Parsons, et al v. McCann, et al.

Filing 76

MEMORANDUM AND ORDER - Defendant Omaha Police Department's motion to dismiss (Filing 55 ) is granted, and the Omaha Police Department is dismissed from this action. Defendant City of Omaha's motion to dismiss (Filing 55 ) is granted in p art and denied in part. The motion to dismiss (Filing 60 ) based on Fed. R. Civ. P. 12(b)(6) filed by Douglas County is granted in part and denied in part. The motion to dismiss (Filing 60 ) filed by the Douglas County Attorney's Office is gr anted, and the Douglas County Attorney's Office is dismissed. The motion to dismiss (Filing 60 ) filed by Douglas County based on Fed. R. Civ. P. 12(b)(5) is granted; however, Plaintiffs are granted leave to cure the lack of service upon Dougla s County by properly serving Douglas County within 20 days. Plaintiffs' claims against defendants Brenda Beadle, Don Kleine, and Mark Foxall in their official and individual capacities are dismissed(Filing 58 and 62 ). Plaintiffs' Fifth Amendment claims against all parties are dismissed. The motion to dismiss (Filing 60 ) Plaintiffs' state-law abuse-of-process claim against defendant Douglas County is granted. The motion to dismiss (Filing 66 ) filed by defendant Kent Kings ton is granted, and Kent Kingston is dismissed. Plaintiffs' claims against defendant Blane McCann in his official and individual capacity 66 are dismissed as redundant of their claims against Westside Community Schools. The motion to dismiss ( Filing 66 ) based on Fed. R. Civ. P. 12(b)(6) filed by Westside Community Schools is granted in part and denied. The remaining claims and parties in this action are: Section 1983 "policy" claims against defendant City of Omaha, Douglas County (providing that Plaintiffs cure the lack of service upon Douglas County), Westside Community Schools, and John Does 1-15 (police officers). Ordered by Senior Judge Richard G. Kopf. (LAC)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
DAKOTA PARSONS and DENICE
PARSONS,

)
)
)
Plaintiffs,
)
)
v.
)
)
BLANE MCCANN, individually and )
as Superintendent of Westside
)
Community Schools; KENT
)
KINGSTON, individually and as
)
Executive Director of Westside
)
Community Schools; WESTSIDE
)
COMMUNITY SCHOOLS;
)
BRENDA BEADLE, individually and )
in her official capacity as a Douglas
)
County Attorney; DON KLEINE, a
)
Douglas County Attorney;
)
DOUGLAS COUNTY
)
ATTORNEY’S OFFICE; MARK
)
FOXALL, as Director of the Douglas )
County Department of Corrections;
)
the CITY OF OMAHA; the OMAHA )
POLICE DEPARTMENT;
)
DOUGLAS COUNTY NEBRASKA, )
a political subdivision of the State;
)
and JOHN DOES 1 THROUGH 15,
)
)
Defendants.
)
)

8:14CV207

MEMORANDUM
AND ORDER

This is a 42 U.S.C. § 1983 action stemming from plaintiff Dakota Parsons’ 29week stay in the Douglas County Corrections Center while he was a participant in
Young Adult Court, allegedly without a probable cause hearing, without being
charged with an offense, and without the opportunity to be released on bond. After
my previous order (Filing 52) finding that Plaintiffs’ original complaint failed to state

a federal claim upon which relief may be granted—but giving Plaintiffs leave to
amend their complaint—Plaintiffs have filed an amended complaint (Filing 54), and
Defendants have filed another round of motions to dismiss (Filings 55, 58, 60, 62, 66).
I. PLAINTIFFS’ AMENDED COMPLAINT
Dakota Parsons (“Dakota”) and his mother, Denice Parsons (“Denice” or
“Dakota’s mother”), allege numerous claims arising from an incident at Westside
High School (“WHS”) in Omaha, Nebraska, that occurred following a band concert
on October 25, 2012.1 Dakota, who was a student at WHS, threw a firecracker out of
a door following the concert. The firecracker exploded on the pavement, and no one
was injured. During school the next day, October 26, 2012, Dakota’s backpack was
searched, and it was found to contain materials to make another firecracker, or
exploding device, and marijuana. Police subsequently searched the Parsons’ home,
allegedly finding additional marijuana in Dakota’s room. Dakota was arrested and
charged with possession with intent to distribute marijuana, unlawful possession of
explosive materials, and possession of a destructive device.
After his arrest, and after an administrative hearing, Dakota was informed that
he would be expelled from school until January 2014. Dakota appealed the decision,
and his term of expulsion was reduced to the remainder of the 2012-2013 school year.
On November 30, 2012, defendant Blane McCann (“McCann”), Westside Community
Schools Superintendent, sent a certified letter to Dakota’s mother confirming that
Dakota would be expelled for the remainder of the 2012-2013 school year and
expressing his “disappointment with the hearing officer’s recommendations.”
On January 14, 2013, Dakota appeared before a judge, who dropped his bond
requirement and released Dakota on his own recognizance. Dakota, his counsel, and
defendant Brenda Beadle, a Douglas County Attorney, agreed that Dakota’s case
1

Unless otherwise noted, Plaintiffs’ allegations can be found in Filing 54.
2

should be transferred to the Young Adult Court (“YAC”). Dakota was officially
accepted into the YAC on February 15, 2013. Dakota and Denice Parsons met with
WHS school officials in April 2013 regarding Dakota’s continued education. WHS
agreed to provide a tutor, and Dakota signed up to take high school classes online
through the University of Nebraska-Lincoln.
On June 17, 2013, Dakota appeared before a district judge in charge of the
YAC. He entered a plea of no contest to unlawful possession of explosive materials
in the first degree, a class IV felony, and the two other charges were dropped. Dakota
signed a court order and agreement to participate in the YAC program. (Filing 46-1
at CM/ECF pp. 3-7.)2 This program imposed a number of conditions upon Dakota that
he agreed to follow, including “submit[ting] to search and seizure of your premises,
person or vehicle upon request of the YAC staff,” not “associat[ing] with anyone who
possesses firearms, ammunition or illegal weapons,” and not “possess[ing] firearms,
ammunition or illegal weapons.” The agreement also provided that “[a]ny violation
of the above conditions is cause for revocation of participation in the Young Adult
Court and a sentence to confinement,” as well as “revocation of Defendant’s bond .
. . [and] violation of probation charges being filed against him/her.” Because Dakota
was a minor, the 90-day YAC incarceration period was waived, and he was required
to wear an ankle monitor until he turned 18.

2

I previously decided that I may consider this document and others because they
are embraced by Plaintiffs’ complaint and are part of the public record. See Porous
Media Corp. v. Pall Corp., 186 F.3d 1077, 1079 (8th Cir. 1999). (Filing 52 at CM/ECF
p. 2 n.1.) Plaintiffs do not dispute this, and they reference at least one of these
documents in their Brief in Opposition to the motions to dismiss. (Filing 70, at
CM/ECF p. 13 (referencing Filing 32-3 (Petition Requesting Admission to the Young
Adult Court Program) and stating that “although a participant in Young Adult Court
agrees that he or she may be arrested for a violation of probation, a participant in
Young Adult Court is not placed on probation until the third and final stage of the
Young Adult Court process”).)
3

On July 10, 2013, Dakota turned 18 and his ankle monitor was removed.
Dakota continued to satisfactorily progress through the YAC program, including
being subject to drug testing, undergoing a chemical-dependency test, and calling a
YAC representative each evening to check in. On July 23, 2013, Denice and Dakota
Parsons met with a WHS guidance counselor to establish a timetable for completing
online classwork before the beginning of Dakota’s senior year on August 15, 2013.
On July 25, 2013, the police came to the Parsons’ residence because they had
received a report that Dakota had been observed “making explosives.” Denice Parsons
informed the police that the prior day, a company named Midwest Wildlife Solutions
had used a trap and smoke device to treat the Parsons’ lawn for groundhogs.
Nevertheless, the police conducted a search of the home and removed some “old,
unusable fireworks from the garage.” Dakota left a voice message for Nick Lurz of the
YAC regarding the July 25, 2013, police visit. Lurz did not respond to the message,
but on August 2, 2013, Lurz conducted a visit and search of Plaintiffs’ home. Lurz
found some airsoft guns and pellets, but did not inform Dakota and his mother that
these items were a violation of Dakota’s YAC agreement. Denice agreed to remove
these items from the home.
Plaintiffs allege that in early August 2013, “unknown members of the Westside
school system (on information and belief including McCann), unknown members of
the Omaha Police Department, and possibly other persons met to ‘discuss’ Parsons.”
Plaintiffs do not have “any detailed information regarding the participants at this
meeting or the substance of the discussion.” The Parsons allege that this meeting was
“instigated by McCann and/or other representatives of Westside Community Schools
as part of a plan to keep Parsons from returning to school on August 15, 2013 as
required by the hearing officer’s order.” Neither Dakota nor his attorney were
informed about the meeting, and Dakota’s counsel did not learn of the meeting until
Douglas County Attorney Brenda Beadle told counsel about the meeting “several
months after the meeting occurred.” Plaintiffs allege that Beadle met with, and took
directions from, a member of the school board “without having a complaint from a
4

law enforcement agency,” and that Beadle “agree[d] to have Parsons arrested for the
purpose of keeping him out of Westside High School.” Plaintiffs claim that Beadle
inserted herself into this investigatory meeting and provided advice and direction to
the police.
On August 12, 2013, Dakota was scheduled to take a final educational test that
was necessary for him to return to WHS on August 15. However, on that same day,
YAC representatives appeared at the Parsons’ home in bullet-proof vests, followed
shortly thereafter by several Omaha police officers, who confiscated several items
from the home. The officers did not communicate the reason for the search to Dakota
and Denice Parsons. Dakota was arrested and jailed in the Douglas County
Corrections Center (“DCC”) without being informed of the charges or what
precipitated his arrest. Plaintiffs allege that Dakota was arrested without probable
cause and without a valid warrant because the warrant indicated that he had violated
“probation,” but he had never been placed on probation.3 (Filing 46-1 at CM/ECF p.
9.) The plaintiffs also assert that the warrant was invalid because it was not supported
by an affidavit.
On October 17, 2013, Dakota had his first hearing regarding the August 12,
2013, arrest. During the hearing, neither the Douglas County Attorney nor the YAC
presented the reason for Dakota’s August 12, 2013, arrest; the court ordered a
psychological examination; and Dakota continued to be jailed without bond.
Thereafter, additional hearings were held regarding the county attorney’s request that
3

The bench warrant stated that a “complaint has been filed” against Dakota
Parsons for the three felonies with which he was originally charged on October 26,
2012, before Dakota’s entrance into the YAC program. The bench warrant was
directed to the Douglas County Sheriff or “ANY DULY AUTHORIZED LAW
ENFORCEMENT OFFICER” to “arrest [Dakota Parsons] . . . and to bring him/her
promptly before this court or any judge or magistrate having jurisdiction of this
matter, to answer such complaint . . . .” There is not an affidavit attached to the bench
warrant. (Filing 46-1.)
5

Dakota continue to be held without bond. As of January 2014, after being jailed for
five months, Dakota had still not received a probable cause hearing and had not been
informed of the facts supporting the August 2013 arrest.
On or about February 7, 2014, Dakota’s attorney filed a writ of habeas corpus
alleging Dakota’s unlawful detention at DCC. A hearing on the writ of habeas corpus
was scheduled for March 6, 2014. One day before the hearing was to occur, the YAC
judge ordered Dakota released on his own recognizance, without bond being required,
and without Dakota having to appear in court. Plaintiffs allege that Dakota was
unlawfully arrested and falsely imprisoned for a total of 203 days. As a result, Dakota
suffers from “PTSD” and other “ongoing psychological ill effects.” Further, Dakota
asserts that Westside Community Schools refuses to allow him to complete his
education and graduate.
The plaintiffs allege that the state-run YAC program allows prosecutors
“complete discretion in recommending actions to the taken by the Court,” lacks “firm
standards . . . regarding when a participant may be jailed,” and “always follow[s] the
recommendations of the county attorney.” Plaintiffs allege that “prosecutors in the
county attorney’s office have complete and unfettered discretion to determine who is
jailed for what matters,” and “the program is abused by the County Attorney’s office
as a regular practice.” The plaintiffs state that if imprisonment standards had been in
place, Beadle “could not have agreed to have Parsons jailed for the purpose of keeping
him from returning to Westside High School for his senior year.”
Plaintiffs specifically state that the “policies, customs and practices” of Douglas
County, the City of Omaha, and the Omaha Police Department “allow a participant
in YAC to be arrested and held without bond and without a showing of proximate
[sic] cause at the unfettered discretion of the county attorney.” Specifically, the
“Douglas County Prosecuting Attorney’s office has established a pattern and practice
of utilizing the lack of standards and the complete and unfettered discretion of the
prosecutors to direct the arrest of YAC participants regardless of probable cause.”
6

Further, Plaintiffs assert that Westside Community Schools has “policies, customs and
practices” that gave defendant McCann and other administrators “the ability to act
contrary to the determination of the hearing officer who directed that Parsons be
allowed to return to school. Westside allows administrators unfettered discretion to
interfere with the right to attend school and the right to have the benefit of the decision
of an administrative hearing officer regarding expulsion.”
Plaintiffs seek monetary damages, punitive damages, the return of all personal
property confiscated from Plaintiffs’ home, costs, attorney’s fees, an injunction
directing the Douglas County Attorney to establish standards for arrest and bail
applicable to all defendants in the YAC program, and other relief as may be
appropriate.
II. ANALYSIS
A. Plaintiffs’ Claims
Plaintiffs allege several claims through 42 U.S.C. § 1983:
(1) False arrest claim against Beadle, Kleine, the Douglas County
Attorney’s Office, Douglas County, Omaha Police Department (“OPD”),
the City of Omaha, McCann, Westside Community Schools, and Does
1-15 (police officers) for arresting Dakota without a valid warrant and
without probable cause;
(2) Wrongful search and seizure claim against Douglas County,
OPD, the City of Omaha, and Does 1-15 (police officers) for their search
of the Parsons’ residence on August 12, 2013, performed without a
warrant, without probable cause, and not under the YAC agreement;

7

(3) Unlawful imprisonment claim against Foxall (individually and
as Director of the Douglas County Department of Corrections), Beadle,
Kleine, Douglas County, McCann, and Westside Community Schools for
causing Dakota to be jailed and detained without bond for almost seven
months without being charged with any crime;
(4) Equal protection claim against McCann for refusing to allow
Dakota to attend WHS to earn his diploma after his expulsion was
completed;
(5) Civil conspiracy claim against all defendants for conspiring to
prevent Dakota from returning to school by taking him into custody
without a properly supported warrant or probable cause and keeping him
confined without bond and a showing of probable cause; and
(6) Eighth Amendment claim against Beadle and the Douglas
County Attorney’s Office for requesting that Dakota be held without
bond without showing that Dakota was a flight risk or a risk to
community safety.
Plaintiffs also assert what appear to be state-law claims:
(7) Abuse of process claim against the Douglas County Attorney’s
Office, Beadle, “representatives” of WHS, and OPD for utilizing the
court’s process of arrest and setting bail for the “ulterior motive of
arresting Parsons and keeping him incarcerated so that he could not
return to school”; and
(8) Violation of “Free Instruction” Clause of Nebraksa
Constitution & Neb. Rev. Stat. § 79-283 against McCann for refusing
to allow Dakota to attend WHS to earn his diploma after his expulsion
8

was completed, in violation of the Nebraska Constitution, which
provides for “free instruction in the common schools” and Neb. Rev.
Stat. § 79-283 (Westlaw 2015), which provides that if a student is
expelled from school during the first term of the school year, the
maximum period for which the student may be expelled is for the
remainder of the school year.
B. Motion to Dismiss Standard of Review
“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.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 570 (2007)). “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.” Id. This “plausibility standard” is not
one of probability, “but it asks for more than a sheer possibility that a defendant has
acted unlawfully.” Id. Where a complaint contains facts that are “merely consistent
with” a defendant’s liability, it “stops short of the line between possibility and
plausibility of ‘entitlement to relief.’” Twombly, 550 U.S. at 557 (brackets omitted).
“Determining whether a complaint states a plausible claim for relief will . . . be
a context-specific task that requires the reviewing court to draw on its judicial
experience and common sense.” Iqbal, 556 U.S. at 679. “But 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.’” Id. (quoting Fed. R. Civ. P. 8(a)(2)). “While legal conclusions can provide the
framework of a complaint, they must be supported by factual allegations.” Id.
“Threadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Id. at 678.

9

C. The Motions to Dismiss
1. Omaha Police Department; Douglas County Attorney’s Office; Beadle,
Kleine & Foxall in Official Capacities
Whether a party, other than an individual or a corporation, has the capacity to
be sued is determined “by the law of the state where the court is located.” Fed. R. Civ.
P. 17(b). Each county in Nebraska may sue and be sued in its own name, Neb. Rev.
Stat. § 23–101 (Westlaw 2015), but the same is not true of county offices or
departments. See Winslow v. Smith, 672 F. Supp. 2d 949, 964 (D. Neb. 2009)
(sheriff’s and county attorney’s offices); Griggs v. Douglas County Corrections
Center, No. 8:07CV404, 2008 WL 1944557, at *1 (D. Neb. Apr. 29, 2008) (county
corrections department); Holmstedt v. York County Jail Supervisor (Name Unknown),
739 N.W.2d 449, 461 (Neb. App. 2007) (county sheriff’s department), rev’d on other
grounds, 745 N.W.2d 317 (Neb. 2008); Jameson v. Plischke, 165 N.W.2d 373, 376
(Neb. 1969) (county board of supervisors). Further, cities of the metropolitan class
may sue and be sued, Neb. Rev. Stat. § 14-101 (Westlaw 2015), but the same is not
true of city police departments. Meyer v. Lincoln Police Dep’t, 347 F. Supp. 2d 706
(D. Neb. 2004) (city police department is agency of city and has no separate legal
status under Nebraska law); Williams v. Raynor Rensch & Pfieffer, No. 8:11CV446,
2015 WL 2127095 (D. Neb. May 6, 2015) (city police department is subdivision or
department of city government and is not separately subject to suit). Therefore,
defendants Omaha Police Department and the Douglas County Attorney’s Office must
be dismissed from this case as not subject to suit.
I also note that Plaintiffs’ claims against Brenda Beadle in her official capacity
as Douglas County Attorney, Don Kleine in his official capacity as Douglas County
Attorney, and Mark Foxall in his official capacity as Director of the Douglas County
Department of Corrections are actually claims against Douglas County itself.
Elder-Keep v. Aksamit, 460 F.3d 979, 986 (8th Cir. 2006) (“A suit against a public
official in his official capacity is actually a suit against the entity for which the official
10

is an agent.”); Parrish v. Luckie, 963 F.2d 201, 203 n.1 (8th Cir. 1992) (“Suits against
persons in their official capacity are just another method of filing suit against the
entity. A plaintiff seeking damages in an official-capacity suit is seeking a judgment
against the entity.”) (citation omitted). Therefore, Plaintiffs’ claims against Beadle,
Kleine, and Foxall in their official capacities will be dismissed as redundant of their
claims against Douglas County. Veatch v. Bartels Lutheran Home, 627 F.3d 1254,
1257 (8th Cir. 2010); Artis v. Francis Howell North Band Booster Ass’n, Inc., 161 F.3d
1178, 1182 (8th Cir. 1998).
2. City of Omaha
Plaintiffs purport to bring section 1983 claims against the City of Omaha for
false arrest, wrongful search and seizure, and civil conspiracy pursuant to the Fourth,
Fifth,4 and Fourteenth Amendments of the United States Constitution. Plaintiffs’
claims are based on the actions of several City of Omaha police officers5 who
allegedly wrongfully arrested Dakota Parsons, searched the Parsons’ home without
a valid warrant, and seized property from the home at the request of, and in concert
with, defendants McCann and Westside Community Schools to prevent Dakota from
4

To the extent Plaintiffs rely on the Fifth Amendment to support their claims,
such claims must fail because “[t]he Fifth Amendment’s Due Process Clause applies
only to the federal government or federal actions, and Plaintiffs have not alleged that
the federal government or a federal action deprived them of property.” Barnes v. City
of Omaha, 574 F.3d 1003, 1005 n.2 (8th Cir. 2009) (citing Dusenbery v. United States,
534 U.S. 161, 167 (2002) (“The Due Process Clause of the Fifth Amendment prohibits
the United States, as the Due Process Clause of the Fourteenth Amendment prohibits
the States, from depriving any person of property without ‘due process of law.’”) and
Junior Chamber of Commerce of Kansas City, Mo. v. Mo. State Junior Chamber of
Commerce, 508 F.2d 1031, 1033 (8th Cir. 1975) (recognizing that “federal action” is
necessary “before there is any deprivation of due process in violation of the fifth
amendment”)).
5

The police officers are identified in the amended complaint as John Does 1-15.
At this point, they have not been further identified or served with process.
11

returning to school, and not for the valid purposes of insuring compliance with the
YAC agreement or investigating possible violations of the law. (Filing 54 ¶¶ 119136.) Plaintiffs further allege that City of Omaha policies, customs, and practices
proximately caused the constitutional violations at issue in this case, and that the “City
of Omaha is liable for the misconduct of the John Doe defendants [police officers]
because the policies, customs and practices of the City of Omaha and the Omaha
Police Department allow a participant in YAC to be arrested and held without bond
and without a showing of proximate [sic] cause at the unfettered discretion of the
county attorney.” (Filing 54 ¶ 116 (use of italics indicates new language added to
amended complaint).) The City of Omaha moves to dismiss all claims against it
pursuant to Fed. R. Civ. P. 12(b)(6). (Filing 55.)
a. § 1983 Actions Against Municipalities
“A municipality may be liable under § 1983 where ‘action pursuant to official
municipal policy of some nature caused a constitutional tort.’” Hollingsworth v. City
of St. Ann, No. 14-1583, __ F.3d __, 2015 WL 5155354, at *5 (8th Cir. Sept. 3, 2015)
(quoting Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978)). The Supreme
Court invalidated heightened pleading requirements in section 1983 suits against
municipalities in Leatherman v. Tarrant County Narcotics Intelligence &
Coordination Unit, 507 U.S. 163, 168 (1993). “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.’ . . . At a minimum, a complaint must allege facts which would support the
existence of an unconstitutional policy or custom.” Doe ex rel. Doe v. School Dist.
of City of Norfolk, 340 F.3d 605, 614 (8th Cir. 2003).

12

A plaintiff is not required to make specific reference to an unconstitutional
policy or custom to survive a motion to dismiss; rather, a plaintiff’s complaint must
contain “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 of the [defendant].” Id. (“the failure of the [plaintiffs] to specifically plead
the existence of an unconstitutional policy or custom, in itself, is not fatal to their
claim for relief”); Crumpley-Patterson v. Trinity Lutheran Hosp., 388 F.3d 588, 591
(8th Cir. 2004) (the plaintiff “need not . . . specifically plead the existence of an
unconstitutional policy or custom to survive a motion to dismiss”).
b. Policy
There is “an important distinction between claims based on official policies and
claims based on customs. Because an official policy speaks for itself about the intent
of public officials, proof of a single act by a policymaker may be sufficient to support
liability.” Jenkins v. County of Hennepin, 557 F.3d 628, 633 (8th Cir. 2009) (citing
McGautha v. Jackson County, 36 F.3d 53, 56 (8th Cir. 1994)); see also Crawford v.
Van Buren County, 678 F.3d 666, 669 (8th Cir. 2012) (“Although rare, a public
official’s single incident of unconstitutional activity can establish the requisite policy
if the decision is taken by the highest officials responsible for setting policy in that
area of the government’s business.” (internal quotation marks and citation omitted)).
“To establish the existence of a policy, [a plaintiff] must point to ‘a deliberate
choice of a guiding principle or procedure made by the municipal official who has
final authority regarding such matters.’” Jenkins, 557 F.3d at 633 (quoting Mettler v.
Whitledge, 165 F.3d 1197, 1204 (8th Cir. 1999)). A plaintiff “must also show that the
policy was unconstitutional and that it was ‘the moving force’ behind the harm that
he suffered.” Id. Two circumstances that may lead to municipal liability are (1) a
municipality’s action or policy “itself violates federal law, or directs an employee to
do so,” and (2) where “an official policy is lawful on its face and does not compel
unconstitutional action,” but “municipal action has led an employee to violate a
13

plaintiff’s rights,” and that action was “taken with deliberate indifference as to its
known or obvious consequences.” Hollingsworth, 2015 WL 5155354, at *5 (internal
quotation marks and citations omitted). While it is not clear which of these
circumstances exists at this very early stage in the case, I conclude that Plaintiffs’ new
allegations in their amended complaint are sufficient to allege the existence of an
unconstitutional policy of the City of Omaha. Accordingly, I shall deny the City of
Omaha’s motion to dismiss Plaintiffs’ section 1983 “policy” claims against it, without
prejudice to the City raising the same argument in a properly supported motion for
summary judgment.6
c. Custom
“In contrast to the evidence required to establish an official policy, [the Eighth
Circuit has] emphasized that a custom can be shown only by adducing evidence of a
‘continuing, widespread, persistent pattern of unconstitutional misconduct.’” Jenkins,
557 F.3d at 634 (quoting Mettler, 165 F.3d at 1204). “‘[L]iability may be established
through proof that the alleged misconduct was so pervasive among the non-policy
making employees of the municipality as to constitute a “custom or usage” with the
force of law,’” and therefore liability “‘cannot arise from a single act.’” Crawford, 678
F.3d at 669 (8th Cir. 2012) (quoting McGautha, 36 F.3d at 56-57).
In their amended complaint, the plaintiffs have only alleged an isolated incident
of police misconduct involving Dakota Parsons; there are no allegations that the City
of Omaha and its police officers engaged in such conduct with others. As with their
6

Plaintiffs should be aware that in order to survive a motion for summary
judgment, and in the absence of evidence of a facially unlawful city policy or custom,
Plaintiffs must prove that the City of Omaha acted or failed to act “with deliberate
indifference as to its known or obvious consequences,” and that such action or
inaction caused the plaintiffs’ injuries. Atkinson v. City of Mountain View, 709 F.3d
1201, 1216 (8th Cir. 2013) (internal quotation marks and citation omitted).
14

original complaint, the plaintiffs have still not alleged facts suggesting a continuing,
widespread, persistent pattern of unconstitutional misconduct by the City of Omaha
and its employee police officers. (Filing 52 at CM/ECF p. 7.) Even if Plaintiffs’
allegations could be construed to suggest such a pattern or custom, they have failed
to allege any facts whatsoever of deliberate indifference to, or tacit authorization of,
the pattern of misconduct. Therefore, the City of Omaha’s motion to dismiss pursuant
to Fed. R. Civ. P. 12(b)(6) shall be granted with regard to Plaintiffs’ “custom” claims
against the City of Omaha.
3. Mark Foxall Individually
Plaintiffs bring section 1983 claims against Mark Foxall, Director of the
Douglas County Department of Corrections, individually, for civil conspiracy and
unlawful imprisonment because Foxall “caused Parsons to be jailed and detained
without being charged with any crime or violation and to be held without bond.”
(Filing 54, Amended Complaint ¶ 139.) Plaintiffs assert that Dakota Parsons was
jailed based on a bench warrant that was not supported by an affidavit of probable
cause, was “arrested and held in jail for an extended time at the request of McCann to
prevent Parsons from returning to school,” and “was jailed for nearly seven months
without being informed of the charges against him and without being allowed bond.”
(Filing 54 ¶¶ 140-143.) Foxall moves to dismiss the claims against him, arguing that
the amended complaint does not allege that he was personally involved in the
wrongful conduct or, alternatively, that he is entitled to qualified immunity or quasijudicial absolute immunity. (Filing 59 at CM/ECF p. 1.)
a. Civil Conspiracy
To prove a 42 U.S.C. § 1983 conspiracy claim, a plaintiff must show: (1)
that the defendant 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
15

injured the plaintiff. The plaintiff is additionally required to prove a
deprivation of a constitutional right or privilege in order to prevail on a
§ 1983 civil conspiracy claim.
Burton v. St. Louis Bd. of Police Comm’rs, 731 F.3d 784, 798 (8th Cir. 2013) (citations
omitted).
Here, Plaintiffs purport to allege a civil conspiracy against “all Defendants”
(Filing 54 at CM/ECF p. 25 (Count V heading)), but fail to allege any facts
whatsoever regarding Foxall. Plaintiffs allege that defendants Beadle, the Douglas
County Attorney’s Office, representatives of Westside High School, and members of
the Omaha Police Department met and “conspired to find a way to prevent Parsons
from returning to school,” using an unlawful arrest and detention to do so. (Filing 54
at CM/ECF ¶¶ 166-173.)
There are simply no allegations that Foxall participated in any aspect of this
alleged conspiracy and, for that reason, Plaintiffs’ civil conspiracy claim against
Foxall individually must be dismissed. Mayorga v. Missouri, 442 F.3d 1128, 1132
(8th Cir. 2006) (“To establish personal liability of the supervisory defendants, [the
plaintiff] must allege specific facts of personal involvement in, or direct responsibility
for, a deprivation of his constitutional rights.”); Madewell v. Roberts, 909 F.2d 1203,
1208 (8th Cir. 1990) (“Liability under § 1983 requires a causal link to, and direct
responsibility for, the deprivation of rights.”).
b. Unlawful Imprisonment
Plaintiffs allege that Foxall “caused Parsons to be jailed and detained without
being charged with any crime or violation and to be held without bond in violation of
Plaintiff’s rights under the Fourth, Fifth, and Fourteenth Amendments to the United
States Constitution not to be seized and deprived of liberty without due process of
law.” (Filing 54 ¶ 139.) Plaintiffs’ amended complaint states that Dakota Parsons
16

was “jailed as the result of a bench warrant issued without an affidavit of probable
cause” (Filing 54 ¶ 140) and jailed “without being informed of the charges against him
and without being allowed bond” (Filing 54 ¶ 143).
Nowhere do Plaintiffs allege that Foxall had any involvement in deciding if,
when, and how long Dakota should be held in prison or that Judge Ashford’s orders
of confinement were facially invalid. To the contrary, Plaintiffs allege that the YAC
program allows prosecutors to recommend actions to be taken “by the Court,” such
as “when a participant may be jailed”; “prosecutors . . . have complete and unfettered
discretion to determine who is jailed”; and Judge Ashford “denied bail,” “refused to
set a bond,” and “ordered Parsons continue [sic] to be held without bond” until the day
prior to the court’s scheduled hearing on Dakota Parsons’ writ of habeas corpus when
“Judge Ashford . . . ordered that Parsons be released on his own recognizance.
Parsons was then released . . . .” (Filing 54 ¶¶ 71-74, 85, 87-90.)
Because Plaintiffs’ allegations indicate that Foxall was acting pursuant to court
order, he has absolute immunity from Plaintiffs’ claims flowing from the fact of
Dakota Parsons’ incarceration. Figg v. Russell, 433 F.3d 593, 599 (8th Cir. 2006)
(warden was entitled to absolute immunity against plaintiff’s § 1983 claim for 416day illegal confinement because state habeas court had not yet issued writ, and jailors
and warden were acting pursuant to facially valid order from state court and parole
board; “Officials such as the [wardens] must not be required to act as pseudo-appellate
courts scrutinizing the orders of judges.” (internal quotation marks and citations
omitted)); Martin v. Hendren, 127 F.3d 720, 721 (8th Cir. 1997) (“A judge’s absolute
immunity extends to public officials for acts they are specifically required to do under
court order or at a judge’s direction.” (internal quotation marks and citations
omitted)); Robinson v. Freeze, 15 F.3d 107, 109 (8th Cir. 1994) (“we have extended
absolute immunity to officials for acts they are specifically required to do under court
order or at a judge’s direction” (internal quotation marks and citation omitted));
Patterson v. Von Riesen, 999 F.2d 1235 (8th Cir. 1993) (“a warden is absolutely
immune from damages flowing from the fact of a prisoner’s incarceration, when that
17

incarceration occurs pursuant to a facially valid order of confinement”; dismissal on
12(b)(6) grounds proper when defendant dismissed as immune from suit). See also
Kohl v. Casson, 5 F.3d 1141, 1149 (8th Cir. 1993) (county attorney, police officer,
city, and county not subject to § 1983 claim under Eighth Amendment for excessive
bail because “none of the defendants set [the plaintiff’s] bail. Thus, there can be no
causal connection between any action on the part of the defendants and any alleged
deprivation of [the plaintiff’s] Eighth Amendment rights.”).7
4. Douglas County
Plaintiffs bring section 1983 claims against Douglas County and its officials for
false arrest, wrongful search and seizure, unlawful imprisonment, civil conspiracy,
Eighth Amendment (bail), and abuse of process under state law. Douglas County
moves for dismissal pursuant to Fed. R. Civ. P. 12(b)(4), 12(b)(5), and 12(b)(6)
because this court does not have personal jurisdiction over Douglas County due to the
insufficiency of Plaintiffs’ service of process. Further, Douglas County asserts,
dismissal without opportunity to cure is proper because the County does not have a
policy or custom that deprived Plaintiffs of any rights, and no factual allegations are
made against Douglas County, making proper service futile. Finally, Douglas County
contends that Plaintiffs’ state-law claim for abuse of process must be dismissed
because Plaintiffs do not allege that they submitted a written notice of claim to
Douglas County, a condition precedent to filing suit under the Political Subdivisions
Tort Claims Act (“PSTCA”), Neb. Rev. Stat. §§ 13-901 to 13-928 (Westlaw 2015).
In any event, Douglas County argues, the PSTCA does not waive the County’s
7

Plaintiffs argue in their brief in response to the parties’ motions to dismiss that
they have asserted an Eighth Amendment claim for failure to provide adequate
medical treatment while Dakota was in prison. (Filing 70 at CM/ECF pp. 3-4.) The
plaintiffs’ amended complaint makes no mention of such a claim. (Filing 54 ¶¶ 180194 (“Count VII Violation of Eighth Amendment” claim mentioning only excessive
bail).) Further, my prior order granting Plaintiffs leave to amend their complaint did
not give Plaintiffs leave to add new claims. (Filing 52.)
18

sovereign immunity against abuse-of-process claims.
a. Failure to Serve Douglas County
A “state-created governmental organization” must be served by “(A) delivering
a copy of the summons and of the complaint to its chief executive officer” or by “(B)
serving a copy of each in the manner prescribed by that state’s law for serving a
summons or like process on such a defendant.” Fed. R. Civ. P. 4(j)(2). Counties in
Nebraska may be served by mail service upon the chief executive officer or on the
clerk. Neb. Rev. Stat. § 25–510.02(2) (Westlaw 2015) (“[a]ny county, city, or village
of this state may be served by personal, residence, certified mail, or designated
delivery service upon the chief executive officer or clerk”).
Because service of process on Douglas County was not accomplished, Douglas
County’s Fed. R. Civ. P. 12(b)(5) motion will be granted without prejudice. However,
because Douglas County had actual notice of the plaintiffs’ claims via service upon
defendants Beadle and Kleine in their official capacities as Douglas County Attorneys,
the County would not be harmed by my allowing the plaintiffs to cure their error.
Accordingly, I shall order that Plaintiffs properly serve Douglas County within 20
days of the date of this memorandum and order and submit such proof of service to
the court, or all claims against Douglas County will be dismissed without prejudice.
b. Policy or Custom
For a county or its officers in their official capacity to be liable under section
1983, Plaintiffs “must prove its policies or customs caused a violation of [their]
constitutional rights,” Wall v. Stanek, 794 F.3d 890, 893 (8th Cir. 2015), whether the
policy or custom is “made by its lawmakers or by those whose edicts or acts may
fairly be said to represent official policy.” Gladden v. Richbourg, 759 F.3d 960, 968
(8th Cir. 2014). As discussed above with regard to the City of Omaha, Plaintiffs’
allegations are sufficient to draw an inference that Douglas County has a policy of
19

encouraging and conspiring to effectuate searches, seizures, and arrests of YAC
participants without actual probable cause and imprisoning them for an excessive
amount of time without bond and without being advised of the charges against them,
in violation of the plaintiffs’ Fourth, Eighth, and Fourteenth Amendment rights. As
with the City of Omaha, this is enough to survive a motion to dismiss on Plaintiffs’
section 1983 “policy” claims, but not their “custom” claims.8
c. Abuse of Process (State Law)
The Political Subdivisions Tort Claims Act, Neb. Rev. Stat. §§ 13-901 to 13926 (Westlaw 2015), provides uniform procedures for the bringing of tort claims
against all political subdivisions, including counties. Neb. Rev. Stat. § 13-903(1)
(Westlaw 2015). Specifically, the Act states that:
[N]o political subdivision of the State of Nebraska shall be liable for the
torts of its officers, agents, or employees, and . . . no suit shall be
maintained against such political subdivision or its officers, agents, or
employees on any tort claim except to the extent, and only to the extent,
provided by the Political Subdivisions Tort Claims Act.

8

Plaintiffs’ amended complaint contains new allegations that Douglas County
attorneys routinely abuse the YAC program; have “complete discretion” and a lack
of standards in recommending actions to the court which deprive YAC participants
of their constitutional rights; have established a “pattern and practice of utilizing the
lack of standards and the complete and unfettered discretion . . . to direct the arrest of
YAC participants regardless of probable cause”; refused to offer to the court any facts
or explanation supporting Dakota Parsons’ arrest; allow YAC participants generally,
and Dakota Parsons specifically, to be arrested and held without bond and without a
showing of probable cause; and participated in an investigatory meeting and provided
advice and direction to the City of Omaha police about how Parsons could be arrested
in order to keep him out of Westside High School. (Filing 54 ¶¶ 71-73, 105-109, 116,
145, 169, 177-178.)
20

Neb. Rev. Stat. § 13-902 (Westlaw 2015). The term “tort claim” is defined in the Act
as “any claim against a political subdivision for money only on account of . . .
personal injury . . . caused by the . . . wrongful act or omission of any employee of the
political subdivision, while acting within the scope of his or her office or employment,
under circumstances in which the political subdivision, if a private person, would be
liable to the claimant for such damage . . . .” Neb. Rev. Stat. § 13-903(4) (Westlaw
2015). The Act specifically excludes from its coverage “[a]ny claim arising out of .
. . malicious prosecution [or] abuse of process. . . .” Neb. Rev. Stat. § 13-910(7)
(Westlaw 2015).
Because Plaintiffs’ state-law claim of abuse of process is asserted against
Douglas County, a political subdivision of the State of Nebraska, and defendant
Brenda Beadle in her official capacity as a county attorney for the political
subdivision, Plaintiffs’ claims are governed by the PSTCA. Plaintiffs do not allege
that they have submitted written notice of their claim to Douglas County, as required
by the PSTCA. Neb. Rev. Stat. § 13-905 (Westlaw 2015) (tort claim filing
requirements). However, assuming Plaintiffs had submitted such notice, section 13910(7) specifically provides that liability imposed by the Act shall not apply to claims
for malicious prosecution and abuse of process, providing Douglas County and
defendant Beadle in her official capacity “a complete defense” to Plaintiffs’ state-law
claim of abuse of process. Hatcher v. Bellevue Volunteer Fire Dep’t, 628 N.W.2d 685,
695 (Neb. 2001). Therefore, the motion to dismiss Plaintiffs’ abuse-of-process claim
filed by defendants Douglas County and Brenda Beadle in her official capacity will
be granted.
5. Don Kleine & Brenda Beadle Individually
Defendant Kleine, individually, is named in Plaintiffs’ section 1983 claims for
false arrest, unlawful imprisonment, and civil conspiracy. As against defendant
Brenda Beadle individually, Plaintiffs assert section 1983 claims for false arrest,
unlawful imprisonment, civil conspiracy, and violation of the Eighth Amendment
21

(bail), as well as a state-law claim for abuse of process. Beadle and Kleine move to
dismiss (Filing 62) these claims pursuant to Fed. R. Civ. P. 12(b)(6) and absolute
immunity or, in the alternative, qualified immunity.
a. Don Kleine
Because Plaintiffs’ amended complaint contains no factual allegations
whatsoever regarding Douglas County Attorney Kleine, I shall grant the motion to
dismiss all claims against Kleine individually pursuant to Fed. R. Civ. P. 12(b)(6).
Mayorga, 442 F.3d at 1132 (“To establish personal liability of the supervisory
defendants, [the plaintiff] must allege specific facts of personal involvement in, or
direct responsibility for, a deprivation of his constitutional rights.”); McDowell v.
Jones, 990 F.2d 433, 435 (8th Cir. 1993) (“To hold a supervisor liable under § 1983,
a plaintiff must allege and show that the supervisor personally participated in or had
direct responsibility for the alleged violations. Or a plaintiff could show that the
supervisor actually knew of, and was deliberately indifferent to or tacitly authorized,
the unconstitutional acts.” (citation omitted)); Madewell, 909 F.2d at 1208 (“Liability
under section 1983 requires a causal link to, and direct responsibility for, the
deprivation of rights.”).
b. Brenda Beadle
Plaintiffs allege that before Dakota Parsons was arrested for a “probation
violation,” Douglas County Attorney Beadle acted in an investigatory role and as an
advisor to police when she met and conspired with members of the Omaha Police
Department and Westside School District officials—without having a complaint from
a law-enforcement agency—to plan Dakota Parsons’ arrest. Shortly after this alleged
meeting, a bench warrant was issued on August 12, 2013, for a “probation violation,”
and Dakota was then subject to an unlawful search and seizure by City of Omaha
police who accompanied YAC officers in searching his home. Thereafter, Plaintiffs
allege that Dakota Parsons was arrested and imprisoned for seven months without
22

knowing the charges against him; without being entitled to release on bond pursuant
to Beadle’s advice during court hearings; and without ever being charged or convicted
of any crime relating to the August 12, 2013, search, seizure, and arrest.
Beadle in her individual capacity argues that Plaintiffs have failed to state
claims against her pursuant to Fed. R. Civ. P. 12(b)(6), or that she is entitled to either
absolute or qualified immunity from Plaintiffs’ section 1983 claims for money
damages for false arrest, unlawful imprisonment, violation of the Eighth Amendment
(bail), and civil conspiracy. (Filing 63.)
i. Absolute and Qualified Immunity
Prosecutors may be entitled to either absolute or qualified immunity
from civil liability under 42 U.S.C. § 1983 for actions undertaken
pursuant to their official duties. If the prosecutor is acting as advocate
for the state in a criminal prosecution, then the prosecutor is entitled to
absolute immunity. 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. In contrast, a prosecutor
is entitled only to qualified immunity when [s]he pursues actions in an
investigatory or administrative capacity. In determining whether
particular actions of government officials fit within the absolute or
qualified immunity standard, the Supreme Court has adopted a functional
approach that looks to the nature of the function performed, not the
identity of the actor who performed it.
Brodnicki v. City of Omaha, 75 F.3d 1261, 1266 (8th Cir. 1996) (internal quotation
marks omitted) (citing Burns v. Reed, 500 U.S. 478 (1991); Buckley v. Fitzsimmons,
509 U.S. 259 (1993); Imbler v. Pachtman, 424 U.S. 409 (1976); Forrester v. White,
484 U.S. 219 (1987)).

23

The scope of a prosecutor’s absolute immunity has been found to include
actions associated with “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,” Anderson v. Larson, 327 F.3d 762, 768 (8th Cir. 2003), even
if the actions are “patently improper” or made “in a consciously malicious manner, or
vindictively, or without adequate investigation, or in excess of [the prosecutor’s]
jurisdiction.” Williams v. Hartje, 827 F.2d 1203, 1208-09 (8th Cir. 1987). The scope
of a prosecutor’s absolute immunity also includes “the professional evaluation of the
evidence assembled by the police and appropriate preparation for its presentation at
trial or before a grand jury after a decision to seek an indictment has been made.”
Buckley, 509 U.S. at 273.
The Supreme Court has held that a prosecutor does not have absolute immunity
when he or she gives legal advice to the police or performs “investigatory functions
that do not relate to . . . preparation for the initiation of a prosecution or for judicial
proceedings.” Buckley, 509 U.S. at 273 (citing Burns, 500 U.S. at 492-496 (“We do
not believe . . . that advising the police in the investigative phase of a criminal case is
so intimately associated with the judicial phase of the criminal process that it qualifies
for absolute immunity” (internal quotation marks and citation omitted)).
If a prosecutor is not acting as an “advocate for the state in a criminal
prosecution” such that absolute immunity would apply, the prosecutor may be entitled
to qualified immunity “when he pursues actions in an investigatory or administrative
capacity.” Brodnicki, 75 F.3d at 1266 (internal quotation marks and citation omitted).
When presented in the context of a Rule 12(b)(6) motion, a public official must “show
that she is entitled to qualified immunity on the face of the complaint.” Mathers v.
Wright, 636 F.3d 396, 399 (8th Cir. 2011).
State officials enjoy qualified immunity from a § 1983 action if their
conduct did not violate “clearly established statutory or constitutional

24

rights of which a reasonable person would have known.” Harlow v.
Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 73 L. Ed. 2d 396 (1982).
Qualified immunity is appropriate only if “no reasonable factfinder”
could determine that (1) the facts viewed in the light most favorable to
the plaintiff show that the officer’s conduct violated a constitutional
right, and (2) the constitutional right was “clearly established at the time
of the deprivation so that a reasonable officer would understand his
conduct was unlawful.” Nance v. Sammis, 586 F.3d 604, 609 (8th Cir.
2009).
S.L. ex rel. Lenderman v. St. Louis Metro. Police Dep’t Bd. of Police Comm'rs, 725
F.3d 843, 850 (8th Cir. 2013). If an official did not deprive the plaintiff of a
constitutional or statutory right, the plaintiff “does not need qualified immunity, as he
is not liable under § 1983.” Kahle v. Leonard, 477 F.3d 544, 550 (8th Cir. 2007).
ii. False Arrest
Plaintiffs assert that Beadle caused Dakota Parsons to be arrested without a
valid bench warrant and without probable cause. “A citizen who is arrested without
probable cause can bring a civil action against the officer9 under 42 USC § 1983 for
false arrest. A false arrest is a violation of the Fourth Amendment right against
unreasonable seizure of persons. . . . The existence of probable cause thus defeats a
false arrest claim.” Sarah Hughes Newman, Proving Probable Cause: Allocating the
Burden of Proof in False Arrest Claims Under § 1983, 73 U. Chi. L. Rev. 347, 347-48
(2006) (footnote added).
Probable cause exists when the facts and circumstances within an
officer’s knowledge are sufficient to lead a person of reasonable caution
to believe that the suspect has committed or is committing a crime.

9

Here, the defendant police officers (John Does 1-15) have not yet been
identified or served with process.
25

Brinegar v. United States, 338 U.S. 160, 175-76, 69 S. Ct. 1302, 93 L.
Ed. 1879 (1949). In a claim for damages, officers are “entitled to
qualified immunity if they arrest a suspect under the mistaken belief that
they have probable cause to do so, provided that the mistake is
objectively reasonable”—that is, officers are not liable if they had
“arguable probable cause” to make the arrest. Amrine v. Brooks, 522
F.3d 823, 832 (8th Cir. 2008).
Galarnyk v. Fraser, 687 F.3d 1070, 1074 (8th Cir. 2012).
The police officers who allegedly arrested Dakota Parsons were executing a
bench warrant that was dated the day of the arrest and signed by a judge of the District
Court of Douglas County, Nebraska; was directed to “any duly authorized law
enforcement officer”; stated that “[t]he court finds, upon oath or affirmation, probable
cause exists for issuance of a warrant”; and directed officers to “immediately arrest
said defendant wherever he/she may be found and to bring him/her promptly before
this court or any judge or magistrate having jurisdiction of this matter . . . .” (Filing
46-1.)
“An arrest executed pursuant to a facially valid warrant generally does not give
rise to a cause of action under 42 U.S.C. § 1983 against the arresting officer.” Fair
v. Fulbright, 844 F.2d 567, 569 (8th Cir. 1988); see also Young v. City of Little Rock,
249 F.3d 730, 734 (8th Cir. 2001) (arrest was not unreasonable under Fourth
Amendment and did not give rise to claim under § 1983 when officer’s car computer
showed existence of arrest warrant, which was verified over police radio); see, e.g.,
Moiser v. Blum, 875 F.2d 202, 204 (8th Cir. 1989) (referring to “false arrest cases”
holding that arrest executed pursuant to a facially valid warrant generally does not
give rise to cause of action under § 1983 against arresting officer).
If the arresting officers in this case cannot be held liable under section 1983
because of the facially valid bench warrant directing the officers to arrest Parsons and
bring him before a judge, then Beadle cannot be held liable for causing the officers to
26

effect such an arrest. It is worth emphasizing that there is no claim in the amended
complaint that Beadle lied or misrepresented the facts as she knew them to the judge.
Even if the bench warrant for Parsons’ arrest was not actually (as opposed to
facially) valid—a fact alleged by Plaintiffs that I must accept as true—the police
officers who arrested Dakota Parsons would be entitled to qualified immunity because
Plaintiffs do not allege any facts from which an inference can be drawn that
reasonable police officers in the City of Omaha police officers’ position would have
known that Dakota Parsons’ arrest was illegal despite the existence of the bench
warrant. Womack v. City of Bellefontaine Neighbors, 193 F.3d 1028, 1031 (8th Cir.
1999) (officers entitled to qualified immunity if officers arrested suspect “with the
objectively reasonable belief that they had probable cause to do so—even if they were
mistaken”); see also Stigall v. Madden, 26 F.3d 867, 869 (8th Cir. 1994) (“The [arrest]
warrant itself, however, shields [the sheriff’s deputy] from liability for executing it,
unless a reasonably well-trained officer would have known that the arrest was illegal
despite the magistrate’s authorization.”); Edwards v. Baer, 863 F.2d 606, 607-08 (8th
Cir. 1988) (police officer who believed outstanding traffic warrant justified arrest, but
warrant was actually invalid, was entitled to qualified immunity from § 1983 invalidarrest claim because officer “could have believed that a warrant existed and that he
had legal authority to make an arrest based on that warrant”).
If the City of Omaha police officers who arrested Parsons pursuant an actually
invalid bench warrant would be entitled to qualified immunity from the Parsons’
section 1983 false-arrest claim, so would Beadle to the extent she caused the arrest to
occur. Therefore, Plaintiffs’ false-arrest claim against Brenda Beadle in her individual
capacity shall be dismissed pursuant to Fed. R. Civ. P. 12(b)(6). Kohl, 5 F.3d at 1147
n.1 (when facts presented in complaint fail to state a claim or clearly give rise to
immunity, claim should be dismissed under Rule 12(b)(6)).

27

iii. Unlawful Imprisonment
Plaintiffs allege that once Dakota Parsons was arrested and imprisoned, Beadle
violated his procedural due process rights by failing to advise him of the charges
against him and by holding him for 203 days without either charging Dakota with a
crime or violation of probation, revoking his YAC membership, or bringing him to
trial.
Whether an imprisoned arrestee is a probationer, involved in a post-plea
diversion program, or a first-time offender, he or she is entitled to procedural due
process. See State v. Shambley, 795 N.W.2d 884 (Neb. 2011) (in post-plea diversion
programs, such as drug court, participants are entitled to same due process protections
as persons facing termination of parole or probation, such as informal hearing to
assure that violation of probation will be based on “verified facts” and that probationer
“is entitled to an opportunity to show that he or she did not violate the conditions,”
written notice of time and place of hearing, disclosure of evidence, neutral fact-finder,
opportunity to be heard and present witnesses and documentary evidence, right to
cross-examine witnesses, written decision by fact-finder, and assistance of counsel
when probationer’s version of facts can only be represented by trained advocate);
United States v. Sutton, 607 F.2d 220, 222 (8th Cir. 1979) (“due process requires that
a preliminary hearing to determine whether probable cause exists to believe that a
probation violation has occurred must be held at the time of, or as near as possible to,
arrest and detention of the probationer”; “at the preliminary hearing the probationer
is entitled to notice of alleged violations”; “the loss of liberty resulting from the
revocation of probation was a serious interruption of an individual’s life and was
entitled to the protections of due process”).10

10

See also Neb. Rev. Stat. § 29-412 (Westlaw 2015) (“Whenever any person has
been arrested under a warrant as provided in sections 29-401 to 29-411, it shall be the
duty of the officer making the arrest to take the person so arrested before the proper
magistrate; and the warrant by virtue of which the arrest was made, with the proper
28

“Generally, prolonged detention beyond the term authorized by law unlawfully
deprives a prisoner of rights protected under the due process clause of the Fourteenth
Amendment.” Russell v. Hennepin Cnty., 420 F.3d 841, 846 (8th Cir. 2005).11 A

return endorsed thereon and signed by the officer, shall be delivered to such
magistrate.”); Neb. Rev. Stat. § 29-504 (Westlaw 2015) (“When the complaint is for
a felony, upon the accused being brought before the magistrate, he shall proceed as
soon as may be, in the presence of the accused, to inquire into the complaint.”); Neb.
Rev. Stat. § 29-1606 (Westlaw 2015) (“It shall be the duty of the county attorney . .
. to inquire into and make full examination of all the facts and circumstances
connected with any case on preliminary examination, as provided by law, touching the
commission of any offense wherein the offender shall be committed to jail, or become
recognized or held to bail. If the prosecuting attorney shall determine in any such case
that an information ought not to be filed, he shall make, subscribe, and file with the
clerk of the court a statement in writing, containing his reasons, in fact and in law, for
not filing an information in such case . . . .”); Neb. Rev. Stat. § 29-1607 (Westlaw
2015) (“No information shall be filed against any person for any offense until such
person shall have had a preliminary examination therefor . . . unless such person shall
waive his or her right to such examination . . . . The preliminary examination shall be
conducted as soon as the nature and the circumstances of the case will permit.”); Neb.
Rev. Stat. § 29-2267 (Westlaw 2015) (court shall not revoke probation or increase
requirements imposed on probationer “except after a hearing upon proper notice
where the violation of probation is established by clear and convincing evidence. The
probationer shall have the right to receive, prior to the hearing, a copy of the
information or written notice of the grounds on which the information is based. The
probationer shall have the right to hear and controvert the evidence against him, to
offer evidence in his defense and to be represented by counsel”).
11

See also Slone v. Herman, 983 F.2d 107, 110 (8th Cir. 1993) (continued
detention after judge suspended inmate’s sentence and such order became final and
nonappealable “unlawfully deprived [inmate] of his liberty, and a person’s liberty is
protected from unlawful state deprivation by the due process clause of the Fourteenth
Amendment); see, e.g., Harris v. McSwain, 417 Fed. Appx. 594, 2011 WL 1770457
(8th Cir. May 9, 2011) (inmate stated claim for damages for violation of his
constitutional rights under § 1983 against individual correctional center employees
when inmate was detained beyond the date his lawful sentence had ended and
individual employees knew of unlawful detention but refused to remedy it (citing
29

prosecutor may be held liable under section 1983 for a suspect’s prolonged
imprisonment without a judicial determination of probable cause and without the
filing of a formal charge. See Tilson v. Forrest City Police Dep’t, 28 F.3d 802, 809
(8th Cir. 1994) (in § 1983 case where suspect was held for 14 months without initial
judicial determination of probable cause and without filing of formal charge following
warrantless arrest, court noted that “at least one of the actors responsible for [the
plaintiff’s] deprivation of liberty was never a party to this action: the Arkansas
prosecutor who failed to charge [the plaintiff] with a crime or to bring him to trial”).
However, prosecutors are entitled to absolute immunity from liability for their
decision regarding whether to initiate a prosecution. Hartje, 827 F.2d at 1209 (“The
decision of a prosecutor to file criminal charges is within the set of core functions
which is protected by absolute immunity.”); Tilson, 28 F.3d at 809 n.17 (citing case
suggesting that Arkansas prosecutor who failed to charge civil rights plaintiff with a
crime or to bring him to trial would be absolutely immune from liability for
prosecutor’s actions of reviewing evidence and deciding whether to initiate
prosecution).
While it is clear that the Douglas County prosecutors failed to execute their
duties12 to examine the facts of Dakota Parsons’ case and either file an information,
declare to the clerk of court why an information would not be filed, or begin
revocation proceedings under the YAC agreement, absolute immunity protects county
cases)) (unpublished disposition).
12

Neb. Rev. Stat. § 29-1606 (Westlaw 2015) (“It shall be the duty of the county
attorney . . . to inquire into and make full examination of all the facts and
circumstances connected with any case on preliminary examination, as provided by
law, touching the commission of any offense wherein the offender shall be committed
to jail, or become recognized or held to bail. If the prosecuting attorney shall
determine in any such case that an information ought not to be filed, he shall make,
subscribe, and file with the clerk of the court a statement in writing, containing his
reasons, in fact and in law, for not filing an information in such case . . . .”).
30

attorneys like Beadle from liability for this failure. Admittedly, application of absolute
prosecutorial immunity in cases like this “does leave the genuinely wronged defendant
without civil redress against a prosecutor whose malicious or dishonest action
deprives him of liberty. But the alternative of qualifying a prosecutor’s immunity
would disserve the broader public interest. It would prevent the vigorous and fearless
performance of the prosecutor’s duty that is essential to the proper functioning of the
criminal justice system.” Imbler, 424 U.S. at 427-28. See also Webster v. Gibson,
913 F.2d 510 (8th Cir. 1990) (in § 1983 action against prosecutor for depriving arrestee
of prompt judicial determination of probable cause, prosecutor was absolutely
immune from damages where bond hearing was not held until 45 days after arrest,
judge then ordered prosecutor to file information or release arrestee, and prosecutor
failed to charge arrestee until 56 days later). Therefore, Brenda Beadle in her
individual capacity is absolutely immune from Plaintiffs’ section 1983 claim for
money damages for unlawful imprisonment, and this claim must be dismissed.
iv. Eighth Amendment (Bail)
Beadle’s alleged act of continually advising the court that Dakota Parsons
should not be released on bond is also entitled to absolute immunity because
advocating for a particular level of bond in court is within the prosecutor’s protected
function as an advocate for the state, even if such actions are “patently improper” or
made “in a consciously malicious manner, or vindictively, or without adequate
investigation, or in excess of [the prosecutor’s] jurisdiction,” Williams, 827 F.2d at
1208-09. See Myers v. Morris, 810 F.2d 1437, 1446 (8th Cir. 1987) (prosecutor’s role
in “advocating a particular level of bail” is protected by absolute prosecutorial
immunity), overruled on other grounds, Burns, 500 U.S. 478. Therefore, Plaintiffs’
Eighth Amendment (bail) claim against Brenda Beadle individually shall be
dismissed.

31

v. Civil Conspiracy
Plaintiffs allege that prior to August 12, 2013, defendant Beadle met with
representatives of Westside High School and members of the Omaha Police
Department to discuss Parsons’ imminent return to WHS and to find a way to prevent
Parsons from returning to school, despite the ruling of an administrative hearing
officer that Parsons could be expelled no longer than the 2012-13 school year.
Plaintiffs allege that, during this investigatory meeting, Beadle advised and directed
the police, including advising them that “Parsons could be arrested,” and that this
meeting was held in furtherance of the unconstitutional acts of “taking Parsons into
custody without a properly supported warrant or probable cause and keeping him in
custody” for several months “without bond and without any showing of probable
cause.” (Filing 54, Amended Complaint ¶¶ 166-170.)
Insofar as absolute immunity is concerned, Beadle’s alleged act of meeting with
police and school officials prior to Dakota Parsons’ arrest and confinement in order
to plan the arrest and detention is not entitled to absolute immunity because these
allegations suggest advising the police in the investigative phase of a criminal case
that never came to be—that is, Dakota Parsons was arrested and imprisoned for seven
months without being arraigned or charged for the August 12, 2013, incident and was
then released. Anderson, 327 F.3d at 769 (giving of legal advice to police during
investigation strips prosecutor of absolute immunity); Buckley, 509 U.S. at 273-74 (“if
a prosecutor plans and executes a raid on a suspected weapons cache, he has no
greater claim to complete immunity than activities of police officers allegedly acting
under his direction”; “A prosecutor neither is, nor should consider himself to be, an
advocate before he has probable cause to have anyone arrested.” (internal quotation
marks and citation omitted)).
However, it is clear that Beadle is entitled to qualified immunity as to Plaintiffs’
civil conspiracy claim. Anderson, 327 F.3d at 769 (even though act of giving legal
advice to police during investigation strips prosecutor of absolute immunity, “the
32

doctrine of qualified immunity remains available . . . for that act”); Young v. Douglas
County, No. 8:07CV265, 2009 WL 2568061, at *3 (D. Neb. Aug. 19, 2009) (“The
question is whether a prosecutor’s investigation is of the type normally done by
police, in which case prosecutors enjoy only qualified immunity, or whether an
investigation is bound up with the judicial process, thus affording prosecutors the
heightened protection of absolute immunity.” (quotation marks and citation omitted)).
Based on the allegations in the amended complaint and the exhibits referenced
in, and embraced by, the complaint and contained in official court records of the
District Court of Douglas County, Nebraska, Beadle is entitled to qualified immunity
to the extent the amended complaint alleges that Beadle advised City of Omaha police
officers that they could search Parsons’ home, arrest Dakota Parsons, and imprison
him.
At the time of the August 12, 2013, search of the Parsons’ home, Dakota’s
YAC agreement allowed the search and seizure of his home “upon request of” YAC
staff (with no cause or suspicion required), a YAC officer knew that Dakota had
violated that agreement just 10 days prior by possessing an airsoft gun and pellets, and
City of Omaha police had visited the Parsons’ residence the prior month due to a
complaint that Parsons had been “making explosives,” after which police removed
from his home “old, unusable fireworks.” (Filing 54, Amended Complaint ¶¶ 43-44;
Filing 46-1, Young Adult Court Order and Agreement.)
These alleged facts and exhibits, combined with Eighth Circuit law stating that
“when a probationer13 consents to a search condition, his already-reduced reasonable
13

Plaintiffs argue that Dakota Parsons was not a “probationer” at the time of his
arrest. However, Plaintiffs’ allegations and supporting documents from the District
Court for Douglas County, Nebraska, clearly establish a probation-like arrangement.
See Neb. Rev. Stat. § 29-2246(4) (Westlaw 2015) (“Probation means a sentence under
which a person found guilty of a crime upon verdict or plea or adjudicated delinquent
or in need of special supervision is released by a court subject to conditions imposed
33

expectation of privacy diminishes significantly,” justified the search of the Parsons’
home by the YAC staff and by the police officers who accompanied them. United
States v. Brown, 346 F.3d 808, 811 (8th Cir. 2003) (where probationer was subject to
search condition that allowed searches by probation officers, but not police officers,
and where probation officers brought police with them to search probationer’s home,
court held: “Probation offices are neither designed nor staffed to conduct these types
of searches alone. Probation officers often must bring law enforcement along to ensure
the probation officers’ safety. We hold the governmental interest in ensuring probation
officer safety outweighs any marginal, additional intrusion into [the searchee’s]
privacy resulting from the task force agents’ presence. In short, when a probationary
condition authorizes searches by probation officers, the Fourth Amendment does not
require probation officers to choose between endangering themselves by searching
alone and foregoing the search because they lacked the resources and expertise
necessary to search alone safely. Thus, . . . the government can prevail if [the
probation officer] had a reasonable suspicion that [the searchee] was violating the
terms of his probation.” (internal citations omitted)).14

by the court and subject to supervision.”); Filing 46-1 (Young Adult Court Order and
Agreement indicating Parsons was found guilty of a crime upon guilty plea, was
subject to conditions and supervision by YAC staff, could be subject to “revocation”
for violation of conditions and sentenced to confinement, and upon successful
completion of program, Parsons could withdraw guilty plea and state could reduce
charge to misdemeanor or dismiss the charge).
14

“[T]o determine whether the Fourth Amendment forbids a search, we weigh
the degree to which a search intrudes upon an individual’s reasonable expectation of
privacy against the degree to which the government needs to search to promote its
legitimate interests. . . . A probationary search pursuant to a search condition intrudes
less upon protected privacy interests. ‘[P]robationers do not enjoy the absolute liberty
to which every citizen is entitled.’ [United States v.] Knights, 534 U.S. [112,] 119
[2001] (internal quotations omitted). And when a probationer consents to a search
condition, his already-reduced reasonable expectation of privacy diminishes
significantly. Id. at 120. On the other side of the balance, to protect the innocent, the
government legitimately needs more freedom to search probationers because the very
34

Further, because Plaintiffs’ 1983 claims against Beadle for false arrest and
unlawful imprisonment must be dismissed, the civil conspiracy claim based on that
arrest and imprisonment must also be dismissed. Slusarchuk v. Hoff, 346 F.3d 1178,
1183 (8th Cir. 2003) (absent underlying constitutional violation, “‘there is no
actionable conspiracy claim’”) (quoting Cook v. Tadros, 312 F.3d 386, 388 (8th Cir.
2002)); Hanten v. School Dist. of Riverview Gardens, 183 F.3d 799, 809 (8th Cir.
1999) (affirming dismissal of section 1983 claim for conspiracy to violate employees’
right of free association because claims underlying the conspiracy claim had been
properly dismissed, and a civil conspiracy claim does not set forth an independent
cause of action, but is sustainable only after underlying violations have been
established).
vi. Abuse of Process (State Law)
The requirements of the PSTCA also apply when an official is sued in his or her
individual capacity, but is performing within the scope of employment. Cole v.
Clarke, 2003 WL 21278477, at *4 (Neb. Ct. App., June 3, 2003); Cole v. Wilson, 627
N.W.2d 140 (Neb. Ct. App. 2001); Stagemeyer v. County of Dawson, 205 F. Supp. 2d
1107, 1118 (D. Neb. 2002). Because the facts alleged in Plaintiffs’ amended
complaint indicate that Beadle’s actions—which form the basis for Plaintiffs’ abuseof-process claim against her—were taken within the scope of her employment as a
Douglas County Attorney, the PSTCA applies. Because the PSTCA does not waive
sovereign immunity for abuse-of-process claims, defendant Beadle’s motion to
dismiss this claim against her will be granted.

assumption of the institution of probation is that the probationer is more likely than
the ordinary citizen to violate the law.” Brown, 346 F.3d at 811 (some internal
quotation marks and citations omitted).
35

6. McCann, Kingston & Westside Community Schools
Plaintiffs allege that in early August 2013, “unknown members of the Westside
school system (on information and belief including McCann), unknown members of
the Omaha Police Department, and possibly other persons met to ‘discuss’ Parsons.”
The amended complaint states that this meeting was “instigated by McCann and/or
other representatives of Westside Community Schools as part of a plan to keep
Parsons from returning to school on August 15, 2013 as required by the hearing
officer’s order.” (Filing 54.) The plaintiffs also allege that defendant McCann
requested that Parsons be arrested and held in jail for an extended amount of time in
order to prevent him from returning to WHS and that McCann and Westside
Community Schools refuse to allow Parsons to complete his education and graduate,
even though Parsons completed all requirements necessary for him to return to WHS
prior to the 2015-2016 school year.
Plaintiffs assert that Westside Community Schools has “policies, customs and
practices” that gave defendant McCann and other administrators “the ability to act
contrary to the determination of the hearing officer who directed that Parsons be
allowed to return to school. Westside allows administrators unfettered discretion to
interfere with the right to attend school and the right to have the benefit of the decision
of an administrative hearing officer regarding expulsion.” (Filing 54.)
a. Kent Kingston
Other than naming defendant Kent Kingston in the case caption on the first
page of the amended complaint, Plaintiffs make no factual allegations whatsoever
about Kingston’s involvement in the events leading to this lawsuit. Therefore,
Kingston will be dismissed from this case. Madewell, 909 F.2d at 1208 (“Liability
under section 1983 requires a causal link to, and direct responsibility for, the
deprivation of rights.”).

36

b. Blane McCann
As against defendant Blane McCann, individually and as Superintendent of
Westside Community Schools, Plaintiffs assert section 1983 claims for false arrest,
unlawful imprisonment, equal protection, and civil conspiracy, as well as state-law
claims for abuse of process and violation of the “free instruction” clause of the
Nebraska Constitution and Neb. Rev. Stat. § 79-283. McCann moves to dismiss all
claims against him for failure to state a claim and because qualified immunity shields
him from liability in his individual capacity. (Filing 67.)
Because Plaintiffs’ claims against McCann in his official capacity are in reality
claims against the school district for which he works, all claims against McCann in
his official capacity shall be dismissed as redundant of Plaintiffs’ claims against
Westside Community Schools. Plaintiffs’ claims against McCann in his individual
capacity are discussed below.
i. False Arrest and Unlawful Imprisonment
Plaintiffs have alleged that defendant McCann directed that Dakota Parsons be
arrested and imprisoned for the purpose of keeping him out of WHS, but Plaintiffs
have not alleged that McCann had the authority to effect an arrest or the resulting
confinement. Williams v. Baird, 273 Neb. 977, 988 (Neb. 2007) (father failed to state
§ 1983 claim against Department of Health and Human Services caseworker where
father alleged that he was arrested at caseworker’s direction in violation of Fourth
Amendment; caseworker had no authority to arrest because, under Nebraska law, only
peace officers have the authority to effect an arrest; “it is inconsequential whether [the
caseworker] might have directed law enforcement to arrest [the father], as law
enforcement would have been required to makes [sic] its own assessment of probable
cause”; because there was no indication that caseworker was a member of law
enforcement, court concluded “as a matter of law that [the father] has failed to state
a legally cognizable claim for the violation of a constitutional right. As such, we
37

conclude as to this contention that [the caseworker] is entitled to qualified
immunity”).
Further, and as discussed above with regard to defendant Beadle, the arresting
officers in this case could not be held liable under section 1983 if the bench warrant
directing them to arrest Parsons and bring him before a judge was facially valid;
therefore, McCann cannot be held liable for causing the officers to effect such an
arrest. If the bench warrant was actually invalid, as Plaintiffs allege, the City of
Omaha police officers who arrested Parsons pursuant to that bench warrant would be
entitled to qualified immunity from the Parsons’ section 1983 false-arrest claim;
therefore, McCann would also be entitled to qualified immunity to the extent he
caused the arrest to occur.
Therefore, Plaintiffs’ false-arrest and unlawful-imprisonment claims against
Blane McCann in his individual capacity shall be dismissed pursuant to Fed. R. Civ.
P. 12(b)(6). Kohl, 5 F.3d at 1147 n.1 (when facts presented in complaint fail to state
a claim or clearly give rise to immunity, claim should be dismissed under Rule
12(b)(6)).
ii. Equal Protection
“‘The Equal Protection Clause of the Fourteenth Amendment commands that
no state shall ‘deny to any person within its jurisdiction the equal protection of the
laws,’ which is essentially a direction that all persons similarly situated should be
treated alike.’” Stevenson v. Blytheville Sch. Dist. 5, No. 14-3746, ___F.3d___, 2015
WL 5090672, at *12 (8th Cir. Aug. 31, 2015) (quoting City of Cleburne, Tex. v.
Cleburne Living Ctr., 473 U.S. 432, 439 (1985) (citation omitted)). Because Plaintiffs
make no factual allegations that Dakota Parsons was treated differently than other
similarly situated students, defendant McCann’s motion to dismiss Plaintiffs’ equalprotection claim must be granted pursuant to Fed. R. Civ. P. 12(b)(6).

38

iii. Civil Conspiracy
Because Plaintiffs’ section 1983 claims against McCann for false arrest,
unlawful imprisonment, and violation of Parsons’ right to equal protection will be
dismissed, the civil conspiracy claim based on those underlying claims must also be
dismissed. Hanten, 183 F.3d at 809 (civil conspiracy claim does not set forth an
independent cause of action, but is sustainable only after underlying violations have
been established).
iv. Abuse of Process (State Law)
The facts alleged in Plaintiffs’ amended complaint indicate that McCann’s
actions—which form the basis for Plaintiffs’ abuse-of-process claim against
him—were taken within the scope of his employment as Superintendent of Westside
Community Schools, making the PSTCA applicable.15 Because the PSTCA does not
waive sovereign immunity for abuse-of-process claims, defendant McCann’s motion
to dismiss this claim against him will be granted.
v. Free Instruction (State Law)
Plaintiffs allege that by refusing to allow Dakota Parsons to attend WHS to earn
his diploma after his term of expulsion was completed, McCann violated Neb. Rev.
Stat. § 79-283, which provides that if a student is expelled from school during the first
term of the school year, the maximum period for which the student may be expelled

15

See Neb. Rev. Stat. § 13-903 (“political subdivision” within the meaning of
the PSTCA includes school districts; “tort claim” means any claim against political
subdivision for money stemming from injury caused by wrongful act of employee of
political subdivision “while acting within the scope of his or her office or
employment”).
39

is for the remainder of the school year, and Article VII, § 1, of the Nebraska
Constitution, which provides for “free instruction in the common schools of this
state.”16
The Nebraska Legislature enacted the Student Discipline Act, Neb. Rev. Stat.
§§ 79-254 to 79-294 (Westlaw 2015), for the stated purpose of “assur[ing] the
protection of all elementary and secondary school students’ constitutional right to due
process and fundamental fairness within the context of an orderly and effective
educational process.” Neb. Rev. Stat. § 79-255 (Westlaw 2015). The Act sets forth the
types of student conduct that may be grounds for long-term suspension, expulsion, or
mandatory reassignment of offending students; notice and hearing procedures; and
procedures for appeal to the school board, district court, and state appellate courts
pursuant to the Administrative Procedure Act. Neb. Rev. Stat. § 79-292 (Westlaw
2015).
Nebraska’s Student Discipline Act states that a “final decision” under the Act
is entitled to judicial review in the county district court, but also provides that
“[n]othing in the act shall be deemed to prevent resort to other means of review,
redress, or relief provided by law.” Neb. Rev. Stat. § 79-288 (Westlaw 2015).
Counsel have not cited, nor has the court found, any cases interpreting this provision.
However, the plain language of the statute would seem to indicate that a “final
decision” must first be reached before further review is sought.

16

Article VII, § 1, of the Nebraska Constitution provides that “[t]he Legislature
shall provide for the free instruction in the common schools of this state of all persons
between the ages of five and twenty-one years.” The Nebraska Supreme Court has
“not construed this language in the context of student discipline to mean that a
fundamental right to education exists in this state. . . . Rather, we have construed the
term ‘free instruction’ in right[-]to[-]education cases as pertinent to the issue of the
constitutionality of school financing, including collection of fees, tuition, and taxes.”
Kolesnick By & Through Shaw v. Omaha Pub. Sch. Dist., 558 N.W.2d 807, 813 (Neb.
1997).
40

Here, Plaintiffs complain that McCann will not allow Dakota Parsons to return
to WHS to finish his diploma, despite the fact that Dakota has finished his term of
expulsion. Because Plaintiffs do not allege that Dakota has officially requested reenrollment in WHS, that defendant McCann has officially denied Dakota permission
to do so, and that Dakota has participated in a hearing and has appealed to the school
board, I shall dismiss this claim without prejudice for lack of jurisdiction because this
claim is not ripe for adjudication. Missouri Soybean Ass’n v. U.S. E.P.A., 289 F.3d
509, 512 (8th Cir. 2002) (“The ripeness doctrine seeks to prevent the courts, through
avoidance of premature adjudication, from entangling themselves in abstract
disagreements over administrative policies, and also to protect the agencies from
judicial interference until an administrative decision has been formalized and its
effects felt in a concrete way by the challenging parties.”; when suit is not ripe for
adjudication, court must dismiss without prejudice for lack of jurisdiction (internal
quotation marks and citations omitted)); Parrish v. Dayton, 761 F.3d 873, 875-76 (8th
Cir. 2014) (“A claim is not ripe for adjudication if it rests upon contingent future
events that may not occur as anticipated, or indeed may not occur at all.” (internal
quotation marks and citations omitted)); Oil, Chem. & Atomic Workers Int’l Union
AFL-CIO v. Gillette Co., 905 F.2d 1176, 1177 (8th Cir. 1990) (where employee had
not filed claim for benefits with retirement plan and had not been denied benefits,
issue regarding source of pension benefits was not ripe for review because if employee
applied for and was awarded benefits, issue of entitlement to benefits would be moot).
c. Westside Community Schools
Plaintiffs bring section 1983 claims for false arrest, unlawful imprisonment, and
civil conspiracy against Westside Community Schools. For the same reasons
discussed above with regard to Plaintiffs’ claims against the City of Omaha and
Douglas County, Plaintiffs’ allegations are sufficient to draw an inference that
Westside Community Schools has a policy of giving school administrators unfettered
discretion to act contrary to the determinations of administrative hearing officers who
review student disciplinary actions—such as the decision in this case that Parsons be
41

allowed to return to school after his one-year expulsion—and that this policy causes
the violation of students’ due process rights.17 As with the City of Omaha and Douglas
County, this is enough to survive a motion to dismiss on Plaintiffs’ section 1983
“policy” claim against Westside Community Schools. However, Plaintiffs’ “custom”
claim against Westside Community Schools must be dismissed because Plaintiffs fail
to allege that other students experienced the same denial of due process at the
direction of Westside officials.
III. CONCLUSION
Defendants Omaha Police Department and the Douglas County Attorney’s
Office are not suable entities and will therefore be dismissed from this case.
Plaintiffs’ claims against Brenda Beadle, Don Kleine, and Mark Foxall in their official
capacities will be dismissed as redundant of their claims against Douglas County.
Similarly, all claims against Blane McCann in his official capacity shall be dismissed
as redundant of Plaintiffs’ claims against Westside Community Schools.
Plaintiffs’ new allegations in their amended complaint are sufficient to allege
the existence of an unconstitutional policy of the City of Omaha, Douglas County, and
Westside Community Schools. Accordingly, I shall deny the motions to dismiss filed
17

In Goss v. Lopez, 419 U.S. 565 (1975), the Supreme Court held that a state
must recognize as a property interest a student’s legitimate entitlement to a public
education and that such a property interest may not be terminated for misconduct
without some minimum due process protection. See also Stevenson, 2015 WL
5090672, at *11 (once state has established and maintains public school system, state
must recognize student’s legitimate entitlement to public education as a property
interest protected by the Due Process Clause against unfair or mistaken exclusion
from the educational process). Here it is alleged that Westside Community Schools’
policy resulted in Dakota Parsons’ unfair exclusion from the educational process
because he was not allowed to return to school after the expulsion period, despite his
having completed all necessary requirements.
42

by the these entities regarding Plaintiffs’ section 1983 “policy” claims, but grant the
motions to dismiss as to Plaintiffs’ “custom” claims.
To the extent Plaintiffs’ claims are based on the Fifth Amendment, such claims
shall be dismissed because Plaintiffs have not alleged that the federal government or
a federal action deprived them of property.
As against defendant Brenda Beadle in her individual capacity, Plaintiffs’
section 1983 claims shall be dismissed pursuant to Fed. R. Civ. P. 12(b)(6) as follows:
false-arrest claim shall be dismissed based upon qualified immunity, unlawfulimprisonment claim and claim for violation of the Eighth Amendment (bail) shall be
dismissed based upon absolute immunity, and the civil conspiracy claim shall be
dismissed due to the dismissal of the claims upon which alleged conspiracy is based.
Plaintiffs’ civil conspiracy claim against Mark Foxall individually must be
dismissed because Plaintiffs do not allege that Foxall participated in any aspect of the
alleged conspiracy. With regard to Plaintiffs’ section 1983 unlawful-imprisonment
claim, Foxall has absolute immunity from Plaintiffs’ suit for damages flowing from
the fact of Dakota Parsons’ incarceration. Therefore, Foxall will be dismissed from
this case in his individual capacity.
The Rule 12(b)(5) motion to dismiss for insufficiency of service of process will
be granted with respect to Douglas County. However, Plaintiffs shall be granted leave
to properly serve Douglas County within 20 days of the date of this memorandum and
order.
Because Plaintiffs have failed to allege specific facts regarding Douglas County
Attorney Don Kleine’s personal involvement in, or direct responsibility for, a
deprivation of Dakota Parsons’ constitutional rights, the motion to dismiss all claims
against Kleine individually pursuant to Fed. R. Civ. P. 12(b)(6) will be granted. In
addition, defendant Kent Kingston shall be dismissed from this case pursuant to Fed.
43

R. Civ. P. 12(b)(6) due to Plaintiffs’ failure to make any factual allegations regarding
Kingston’s involvement in the events leading to this lawsuit.
Plaintiffs’ abuse-of-process claim filed against defendants Douglas County and
Brenda Beadle in her individual capacity will be dismissed for failure to comply with
the Political Subdivisions Tort Claims Act, Neb. Rev. Stat. §§ 13-901 to 13-926.
Plaintiffs’ false-arrest and unlawful-imprisonment claims against defendant
Blane McCann in his individual capacity shall be dismissed pursuant to Fed. R. Civ.
P. 12(b)(6) because Plaintiffs have not alleged that McCann had the authority to effect
an arrest and subsequent imprisonment. Because Plaintiffs make no factual allegations
that Dakota Parsons was treated differently than other similarly situated students,
defendant McCann’s motion to dismiss Plaintiffs’ equal-protection claim must be
granted pursuant to Fed. R. Civ. P. 12(b)(6). Further, because Plaintiffs’ section 1983
claims against McCann for false arrest, unlawful imprisonment, and violation of
Parsons’ right to equal protection will be dismissed, the civil conspiracy claim based
on those underlying claims must also be dismissed. Defendant McCann’s motion to
dismiss Plaintiffs’ state-law abuse-of-process claim will be granted because
Nebraska’s Political Subdivisions Tort Claims Act does not waive sovereign
immunity for such claims. Finally, Plaintiffs’ state-law claim brought against McCann
pursuant to Neb. Rev. Stat. § 79-283 and Article VII, § 1, of the Nebraska
Constitution will be dismissed without prejudice for lack of jurisdiction because this
claim is not ripe for adjudication.
By the way, counsel for the plaintiffs would be well advised in the future to
refrain from a “scattershot” pleading approach. It detracts from the real issues in the
case. Just sayin’.
IT IS ORDERED:
1.

Defendant Omaha Police Department’s motion to dismiss (Filing 55) is
44

granted, and the Omaha Police Department is dismissed from this action as a
non-suable entity pursuant to Fed. R. Civ. P. 12(b)(6).
2.
Defendant City of Omaha’s motion to dismiss (Filing 55) is granted in
part and denied in part as follows: the motion to dismiss Plaintiffs’ section 1983
“custom” claim is granted, and the motion to dismiss Plaintiffs’ section 1983 “policy”
claim is denied without prejudice to the filing of a properly supported motion for
summary judgment.
3.
The motion to dismiss (Filing 60) based on Fed. R. Civ. P. 12(b)(6) filed
by Douglas County is granted in part and denied in part as follows: the motion to
dismiss Plaintiffs’ section 1983 “custom” claim is granted, and the motion to dismiss
Plaintiffs’ section 1983 “policy” claim is denied without prejudice to the filing of a
properly supported motion for summary judgment.
4.
The motion to dismiss (Filing 60) filed by the Douglas County
Attorney’s Office is granted, and the Douglas County Attorney’s Office is dismissed
from this action as a non-suable entity pursuant to Fed. R. Civ. P. 12(b)(6).
5.
The motion to dismiss (Filing 60) filed by Douglas County based on Fed.
R. Civ. P. 12(b)(5) is granted; however, Plaintiffs are granted leave to cure the lack
of service upon Douglas County by properly serving Douglas County within 20 days
of the date of this memorandum and order and submitting proof of service to the court,
in the absence of which Plaintiffs’ claims against Douglas County shall be dismissed
without prejudice.
6.
Plaintiffs’ claims against defendants Brenda Beadle, Don Kleine, and
Mark Foxall in their official capacities are dismissed as redundant of their claims
against Douglas County.
7.

The motion to dismiss (Filing 58) filed by defendant Mark Foxall in his
45

individual capacity is granted, and Foxall is dismissed from this case pursuant to Fed.
R. Civ. P. 12(b)(6).
8.
Plaintiffs’ Fifth Amendment claims against all parties are dismissed
pursuant to Fed. R. Civ. P. 12(b)(6).
9.
The motion to dismiss (Filing 62) filed by defendants Don Kleine and
Brenda Beadle in their individual capacities is granted, and Kleine and Beadle are
dismissed from this case pursuant to Fed. R. Civ. P. 12(b)(6).
10. The motion to dismiss (Filing 60) Plaintiffs’ state-law abuse-of-process
claim against defendant Douglas County is granted.
11. The motion to dismiss (Filing 66) filed by defendant Kent Kingston is
granted, and Kent Kingston is dismissed from this case pursuant to Fed. R. Civ. P.
12(b)(6).
12. Plaintiffs’ claims against defendant Blane McCann in his official capacity
are dismissed as redundant of their claims against Westside Community Schools.
13. The motion to dismiss (Filing 66) filed by defendant Blane McCann in
his individual capacity is granted pursuant to Fed. R. Civ. P. 12(b)(6) as to Plaintiffs’
section 1983 claims for false arrest, unlawful imprisonment, equal protection, and
civil conspiracy, and as to Plaintiffs’ state-law claim for abuse of process. The motion
to dismiss shall further be granted as to Plaintiffs’ state-law claim under Neb. Rev.
Stat. § 79-283 and Article VII, § 1, of the Nebraska Constitution, because this claim
is not ripe for adjudication; accordingly, this state-law claim is dismissed without
prejudice for lack of jurisdiction.
14. The motion to dismiss (Filing 66) based on Fed. R. Civ. P. 12(b)(6) filed
by Westside Community Schools is granted in part and denied in part as follows: the
46

motion to dismiss Plaintiffs’ section 1983 “custom” claim is granted, and the motion
to dismiss Plaintiffs’ section 1983 “policy” claim is denied without prejudice to the
filing of a properly supported motion for summary judgment;
15.

The remaining claims and parties in this action are:
(a) Section 1983 “policy” claim against defendant City of Omaha
regarding its alleged policy of allowing participants in its Young Adult
Court program to be arrested and held without bond and without a
showing of probable cause at the unfettered discretion of the county
attorney.
(b) Section 1983 “policy” claim against defendant Douglas County
(providing that Plaintiffs cure the lack of service upon Douglas County)
for its alleged policy of encouraging and conspiring to effectuate
searches, seizures, and arrests of Young Adult Court participants without
probable cause and imprisoning them for an excessive amount of time
without bond and without being advised of the charges against them.
(c) Section 1983 “policy” claim against defendant Westside
Community Schools for its alleged policy of giving school
administrators unfettered discretion to act contrary to the determinations
of administrative hearing officers who review student disciplinary
actions.
(d) Section 1983 claims against John Does 1-15 (police officers) for
false arrest, wrongful search and seizure, and civil conspiracy.

DATED this 30th day of September, 2015.

47

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.
48