Blair v. Douglas County et al

Filing 85

ORDER - IT IS ORDERED: 1. The defendants' Second Motion to Dismiss (Filing No. 49 ) is granted in part and denied in part: A. To the extent the Blair alleges any state law claims for malicious prosecution, false imprisonment, use of fraudulen t police reports, and procurement of unreliable and fabricated evidence and testimony, those claims are dismissed with prejudice. B. Blair's claims against Frank Goodroe and Douglas County Court Administrators are dismissed with prejudice. C. Blair's claims against Kleine, Dornan, and Jansen are dismissed with prejudice. D. The motion is denied in all other respects. 2. The plaintiff's Consolidated Motion for Leave to Add/Substitute Parties and Amend Complaint (Filing No. [71 ]) is denied as moot. 3. The plaintiff's Motion in Support of Third Amend (sic) Complaint (Filing No. 79 ) is granted as specifically set forth above. The plaintiff shall file a second amended complaint by July 18, 2013. Ordered by Magistrate Judge Thomas D. Thalken. (TCL )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
STEVEN R. BLAIR,
Plaintiff,

8:11CV349

vs.
ORDER
DOUGLAS
COUNTY,
a
political
subdivision existing and organized in
the State of Nebraska, DONALD
KLEINE, in his official capacity,
STUART DORNAN, in his official
capacity, JAMES JANSEN, in his
official capacity, LORETTA VONDRA,
in her individual and official capacities,
MARY S. MCKEEVER, in her individual
and official capacities, and DOUGLAS
COUNTY COURT ADMINISTRATORS,
Defendants.
This matter is before the court on the defendants’1 Second Motion to Dismiss
(Filing No. 49).2 The defendants filed a brief (Filing No. 50) in support of the motion.
The plaintiff filed a brief (Filing No. 64) in opposition. The defendants filed a brief (Filing
No. 67) in reply.

The plaintiff also filed a Motion in Support of Third Amend (sic)

Complaint (Filing No. 79) with a brief (Filing No. 79-1) and the proposed amended
complaint (Filing No. 79-2) attached.

BACKGROUND
A.

Arrest and Conviction
The following facts are alleged in Blair’s First Amended Complaint and are

contested by the defendants. On May 12, 1997, at 5:00 p.m., the plaintiff, Steven R.
Blair (Blair), was arrested at his home for the assault and kidnapping of Patty Dory
(Dory). See Filing No. 28 - First Amended Complaint p. 2-19. As the officers led Blair
away from his home, Blair witnessed officers enter and search his home. Id. at 11.
After searching the home for approximately thirty minutes, the officers removed a 121

Douglas County, Donald Kleine, Stuart Dornan, James Jansen, and Douglas County Court
Administrators (collectively Douglas County) are the moving defendants in this motion.
2
The parties consented to jurisdiction by a United States Magistrate Judge pursuant to 28
U.S.C. § 636(c). See Filing Nos. 36 and 70.

gauge shotgun from Blair’s home and transported Blair to Omaha Police Headquarters.
Id. Blair was kept “incommunicado” for six hours until he was taken into an interview
room. Id.

While Blair was held incommunicado Dory, Detective Anderson, and Lori

Anzaldo (Anzaldo), met at 6:00 p.m. to manufacture a story to justify Blair’s arrest. Id.
at 12.

Detective Anderson instructed Dory and Anzaldo to call 911 to report Blair

assaulted Dory. Id. Documents from Omaha 911 Communications Center shows Dory
called 911 at 6:32 p.m. on May 12, 1997. Id. Detective Anderson and other officers
involved filed false police reports detailing Blair’s arrest.

Id.

The police reports

documented two different kidnapping stories. Id. at 15.
Blair’s First Amended Complaint further alleges that in June 1997, the Douglas
County Attorney’s Office (DCAO) maliciously filed charges against Blair. Id. at 12-13.
The DCAO was aware of Blair’s unlawful arrest but chose to follow its customs, policies,
and practices and prosecute Blair to insulate the City of Omaha and Douglas County
from liability for violating Blair’s civil rights.

Id. at 13.

On July 2, 1997, during a

preliminary hearing, the prosecuting attorney in an opening statement alleged “BLAIR
was riding in the passenger seat of a four door vehicle being driven by another party
when he allegedly kidnapped Dory. That BLAIR and the other party followed Dory in
her vehicle back to BLAIR’s residence where she was held captive and physically
assaulted for some 16 hours.”

Id. at 14.

However, Douglas County Court (DCC)

Reporter Loretta Vondra (Vondra) intentionally destroyed the opening statements to
deny Blair a complete record of the proceeding in accordance with a conspiracy to deny
Blair a fair trial. Id. Blair plead not guilty during the preliminary hearing. Id. at 15.
Blair’s First Amended Complaint additionally alleges that on April 13, 1998,
Blair’s criminal trial began.

Id. at 16.

The DCAO solicited, manufactured, and

presented false evidence to coincide with false police reports. Id. The DCAO willfully,
recklessly, and intentionally withheld Dory’s medical and telephone records, which
would contradict the manufactured evidence. Id. During trial the DCAO threatened
Blair’s key witnesses with a nonexistent arrest warrant in order to violate Blair’s right to
call witnesses. Id. at 24. Additionally, during trial DCC Reporter Mary S. McKeever
(McKeever) intentionally removed a witnesses’ statement from the trial record to deny
Blair a complete record of the proceeding in accordance with a conspiracy to deny Blair
a fair trial. Id. at 22. On June 16, 1998, Blair was convicted of kidnapping, terroristic
2

threats, and use of a weapon to commit a felony. Id. at 16. Blair was sentenced to ten
to fifteen years’ imprisonment for the kidnapping, three to five years’ imprisonment for
the use of a deadly weapon to commit a felony, to run consecutively, and four to five
years’ imprisonment for the terroristic threats, to run concurrently with the other two
sentences. Id.

B.

State Court Post-Conviction Proceedings
On April 27, 1998, Blair filed a motion for a new trial. Id. The Nebraska Court of

Appeals affirmed Blair’s conviction and sentence on March 31, 1999.

Id.

Subsequently, Blair filed an amended motion to set aside his conviction and sentence.
Id. On August 11, 2003, the Douglas County District Court “set aside the judgment of
conviction and Blair’s sentencing, and the court ordered a new trial.” Id. The Douglas
County District Court concluded Blair “sustained his burden of proof as to his allegation
that he was rendered ineffective assistance of counsel.” Id. The State attempted to
appeal the postconviction judgment, but, in a decision on November 15, 2005, the
Nebraska Court of Appeals dismissed the State’s appeal for lack of jurisdiction. Id.;
State v. Blair, 707 N.W.2d 8, 9 (Neb. Ct. App. 2005).
C.

First Federal Lawsuit3
On April 3, 2001, Blair filed his first lawsuit in this court relating to his May 12,

1997, arrest. See Filing No. 1 - Complaint in Case No. 4:01CV3065. Blair sued several
officers and alleged they violated his Fourth Amendment rights when the officers
arrested Blair and searched his residence without probable cause. Id.
On June 26, 2001, United States Magistrate Judge Kathleen A. Jaudzemis
(Magistrate Judge Jaudzemis) conducted an initial review of Blair’s complaint pursuant
to 28 U.S.C. § 1915(e)(2), which requires a court to review in forma pauperis complaints
to determine whether summary dismissal is appropriate. See Filing No. 5 - Order in
Case No. 4:01CV3065. Magistrate Judge Jaudzemis concluded the holding of Heck v.
Humphrey barred Blair’s claims. Id.; see Heck v. Humphrey, 512 U.S. 477 (1994).
However, Magistrate Judge Jaudzemis gave Blair leave to file an amended complaint to
3

Blair filed several lawsuits in this court. However, two of the actions, Case Nos. 8:05CV31 and
8:07CV307, which were dismissed without prejudice, are unrelated to his current federal lawsuit and will
not be discussed.
3

ascertain whether Blair’s state conviction was invalidated. Id. Blair filed an amended
complaint on July 5, 2001.
4:01CV3065.

See Filing No. 6 - Amended Complaint in Case No.

Magistrate Judge Jaudzemis reviewed the Amended Complaint and

recommended Blair’s Amended Complaint be dismissed because Blair had not shown
he received a favorable outcome in postconviction proceedings as contemplated by
Heck. See Filing No. 7 - Report and Recommendation in Case No. 4:01CV3065. On
November 16, 2001, District Judge Richard G. Kopf (Judge Kopf) adopted Magistrate
Judge Jaudzemis’ Report and Recommendation and dismissed Blair’s Amended
Complaint. See Filing Nos. 10 - Memorandum and Order; 11 - Judgment in Case No.
4:01CV3065.
Blair filed a notice of appeal on December 11, 2001. See Filing No. 12 - Appeal
in Case No. 4:01CV3065. On July 23, 2002, the Eighth Circuit United States Court of
Appeals affirmed this court’s dismissal of Blair’s action. See Filing No. 24 - Eighth
Circuit Judgment in Case No. 4:01CV3065.

D.

Second Federal Lawsuit
On June 25, 2004, Blair filed his second federal lawsuit in this court relating to his

May 12, 1997, arrest. See Filing No. 1 - Complaint in Case No. 4:04CV3229. Blair filed
his complaint against the same police officers as in Blair’s first federal lawsuit (Case No.
4:04CV3065) and added defendants and claims.

Id.

In addition to his Fourth

Amendment claims, Blair alleged conspiracy, malicious prosecution, abuse of process,
and false imprisonment. Id.
On July 26, 2006, Judge Kopf stayed Blair’s second federal lawsuit. See Filing
No. 57 - Memorandum and Order in Case No. 4:04CV3229. Judge Kopf noted:
The parties acknowledge that the principles expressed in
Heck v. Humphrey, 512 U.S. 477 (1994), barred the plaintiff
from bringing this civil rights action before August 11, 2003,
when he achieved a favorable outcome in his postconviction
action. That is because until he prevailed on postconviction
review, the plaintiff could not, through an action under
§ 1983, cast doubt on the validity of his confinement until his
conviction had first been invalidated or overturned in a state
proceeding or through a federal writ of habeas corpus. The
decision in Heck v. Humphrey barred the plaintiff from
litigating in a civil rights action his claims that the defendants
had wrongfully procured his conviction.
4

Id. Judge Kopf further noted, even though the Douglas County District Court invalidated
Blair’s conviction, Blair’s criminal case was pending, in that he had not yet been retried,
thus Blair had not obtained a final favorable outcome in his criminal case. Id. On
August 21, 2006, Judge Kopf dismissed without prejudice Blair’s case and granted Blair
leave to reopen the case “upon completion of the criminal proceedings in the state
courts.” See Filing No. 59 - Memorandum and Order in Case No. 4:04CV3229.

E.

Third Federal Lawsuit
On August 3, 2007, Blair filed his third federal lawsuit in this court relating to his

May 12, 1997, arrest. See Filing No. 1 - Complaint in Case No. 8:07CV295. Blair filed
his complaint against the same police officers as in Blair’s first and second federal
lawsuits (Case Nos. 4:04CV3065 and 4:04CV3229) and added defendants and claims.
Id. On October 16, 2007, District Judge Joseph F. Bataillon (Judge Bataillon) noted
Blair previously brought similar claims in this court against many of the same
defendants. See Filing No. 6 - Memorandum and Order in Case No. 8:07CV295. Id.
Judge Bataillon ordered Blair “to explain how the circumstances have changed since
the dismissal of the two previous lawsuits.” Id.
On January 25, 2008, Blair filed a brief explaining his change in circumstances.
See Filing No. 14 - Brief in Case No. 8:07CV295.

Blair explained he was

unconditionally released from prison on December 14, 2005.

Id.

Further, Blair

explained the Nebraska Court of Appeals, affirmed by the Nebraska Supreme Court,
declared his postconviction proceedings were moot on November 1, 2007. Id. Lastly,
Blair explained the DCAO dismissed criminal proceedings against Blair on January 15,
2008. Id. On July 1, 2008, Judge Bataillon concluded Blair’s criminal proceedings were
complete and allowed Blair to obtain service of process on the defendants. See Filing
No. 15 - Memorandum and Order in Case No. 8:07CV295.
Blair named Douglas County as one of the defendants in Blair’s third federal
lawsuit.

See Filing No. 16 - Amended Complaint in Case No. 8:07CV295.

On

November 21, 2008, Douglas County filed a Motion to Dismiss. See Filing No. 89 Motion in Case No. 8:07CV295. On April 15, 2009, Judge Bataillon dismissed the
claims against Douglas County without prejudice because Blair did not sufficiently

5

allege a claim against Douglas County. See Filing No. 169 - Memorandum and Order in
Case No. 8:07CV295.
On August 5, 2009, several defendants filed a joint motion for summary
judgment. See Filing No. 235 - Defendants’ Motion in Case No. 8:07CV295. In an
order dismissing all but Blair’s Fourth Amendment claims against certain officers, Judge
Bataillon discussed the statute of limitations issue. See Filing No. 282 - Memorandum
and Order in Case No. 8:07CV295. Judge Bataillon interpreted Blair’s argument, based
on the principles of Heck, as an argument for equitable tolling.

Id. at 10.

Judge

Bataillon noted Blair was required to file his Fourth Amendment claims by May 12,
2001. Id. However, Judge Bataillon determined Blair pursued his rights diligently and
“the court has prevented him from resolving his claims as it has twice determined that
they were barred by Heck.” Id. at 11. Therefore, Judge Bataillon concluded the statute
of limitations was equitably tolled with respect to Blair’s Fourth Amendment claims. Id.
On March 14, 2011, Blair filed an Acceptance of Rule 68 Offer. See Filing No.
406 - Acceptance in Case No. 8:07CV295. On April 4, 2011, this court dismissed Blair’s
action pursuant to the parties’ Joint Stipulation for Dismissal. See Filing Nos. 416 Joint Stipulation; 417 - Order in Case No. 8:07CV295. Subsequently, Blair appealed
the Order adopting the Joint Stipulation. See Filing No. 425 - Notice of Appeal in Case
No. 8:07CV295. The United States Court of Appeals for the Eighth Circuit affirmed this
court’s dismissal. See Filing No. 436 - Eighth Circuit Judgment in Case No. 8:07CV295.

F.

Current Federal Lawsuit
On October 7, 2011, Blair filed the instant action, pro se. See Filing No. 1 -

Complaint. Blair filed his complaint against Douglas County, Donald Kleine (Kleine),
Stuart Dornan (Dornan), James Jansen (Jansen), Jane and John Doe DCC Reporters
(DCC Reporters), and DCC Administrators (DCC Administrators). Id. Blair alleges he
was wrongfully convicted of kidnapping, terroristic threats, and use of a weapon to
commit a felony. Id. Specifically, Blair alleges: 1) Douglas County officials concealed
medical evidence from the defense that, if provided, would have exonerated Blair; 2)
Douglas County prosecutors presented testimony at trial they knew to be false; and 3)
DCC Reporters failed to provide a complete and accurate transcript of the trial
proceedings and destroyed recordings of the proceedings.
6

Id.

Blair also alleges

numerous Douglas County policies and practices led to his unlawful arrest, conviction,
and detention. Id. Blair alleges the defendants’ unlawful acts occurred between May
12, 1997, and January 15, 2008. Id. Blair seeks monetary damages in the amount of
$30,000,000.00. Id.
Also on October 7, 2011, Blair filed a Motion to Proceed In Forma Pauperis. See
Filing No. 2. On November 28, 2011, District Judge Laurie Smith Camp provisionally
granted Blair’s motion to proceed in forma pauperis. See Filing No. 6 - Order. Judge
Bataillon subsequently conducted an initial review of Blair’s complaint pursuant to 28
U.S.C. § 1915(e)(2). See Filing No. 8 - Memorandum and Order. Judge Bataillon
dismissed Blair’s claims against Kleine, Dornan, and Jansen because Blair did “not
allege any specific acts committed by these individuals.” Id. at 3. Judge Bataillon also
noted, “even if Blair had alleged specific acts by Kleine, Dornan, and Jansen, as
prosecutors they are likely entitled to immunity from suit.”

Id. (citing Schenk v.

Chavis, 461 F.3d 1043, 1046 (8th Cir. 2006) (“Prosecutors are entitled to absolute
immunity from civil liability under § 1983 when they are engaged in prosecutorial
functions that are intimately associated with the judicial process.”) (internal citation
omitted)).
Judge Bataillon assumed DCC Reporters and DCC Administrators were sued in
their official capacities as Blair did not specify the capacity in which these individuals
were sued. Id. at 4. Therefore, Judge Bataillon construed Blair’s claims against such
defendants as claims against Douglas County because a “suit against a public
employee in his or her official capacity is merely a suit against the public employer.” Id.
(citing Johnson v. Outboard Marine Corp., 172 F.3d 531, 535 (8th Cir. 1999)). Judge
Bataillon concluded Blair “alleged sufficient facts to ‘nudge’ his claims against Douglas
County across the line from conceivable to plausible under the [Jane Doe A By and
Through Jane Doe B v. Special Sch. Dist. of St. Louis County, 901 F.2d 642, 645
(8th Cir. 1990)] standard.”

Id. at 5.

Judge Bataillon noted the January 26, 2012,

Memorandum and Order was “only a preliminary determination based solely on the
allegations of the Complaint and is not a determination of the merits of Blair’s claims or
potential defenses thereto.” Id.
On June 14, 2012, the remaining defendants filed a motion to dismiss. See
Filing No. 17. Blair subsequently obtained counsel.
7

See Filing No. 19 - Notice of

Appearance. Blair filed a brief in opposition to the defendants’ motion to dismiss and
requested leave to amend his complaint. See Filing No. 24 - Blair’s Opposition p. 9. On
October 16, 2012, Judge Bataillon granted Blair leave to amend the complaint and
denied the defendants’ motion to dismiss without prejudice to refilling. See Filing No. 25
- Memorandum and Order.
On November 20, 2012, Blair filed a First Amended Complaint. See Filing No. 28
- First Amended Complaint. Blair filed the First Amended Complaint against Douglas
County, Kleine, Dornan, Jansen, DCC Reporters, and DCC Administrators (collectively
Douglas County). Id. Blair also named as defendants DCC Reporters Vondra and
McKeever.

Id.

Blair generally alleges the defendants solicited, fabricated, and

manufactured false evidence, specifically testimony, inconsistent with Omaha Police
Department officers’ reports, 911 calls, photographs, and the alleged victim’s
statements. Id. at 1-8. Blair alleges the defendants willfully and recklessly ignored
numerous inconsistencies in the facts of Blair’s case. Id.
Blair alleges three counts against the defendants. Id. at 19-43. In Blair’s first
count, Blair alleges malicious prosecution, false imprisonment, use of fraudulent police
reports, and procurement of unreliable and fabricated evidence and testimony. Id. at
19-20. Blair alleges the DCAO tendered knowingly false testimony, failed to disclose
exculpatory evidence, and impeded Blair’s right to call witnesses. Id. at 20-27. Blair
also alleges McKeever intentionally removed witnesses’ statements in accordance with
a plan to deprive Blair of a fundamentally fair trial. Id. at 22.
In Blair’s second count, Blair alleges the defendants conspired to deprive Blair of
his constitutional rights. Id. at 28-29. Blair alleges the defendants deliberately solicited
false statements, fabricated and manufactured evidence that did not exist, and coerced
witnesses to provide false evidence. Id. at 28.
In Blair’s third count, Blair alleges the defendants committed various violations.
Id. at 29-43. Blair generally alleges several Monell v. Dep’t of Soc. Servs. of City of
New York, 436 U.S. 658 (1978) claims against Douglas County for enforcing a policy,
practice, and custom of failing to investigate crimes adequately, fabricating evidence,
withholding evidence, discriminating based on race, tampering with witnesses, failing to
discipline county attorneys, and conspiring to obtain wrongful convictions. Id. at 30-43.

8

Blair also alleges the DCAO failed to train and supervise its deputy county attorneys,
which led to obvious Brady v. Maryland, 373 U.S. 83 (1963) violations. Id. at 30-32.
On February 5, 2013, Douglas County filed its first Motion to Dismiss. See Filing
No. 34. Douglas County listed six grounds for dismissal; however, Douglas County only
addressed one ground for dismissal and reserved arguments on the remaining grounds
for future briefing. Id. Douglas County argued Blair’s complaint should have been
dismissed because the applicable four-year statute of limitations barred Blair’s claims.
Id.

On April 1, 2013, this court denied Douglas County’s first Motion to Dismiss

because Blair timely filed his claims against the defendants. See Filing No. 48 - Order.
On April 15, 2013, Douglas County filed the Second Motion to Dismiss. See
Filing No. 49 - Motion. Douglas County argues: 1) Blair failed to state a claim upon
which relief can be granted; 2) Blair failed to allege sufficient facts to show a municipal
policy or custom led to Blair’s injuries; 3) Blair had a full and fair opportunity to litigate
the same issues; 4) Blair is not entitled to damages under 42 U.S.C. § 1983; and 5)
Blair has not properly served John or Jane Doe DCC Administrators pursuant to Federal
Rule of Civil Procedure 4. Id.

ANALYSIS
A.

Second Motion to Dismiss
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). “Dismissal under
Rule 12(b)(6) is appropriate if it is clear that no relief can be granted under any set of
facts that could be proven consistent with the allegations.” O’Neal v. State Farm Fire
& Cas. Co., 630 F.3d 1075, 1077 (8th Cir. 2011). “To survive a motion to dismiss, a
complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.’” U.S. ex rel. Raynor v. Nat’l Rural Utilities Co-op.
Fin., Corp., 690 F.3d 951, 955 (8th Cir. 2012) (quoting Ashcroft v. Iqbal, 556 U.S.
9

662, 678 (2009)).

“A claim has facial plausibility when the plaintiff pleads factual

content that allows the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. In applying these standards,
the court must “accept as true the factual allegations contained in the complaint and
draw all reasonable inferences in favor of the nonmoving party.” Mathers v. Wright,
636 F.3d 396, 397 (8th Cir. 2011). Lastly, “a well-pleaded complaint may proceed even
if it strikes a savvy judge that actual proof of those facts is improbable, and that a
recovery is very remote and unlikely.” Twombly, 550 U.S. at 556 (internal quotation
omitted).

1.

Waiver

As a preliminary matter, the court will address Blair’s argument that Douglas
County waived its arguments in a prior motion to dismiss. See Filing No. 64 - Response
p. 7-8. Douglas County argues it has not waived any of its arguments in the prior
Motion to Dismiss. See Filing No. 67 - Reply p. 2. Douglas County initially filed a
motion to dismiss on February 5, 2013. See Filing No. 34 - Motion to Dismiss. Douglas
County listed six grounds for dismissal, however Douglas County only briefed the court
on the statute of limitations argument. See Filing No. 35 - Brief in support of Motion to
Dismiss.

Douglas County requested leave to address the remaining grounds for

dismissal, if necessary, in subsequent briefing. Id. In the court’s ruling on Douglas
County’s first Motion to Dismiss, the court acknowledged Douglas County’s reservation
to reassert the remaining grounds for dismissal in subsequent briefing. See Filing No.
48 - Order. After denying Douglas County’s first Motion to Dismiss, on the limited
grounds the statute of limitations did not bar Blair’s claims, the court allowed Douglas
County to file a second motion to dismiss.

Id.

The court finds Douglas County

therefore did not waive its arguments and permissibly filed a second motion to dismiss.
However, in Douglas County’s Second Motion to Dismiss, Douglas County
argues Blair is not entitled to damages under 42 U.S.C. § 1983 as one of the grounds
for dismissal. See Filing No. 49 - Second Motion to Dismiss. Douglas County did not
address this argument in their brief. Therefore, Douglas County’s Second Motion to
Dismiss on the basis that Blair is not entitled to damages is denied.

10

2.

Res judicata

Douglas County argues the doctrine of res judicata precludes Blair from bringing
this action against Douglas County because Blair had a fair opportunity to litigate these
same issues against Douglas County in a prior lawsuit. See Filing No. 50 - Brief p. 12.
Blair argues his prior claim against Douglas County was dismissed without prejudice
and therefore Douglas County was not dismissed on the merits. See Filing No. 64 Response p. 23-24. The doctrine of res judicata precludes litigation of a subsequent
claim because of a determination reached in an earlier lawsuit when the following five
elements are satisfied:
(1) the first suit resulted in a final judgment on the merits; (2)
the first suit was based on proper jurisdiction; (3) both suits
involve the same parties (or those in privity with them); and
(4) both suits are based upon the same claims or causes of
action. Furthermore, the party against whom res judicata is
asserted must [ (5) ] have had a full and fair opportunity to
litigate the matter in the proceeding that is to be given
preclusive effect.
Rutherford v. Kessel, 560 F.3d 874, 877 (8th Cir. 2009) (alteration in original).
Blair previously filed suit against Douglas County in 2007. See Filing No. 16 Amended Complaint in Case No. 8:07CV295. On November 21, 2008, Douglas County
filed a Motion to Dismiss. See Filing No. 89 - Motion in Case No. 8:07CV295. On April
15, 2009, Judge Bataillon dismissed the claims against Douglas County without
prejudice because Blair did not sufficiently allege a claim against Douglas County. See
Filing No. 169 - Memorandum and Order in Case No. 8:07CV295. Consequently, the
court’s dismissal of Blair’s claims against Douglas County in Case No 8:07CV295 was
not a final judgment on the merits and res judicata does not apply. See Rosemann v.
Roto-Die, Inc., 276 F.3d 393, 398 (8th Cir. 2002) (reasoning dismissal without prejudice
resulted in a non-final disposition that did not create res judicata bar).

Therefore,

Douglas County’s Second Motion to Dismiss on the basis of res judicata is denied.

3.

Douglas County Court Administrators

Douglas County argues to the extent Blair intends to sue DCC Administrators in
their individual capacity, Blair has failed to serve the DCC Administrators. See Filing
No. 50 - Brief p. 2.

Additionally, Douglas County contends there are no specific
11

allegations against DCC Administrators to support a plausible claim. Id. Blair argues
Douglas County’s argument that Blair has failed to serve or make specific allegations
against DCC Administrators is without merit because he has until June 10, 2013, to
serve or amend his complaint against DCC Administrators.4

See Filing No. 64 -

Response p. 1. Blair admits he omitted allegations against DCC Administrators and will
include facts in an amended complaint which will entitle Blair to relief. Id. at 23.
Blair timely filed a motion to amend the First Amended Complaint to name Frank
E. Goodroe (Goodroe), a DCC Administrator, as a defendant. See Filing No. 71 Consolidated Motion for Leave to Add/Substitute Parties and Amend Complaint.
Assuming this court grants Blair leave to file a second amended complaint, Blair will
have to opportunity to serve Goodroe and therefore render Douglas County’s argument
that Blair failed to properly serve a DCC Administrator moot. Because Blair includes his
allegations against Goodroe in Blair’s proposed amended complaint,5 the court will
review the complaint to determine whether Blair stated a claim upon which relief can be
granted.
In Blair’s proposed amended complaint, Blair alleges Goodroe “violated state law
set forth under the Nebraska Post-Conviction Act Neb. Rev. Stat. 29-3001(2) because
Frank Goodroe let [Blair’s] case sit for more than [three] years.” See Filing No. 79-2 Third Amended Complaint p. 8.

Blair alleges Goodroe was responsible for case
6

progression pursuant to Rule 4-10 and violated Blair’s rights by:
intentionally soliciting false testimony of police officers,
intentionally presenting false evidence in criminal
proceedings, intentionally failing to properly investigate
serious crimes, intentionally failing to turn over exculpatory
4

On June 10, 2013, Blair filed a motion to amend the complaint and attached a proposed
amended complaint. See Filing No. 71 - Consolidated Motion for Leave to Add/Substitute Parties and
Amend Complaint. Blair seeks to add DCC Administrator Frank E. Goodroe as a defendant. However,
because Blair’s motion did not comply with NECivR 15.1, Blair’s motion to amend was held in abeyance
pending compliance with the local rules. See Filing No. 73 - Order. On June 24, 2013, Blair filed a
Motion in Support of Third Amend (sic) Complaint and attached a proposed amended complaint indicating
the proposed changes in bold. See Filing Nos. 79 and 79-2. Blair represents all defendants oppose the
filing of an amended complaint. See Filing No. 79.
5
Blair improperly titles the proposed amended complaint the “Third Amended Complaint and
Demand for Jury Trial.” See Filing No. 79-2. Although this would be Blair’s third complaint in this case,
remaining consistent with Blair’s titling, the complaint would be a “Second Amended Complaint.” See
Filing No. 28 - First Amended Complaint.
6
Although Blair did not provide a citation for Rule 4-10, the court assumes Blair is referring to
District
Court
Local
Rules,
District
4,
Rule
4-10.
Case
Progression.
See
http://supremecourt.ne.gov/external-court-rules/4179/rule-4-10-case-progression.
12

evidence under Brady v. Maryland, intentionally failing to
transcribe complete and accurate testimony during court
proceedings by omitting testimony damaging to the
prosecutor[’]s case, failing to preserve the official transcript
of preliminary hearings, failing to follow court rules for case
progression and failing to properly train and supervise them.
Id. at 2-3, 50.
Assuming Blair is allowed to amend his complaint and Blair properly serves
Goodroe, Blair fails to state a claim upon which relief can be granted against Goodroe.
Rule 4-10 provides:
Case Progression Standards. Progress of all cases shall
comply with the Case Progression Standards established by
the Nebraska Supreme Court. In all civil cases, the District
Court Administrator shall give notice by mail to each party
that, within thirty (30) days from the date of the notice, a
Proposed Scheduling Order must be submitted to the Court
Administrator’s Office. If a Proposed Scheduling Order has
not been filed within the prescribed time, the case shall be
dismissed by the presiding judge.
See District Court Rules, District 4, Rule 4-10. Case Progression.

Rule 4-10 only

required Goodroe to mail notice to the parties to submit a proposed scheduling order.
See id. Rule 4-10 did not require Goodroe to progress a plaintiff’s case. Blair does not
allege Goodroe failed to “give notice.” Even assuming Blair alleged Goodroe failed to
provide notice to the parties, Blair has failed to state a claim upon which relief may be
granted.

Blair cannot blame Goodroe for Blair’s own failure to prosecute his post-

conviction proceedings.

Therefore, Blair’s claims against Goodroe and DCC

Administrators are dismissed with prejudice.

4.

Donald Kleine, Stuart Dornan, and James Jansen

Douglas County asserts the claims against Kleine, Dornan, and Jansen were
already dismissed in the court’s January 26, 2012, Order. See Filing No. 50 - Brief p. 2;
Filing No. 8 - January 26, 2012, Order (“Because Blair failed to allege that [Kleine],
Dornan, and Jansen were personally involved in violating his constitutional rights, Blair’s
Complaint fails to state a claim upon which relief may be granted against them.”).
Therefore Douglas County argues this court should similarly dismiss Kleine, Dornan,
and Jansen because there are no specific allegations against Kleine, Dornan, and
13

Jansen in the First Amended Complaint. See Filing No. 50 - Brief p. 2. Blair argues the
claims against Kleine, Dornan, and Jansen were dismissed prematurely on initial review
thwarting Blair’s right to discovery to ascertain how Kleine, Dornan, and Jansen violated
Blair’s constitutional rights. See Filing No. 64 - Response p. 1.
Prosecutors such as Kleine, Dornan, and Jansen “are entitled to absolute
immunity from civil liability under § 1983 when they are engaged in prosecutorial
functions that are intimately associated with the judicial process.” Winslow v. Smith,
696 F.3d 716, 739 (8th Cir. 2012). “Absolute immunity covers prosecutorial functions
such as the initiation and pursuit of a criminal prosecution, the presentation of the
state’s case at trial, and other conduct that is intimately associated with the judicial
process.” Brodnicki v. City of Omaha, 75 F.3d 1261, 1266 (8th Cir. 1996) (citing
Buckley v. Fitzsimmons, 509 U.S. 259, 271-72 (1993) and Imbler v. Pachtman, 424
U.S. 409, 430-31 n.33 (1976)). “[T]he official seeking absolute immunity bears the
burden of showing that such immunity is justified for the function in question.” Winslow,
696 F.3d at 739 (alternation in original) (citing Burns v. Reed, 500 U.S. 478, 486
(1991)).
In Blair’s First Amended Complaint, Kleine, Dornan, and Jansen are named only
in their official capacities in the case caption and the section identifying the parties. See
Filing No. 28 - First Amended Complaint p. 1, 9. Blair does not make any specific
allegations against Kleine, Dornan, and Jansen. Therefore Blair fails to state a claim
upon which relief may be granted against these defendants. Additionally, the court will
not permit Blair to embark upon a fishing expedition in hopes that he may be able to
support his claims at some point in the future. See Freeman v. Bechtel Constr. Co.,
87 F.3d 1029, 1032 (8th Cir. 1996) (reasoning the plaintiffs’ “allegations were made
without supporting facts in the hope that they would be permitted to embark upon a
classic fishing expedition” during discovery).

The court has given Blair ample

opportunity with counsel to amend the complaint to sufficiently allege a claim against
these defendants.

Accordingly, Kleine, Dornan, and Jansen are dismissed with

prejudice from this action.

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5.

Douglas County

Douglas County argues Blair’s first cause of action, wherein Blair’s alleges state
law claims against Douglas County for the intentional torts of malicious prosecution,
false imprisonment, use of fraudulent police reports, and procurement of unreliable and
fabricated evidence, should be dismissed because Douglas County is exempt from
liability. See Filing No. 50 - Response p. 4-5. Douglas County argues Neb. Rev. Stat.
§ 13-910(7) exempts liability for intentional torts. Id. (citing Neb. Rev. Stat. § 13910(7) (“The Political Subdivisions Tort Claims Act . . . shall not apply to: (7) Any claim
arising out of assault, battery, false arrest, false imprisonment, malicious prosecution,
abuse of process, libel, slander, misrepresentation, deceit, or interference with contract
rights[.]”)). Id. at 5. Douglas County also argues to the extent Blair alleges federal law
claims under his first and third causes of action, Blair has failed to state a claim upon
which relief can be granted. Id. at 5-6, 10-11. Douglas County argues it may be liable
only under § 1983 if its policy or custom caused a violation of Blair’s rights. Id. at 6.
Douglas County asserts Blair does not provide sufficient facts to show a policy or
custom caused the alleged violations of Blair’s rights. Id. Douglas County contends
Blair merely uses labels and conclusory statements to support Blair’s claims and does
not provide any facts showing Douglas County or its officials had a pattern of
unconstitutional misconduct. Id. at 6-8, 10-11. Lastly, Douglas County asserts Blair
has failed to state a plausible claim for conspiracy. Id. at 8. Douglas County argues
Blair’s allegations of conspiracy are conclusory statements lacking factual support. Id.
at 9.
Blair argues the court should deny Douglas County’s motion because Blair’s
original complaint “passed the Court’s muster on initial review” and any changes in the
First Amended Complaint were to the “style and not to the allegations.” See Filing No.
64 - Response p. 1-2. Blair argues his First Amended Complaint, read liberally, alleges
violations under the First, Fourth, Fifth, Sixth, and Fourteenth Amendments and
therefore are not intentional torts barred by Neb. Rev. Stat. § 13-901. Id. at 9-14. Blair
argues Neb. Rev. Stat. § 13-901 does not exempt Douglas County from suit for denying
Blair access to a fair trial, due process, equal protection, and the right to call witnesses.
Id.

15

Blair argues he sufficiently alleges the defendants conspired among themselves
to deprive Blair of his constitutional rights to:
free association and privacy, to be free from unreasonable
arrest and seizure, to be free from[ ] wrongful imprisonment
and punishment, to be free from malicious prosecution and
abuse of process, to fair access to the courts, to effective
assistance of competent counsel, to due process of law, and
to be free from cruel and unusual punishment.
Id. at 18. Blair contends he set forth each allegation of the conspiracy in the First
Amended Complaint.

Id. at 19. Blair argues there were too many overt acts and

instances where Blair’s constitutional rights were violated for a premeditated plan not to
have existed. Id. at 20. Lastly, Blair argues he is not required to plead the specific
existence of an unconstitutional policy or custom. Id. However, Blair states he will set
forth allegations that show a pattern of constitutional misconduct existed in a newly
amended complaint. Id. at 21-22.
In reply, Douglas County argues Blair fails to make a proper distinction between
the review of a pro se complaint and a complaint prepared by counsel. See Filing No.
67 - Reply p. 1. Douglas County argues Blair’s First Amended Complaint should not be
reviewed under the liberal pro se pleading standards. Id. Douglas County maintains
any state law claims identified as an intentional tort must be dismissed pursuant to Neb.
Rev. Stat. § 13-901(7) and any alleged constitutional claims should also be dismissed
for a failure to state a plausible claim. Id. at 3. Douglas County contends Blair merely
uses legal conclusions to state his rights were violated. Id. Douglas County asserts no
reasonable inference can be drawn from Blair’s allegations to support a plausible claim
against Douglas County for conspiracy.

Id.

Douglas County also argues Blair

improperly includes new facts in his brief and admits to omitting facts from the complaint
which demonstrate Blair failed to state plausible claims. Id. at 4-5.

a.

Count I

In count one, Blair alleges malicious prosecution, false imprisonment, use of
fraudulent police reports, and procurement of unreliable and fabricated evidence and
testimony. See Filing No. 28 - First Amended Complaint p. 19-27. “Section 1983 only
provides a remedy for violations of rights expressly secured by federal statutes or the
16

Constitution.” Kurtz v. City of Shrewsbury, 245 F.3d 753, 758 (8th Cir. 2001). “The
Constitution does not mention malicious prosecution. . . . [The Eighth Circuit] and other
circuits are uniform in holding that malicious prosecution by itself is not punishable
under section 1983 because it does not allege a constitutional injury.” Gunderson v.
Schlueter, 904 F.2d 407, 409 (8th Cir. 1990). Nonetheless, “malicious prosecution can
form the basis for a section 1983 action only if the defendants’ conduct also infringes
some provision of the Constitution or federal law. [A defendant’s] malicious prosecution
claim may be taken to argue a procedural due process violation.” Id. “Procedural due
process prohibits state authorities from depriving a person of life, liberty, or property
without conforming to constitutionally required procedures.” Id. After wading through
Blair’s First Amended Complaint and proposed amended complaint and drawing all
reasonable inferences in Blair’s favor, Blair’s first count can be construed to allege
procedural due process violations. Therefore, to the extent Blair alleges procedural due
process violations, Douglas County’s Second Motion to Dismiss as to count one is
denied.

However, to the extent Blair alleges any state law claims for malicious

prosecution, false imprisonment, use of fraudulent police reports, and procurement of
unreliable and fabricated evidence and testimony, those claims are dismissed. See
Neb. Rev. Stat. § 13-910(7) (The Nebraska Political Subdivision Tort Claims Act does
not apply to “[a]ny claim arising out of assault, battery, false arrest, false imprisonment,
malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or
interference with contract rights.”).

b.

Count II

In Blair’s second count, Blair alleges Douglas County conspired to deprive Blair
of his constitutional rights. See Filing No. 28 - First Amended Complaint p. 28. Blair
alleges Douglas County committed overt acts culminating in Blair’s wrongful arrest,
prosecution, and incarceration. Id. To establish a prima facie conspiracy claim, Blair
“must show: that the defendant[s] conspired with others to deprive him of constitutional
rights; (2) that at least one of the alleged co-conspirators engaged in an overt act in
furtherance of the conspiracy; and (3) that the overt act injured the plaintiff.” White v.
McKinley, 519 F.3d 806, 814 (8th Cir. 2008). Additionally, Blair is required to prove “a
deprivation of a constitutional right or privilege in order to prevail on a § 1983 civil
17

conspiracy claim.”

Id.

“Evidence of an agreement to deprive [a] plaintiff of

constitutionally guaranteed rights typically is circumstantial.” Livers v. Schenck, 700
F.3d 340, 361 (8th Cir. 2012) (alteration in original) (internal quotation omitted).
Blair generally alleges the defendants conspired to arrest Blair, search his
residence, and prosecute and convict Blair with manufactured evidence. See Filing No.
28 - First Amended Complaint p. 2-19. Blair alleges officers arrested Blair without
reasonable suspicion or probable cause and unconstitutionally searched his residence.
Id. at 10-11. Blair alleges the purported victim subsequently created a story, pursuant
to Detective Anderson’s instruction, to justify Blair’s arrest. Id. at 12. Blair alleges
officers then prepared false reports regarding his arrest to comport with the false story.
Id. Blair alleges the DCAO prosecuted Blair consistent with the manufactured evidence
for the primary purpose to sentence Blair to prison. Id. at 13-15. Additionally, Blair
alleges the DCAO withheld evidence and prevented Blair from calling a witness. Id.
Further, Blair alleges DCC Reporters destroyed a recording containing opening
statements made during a preliminary hearing and testimony during trial to deny Blair a
complete record of the proceedings in accordance with a conspiracy to deny Blair a fair
trial. Id.
Blair’s argument that there are too many overt acts for a premeditated plan not to
have existed is not convincing.

Nevertheless, drawing all reasonable inferences in

Blair’s favor, the court finds Blair alleges facts that could be sufficient to show an
agreement existed to violate Blair’s constitutional rights and individuals performed acts
in furtherance of a conspiracy.

Therefore, at this stage of the proceedings, Blair’s

second count for conspiracy in Blair’s First Amended Complaint contains “sufficient
factual matter, accepted as true, to state a claim to relief that is plausible on its face.”
See Iqbal, 556 U.S. at 678 (internal quotation omitted).

c.

Count III

In Blair’s third count, Blair generally alleges the defendants committed various
violations pursuant to numerous policies and practices that led to his unlawful arrest,
conviction, and imprisonment. See Filing No. 28 - First Amended Complaint p. 29-43.
In response to the defendants’ Second Motion to Dismiss, Blair consistently stated he
will address any alleged deficiencies in his complaint in an amended complaint. See
18

Filing No. 64 - Response p. 21-23 (i.e., “BLAIR will set forth those allegations in his
Second Amended Complaint which proves that Douglas County [sic] which he intends
on filing before June 10, 2013.”).

Therefore, the court will review Blair’s proposed

amended complaint. See Filing No. 79-2 - Third Amended Complaint.
The most noticeable addition in Blair’s proposed amended complaint, is Blair’s
allegation he “obtained the legal filing from JUSTICE Case Management System and
after a short search discovered the exact or similar misconduct in which he complains.
BLAIR’s search was not complete at the drafting of this amended complaint.” See Filing
No. 79-2 - Third Amended Complaint p. 38. Blair names numerous cases wherein
individuals, unrelated to this case, filed claims against Douglas County for alleged
constitutional violations. Id. at 38-39. Blair argues these cases show Douglas County
has a widespread pattern of misconduct.

Id.

Blair alleges “[u]pon completion of

discovery the pattern of misconduct will be unquestionable.” Id. at 39.
“To establish municipal liability under § 1983, a plaintiff must show that a
constitutional violation was committed pursuant to an official custom, policy, or practice
of the governmental entity.” Moyle v. Anderson, 571 F.3d 814, 817 (8th Cir. 2009)
(citing Monell, 436 U.S. at 690-92).

In Monell, the United State Supreme Court

determined municipalities may be sued under § 1983 when “the action that is alleged to
be unconstitutional implements or executes a policy statement, ordinance, regulation, or
decision.” Monell, 436 U.S. at 690. A plaintiff “need not, however, specifically plead
the existence of an unconstitutional policy or custom to survive a motion to dismiss.”
Crumpley-Patterson v. Trinity Lutheran Hosp., 388 F.3d 588, 591 (8th Cir. 2004).
When a complaint is filed, a plaintiff may not be privy to the
facts necessary to accurately describe or identify any
policies or customs which may have caused the deprivation
of a constitutional right. Moreover, such a holding would
disregard the liberality of Fed. R. Civ. P. 8(a)(2) which
requires merely a short and plain statement of the claim
showing that the pleader is entitled to relief, and 8(f), which
states pleadings shall be so construed as to do substantial
justice.
Doe ex rel. Doe v. Sch. Dist. of City of Norfolk, 340 F.3d 605, 614 (8th Cir. 2003)
(internal quotation omitted). “At a minimum, a complaint must allege facts which would
support the existence of an unconstitutional policy or custom.” Crumpley-Patterson,
19

388 F.3d at 591. “A plaintiff’s failure to include any allegations, reference, or language
by which one could begin to draw an inference that the conduct complained of resulted
from an unconstitutional policy or custom renders the complaint deficient.” Id. at 591
(internal quotation omitted). To establish the existence of a governmental custom, Blair
is required to prove:
1) The existence of a continuing, widespread, persistent
pattern of unconstitutional misconduct by the governmental
entity’s employees;
2) Deliberate indifference to or tacit authorization of such
conduct by the governmental entity’s policymaking officials
after notice to the officials of that misconduct; and
3) That plaintiff was injured by acts pursuant to the
governmental entity’s custom, i.e., that the custom was the
moving force behind the constitutional violation.
Jane Doe A By & Through Jane Doe B v. Special Sch. Dist. of St. Louis Cnty., 901
F.2d 642, 646 (8th Cir. 1990).
Blair alleges Douglas County failed to train and supervise the DCAO and, as a
result of such failure, the DCAO failed to turn over Brady material and properly
investigate the alleged crime. See Filing No. 28 - First Amended Complaint; Filing No.
79-2 - Proposed Amended Complaint. Specifically, Blair alleges DCAO failed to turn
over the alleged victim’s medical and telephone records in violation of Brady. See
Filing No. 28 - First Amended Complaint p. 15, 21, 30-32; Filing No. 79-2 - Proposed
Amended Complaint p. 22-23, 29-30, 40-41. Blair also alleges DCAO failed to properly
investigate the alleged crimes because DCAO did not interview witnesses, investigate
conflicting police reports, or review phone records. See Filing No. 28 - First Amended
Complaint p. 12, 15, 32-42; Filing No. 79-2 - Proposed Amended Complaint p. 19-20,
22-23, 29-30, 41-52. Blair alleges Douglas County “had in force and effect a policy,
practice and custom of failing to properly discipline, supervise, and train [the DCAO],
including . . . the proper way to conduct investigations.”

See Filing No. 28 - First

Amended Complaint p. 30-42; Filing No. 79-2 - Proposed Amended Complaint p. 41-52.
Blair alleges Douglas County’s failure to train and supervise DCAO is causally related to
the injury Blair sustained. See Filing No. 28 - First Amended Complaint p. 30-42; Filing
No. 79-2 - Proposed Amended Complaint p. 41-52.

20

The court finds Blair’s aforementioned allegations, that Douglas County
unconstitutionally failed to properly train and supervise DCAO pursuant to an official
custom, policy, or practice, are plausible on their face and sufficient to survive a motion
to dismiss. See Atkinson v. City of Mountain View, Mo., 709 F.3d 1201, 1214 (8th
Cir. 2013) (“Section 1983 liability for a constitutional violation may attach to a
municipality if the violation resulted from . . . a deliberately indifferent failure to train or
supervise[.]”) (internal citations and quotations omitted) (citing City of Canton, Ohio v.
Harris, 489 U.S. 378, 388 (1989)).

Accordingly, the court finds Douglas County’s

Second Motion to Dismiss Blair’s third count is denied.

B.

Motion to Amend
Under Federal Rule of Civil Procedure 15, a court should grant leave to amend

freely “when justice so requires.” However, “denial of leave to amend may be justified
by undue delay, bad faith on the part of the moving party, futility of the amendment or
unfair prejudice to the opposing party.” Amrine v. Brooks, 522 F.3d 823, 833 (8th Cir.
2008) (internal quotation and citation omitted). There is no absolute right to amend.
Trim Fit, LLC v. Dickey, 607 F.3d 528, 531 (8th Cir. 2010). Whether to grant a motion
for leave to amend is within the sound discretion of the district court. See Popoalii v.
Correctional Med. Servs., 512 F.3d 488, 497 (8th Cir. 2008).
Blair filed a timely motion to amend. Further, the parties have not commenced
discovery and discovery is currently stayed.

See Filing No. 69 - Order (staying

discovery pending resolution of McKeever and Vondra’s summary judgment motion).
Additionally, the defendants are not unduly prejudiced. Accordingly, Blair’s motion is
granted to the extent the court will allow Blair to file an amended complaint in
accordance with the limitations set forth herein, specifically, excluding state law claims
and the parties dismissed above because it is futile to include such claims and parties in
an amended complaint. See Hintz v. JPMorgan Chase Bank, N.A., 686 F.3d 505, 511
(8th Cir. 2012) (“[W]hen the court denies leave on the basis of futility, it means the
district court has reached the legal conclusion that the amended complaint could not
withstand a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil
Procedure. . . .”) (alternation in original).

21

IT IS ORDERED:
1.

The defendants’ Second Motion to Dismiss (Filing No. 49) is granted in

part and denied in part:
A.

To the extent the Blair alleges any state law claims for malicious
prosecution, false imprisonment, use of fraudulent police reports,
and procurement of unreliable and fabricated evidence and
testimony, those claims are dismissed with prejudice.

B.

Blair’s claims against Frank Goodroe and Douglas County Court
Administrators are dismissed with prejudice.

C.

Blair’s claims against Kleine, Dornan, and Jansen are dismissed
with prejudice.

D.
2.

The motion is denied in all other respects.

The plaintiff’s Consolidated Motion for Leave to Add/Substitute Parties and

Amend Complaint (Filing No. 71) is denied as moot.
3.

The plaintiff’s Motion in Support of Third Amend (sic) Complaint (Filing No.

79) is granted as specifically set forth above. The plaintiff shall file a second amended
complaint by July 18, 2013.

Dated this 8th day of July, 2013.
BY THE COURT:
s/ Thomas D. Thalken
United States Magistrate Judge

22