Chapman v. Douglas County Official's et al

Filing 87

MEMORANDUM AND ORDER that Jarzynka and Jones' Motions to Strike 76 and 84 are denied. Plaintiff's Objection to Jarzynka and Jones' first Motion to Strike 80 is granted to the extent his request is consistent with this Memorandum and Order and is otherwise denied. Plaintiff's Discovery Motions 73 , 82 and 83 are denied. Jarzynka and Jones' Motion for Summary Judgment, or in the Alternative, Motion to Dismiss 64 , is granted in part and denied in part in accor dance with this Memorandum and Order. That is: (a) the motion for summary judgment on the excessive force claim is denied without prejudice and (b) the motion to dismiss is granted with respect to the unlawful arrest claim, the improper extradition c laim and the negligence (FTCA) claim. Plaintiff's claims against Anderson are dismissed without prejudice for failure to state a claim upon which relief may be granted. Anderson's Motion to Dismiss for untimely service 54 , and Plaintiff&# 039;s corresponding Motion in Rebuttal 56 are denied as moot. Plaintiff's Motion for a Hearing 85 is denied. A separate order will be entered progressing this matter to trial. This matter is referred to Magistrate Judge Zwart for further progression. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party) (JSF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
BILLIE JOE CHAPMAN,
Plaintiff,
v.
CHRIS ANDERSON, et al.,
Defendants.

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8:12CV370

MEMORANDUM
AND ORDER

This matter is before me on several motions filed by the parties, including a
Motion to Dismiss filed by Defendant Chris Anderson (“Anderson”) (filing no. 54),
and a Motion for Summary Judgment, or in the Alternative, Motion to Dismiss, filed
by Defendants Travis Jarzynka (“Jarzynka”) and E. Jones (“Jones”) (filing no. 64).
As set forth below, I will deny Anderson’s Motion to Dismiss for untimely service as
moot because Plaintiff has failed to state a claim against Anderson upon which relief
may be granted. In addition, I will grant in part and deny in part Jarzynka and Jones’
Motion for Summary Judgment, or in the Alternative, Motion to Dismiss.
I.

BACKGROUND

Plaintiff filed his original Complaint in this matter on October 18, 2012. (Filing
No. 1.) Thereafter, Plaintiff filed an Amended Complaint on January 28, 2013, and
a Second Amended Complaint on May 13, 2013. (Filing Nos. 14 and 16.) In his
Second Amended Complaint, Plaintiff alleged claims against 12 individual
Defendants. (Filing No. 16 at CM/ECF p. 1.) Plaintiff sues these Defendants in their
individual capacities only. (Id.)
On August 22, 2013, the court conducted an initial review of Plaintiff’s Second
Amended Complaint. (Filing No. 20.) In doing so, the court dismissed several of
Plaintiff’s claims, but permitted claims against Iowa Police Officers Anderson and

Jarzynka, Douglas County Sheriff Jones, and Pottawattamie County Sheriffs Eric
Rogers (“Rogers”) and Steve Barrier (“Barrier”), to proceed to service. (Id.)
Condensed and summarized, Plaintiff alleges that Anderson directed Jarzynka and
Jones to “cross state lines” and enter Plaintiff’s “Nebraska” house with an “Iowa
warrant” and arrest him on December 14, 2010. (Filing No. 16 at CM/ECF pp. 5-8.)
During the arrest, Jarzynka allegedly punched Plaintiff in the mouth and tased him,
which resulted in Plaintiff being transported to the hospital. (Id. at CM/ECF pp. 5-6.)
Plaintiff was subsequently incarcerated in Douglas County, Nebraska, for 66 days.
(Id. at CM/ECF p. 14.) On February 18, 2011, Rogers and Barrier transported
Plaintiff to Iowa. (Id. at CM/ECF pp. 14-16.) Plaintiff believes he was improperly
transported to Iowa without formal extradition. (Id. at CM/ECF pp. 60-61.)
On February 11, 2014, Anderson filed a Motion to Dismiss arguing Plaintiff’s
claims against him should be dismissed because of untimely service. (Filing No. 54
at CM/ECF p. 2.) Plaintiff has filed a “Motion in Rebuttal” arguing that Anderson
was “dodging” service. (Filing No. 56.)
On April 7, 2014, Jarzynka and Jones filed a Motion for Summary Judgment,
or in the Alternative, Motion to Dismiss, along with a Brief and Index of Evidence in
Support. (Filing Nos. 64, 65 and 66.) In their Brief, Jarzynka and Jones argue that
they were authorized to arrest Plaintiff as deputized officers of a federal task force,
Plaintiff’s medical records conclusively show that no force was used during his arrest,
and Plaintiff has failed to exhaust his administrative remedies with regard to claims
against them under the Federal Tort Claims Act (“FTCA”). (Filing No. 66.) Plaintiff
filed a response (filing no. 68) and Jarzynka and Jones replied (filing no. 71).
After Jarzynka and Jones filed their Reply, Plaintiff filed an additional
Response, a “Motion to Show Part of Defendants Contract/Special Deputation,” and
a Request for Discovery. (Filing Nos. 72, 73 and 74.) Jarzynka and Jones moved to
strike these filings because Plaintiff failed to comply with the court’s Local Rules.
(Filing No. 76.) Plaintiff subsequently filed an Objection to the Motion to Strike,
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another Motion for Discovery, and a Motion stating that “Defendants are not
immune.” (Filing Nos. 80, 82 and 83.) Again, Jarzynka and Jones moved to strike
Plaintiff’s filings for failure to comply with the Local Rules. (Filing No. 84.) Also
pending is Plaintiff’s request for a hearing. (Filing No. 85.)
II. MOTIONS TO STRIKE AND REQUESTS FOR DISCOVERY
Before I address the pending dispositive Motions, I will briefly address
Jarzynka and Jones’ Motions to Strike and Plaintiff’s requests.
A.

Motions to Strike

As discussed above, Jarzynka and Jones have filed two Motions to Strike.
(Filing Nos. 76 and 84.) In these Motions, Jarzynka and Jones argue that the court
should strike the documents Plaintiff filed after his first Response to their pending
Motion for Summary Judgment because Plaintiff did not comply with the court’s local
rules, namely NECivR 7.0.1(c). (Filing Nos. 76 and 84.) See NECivR 7.0.1(c)
(providing that a moving party may reply to an opposing brief, however neither party
may “file further briefs or evidence without the court’s leave”).
I have carefully considered the Motions to Strike and I agree with Jarzynka and
Jones that Plaintiff failed to request leave to file additional documents in response to
their Motion for Summary Judgment in accordance with NECivR 7.0.1(c).
Nevertheless, motions to strike are viewed with disfavor and infrequently granted.
Lunsford v. United States, 570 F.2d 221, 229 (8th Cir. 1977). In light of this, and
Plaintiff’s pro se status, I will not strike Plaintiff’s filings. Accordingly, Jarzynka and
Jones’ Motions to Strike (filing nos. 76 and 84) are denied. Plaintiff’s Objection to
Jarzynka and Jones’ first Motion to Strike is granted to the extent his request is
consistent with this Memorandum and Order and is otherwise denied.

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B.

Plaintiff’s Requests for Discovery

Plaintiff has filed several Motions and requests related to discovery in this
matter. (Filing Nos. 73, 74, 82 and 83.) I have not yet permitted discovery nor have
I entered a progression order. (See Docket Sheet.) Accordingly, all of Plaintiff’s
discovery Motions and requests are denied. However, one of his discovery Motions
warrants further discussion.
On July 24, 2014, Plaintiff filed a Motion for Discovery addressing his need for
“any and all paperwork” related to his “arrest, intrusion and assault.” (Filing No. 82.)
Liberally construed, this Motion relates to Plaintiff’s claim that Jarzynka used
excessive force when he punched and tased Plaintiff during his arrest. (Id.; Filing No.
16 at CM/ECF pp. 5-6.) Jarzynka and Jones have moved for summary judgment with
regard to this claim, supporting their defense with declarations, affidavits, and medical
records.1 (Filing Nos. 64, 65 and 66.) Plaintiff has responded, arguing that “other
medical records show injury.” (Filing No. 68 at CM/ECF p. 1.) Jarzynka and Jones
have replied, arguing that the medical records they submitted are “uncontradicted” and
that Plaintiff has “provided no evidence in his response – only unsupported
assertions.” (Filing No. 71 at CM/ECF pp. 2-3.) This argument is unpersuasive when
you consider that Jarzynka and Jones filed this Motion before the court entered a
progression order. Indeed, Plaintiff has not had the chance to conduct discovery and
has not yet had the opportunity to obtain potentially contradictory medical evidence.

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The court previously determined that, for screening purposes only, Plaintiff
had alleged enough for his excessive force claim to proceed to service. (Filing No.
20 at CM/ECF p. 5.) Although Jarzynka and Jones have moved to dismiss some of
Plaintiff’s claims on the grounds that Plaintiff failed to state a claim upon which relief
may be granted, Plaintiff’s excessive force claim is not one of them. (Filing No. 66
at CM/ECF pp. 21-27.) Stated another way, Jarzynka and Jones are not contesting
that Plaintiff’s Second Amended Complaint states an excessive force claim.
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Federal Rule of Civil Procedure 56(d) provides that:
If a nonmovant shows by affidavit or declaration that, for specified
reasons, it cannot present facts essential to justify its opposition, the
court may:
(1) defer considering the motion or deny it;
(2) allow time to obtain affidavits or declarations or to take discovery;
or
(3) issue any other appropriate order.
Fed. R. Civ. P. 56(d). In light of Plaintiff’s pro se status and his assertion that “other
medical records show injury,” Plaintiff should be permitted to conduct discovery with
regard to his excessive force claim. The manner of such discovery will be set forth in
a separate progression order. Furthermore, Jarzynka and Jones’ Motion for Summary
Judgment, with regard to Plaintiff’s excessive force claim, is denied without prejudice
to reassertion.
III. MOTION FOR SUMMARY JUDGMENT, OR IN THE
ALTERNATIVE, MOTION TO DISMISS
As discussed above, Jarzynka and Jones’ Motion for Summary Judgment with
regard to Plaintiff’s excessive force claim is denied. In the same Motion, however,
Jarzynka and Jones argue that Plaintiff’s claims against them for unlawful arrest,
improper extradition, and negligence should be dismissed for failure to state a claim
upon which relief may be granted and lack of jurisdiction. For the reasons discussed
below, I agree.

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A.

Motion to Dismiss Standard

A pro se plaintiff must set forth enough factual allegations to “nudge[] their
claims across the line from conceivable to plausible,” or “their complaint must be
dismissed” for failing to state a claim upon which relief can be granted. Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 569-70 (2007); see also Ashcroft v. Iqbal, 129 S. Ct.
1937, 1950 (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.”). Regardless of whether a plaintiff is represented
or is appearing pro se, the plaintiff’s complaint must allege specific facts sufficient to
state a claim. See Martin v. Sargent, 780 F.2d 1334, 1337 (8th Cir. 1985). However,
a pro se plaintiff’s allegations must be construed liberally. Burke v. North Dakota
Dep’t of Corr. & Rehab., 294 F.3d 1043, 1043–44 (8th Cir. 2002) (citations omitted).
B.

Unlawful Arrest

Liberally construed, Plaintiff alleges Jarzynka and Jones illegally entered his
property and unlawfully arrested him in violation of the Fourth Amendment. (Filing
No. 16 at CM/ECF pp. 5-11.) The Fourth Amendment prohibits law enforcement
officials from engaging in “unreasonable searches and seizures” of an individual and
his property. U.S. CONST. amend. IV. The Fourth Amendment also outlaws arrests
without probable cause. Beck v. Ohio, 379 U.S. 89, 90–91 (1964).
In their Brief, Jarzynka and Jones argue that when they arrested Plaintiff they
were “duly sworn and deputized members of” the U.S. Marshal Service Metro Area
Fugitive Task Force (“FTF”). (Filing No. 66 at CM/ECF pp. 2-3; Filing No. 65-1 at
CM/ECF p. 2.) The FTF is organized and operated by the U.S. Marshal Service for
the purpose of mutual federal-state-local cooperation and assistance in executing
federal, state, and local fugitive arrest warrants in the District of Nebraska. (Filing
No. 66 at CM/ECF pp. 2-3; Filing 65-1 at CM/ECF p. 1.) State and local law
enforcement officers who are members of the FTF are deputized as Special Deputy
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U.S. Marshals and work under the supervision of the U.S. Marshal Service. See 28
C.F.R. § 0.112 (authorizing the Director of the U.S. Marshal Service to deputize state
and local law enforcement officers). Since March 2010, both Jarzynka and Jones have
been deputized as Special Deputy U.S. Marshals. (Filing Nos. 65-1 at CM/ECF pp.
1, 3, 4.) Plaintiff has acknowledged that Jarzynka is a “volunteer of the Nebraska U.S.
Marshal Service” in his Second Amended Complaint. (Filing No. 16 at CM/ECF p.
5.)
On December 14, 2010, the day of Plaintiff’s arrest, Jarzynka and Jones were
acting under the supervision of and control of the FTF. (Filing No. 65-1 at CM/ECF
p. 2.) Under this supervision, Jarzynka and Jones executed an Iowa warrant for
Plaintiff’s arrest. (Id. at CM/ECF pp. 2, 5.) Plaintiff does not challenge the validity
of the warrant, or the authenticity of Jarzynka and Jones’ special deputation
appointment. Rather, Plaintiff argues that Jarzynka and Jones had no authority to
execute the warrant in Nebraska. (Filing No. 16 at CM/ECF pp. 5-11.) Plaintiff
assumes that Jarzynka and Jones needed a “federal” or “Nebraska” warrant to arrest
him in Nebraska. (Id. at CM/ECF p. 7; Filing No. 68.) This assumption lacks merit.
Plaintiff was arrested on a valid outstanding Iowa warrant by duly authorized federal
officers under the supervision of the U.S. Marshal Service. Accordingly, Plaintiff’s
unlawful arrest allegations fail to state a claim against Jarzynka and Jones are
dismissed. See also Neb. Rev. Stat. § 29-742 (“The arrest of a person may be lawfully
made also by any peace officer or a private person, without a warrant upon reasonable
information that the accused stands charged in the courts of a state with a crime
punishable by death or imprisonment for a term exceeding one year.”).
C.

Improper Extradition

As a matter of federal law, “prisoners transferred pursuant to the provisions of
[Article IV of the Interstate Agreement on Detainers (“IAD”) ] are not required to
forfeit any pre-existing rights they may have under state or federal law to challenge
their transfer to the receiving state.” Cuyler v. Adams, 449 U.S. 433, 450 (1981).
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Those rights “include the procedural protections of the [Uniform] Extradition Act (in
those states that have adopted it), as well as any other procedural protections that the
sending State guarantees persons being extradited from within its borders.” Id. at 448;
see also Brown v. Nutsch, 619 F.2d 758, 764 (8th Cir. 1980) (holding section 1983
provides a remedy for improper extradition in violation of the extradition clause and
statute).
In addition to his unlawful arrest claims, Plaintiff alleges Jarzynka and Jones’
actions violated the Uniform Extradition Act. (Filing No. 16 at CM/ECF pp. 5-11.)
Although Plaintiff may have a claim for improper extradition, his Second Amended
Complaint does not explain how Jarzynka and Jones were involved in his extradition
to Iowa. (Id.) Indeed, Plaintiff’s Second Amended Complaint specifically alleges that
Pottawattamie County Sheriffs Rogers and Barrier transported Plaintiff to Iowa more
than two months after Plaintiff’s arrest.2 (Id. at CM/ECF pp. 14-16.) Jarzynka and
Jones were not involved in this transport. (Id.) Because Plaintiff has failed to allege
sufficient facts to show that Jarzynka and Jones were somehow involved in his
transport to Iowa, his improper extradition claims against them are dismissed.
D.

Negligence

Liberally construed, Plaintiff may be asserting claims for negligence against
Jarzynka and Jones for injuries caused during his arrest. Because Jarzynka and Jones
were acting in their capacity as duly authorized federal officers during Plaintiff’s
arrest, I will liberally construed Plaintiff’s negligence allegations as asserting claims
pursuant to the FTCA. 28 U.S.C. §§ 1346(b)(1) and 2671. However, before Plaintiff
may bring an action under the FTCA, he must first comply with the administrative
claim requirement. As set forth in 28 U.S.C. § 2675(a):

2

Rogers and Barrier have filed an Answer (filing no. 45) and are awaiting the
court’s entry of a progression order. (See Docket Sheet; Filing No. 6.)
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An action shall not be instituted upon a claim against the United States
for money damages for injury or loss of property or personal injury or
death caused by the negligent or wrongful act or omission of any
employee of the Government while acting within the scope of his office
or employment, unless the claimant shall have first presented the claim
to the appropriate Federal agency and his claim shall have been finally
denied by the agency in writing and sent by certified or registered mail.
28 U.S.C. § 2675(a). The record before the court shows that Plaintiff has not filed an
administrative tort claim with the U.S. Marshal Service. (Filing No. 65-6.)
Accordingly, Plaintiff’s FTCA claims against Jarzynka and Jones are dismissed for
lack of jurisdiction.
IV. ANDERSON’S MOTION TO DISMISS
Plaintiff’s claims against Anderson stem from his allegation that Anderson
ordered Jarzynka and Jones to “cross state lines” and enter his house with an “Iowa
warrant” on December 14, 2010. (Filing No. 16 at CM/ECF pp. 3-4.) As discussed
above, Jarzynka and Jones were acting as federal officers when they arrested Plaintiff
on a outstanding Iowa warrant. Plaintiff does not contest the validity of the warrant
or the officer’s special deputation appointment. Plaintiff has failed to state an
unlawful arrest claim upon which relief may be granted against Jarzynka and Jones,
and similarly failed to state a claim against Anderson for “ordering” the arrest.
Plaintiff’s claims against Anderson are dismissed. Anderson’s Motion to Dismiss for
untimely service (filing no. 54), and Plaintiff’s corresponding Motion in Rebuttal
(filing no. 56) are denied as moot.
IT IS THEREFORE ORDERED that:
1.

Jarzynka and Jones’ Motions to Strike (filing nos. 76 and 84) are denied.

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2.
Plaintiff’s Objection to Jarzynka and Jones’ first Motion to Strike (filing
no. 80) is granted to the extent his request is consistent with this Memorandum and
Order and is otherwise denied.
3.

Plaintiff’s Discovery Motions (filing nos. 73, 82 and 83) are denied.

4.
Jarzynka and Jones’ Motion for Summary Judgment, or in the
Alternative, Motion to Dismiss (filing no. 64), is granted in part and denied in part in
accordance with this Memorandum and Order. That is: (a) the motion for summary
judgment on the excessive force claim is denied without prejudice and (b) the motion
to dismiss is granted with respect to the unlawful arrest claim, the improper
extradition claim and the negligence (FTCA) claim.
5.
Plaintiff’s claims against Anderson are dismissed without prejudice for
failure to state a claim upon which relief may be granted.
6.
Anderson’s Motion to Dismiss for untimely service (filing no. 54), and
Plaintiff’s corresponding Motion in Rebuttal (filing no. 56) are denied as moot.
7.

Plaintiff’s Motion for a Hearing (filing no. 85) is denied.

8.

A separate order will be entered progressing this matter to trial.

9.

This matter is referred to Magistrate Judge Zwart for further progression.

September 30, 2014

BY THE COURT:
Richard G. Kopf
Senior United States District Judge

*This opinion may contain hyperlinks to other documents or Web sites. The U.S. District Court for
the District of Nebraska does not endorse, recommend, approve, or guarantee any third parties or the services
or products they provide on their Web sites. Likewise, the court has no agreements with any of these third
parties or their Web sites. The court accepts no responsibility for the availability or functionality of any
hyperlink. Thus, the fact that a hyperlink ceases to work or directs the user to some other site does not affect
the opinion of the court.

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