved a constitutional violation, no
reasonable jury could find that Douglas County had a policy or
custom of encouraging unconstitutional searches and seizures.
See Mettler v. Whitledge, 165 F.3d 1197, 1204 (8th Cir.1999) (“A
single incident normally does not suffice to prove the existence
of a municipal custom.”).

In light of defendant’s uncontroverted

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evidence about Douglas County’s policies and customs, summary
judgment will be granted in favor of Douglas County.

A separate

order will be entered in accordance with this memorandum opinion.
DATED this 16th day of May, 2013.
BY THE COURT:
/s/ Lyle E. Strom
____________________________
LYLE E. STROM, Senior Judge
United States District Court

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