Grove et al v. Herrick et al
Filing
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MEMORANDUM AND ORDER granting in part and denying in part the defendants' 14 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM. This case will be stayed pending the outcome of the State Action identified in the memorandum accompanying this o rder. In all other respects, the defendants' motion to dismiss is denied; and the parties shall promptly inform this court when the judgment in the State Action is final. Case stayed.( Status Report due by 6/6/2013.) Ordered by Senior Judge Warren K. Urbom. (MKR)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
ANDREA GROVE, and TOM GROVE,
Plaintiffs,
v.
MATTHEW HERRICK, in his official and
individual capacities, MARK CERNY, in
his official and individual capacities, and
THE CITY OF RALSTON, NEBRASKA,
Defendants.
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8:12CV95
MEMORANDUM AND ORDER ON
DEFENDANTS’ MOTION TO DISMISS
On March 7, 2012, the plaintiffs, Andrea Grove and Tom Grove, filed a complaint against
the defendants, Matthew Herrick, Mark Cerny, and the City of Ralston, Nebraska (Ralston). (See
Compl., ECF No. 1.) Now before me is the defendants’ motion to dismiss the complaint pursuant
to Federal Rules of Civil Procedure 12(b)(1) and (6). (ECF No. 14.) For the following reasons, the
defendants’ motion will be granted in part.
I.
BACKGROUND
The complaint alleges as follows. At relevant times, Herrick and Cerny were employed by
Ralston’s police department. (Compl. ¶ 7, ECF No. 1.) On March 8, 2008, Herrick and Cerny
responded to a complaint of noise at 4740 South 83rd Street, Apartment 3, in Ralston. (Id. ¶ 8.)
After their attempt to gain access to the apartment failed, Herrick and Cerny moved their cruisers
out of sight and waited outside the apartment building. (Id.) Sometime later, Herrick and Cerny
observed Andrea Grove (Andrea) descending the building’s stairs. (Id. ¶ 9.) Herrick and Cerny
approached Andrea and learned that she was a minor, that she was intoxicated, and that she had been
inside Apartment 3. (Id.) Herrick and Cerny then ordered Andrea back into the apartment building
and instructed her to knock on the door of Apartment 3 while the officers hid behind her. (Id. ¶ 10.)
1
When the door opened, Herrick and Cerny entered the apartment and began detaining the occupants.
(Id. ¶ 11.)
Two males were taken from the apartment, placed in restraints, and detained in the hallway
of the apartment building under Cerny’s supervision. (Id. ¶ 12.) The apartment’s remaining
occupants remained inside under Herrick’s supervision. (Id.) Herrick placed Andrea in restraints
and sat her down in the apartment’s living room. (Id. ¶ 13.) Some of the apartment’s occupants
“became verbally abusive” to Andrea, believing that she cooperated with the police. (Id. ¶¶ 12-13.)
Andrea feared for her safety, and while Herrick and Cerny “were otherwise occupied,” she was “able
to get up off the floor, exit the apartment through a balcony door, and fall three stories to the
sidewalk below without any intervention from [Herrick and Cerny].” (Id. ¶ 14.) Andrea suffered
“a radius fracture, [an] ulna styloid fracture, [a] flail chest, [a] rib fracture, [and] mental anguish,”
and she incurred medical expenses. (Id. ¶ 20.)
The plaintiffs allege that the defendants violated Andrea’s “Fourth Amendment rights to be
safe and secure in her person.” (Id. ¶ 18.) They also allege that Ralston is liable under 42 U.S.C.
§ 1983 “for the municipal action/practice of using a person/minor as an informant/human shield in
violation of [Andrea’s] civil rights” and “for . . . failing to train [Herrick and Cerny] that a duty exists
to protect an individual in involuntary custody when the individual is unable to provide protection
for themselves, in violation of the Fourteenth Amendment.” (Id. ¶¶ 16-17.) In addition, the
plaintiffs allege that because Herrick and Cerny used Andrea to gain access to the apartment, they
“created a special relationship with [her]” that “elevat[ed] their duty to secure her safety.” (Id. ¶ 15.)
They add that Herrick and Cerny acted negligently by “failing to adequately protect [Andrea] and
provide for her safety while she was in their custody,” that the City of Ralston is liable for Herrick’s
and Cerny’s negligence “under the doctrine of respondeat superior,” and that the City of Ralston is
liable for its own negligence in failing to train and supervise Herrick and Cerny. (Id. ¶ 19.) The
plaintiffs seek a judgment declaring that the defendants “violated the Constitution of and laws of the
United States and the State of Nebraska”; awarding damages and costs to the plaintiffs; and awarding
“such other and further relief as this Court may deem just and proper.” (Id. at 5.)
On or about July 29, 2009, Andrea Grove and Tom Grove filed a complaint against the City
of Ralston in the District Court of Douglas County, Nebraska, Case ID No. CI 10-9384387 (the State
2
Action). (Defs.’ Index, Ex. A, Culhane Aff. Ex. A, ECF No. 15-1.) In the State Action, which is
brought pursuant to the Nebraska Political Subdivisions Tort Claims Act, Neb. Rev. Stat. §§ 13-901
to 13-928, the plaintiffs allege that Ralston “was negligent in failing to protect Andrea while [she
was] in its custody” on March 8, 2008, at 4740 S. 83rd Street, Apartment 3, Omaha, Nebraska. (Id.
¶¶ 6-7, 9.)1 The plaintiffs also allege that Ralston’s negligence caused Andrea to suffer injuries that
include a radius fracture, an ulna styloid fracture, a flail chest, a rib fracture, and psychological harm,
(id. ¶¶ 9-10), and they seek to recover damages and costs from Ralston, (id. ¶ 13).
“[A]ll written and deposition discovery” has been completed in the State Action, “and no
discovery of any kind has been conducted since February 16, 2011.” (Defs.’ Index, Ex. A, Culhane
Aff. ¶ 5, ECF No. 15-1.) Trial was originally scheduled to begin on August 17, 2011, but it was
continued by the plaintiffs. (Id. ¶ 6.) On January 4, 2012, the district court judge entered an order
scheduling the trial for August 1, 2012. (Defs.’ Index, Ex. A, Culhane Aff. Ex. C, ECF No. 15-1.)
On or about July 18, 2012, the plaintiffs filed a motion to recuse the district court judge. (Defs.’
Index, Ex. A, Culhane Aff. Ex. D, ECF No. 15-1.) This motion was granted, and the case was
reassigned to a different judge. (Defs.’ Index, Ex. A, Culhane Aff. ¶ 5, ECF No. 15-1.) As of
August 3, 2012, the State Action had not yet been scheduled for trial. (Id. ¶ 9.)
II.
STANDARD OF REVIEW
A.
Rule 12(b)(1)
A motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1) may challenge
either the factual truthfulness or the facial sufficiency of a plaintiff’s jurisdictional allegations. See,
e.g., Stalley v. Catholic Health Initiatives, 509 F.3d 517, 520-21 (8th Cir. 2007) (citing Osborn v.
United States, 918 F.2d 724, 729 n.6 (8th Cir. 1990)). In a facial attack, the standard of review is
the same standard that applies to motions brought pursuant to Federal Rule of Civil Procedure
12(b)(6): I must “accept as true all factual allegations in the complaint, giving no effect to conclusory
1
The instant complaint alleges that the apartment in question is located in Ralston, while
the complaint filed in the State Action alleges that the apartment is located in Omaha. Despite
this discrepancy, there appears to be no dispute that both complaints are based on the same
incident.
3
allegations of law,” and I must determine whether the plaintiff has asserted “facts that affirmatively
and plausibly suggest that the pleader has the right he claims (here, the right to jurisdiction), rather
than facts that are merely consistent with such a right.” Stalley, 509 F.3d at 521 (citing, inter alia,
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-57 (2007)). (See also infra Part II.B.) In contrast,
“[w]hen a district court engages in a factual review, it inquires into and resolves factual disputes.”
Faibisch v. University of Minnesota, 304 F.3d 797, 801 (8th Cir. 2002). Under these circumstances,
the plaintiff is not entitled to the benefit of the assumption that his factual allegations are true, and
“the court may receive competent evidence such as affidavits, deposition testimony, and the like in
order to determine the factual dispute.” Titus v. Sullivan, 4 F.3d 590, 593 & n.1 (8th Cir. 1993).
In this case, the defendants have submitted evidence outside the pleadings for my
consideration, (see generally Defs.’ Index, ECF No. 15), but this evidence does not challenge the
truthfulness of the plaintiffs’ factual allegations. Instead, the evidence provides information about
a state action that, according to the defendants, “rests on the exact same set of facts” as the instant
action. (Defs.’ Br. at 2, ECF No. 16.) I shall consider the evidence submitted by the defendants
when resolving any factual disputes raised by the instant motion. To the extent that the complaint’s
factual allegations remain uncontradicted in the face of this evidence, I shall accept them as true.
B.
Rule 12(b)(6)
“Federal Rule of Civil Procedure 8 requires that a complaint present ‘a short and plain
statement of the claim showing that the pleader is entitled to relief.’” Braden v. Wal-Mart Stores,
Inc., 588 F.3d 585, 594 (8th Cir. 2009). To survive a motion to dismiss under Rule 12(b)(6), “a
complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). “A pleading that offers ‘labels and conclusions’ or ‘a
formulaic recitation of the elements of a cause of action will not do.’” Id. (quoting Twombly, 550
U.S. at 555). “Nor does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further
factual enhancement.’” Id. (quoting Twombly, 550 U.S. at 557). Also, although a court must accept
as true all factual allegations when analyzing a Rule 12(b)(6) motion, it is not bound to accept as true
legal conclusions that have been framed as factual allegations. See id. (“[T]he tenet that a court must
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accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.”).
See also Cook v. ACS State & Local Solutions, Inc., 663 F.3d 989, 992 (8th Cir. 2011).
“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 (citation omitted). “The plausibility standard is not akin to a ‘probability requirement,’
but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (quoting
Twombly, 550 U.S. at 556). “Where a complaint pleads facts that are ‘merely consistent with’ a
defendant’s liability, it ‘stops short of the line between possibility and plausibility of entitlement to
relief.’” Id. (quoting Twombly, 550 U.S. at 557) (internal quotation marks omitted). In other words,
“where the well-pleaded facts do not permit the court to infer more than the mere possibility of
misconduct, the complaint has alleged–but it has not ‘shown’–‘that the pleader is entitled to relief.’”
Id. at 679 (quoting Fed. R. Civ. P. 8(a)(2)) (brackets omitted).
III.
ANALYSIS
The defendants argue that because the State Action concerns the same subject matter as the
instant action, the complaint must be dismissed pursuant to the abstention doctrine. (See Defs.’ Br.
at 3-5, ECF No. 16.) Alternately, the defendants argue that dismissal is in order because the
“[p]laintiffs have [pleaded] nothing more than mere negligence.” (Id. at 6.) I shall consider each
of the defendants’ arguments in turn.
A.
Abstention
“[T]he pendency of an action in the state court is no bar to proceedings concerning the same
matter in the Federal court having jurisdiction.” Exxon Mobil Corp. v. Saudi Basic Industries Corp.,
544 U.S. 280, 292 (2005) (quoting McClellan v. Carland, 217 U.S. 268, 282 (1910)). See also FruCon Const. Corp. v. Controlled Air, Inc., 574 F.3d 527, 534 (8th Cir. 2009) (“Federal courts . . . have
a ‘virtually unflagging obligation . . . to exercise the jurisdiction given them, even when there is a
pending state court action involving the same subject matter.’”). Nevertheless, “[c]omity or
abstention doctrines may, in various circumstances, permit or require the federal court to stay or
dismiss the federal action in favor of the state-court litigation.” Exxon Mobil Corp., 544 U.S. at 292
(citing, inter alia, Colorado River Water Conservation Dist. v. United States, 424 U.S. 800 (1976);
5
Younger v. Harris, 401 U.S. 37 (1971); Railroad Comm’n of Texas v. Pullman Co., 312 U.S. 496
(1941)). The defendants argue that the complaint should be dismissed pursuant to any one of three
variations of the abstention doctrine. (See Defs.’ Br. at 3-5, ECF No. 16.)
First, citing Colorado River Water Conservation District v. United States, 424 U.S. 800
(1976), the defendants argue that dismissal is appropriate “[g]iven the piecemeal litigation that the
Complaint is certain to produce and the fact that the state court has already had jurisdiction over this
case for more than three years.” (Defs.’ Br. at 4, ECF No. 16.) Under Colorado River, “a federal
court may divest itself of jurisdiction by abstaining only when parallel state and federal actions exist
and exceptional circumstances warrant abstention.” Fru-Con Constr. Corp. v. Controlled Air, Inc.,
574 F.3d 527, 534 (8th Cir. 2009) (citing Colorado River, 424 U.S. at 817-18). Thus, I must
determine first whether the instant action and the State Action are “parallel.” If they are, I must then
proceed to determine whether exceptional circumstances warrant abstention.
Although “the prevailing view is that state and federal proceedings are parallel for purposes
of Colorado River abstention when substantially similar parties are litigating substantially similar
issues in both state and federal court,” the Eighth Circuit “requires more precision.” United States
v. Rice, 605 F.3d 473, 476 (8th Cir. 2010) (quoting Fru-Con Constr. Corp., 574 F.3d at 535). “[A]
substantial similarity must exist between the state and federal proceedings, which similarity occurs
when there is a substantial likelihood that the state proceeding will fully dispose of the claims
presented in the federal court.” Id. (quoting Fru-Con Constr. Corp., 574 F.3d at 535). See also FruCon Constr. Corp., 574 F.3d at 565 (“The pendency of a state claim based on the same general facts
or subject matter as a federal claim and involving the same parties is not alone sufficient.” (opinion
of Beam, J.)).
I am not persuaded that the State Action and the instant case are parallel. It is true that the
plaintiffs in each case are similar, and the issue of Ralston’s negligence is raised in both actions. In
the State Action, however, only Ralston is named as a defendant, and the plaintiffs’ claims against
it are based solely on the Political Subdivisions Tort Claims Act. In the instant case, in contrast,
Herrick and Cerny are named as defendants in both their individual and official capacities, and the
complaint alleges that the defendants not only acted negligently, but also violated the Fourth
Amendment and the Fourteenth Amendment. (E.g., Compl. ¶¶ 2, 5, ECF No. 1.) Thus, I cannot say
6
that there is a substantial likelihood that the State Action will fully dispose of the claims presented
in this court. Rice, 605 F.3d at 476. Indeed, an ultimate finding in the State Action on the issue of
Ralston’s negligence will have little bearing on the issue of whether Herrick and Cerny are
individually liable in this case.
Even if I were to assume, for the purposes of argument, that the State Action and the instant
case are parallel, abstention would not be justified absent “the exceptional circumstances where the
order to the parties to repair to the State court would clearly serve an important countervailing
interest.” Mountain Pure, LLC v. Turner Holdings, LLC, 439 F.3d 920, 926 (8th Cir. 2006) (quoting
Moses H. Cone Mem. Hosp. v. Mercury Constr., 460 U.S. 1, 14 (1983)) (emphasis omitted).
Determining whether exceptional circumstances exist requires courts to evaluate six factors: 1)
“whether there is a res over which one court has established jurisdiction”; 2) “the inconvenience of
the federal forum”; 3) “whether maintaining separate actions may result in piecemeal litigation,
unless the relevant law would require piecemeal litigation and the federal court issue is easily
severed”; 4) “which case has priority – not necessarily which case was filed first but a greater
emphasis on the relative progress made in the cases”; 5) “whether state or federal law controls,
especially favoring the exercise of jurisdiction whether federal law controls”; and 6) “the adequacy
of the state forum to protect the federal plaintiff’s rights.” Id. (quoting United States Fidelity and
Guaranty Co. v. Murphy Oil USA, Inc., 21 F.3d 259, 263 (8th Cir. 1994)). “These factors are not
intended to be exhaustive, nor are they mechanically applied. Rather, they are pragmatically applied
to advance the ‘clear federal policy’ of avoiding piecemeal adjudication.” Id. (citing Moses H. Cone
Mem. Hosp., 460 U.S. at 16, 21). “When examining the factors, ‘the balance [is] heavily weighted
in favor of the exercise of jurisdiction.’” Id. (quoting Moses H. Cone Mem. Hosp., 460 U.S. at 16).
In the case before me, it appears that only factors three and four weigh into the “exceptional
circumstances” calculation. The third factor, which focuses on the undesirability of piecemeal
litigation, is “the predominant factor” in the calculation because “[t]he policies underlying Colorado
River abstention are ‘considerations of wise judicial administration, . . . conservation of judicial
resources and comprehensive disposition of litigation.’” Mountain Pure, LLC, 439 F.3d at 927
(quoting Colorado River, 424 U.S. at 817) (internal quotation marks and brackets omitted). To avoid
piecemeal litigation, however, courts favor “the most complete action.” Id. Here, the broader
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collection of parties and claims appears in the instant action, not the State Action. Although there
is some overlap between the actions, I find that the overlap does not amount to an exceptional
circumstance that warrants abstention. The fourth factor emphasizes the relative progress of the
actions, and it is relevant here because the State Action was filed first and has progressed to the point
that it is ready for trial.2 It seems to me, however, that a trial in the State Action will not address
most of the claims alleged in the instant complaint. Thus, the fact that the State Action is quite
advanced does not appear to weigh heavily in favor of abstention.
In short, the defendants have not shown that the State Action and the instant action are
parallel, and I am not persuaded that there are exceptional circumstances sufficient to justify the
exercise of Colorado River abstention.
Second, the defendants argue that abstention is appropriate under Railroad Comm’n of Texas
v. Pullman Co., 312 U.S. 496 (1941). (See Defs.’ Br. at 4, ECF No. 16.) Pullman is implicated
“where [the] case involves [an] unsettled question of state law which concerns important state
interests and which may be resolved in such a way as to avoid need for decision of [the] federal
constitutional question.” List v. County of Carroll, 240 F. App’x 155, 157 (8th Cir. 2007) (citing
Coley v. Clinton, 635 F.3d 1364, 1372-73 (8th Cir. 1980)). See also Beavers v. Arkansas State
Board of Dental Examiners, 151 F.3d 838, 841 (8th Cir. 1999); Arizonans for Official English v.
Arizona, 520 U.S. 43, 76 (1997) (“Designed to avoid federal-court error in deciding state-law
questions antecedent to federal constitutional issues, the Pullman mechanism remitted parties to the
state courts for adjudication of the unsettled state-law issues. If settlement of the state-law question
did not prove dispositive of the case, the parties could return to the federal court for decision of the
federal issues.”). “Thus, for Pullman abstention to be appropriate, two requirements must be met.
First, the controlling state law must be unclear. Second, a tenable interpretation of the state law must
be dispositive of the case.” Robinson v. City of Omaha, Nebraska, 866 F.2d 1042, 1043 (8th Cir.
1989). Here, neither of the primary prerequisites for application of the Pullman doctrine have been
2
The defendants submit that the state court “is already intimately familiar with this case
and perfectly suited to handle [the] claims.” (Defs.’ Br. at 4, ECF No. 16.) I do not doubt that
the state court is perfectly capable of handing the action. Because the case has recently been
reassigned to a new judge, however, it seems to me that the defendant overstates the advantage
attributable to the state court’s familiarity with the case.
8
satisfied: there is no unsettled, controlling question of state law that is antecedent to any federal
constitutional issues, and therefore it cannot be said that the resolution of such a question could
dispose of the plaintiffs’ federal claims. Although both the State Action and the instant action
include a conventional state-law negligence claim against Ralston, there is no indication that the
relevant state law is unclear or unsettled. See, e.g., Casbah, Inc. v. Thone, 651 F.2d 551. 556 n.6
(8th Cir. 1981) (“[S]ince this is not a case which raises difficult or obscure state law questions, the
. . . factor cited in Pullman as supportive of abstention is absent here.”). Nor have the defendants
shown that the issue of Ralston’s negligence could be resolved in such a way as to dispose of all of
the federal claims raised in the instant action – especially those directed at Herrick and Cerny. The
Pullman doctrine is simply inapplicable here.
Third, and finally, the defendants argue that I should abstain in accordance with the principles
described in Younger v. Harris, 401 U.S. 37 (1971). (Defs.’ Br. at 5, ECF No. 16.) “In Younger,
the Supreme Court articulated the strong policy considerations that counsel against the exercise of
jurisdiction in the face of ongoing state proceedings[.]” Yamaha Motor Corp., USA v. Stroud, 179
F.3d 598, 602 (8th Cir. 1999).
The concept of federalism represents a system in which there is sensitivity to
the legitimate interests of both State and National Governments, and in which the
National Government, anxious though it may be to vindicate and protect federal
rights and federal interests, always endeavors to do so in ways that will not unduly
interfere with the legitimate activities of the States.
Id. (quoting Younger, 401 U.S. at 44 (brackets and ellipses omitted)). Under Younger, “[a]bstention
is proper if there is an ongoing state judicial proceeding, the proceeding implicates important state
interests, there is an adequate opportunity in the state proceedings to raise constitutional challenges,
and in the absence of ‘bad faith, harassment, or other exceptional circumstances.’” Stroud, 179 F.3d
at 602 (quoting Middlesex County Ethics Commission v. Garden State Bar Association, 457 U.S.
423, 432, 437 (1982)). See also Cedar Rapids Cellular Telephone, L.P. v. Miller, 280 F.3d 874, 879882 (8th Cir. 2002). It does appear that each of the foregoing criteria are satisfied in this case: There
is an ongoing state judicial proceeding that implicates important state interests (i.e., interests in
resolving tort claims raised by citizens against the state’s political subdivisions and determining the
obligations of its law enforcement personnel); the plaintiffs evidently did not raise their federal
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claims in the State Action, but there is no indication that they could not have done so, see Night
Clubs, Inc. v. City of Fort Smith, Ark., 163 F.3d 475, 480-81 (8th Cir. 1998); and there is no
indication of any bad faith, harassment, or other exceptional circumstances. Furthermore, the
resolution of the instant action may unduly interfere with the State Action, particularly insofar as
both suits raise identical state law negligence claims against Ralston. I find, therefore, that it is
appropriate to abstain under Younger principles.
Although the Younger doctrine counsels abstention in this case, it does not favor dismissal
of the complaint. “When monetary damages are sought . . . and the federal court is not asked to
declare a state statute unconstitutional in order to award damages, the case should not be dismissed.”
Stroud, 179 F.3d at 603-04 (citing Night Clubs, Inc., 163 F.3d at 482). “As long as there may be
issues which will need to be determined in federal court, a stay rather than a dismissal is the
preferred procedure for use in abstaining.” Id. (citing International Assoc. of Entrepreneurs of
America v. Angoff, 58 F.3d 1266, 1271 (8th Cir. 1995)). Although the defendants argue that the
State Action will resolve all of the issues raised in the instant action, I do not agree. Indeed, it seems
quite likely that the plaintiffs’ individual-capacity claims against Herrick and Cerny will be
unaffected by the State Action. Therefore, the instant case will be stayed pending the outcome of
the State Action.
B.
Whether the Complaint Fails to State a Claim Upon Which Relief May Be Granted
The defendants argue that because the plaintiffs’ claims “for purported constitutional
violations” all sound in “nothing more than mere negligence, which is not actionable under the
United States Constitution,” their claims must be dismissed under Rule 12(b)(6). (Defs.’ Br. at 6,
ECF No. 16.)
The plaintiffs’ “constitutional claims” are based on § 1983, the Fourth Amendment, and the
Fourteenth Amendment. (See Compl. ¶¶ 2, 5, ECF No. 1.) Section 1983 “contains no state-of-mind
requirement independent of that necessary to state a violation of the underlying constitutional right.”
Daniels v. Williams, 474 U.S. 327, 330 (1986). “But in any given § 1983 suit, the plaintiff must still
prove a violation of the underlying constitutional right; and depending on the right, merely negligent
conduct may not be enough to state a claim.” Id. The parties appear to agree that allegations of mere
negligence are not enough to state violations of the Fourth or Fourteenth Amendments. (See Defs.’
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Br. at 6, ECF No. 16; Pls.’ Br. at 5-6, ECF No. 17.) However, apart from the plaintiffs’ passing
reference to “deliberate indifference” on the part of Ralston, neither the plaintiffs nor the defendants
have identified the particular “state-of-mind” requirements that the plaintiffs must plead in order to
avoid the dismissal of each of their constitutional claims. (See id.) Indeed, none of the pleading
requirements applicable to any of the plaintiffs’ claims have been fleshed out by the parties. In short,
the issue raised by the defendants’ motion to dismiss is quite narrow: I am asked only to determine
whether the complaint alleges “nothing more than mere negligence.” (Defs.’ Br. at 6, ECF No. 16.
See also Mot. to Dismiss ¶ 9, ECF No. 14.)
After reviewing the complaint, I am not persuaded that the plaintiffs have alleged “nothing
more than mere negligence” on the part of the defendants. The plaintiffs claim that Herrick and
Cerny seized Andrea and ordered her to aid them in their investigation of the noise complaint at 4740
South 83rd Street. The officers allegedly hid behind Andrea, used her as a shield to gain entry to the
apartment, placed her in restraints on the floor of a room whose unrestrained occupants were
threatening her, and failed to intervene when she fled from the apartment and suffered a three-story
fall. Although the foregoing actions and omissions form the basis of the plaintiffs’ negligence claim,
it is also reasonable to infer that they amount to more than mere negligence. Furthermore, in the
absence of any argument to the contrary, I am not prepared to conclude that these allegations fail to
state a constitutional violation. See, e.g., Fields v. Abbott, 652 F.3d 886, 890-91 (8th Cir. 2011)
(noting that substantive due process requires the state to protect individuals in its custody and
individuals who have been subjected to “state-created danger”).3 Similarly, the complaint does not
allege that Ralston was simply negligent; it also alleges that Ralston failed to train Herrick and Cerny
“to protect an individual in involuntary custody when the individual is unable to provide protection
for themselves” and that the plaintiffs’ constitutional injuries resulted from Ralston’s “practice” of
3
I re-emphasize that I have not been asked to determine, and I have not determined,
whether the complaint’s allegations are sufficient to state a claim under Fields or any other
relevant theory. I find only that the claims against Herrick and Cerny shall not be dismissed on
the ground that they are based upon allegations of “mere negligence.”
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allowing officers to use a “minor as an informant/human shield.” (Compl. ¶¶ 16-17, ECF No. 1.)4
Thus, I am not convinced that the plaintiffs’ § 1983 claims must be dismissed on the ground that the
“[p]laintiffs have [pleaded] nothing more than mere negligence.”
IT IS ORDERED that:
1.
the defendants’ motion to dismiss, ECF No. 14, is granted in part;
2.
this case will be stayed pending the outcome of the State Action identified in the
memorandum accompanying this order;
3.
in all other respects, the defendants’ motion to dismiss is denied; and
4.
the parties shall promptly inform this court when the judgment in the State Action is
final.
Dated December 3, 2012.
BY THE COURT
____________________________________________
Warren K. Urbom
United States Senior District Judge
4
Again, in the interest of clarity, I express no opinion whether the complaint sufficiently
alleges a “policy or custom” or “failure to train” theory of municipal liability. See, e.g., Connick
v. Thompson, 131 S. Ct. 1350, 1359-60 (2011); Collins v. City of Harker Heights, Tex., 503 U.S.
115, 122-24 (1992) (discussing Canton v. Harris, 489 U.S. 378 (1989)); Ware v. Jackson County,
Mo., 150 F.3d 873, 880, (8th Cir. 1998); Springdale Education Association v. Springdale School
District, 133 F.3d 649, 651 (8th Cir. 1998). The defendants have argued only that the complaint
alleges mere negligence, and I confine my analysis to that particular issue.
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