Titus v. Stanton, County of et al
MEMORANDUM AND ORDER - Defendants' motion to dismiss (Filing No. 9 ) is granted in part and denied in part. Defendants' motion to dismiss is granted with respect to the plaintiff's claim for false arrest/false imprisonment (Count I II). Defendants' motion to dismiss is granted with respect to the plaintiff's claim for excessive force (Count V). Defendant's motion to dismiss is granted with respect to that portion of Count IV of the plaintiff's amended com plaint that alleges deliberate indifference in failing to provide necessary medical care. Defendant's motion to dismiss is denied with respect to that portion of Count IV of the plaintiffs amended complaint that alleges deliberate indifference to the plaintiffs safety while in custody. Defendant's motion to dismiss is denied in all other respects. Defendants' motion to strike is denied. Ordered by Judge Joseph F. Bataillon. (GJG, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
MEMORANDUM AND ORDER
STANTON COUNTY, NEBRASKA, and
MICHAEL UNGER, Individually and as
Stanton County Sheriff;
This matter is before the court on a motion to dismiss and/or strike filed by
defendants Stanton County, Nebraska, (the “County”) and Michael Unger, individually
and as Stanton County Sheriff (“Sheriff Unger”), Filing No. 9. In her amended complaint
(Filing No. 8), the plaintiff alleges the defendants violated her civil rights under 42
U.S.C. §1983. She alleges excessive force and deliberate indifference to safety or to
serious medical needs in violation of the Eighth Amendment, and also asserts a state
law claim for false arrest/false imprisonment against defendant Unger in his individual
The plaintiff alleges the defendant failed to provide her safe transportation and
medical care as a pretrial detainee in an incident involving her ejection from a police
vehicle.1 In the amended complaint, the plaintiff alleges she was walking on a gravel
Specifically, the plaintiff’s amended complaint lists the following claims: Count I-Unlawful Policy,
Custom or Habit; Count II—Negligence; Count III—False Arrest/False Imprisonment (Unger); Count IV—
Cruel And Unusual Punishment: Failing to Provide Medical Care (Stanton County and Unger); Count V—
Excessive Force (Unger); Count VI—COUNT VI—Negligent Training And Supervision (Stanton County);
Count VII—Policy, Custom or Habit (Stanton County And Unger). As discussed below, the court will
construe the amended complaint as alleging a constitutional claim for deliberate indifference to safety or
to a need for medical care, a constitutional excessive force claim, a state law claim for false arrest/false
road and was approached by defendant Sheriff Unger, who was responding to a
complaint of trespassing. He was dressed in plainclothes and was driving a Stanton
County vehicle. She alleges Sheriff Unger handcuffed her and placed in the back seat
of the vehicle for transport to the Sheriff’s Office. During that transport, at alleged
speeds of 50 to 60 miles per hour, “the back door the patrol car opened and Plaintiff
was ejected from the County vehicle.” The plaintiff also alleges she suffered significant
injuries. She further alleges she filed a notice of claim under the Nebraska Political
Subdivisions Tort Claim Act, Neb. Rev. Stat. § 13-910. She asserts that the locking
mechanisms for the rear doors, which would prevent the rear doors from opening, were
intentionally disabled on the day of the incident, and alleges the actions were consistent
with a “policy or custom” maintained by the Stanton County Sheriff’s Office.
In their motion to dismiss, defendants first assert that the facts alleged do not rise
to the level of a constitutional violation for either deliberate indifference to serious
medical needs or for excessive force and that the plaintiff fails to state a claim for
deprivation of rights under 42 U.S.C. § 1983.2
Next, defendants assert sovereign
immunity from suit for false arrest/false imprisonment under exemptions contained in
imprisonment and a state law claim for negligence, with allegations that would impose liability on the
County for such claims.
In connection with this argument, the defendants urge the court to consider the allegations of
the plaintiff’s original complaint as admissions. The court declines to do so at this point in the
proceedings. The defendants’ arguments are directed at exhibits attached to the original pleading.
Although under certain circumstances, a statement in a superseded pleading may be introduced into
evidence as the admission of a party, “[a] pleading abandoned or superseded through amendment no
longer serves any function in the case.” Sunkyong Intern., Inc. v. Anderson Land & Livestock Co., 828
F.2d 1245, 1249 n.3 (8th Cir. 1987). A statement in an abandoned pleading is not conclusive and does
not constitute a binding judicial admission. First Bank of Marietta v. Hogge, 161 F.3d 506, 510 (8th Cir.
1998). That the statement may be admissible in evidence at some point does not mean the court should
consider it at this juncture.
The defendant further asks the court to take judicial notice of the judicial records of the state court
pertaining to charges against the plaintiff. The court declines to consider matters outside the pleadings in
considering this motion to dismiss.
the Nebraska Political Subdivisions Tort Claims Act, Neb. Rev. Stat. § 13-910. They
further argue the court should decline to exercise jurisdiction over plaintiff’s claim for
negligence under state law and alternatively assert that the negligence claim cannot
survive because the pleading shows there was an efficient intervening cause breaking
the chain of causation.
They also argue that the plaintiff’s allegations against the
County are not sufficient to show policy or custom or failure to train, so as to impose
liability on the County. Defendant Unger also asserts qualified immunity in response to
claims against him in his individual capacity.
The defendants also move to strike the plaintiff’s claim for punitive damages and
her request for a jury trial on certain claims. In response, the plaintiff asserts she does
not seek punitive damages.
Under the Federal Rules, 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). The
rules require a “‘showing,’ rather than a blanket assertion, of entitlement to relief.” Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 556 n.3. (2007) (quoting Fed. R. Civ. P.
8(a)(2)). “Specific facts are not necessary; the statement need only ‘give the defendant
fair notice of what the . . . claim is and the grounds upon which it rests.’” Erickson v.
Pardus, 551 U.S. 89, 93 (2007) (quoting Twombly, 550 U.S. at 555). In order to survive
a motion to dismiss under Fed. R. Civ. P. 12(b)(6), the plaintiff’s obligation to provide
the grounds for his entitlement to relief necessitates that the complaint contain “more
than labels and conclusions, and a formulaic recitation of the elements of a cause of
action will not do.” Twombly, 550 U.S. at 555.
The factual allegations of a complaint are assumed true and construed in favor of
the plaintiff, “even if it strikes a savvy judge that actual proof of those facts is improbable
and ‘that a recovery is very remote and unlikely.’” Id. (quoting Scheuer v. Rhodes, 416
U.S. 232, 236 (1974)). “On the assumption that all the allegations in the complaint are
true (even if doubtful in fact),” the allegations in the complaint must “raise a right to relief
above the speculative level.”
Twombly, 550 U.S. at 555-56.
In other words, the
complaint must plead “enough facts to state a claim for relief that is plausible on its
face.” Id. at 547. “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
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (stating that the
plausibility standard does not require a probability, but asks for more than a sheer
possibility that a defendant has acted unlawfully). The tenet that a court must accept as
true all of the allegations contained in a complaint is inapplicable to legal conclusions.
Id. Only a complaint that states a plausible claim for relief survives a motion to dismiss.
Id. at 679. Determining whether a complaint states a plausible claim for relief is “a
context-specific task” that requires the court “to draw on its judicial experience and
common sense.” Id.
A court considering a motion to dismiss may begin by identifying pleadings that,
because they are no more than conclusions, are not entitled to the assumption of truth.
Id. Although legal conclusions “can provide the framework of a complaint, they must be
supported by factual allegations.” Id. When there are well-pleaded factual allegations,
a court should assume their veracity and then determine whether they plausibly give
rise to an entitlement to relief. Id.
Thus, the court must find “enough factual matter (taken as true) to suggest” that
“discovery will reveal evidence” of the elements of the claim. Twombly, 550 U.S. at 558,
556; Dura Pharms., Inc. v. Broudo, 544 U.S. 336, 347 (2005). When the allegations in a
complaint, however true, could not raise a claim of entitlement to relief, the complaint
should be dismissed for failure to set a claim under Fed. R. Civ. P. 12(b)(6). Twombly,
550 U.S. at 558; Iqbal, 556 U.S. at 679 (stating that “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 ‘show[n]’—’that the pleader is entitled to relief.’”).
Under Fed. R. Civ. P. 12(f), courts may strike “from any pleading an insufficient
defense or any redundant, immaterial, impertinent, or scandalous matter.” Fed. R. Civ.
P. 12(f). Courts enjoy liberal discretion to strike pleadings under this provision.
Health System v. Columbia Cas. Co., 478 F.3d 908, 917 (8th Cir. 2007). Striking a
party’s pleading, however, is an extreme and disfavored measure. Id. A motion to
strike is neither an authorized nor a proper way to procure the dismissal of all or part of
a claim. See 5C Wright & Miller, Fed. Prac. & Proc. § 1380 (2008).
To state a claim under § 1983, a plaintiff must allege the violation of a right
secured by the Constitution and laws of the United States. Gordon v. Hansen, 168 F.3d
1109, 1113 (8th Cir. 1999). “‘[W]hen the State takes a person into its custody and holds
him there against his will, the Constitution imposes upon it a corresponding duty to
assume some responsibility for his safety and general well-being.’” County of
Sacramento v. Lewis, 523 U.S. 833, 851 (1998) (quoting DeShaney v. Winnebago
County Dep’t of Soc. Servs., 489 U.S. 189, 199–200 (1989)). Thus, a prisoner’s Eighth
Amendment rights are violated when government entities or officials are deliberately
indifferent to a prisoner’s medical needs or to his or her safety. See Estelle v. Gamble,
429 U.S. 97, 104, (1976); Farmer v. Brennan, 511 U.S. 825, 834 (1994).
Deliberate indifference to serious medical needs or to the safety of a prisoner
violates the Eighth Amendment prohibition against cruel and unusual punishment, but
the claims of a pretrial detainee are properly analyzed under the Due Process Clause of
the Fourteenth Amendment. Spencer v. Knapheide Truck Equip. Co., 183 F.3d 902
(8th Cir. 1999). The Supreme Court has held that pretrial detainees are entitled under
the Fourteenth Amendment to “at least as great” a level of protection as that afforded
convicted prisoners under the Eighth Amendment. City of Revere v. Massachusetts
Gen. Hosp., 463 U.S. 239, 244 (1983).
In the Eighth Circuit, the Fourteenth
Amendment due process analysis applicable to a pretrial detainee’s claims parallels the
Eighth Amendment analysis because pretrial detainees are entitled to the same
protection as imprisoned convicts. Carpenter v. Gage, 686 F.3d 644, 650 (Neb. 2012).
Allegations that officials intentionally place prisoners in dangerous situations or
manifest deliberate indifference for their safety are sufficient to state a claim for
deliberate indifference for prisoner’s safety.
See Brown v. Missouri Dept. of
Corrections, 353 F.3d 1038 (8th Cir. 2004); Brown v. Morgan, No. 94-2023, 1994 WL
610993, at *1 (8th Cir. Nov. 7, 1994) (unpublished per curiam opinion) (sheriff’s refusal
to let prisoner wear seatbelt, driving at high rate of speed in bad weather, and smiling
when he saw that prisoner was frightened was sufficient to support conclusion that
sheriff manifested deliberate indifference for prisoner’s safety). To establish a claim
based on deliberate indifference to a serious medical need or safety, a plaintiff must
demonstrate that she suffered an objectively serious medical need or need for
protection, and that law enforcement officials had actual knowledge of those needs but
deliberately disregarded them. See, e.g., Carpenter, 686 F.3d at 650 (involving medical
need). A showing of negligence is not sufficient to meet this burden. Id.
Claims that law enforcement officers have used excessive force during an arrest
or other seizure are analyzed under the Fourth Amendment and its “objective
reasonableness” standard. Molina-Gomes v. Welinski, 676 F.3d 1149, 1152 (8th Cir.
2012). To decide whether a particular use of force is objectively reasonable, courts
examine the facts and circumstances of each case, including the crime’s severity,
whether the suspect poses an immediate threat to the safety of officers or others, and
whether the suspect actively resists arrest or flees. Shekleton v. Eichenberger, 677
F.3d 361 (8th Cir. 2012). Whether an action is “reasonable” in the Fourth Amendment
sense can only be analyzed by weighing and balancing “the nature and quality of the
intrusion on the individual’s Fourth Amendment interests against the countervailing
governmental interests at stake.” Bernini v. City of St. Paul, 665 F.3d 997, 1006 (8th
Cir. 2012) (quoting Graham, 490 U.S. at 396).
Qualified immunity is both “a defense to liability and a limited entitlement not to
stand trial or to face the other burdens of litigation.’” Iqbal, 556 U.S. at 672 (quoting
Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)). Officials being sued under § 1983 are
entitled to qualified immunity for actions that did not violate a clearly established
constitutional right at the time of the alleged violation such that reasonable officials
acting in the officials’ position would not have understood they were violating that right.
Harrington v. City of Council Bluffs, Iowa, 678 F.3d 676, 680 (8th Cir. 2012). “Qualified
immunity gives government officials breathing room to make reasonable but mistaken
judgments about open legal questions.” Ashcroft v. al-Kidd, —U.S. —, —, 131 S. Ct.
2074, 2085 (2011) (noting that, when properly applied, it protects all but the plainly
incompetent or those who knowingly violate the law).
In determining whether a
government official is entitled to qualified immunity, the court asks (1) whether the facts
alleged establish a violation of a constitutional or statutory right and (2) whether that
right was clearly established at the time of the alleged violation, such that a reasonable
official would have known that his actions were unlawful. Pearson v. Callahan, 555 U.S.
223, 232 (2009). The defense of qualified immunity is not available to an official acting
outside the clearly established scope of his discretionary authority. Johnson v. Phillips,
664 F.3d 232, 237 (8th Cir. 2011). Whether a given set of facts entitles an official to
summary judgment on qualified immunity grounds is a question of law, but if there is a
genuine dispute concerning predicate facts material to the qualified immunity issue,
there can be no summary judgment. Olson v. Bloomberg, 339 F.3d 730, 735 (8th Cir.
Government entities are not liable under § 1983 for an employee’s actions under
a theory of respondeat superior, but the county may be held liable under § 1983 for a
rights violation when it either had an unlawful policy or practice that caused the rights
violation, or a “policymaker” directly caused the rights violation. Pembaur v. City of
Cincinnati, 475 U.S. 469, 480 (1986); Yellow Horse v. Pennington County, 225 F.3d
923, 928 (8th Cir. 2000).
Locating a “policy” ensures that a municipality is held liable
only for those deprivations resulting from the decisions of its duly constituted legislative
body or of those officials whose acts may fairly be said to be those of the municipality.
Board of County Comm’rs of Bryan County, Oklahoma v. Brown, 520 U.S. 397, 403-04
(1997). “[A]n act performed pursuant to a ‘custom’ that has not been formally approved
by an appropriate decisionmaker may fairly subject a municipality to liability on the
theory that the relevant practice is so widespread as to have the force of law.” Id. at
Under § 1983, to establish liability against a defendant in his individual capacity,
because vicarious liability is inapplicable to § 1983 suits, a plaintiff must plead that each
government-official defendant, through the official’s own individual actions, has violated
the Constitution. Parrish v. Ball, 594 F.3d 993, 1001 (8th Cir. 2010).
Under Nebraska law, the state and certain governmental units are immune from
suit unless the state consents to suit. McKenna v. Julian, 763 N.W.2d 384, 389 (Neb.
2009). Tort actions against political subdivisions of the State of Nebraska are governed
exclusively by the Political Subdivisions Tort Claims Act (“PSTCA”). Neb. Rev. Stat.
§ 13–901 et seq.; McKenna, 763 N.W.2d at 389. A political subdivision includes a
county. Neb. Rev. Stat. § 13-903. The Legislature, through the PSTCA, has removed,
in part, the traditional immunity of subdivisions for the negligent acts of their employees.
Id.; see Neb. Rev. Stat. §§ 13-902; 13-903(4) (waiving sovereign immunity for
negligence claims against officers in their official capacities).
Tort actions against
political subdivisions of the State of Nebraska are governed exclusively by the PSTCA.
McKenna, 763 N.W.2d at 389, 391 (stating that “[w]here a claim against an employee of
a political subdivision is based upon acts or omissions occurring within the scope of
employment, it is governed by the provisions of the PSTCA”) The PSTCA does not
apply to actions against political subdivisions or their employees based on claims of
false arrest or false imprisonment. Neb. Rev. Stat. § 13–910(7). These are among the
exceptions to the PSTCA’s waiver of sovereign immunity. McKenna, 763 N.W.2d at
389, 391 (noting that a claimant has an available remedy for such conduct under 42
U.S.C. § 1983 in a claim for unconstitutional seizure).
On review of the complaint, the court finds the complaint has not alleged facts
sufficient to survive a motion to dismiss on several claims. The plaintiff has alleged that
the defendants knew and disregarded a known risk to the plaintiff’s safety during the
transport. The plaintiff’s allegations with respect to Sheriff Unger’s conduct, taken as
true, are sufficient to state a claim for deliberate indifference to her safety. Essentially
she alleges she was placed in a dangerous situation with deliberate indifference to her
safety while in custody.
She also alleges that Sheriff Unger’s actions were taken
pursuant to an official policy or custom of the County and asserts a claim for negligent
training and supervision against Stanton County. Those allegations are sufficient to
state a claim against the County at this stage of the litigation. Though the amended
complaint is not a model of clarity, the court finds in the amended complaint enough
“factual matter (taken as true) to suggest” that “discovery will reveal evidence” to
support the elements of the plaintiff’s § 1983 claim for deliberate indifference to her
safety while in custody.
The plaintiff’s allegations are insufficient, however, with respect to her other
constitutional claims. The only factual allegations in connection with use of force are
that Sheriff Unger handcuffed the plaintiff and placed her in the car. Those allegations
do not state a claim for use of excessive force. Further, there are no allegations that the
defendants failed to provide or obtain prompt medical care for the plaintiff after she was
ejected from the vehicle.
Accordingly, the court finds that those claims should be
The court also finds the defendants have demonstrated that they are entitled to
dismissal of the plaintiff’s state law claim for false arrest/false imprisonment. No claim
for false arrest or false imprisonment may be maintained against Sheriff Unger or the
County because those claims are excepted from the waiver of sovereign immunity
under the PSTCA. The plaintiff has not alleged that Sheriff Unger acted outside the
scope of his employment, and the factual allegations of the complaint indicate that he
was acting within the scope of his duties as a sheriff in detaining and arresting the
Accordingly, the court finds the plaintiff has failed to state a claim under
Nebraska law for false arrest/false imprisonment. She has stated a state law claim for
negligence, for which the state has waived sovereign immunity, and she alleges she
has complied with the provision of the Nebraska Political Subdivisions Torts Claims Act.
The qualified immunity inquiry requires more factual development. At this stage of the
litigation, the court is unable to determine whether there are genuine disputes
concerning the predicate facts material to the qualified immunity issue. Accordingly, the
court finds the motion to dismiss on the ground of qualified immunity should be denied
at this time without prejudice to reassertion in a motion for summary judgment.
Defendants’ motion to strike the punitive damages claim has been rendered moot
by the plaintiff’s concession that she does not seek punitive damages. The court finds
the defendants’ motion to strike the plaintiff’s demand for a jury trial on certain issues
should be denied. A motion to strike is not the proper vehicle to accomplish that end.
Issues that that should not be submitted to a jury can be tried to the court. Accordingly,
IT IS ORDERED:
Defendants’ motion to dismiss (Filing No. 9) is granted in part and denied
Defendants’ motion to dismiss is granted with respect to the plaintiff’s
claim for false arrest/false imprisonment (Count III).
Defendants’ motion to dismiss is granted with respect to the plaintiff’s
claim for excessive force (Count V).
Defendant’s motion to dismiss is granted with respect to that portion of
Count IV of the plaintiff’s amended complaint that alleges deliberate indifference in
failing to provide necessary medical care.
Defendant’s motion to dismiss is denied with respect to that portion of
Count IV of the plaintiff’s amended complaint that alleges deliberate indifference to the
plaintiff’s safety while in custody.
Defendant’s motion to dismiss is denied in all other respects.
Defendants’ motion to strike is denied.
Dated this 22nd day of April, 2013.
BY THE COURT:
s/ Joseph F. Bataillon
United States District Judge
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