Cambara Cambara et al v. Schlote et al

Filing 35

ORDER granting in part and denying in part 14 Motion to Dismiss; granting 17 Motion to Dismiss for Failure to State a Claim; granting in part and denying in part 19 Motion to Dismiss for Failure to State a Claim; granting 21 Motion to Dismiss for Failure to State a Claim. The County Defendants' and City Defendants' motions to dismiss are granted in part and denied in part. Haney's and Project Harmony's motions to dismiss are granted. The plaintiff's amended complaint, if any, shall be filed on or before October 22, 2015. Ordered by Judge John M. Gerrard. (DCD)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
KENY MEDRANO CAMBARA, et al.,
Plaintiff,

8:14-CV-260

vs.
MEMORANDUM AND ORDER
AMBER SCHLOTE, et al.,
Defendants.
Keny Medrano Cambara was tried for the death of Brianna Medrano, a
minor child she babysat, and was ultimately acquitted. Filing 1-1 at 3; see
filing 15 at 1. She, her husband, and their minor children, are suing the
Omaha Police Department, the City of Omaha, individual Omaha police
officers (collectively, "City Defendants"), Douglas County, the Douglas County
Attorney's Office, Douglas County Attorney Don Kleine (collectively, "County
Defendants"), a non-profit called Project Harmony, and Suzanne Haney,
M.D., a Project Harmony employee. Filing 1-1 at 1–4. The City Defendants
(filing 19), County Defendants (filing 14), Project Harmony (filing 21), and
Haney (filing 17) have each filed a motion to dismiss on various grounds.
BACKGROUND
The plaintiffs bring claims of state law negligence and constitutional
claims under 42 U.S.C. § 1983, asserting that defendants committed various
wrongs in their investigation and prosecution of Keny Medrano Cambara for
Brianna Medrano's death. See generally filing 1-1.
First, the plaintiffs allege that the defendants negligently failed to
investigate Brianna Medrano's death, to produce exculpatory evidence, and to
otherwise follow relevant policies and procedures governing criminal
investigation and prosecution. Filing 1-1 at 4–7. As a result, according to the
plaintiffs, Medrano Cambara was "subjected to prolonged interrogation,
investigation, arrest, confinement without bail, monitoring, prosecution, and
trial," which plaintiffs allege caused physical and mental suffering,
humiliation, loss of wages, and other forms of damages. Filing 1-1 at 7.
Second, the plaintiffs assert that defendants "individually and acting in
concert, deliberately and with reckless disregard for the truth" falsified
evidence, failed to disclose exculpatory information, failed to properly
investigate, provided false testimony, and otherwise did not follow proper
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procedures governing criminal investigation and prosecution. Filing 1-1 at 8.
This resulted, according to the plaintiffs, in violations of Medrano Cambara's
Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendment rights. Filing 1-1 at
9.
Third, the plaintiffs allege that Douglas County, the City of Omaha,
and the Omaha Police Department had "policies, practices, and customs that
deprived . . . Medrano Cambara of her constitutional rights." Filing 1-1 at 10.
These include failure to train and supervise officers, failure to discipline
officers, and other practices that allegedly "were deliberately and
purposefully implemented to deprive the targets of criminal investigations of
their constitutional rights." Filing 1-1 at 10.
STANDARD OF REVIEW
A complaint must set forth a short and plain statement of the claim
showing that the pleader is entitled to relief. Fed. R. Civ. P. 8(a)(2). This
standard does not require detailed factual allegations, but it demands more
than an unadorned accusation. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
The complaint need not contain detailed factual allegations, but must provide
more than labels and conclusions; and a formulaic recitation of the elements
of a cause of action will not suffice. Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555 (2007). For the purposes of a motion to dismiss a court must take all of
the factual allegations in the complaint as true, but is not bound to accept as
true a legal conclusion couched as a factual allegation. Id.
And to survive a motion to dismiss under Fed. R. Civ. P. 12(b)(6), a
complaint must also contain sufficient factual matter, accepted as true, to
state a claim for relief that is plausible on its face. Iqbal, 556 U.S. at 678. 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. Where the well-pleaded facts do not permit the
court to infer more than the mere possibility of misconduct, the complaint has
alleged—but it has not shown—that the pleader is entitled to relief. Id. at
679.
Determining whether a complaint states a plausible claim for relief will
require the reviewing court to draw on its judicial experience and common
sense. Id. The facts alleged must raise a reasonable expectation that
discovery will reveal evidence to substantiate the necessary elements of the
plaintiff's claim. See Twombly, 550 U.S. at 545. The court must assume the
truth of the plaintiff's factual allegations, and a well-pleaded complaint may
proceed, even if it strikes a savvy judge that actual proof of those facts is
improbable, and that recovery is very remote and unlikely. Id. at 556.
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DISCUSSION
1. COUNTY AND CITY DEFENDANTS' MOTIONS TO DISMISS
Because the County Defendants and City Defendants raise largely the
same legal issues, the Court considers their motions together.
(a) Claims against the Douglas County Attorney's Office and the Omaha
Police Department
(i) Negligence claims
The plaintiffs have sued Douglas County, the City of Omaha, the
Douglas County Attorney's Office, and the Omaha Police Department for
negligence as political subdivisions. See filing 1-1 at 2; 14 at 8. The County
Defendants move to dismiss the negligence claim as to the Douglas County
Attorney's Office, arguing that the County Attorney's Office is not a political
subdivision or any other entity subject to suit under Nebraska law. Filing 15
at 7–8. Similarly, the City Defendants move to dismiss the negligence claim
as to the Omaha Police Department (OPD), contending it, too, is an entity not
subject to suit. Filing 20 at 2. The plaintiffs counter that the defendants
define "political subdivision" too narrowly, and that they should be allowed to
maintain their negligence claims against the County Attorney's Office and
OPD. See filing 14 at 8; 28 at 8.
According to Neb. Rev. Stat. § 23-101, "Each county, established in this
state according to the laws thereof, shall be a body politic and corporate, by
the name and style of The county of ….., and by that name may sue and be
sued . . . ." Similarly, Neb. Rev. Stat. § 14-101 states that cities have the
capacity to be sued. In addition to these specific provisions for counties and
cities, Nebraska law provides that any government entity may be sued in its
own name if it is an independent political subdivision. Neb. Rev. Stat. § 13903. Political subdivisions include "villages, cities of all classes, counties,
school districts, learning communities, public power districts, and all other
units of local government." Id. A political subdivision is characterized by "a
governing body with the power and authority to appropriate funds and make
expenditures." Meyer v. Lincoln Police Dept., 347 F. Supp. 2d 706, 707 (D.
Neb. 2004).
Departments and agencies of county or municipal governments are not
political subdivisions under Nebraska law. See Holmstedt v. York County Jail
Supervisor, 736 N.W.2d 449, 461 (Neb. App. 2007). A government department
or agency is not a separate legal entity, but an "alter ego[] of the state itself."
Catania v. Univ. of Neb., 282 N.W.2d 27, 30 (Neb. 1979). Thus, a plaintiff
with a claim against—for example—a department of the county government
must sue the county, rather than the department itself. Holmstedt, 736
N.W.2d at 461.
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Nebraska courts have concluded that a county sheriff's department is
not an independent political subdivision; rather, it is a department of the
county government. Id. The Court sees no difference between a county
sheriff's department and a county attorney's office or city police department.
No facts before the Court lead to the inference that either the County
Attorney's Office or OPD have their own governing bodies with the power to
levy taxes or make expenditures. Other federal courts interpreting Nebraska
law have come to the same conclusion. See Meyer, 347 F. Supp. 2d at 707;
White v. Smith, 2009 WL 3335967 at *10 (D. Neb. 2009). For these reasons,
the Court grants the County and City Defendants' motions to dismiss the
negligence claims against the County Attorney's Office and OPD.
(i) Section 1983
The County Defendants also move to dismiss the plaintiffs' § 1983
claims against the County Attorney's Office, contending that the County
Attorney's Office is not subject to suit under § 1983 both because it is not
subject to suit under Nebraska law, and because it is not a "person" under §
1983. The City Defendants move to dismiss the § 1983 claim against OPD for
the same reasons.
Fed. R. Civ. P. 17(b)(3) states that a court must look to "the law of the
state where the court is located" to determine whether the defendant has the
capacity to be sued. See White, 2009 WL 3335967 at *10. As discussed above,
neither the County Attorney's Office nor OPD has the capacity to be sued
under Nebraska law, because neither has an independent legal identity.
Thus, neither can be sued under § 1983. The Court does not reach the
question of whether either the County Attorney's Office or OPD are "persons"
under § 1983. The Court dismisses the plaintiffs' § 1983 claims with respect
to the County Attorney's Office and OPD.
(b) Negligence claim against Douglas County and City of Omaha
The County Defendants move to dismiss the plaintiffs' negligence
claims against Douglas County and Kleine, arguing that political
subdivisions and their employees are immune from claims arising from "false
arrest, false imprisonment, malicious prosecution, and misrepresentation,"
even if styled as negligence claims. Filing 15 at 16. For the same reasons, the
City Defendants move to dismiss the plaintiffs' negligence claims against the
City of Omaha and its employees Schlote, Hernandez, Yanez, and Worthy.
Filing 20 at 3.
Under Neb. Rev. Stat. § 13-902, a political subdivision and its
employees are immune from tort claims except as provided by the Political
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Subdivisions Tort Claims Act (PSTCA), Neb. Rev. Stat. §§ 13-901, et seq.1 The
PTSCA specifies that it does not waive immunity for "[a]ny claim arising out
of assault, battery, false arrest, false imprisonment, malicious prosecution,
abuse of process, libel, slander, misrepresentation, deceit, or interference
with contract rights." Neb. Rev. Stat. § 13-910(7).
An action may "arise out of" one of these enumerated intentional torts
even if it is styled as a negligence action. According to the Nebraska Supreme
Court, "[The exception] does not merely bar claims for assault or battery; in
sweeping language it excludes any claim arising out of assault or battery. We
read this provision to cover claims like [the plaintiff's] that sound in
negligence but stem from a battery committed by a Government employee."
Britton v. City of Crawford, 803 N.W.2d 508, 517 (Neb. 2011) (alterations in
original) (quoting United States v. Shearer, 473 U.S. 52, 105 (1985).
For example, in Britton, the plaintiff alleged that a police officer was
negligent in his decision to shoot a suspect instead of engaging in negotiation
or other nonviolent conflict resolution. Id. at 512. The Nebraska Supreme
Court concluded the negligence claim was a "semantic recasting of events,"
reasoning that although the negligence may have caused the battery, without
the battery there would have been no claim. Id. at 518. Because the "alleged
negligence was inextricably linked to a battery," the PSTCA barred the suit.
Id.
Here, as in Britton, the "allegation is that the Government was
negligent . . . and that the intentional tort occurred as a result." Id. (quoting
Johnson v. State, 700 N.W.2d 620, 625 (Neb. 2005)). According to the
plaintiffs, the City and County Defendants committed several negligent acts,
including negligently providing false testimony, failing to investigate, and
failing to disclose exculpatory information. Filing 1-1 at 4–5. But defendants'
alleged negligence did not, on its own, harm the plaintiffs. Rather, the
plaintiffs allege that as a "direct and proximate result" of the defendants'
negligence, Medrano Cambara "was subjected to prolonged interrogation,
investigation, confinement without bail, monitoring, prosecution, and trial."
Filing 1-1 at 7. These are claims that sound in the intentional torts of false
imprisonment, malicious prosecution, and misrepresentation.
First, the allegations of wrongful imprisonment and confinement
describe the tort of false imprisonment—"the unlawful restraint against his
Plaintiffs have alleged that Klein, Schlote, Hernandez, Yanez, and Worthy all acted
within the scope of their employment at the time of the allegedly negligent conduct. Filing
1-1 at 3. For the purposes of a motion to dismiss, the Court takes all allegations in the
complaint as true. See Twombly, 550 U.S. at 555. Therefore, the Court considers the
PSTCA's preservation of immunity to apply to each of the individual employees, just as it
applies to their employers.
1

5

will of an individual's personal liberty." See Herbrick v. Samardick & Co., 101
N.W.2d 488, 491 (Neb. 1960). Next, the allegations of wrongful interrogation,
investigation, prosecution, and trial describe the tort of malicious
prosecution—the malicious commencement of proceedings against an
individual without probable cause which terminate in the accused's favor. See
McKinney v. Okoye, 842 N.W.2d 581, 591 (2014). Finally, to the extent that
plaintiffs complain of false testimony and other evidence, those allegations
constitute claims of misrepresentation—conveying, willfully or negligently,
inaccurate information. See Stonacek v. City of Lincoln, 279 Neb. 869, 883,
782 N.W.2d 900, 911 (2010).
In sum, the negligence that the plaintiffs allege is inextricably linked to
false imprisonment, malicious prosecution, and misrepresentation. The
PSTCA specifically provides that claims arising from these torts may not be
brought against political subdivisions and their employees. The fact that
negligence allegedly led the defendants to commit those torts is not sufficient
to circumvent the PTSCA's preservation of immunity. The plaintiffs'
negligence claims against Douglas County, Kleine, the City of Omaha, and
Klein, Schlote, Hernandez, Yanez, and Worthy are dismissed.
(c) Plaintiffs Ruben Cambara Cambara, Angie Cambara Medrano, and
Diana Cambara Medrano's § 1983 claims
The County Defendants argue that Ruben Cambara Cambara, both
individually and on behalf of minor children Angie and Diana Cambara
Medrano, fails to state a plausible claim for relief under § 1983. Filing 15 at
24. They contend that because the plaintiffs allege that only Keny Medrano
Cambara's constitutional rights were violated, the other plaintiffs have no
standing to bring a § 1983 claim. Filing 15 at 24. The City Defendants make
an analogous argument that Cambara Cambara and the minor children are
not real parties in interest as required by Fed. R. Civ. P. 17(a)(1). Filing 20 at
7.
As a prudential requirement of standing, a plaintiff "generally must
assert his own legal rights and interests, and cannot rest his claim to relief
on the legal rights or interests of third parties." Warth v. Seldin, 422 U.S.
490, 499 (1975). However, a plaintiff may assert the rights of a third party in
a limited range of circumstances. To determine whether this is appropriate in
a given case, courts consider two factors. First, courts consider "the
relationship of the litigant to the person whose rights he seeks to assert."
Singleton v. Wulff, 428 U.S. 106, 115 (1976). If the relationship is close, and
"[i]f the enjoyment of the right is inextricably bound up with the activity the
litigant wishes to pursue," the court can be sure the litigant "is fully, or very
nearly, as effective a proponent of the right" as the third party. Id. Thus, for
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instance, a doctor may assert his patient's right to contraceptives; his ability
to provide medical advice on contraceptives is "inextricably bound up" with
his patient's right to receive it. Id. Next, courts look to "the ability of the third
party to assert his own right." Id. at 115–16. Even if the plaintiff and third
party have a close relationship, only where there is "some genuine obstacle"
to the third party asserting his own rights may a plaintiff assert the third
party's rights on his behalf. Id. at 116.
The plaintiffs allege violations of constitutional rights belonging solely
to Medrano Cambara. In particular, they allege that she was seized in
violation of the Fourth and Fourteenth Amendments, deprived of due process
in violation of the Fifth and Fourteenth Amendments, deprived of a speedy
trial in violation of the Sixth and Fourteenth Amendments, and subjected to
cruel and unusual punishment in violation of the Eighth and Fourteenth
Amendments. Filing 1-1 at 7. The complaint contains no claims that the
rights of the other plaintiffs were violated; only that they were harmed by the
violations of Medrano Cambara's rights.
In their response to the County Defendants' motion to dismiss, the
plaintiffs allege violations of a Fourteenth Amendment right to familial
association belonging to Cambara Cambara and the minor children. Filing 29
at 11–12. However, the allegations in the complaint are not sufficient for the
Court to draw the reasonable inference that the defendants are liable for this
violation. See Iqbal, 556 U.S. at 678. Wrongful prosecution or incarceration of
a family member alone is not sufficient to establish a violation of the right to
familial association. Reasonover v. St. Louis Cnty., Mo., 447 F.3d 569, 585
(8th Cir. 2006). Rather, violation of the right requires intent to interfere with
the familial relationship. Id. Plaintiffs have not alleged any facts that could
support an inference of such intent here.
Because Cambara Cambara and the minor children have not properly
alleged violations of their own rights, their § 1983 claim survives only if they
can establish third-party standing to assert Medrano Cambara's rights. But
the relationship between Medrano Cambara and her husband and children is
not the kind of relationship that gives rise to third-party standing. They do
not seek to pursue some activity which has been prohibited to them in
violation of Medrano Cambara's rights; rather, they allege that they have
already been harmed by the alleged violations. Further, they cannot argue
that Medrano Cambara is unable to assert her own rights; as a party to this
lawsuit, she can and has done so. Thus, the Court finds that third-party
standing is inappropriate for this case. The Court does not reach the City
Defendants' Fed. R. Civ. P. 17(a)(1) argument. The § 1983 claims of Cambara
Cambara and the minor children are dismissed.
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(d) Constitutional violations and § 1983
Next, the City and County Defendants argue that Medrano Cambara
has failed to state a plausible claim for relief with respect to the alleged
violations of her Fifth Amendment due process rights, Sixth and Fourteenth
Amendment speedy trial right, Eighth Amendment and Fourteenth right
against cruel and unusual punishment, and Fourteenth Amendment right to
Brady disclosures. See, filing 15 at 27; 20 at 7–8. The City Defendants
additionally contend that Medrano Cambara cannot state a plausible claim
for relief with respect to any alleged violations of Fourteenth Amendment due
process rights. Filing 20 at 8.
(i) Fifth Amendment Due Process
The plaintiffs have alleged that defendants deprived Medrano Cambara
of her liberty "without due process of law in violation of the Fifth and
Fourteenth Amendments." Filing 1-1 at 9. The City and County Defendants
argue that because the Fifth Amendment due process right is a limitation on
federal, rather than state, actors, the plaintiffs' alleged Fifth Amendment
violations should be dismissed. Filing 15 at 28–29; 20 at 8.
The complaint asserts that defendants are either political subdivisions
or employees of political subdivisions of the state. See filing 1-1 at 2–3. They
do not allege that any defendant is a federal actor. Thus, the proper claim is
that the defendants violated Medrano Cambara's Fourteenth Amendment
due process rights, not her Fifth Amendment due process rights. See
Baribeau v. City of Minneapolis, 596 F.3d 465, 484 (8th Cir. 2010). To the
extent that Medrano Cambara pleads a violation of her Fifth Amendment due
process rights, that claim is dismissed. However, Medrano Cambara may still
pursue her claims that defendants violated her due process rights under the
Fourteenth Amendment.
The City Defendants contend that the same logic applies to the alleged
violations of Medrano Cambara's Fourth, Sixth, and Eighth Amendment
rights. Filing 20 at 8. However, the Court construes the plaintiffs to be
alleging violations of each of those rights as incorporated to the states
through the Fourteenth Amendment. Consequently, the Court denies the
City Defendants' motion to dismiss the Fourth, Sixth, and Eighth
Amendment claims on those grounds.
(ii) Sixth Amendment Speedy Trial
Medrano Cambara alleges that defendants violated her Sixth and
Fourteenth Amendment right to a speedy trial. Filing 1-1 at 9. The City and
County Defendants argue that this claim should be dismissed because
8

Medrano Cambara has alleged no facts supporting an inference her trial was
delayed in any way. Filing 15 at 27; 20 at 9.
To determine if an individual's speedy trial right has been violated, the
court must balance the following four factors: "[l]ength of delay, the reason
for the delay, the defendant's assertion of his right, and prejudice to the
defendant." Barker v. Wingo, 407 U.S. 514, 530 (1972). Here, Medrano
Cambara has alleged nothing that indicates her trial was delayed at all, let
alone why or for how long, or whether the delay prejudiced her. Because the
Court is unable to draw the reasonable inference that the defendants are
liable for this violation, Medrano Cambara's claim for violation of her speedy
trial right is dismissed. See Iqbal, 556 U.S. at 678. However, Medrano
Cambara is given leave to replead this claim with greater particularity.
(iii) Eighth Amendment Cruel and Unusual Punishment
The County and City Defendants argue that Medrano Cambara cannot
state a plausible claim for relief for an alleged violation of her Eighth and
Fourteenth Amendment right against cruel and unusual punishment because
she was never convicted. Filing 15 at 31; 20 at 9–10.
The Eighth Amendment, as incorporated to the states through the
Fourteenth Amendment, offers protection for defendants who have been
convicted of crimes. See Bell v. Wolfish, 441 U.S. 520, 535 (1979). Pretrial
detainees may bring claims for violations of their rights during detention only
under Fourteenth Amendment due process. Id. at 536. Here, Medrano
Cambara was acquitted. Filing 1-1 at 3. Therefore, she cannot sustain a cruel
and unusual punishment claim under the Eighth and Fourteenth
Amendments. Her § 1983 claim with respect to the alleged violation of
Medrano Cambara's right against cruel and unusual punishment is
dismissed.
(iv) Fourteenth Amendment Brady Violations
The County Defendants argue that to the extent Medrano Cambara
alleges a violation of her Fourteenth Amendment right to disclosure of
exculpatory material, she cannot state a plausible claim for relief. Filing 15
at 33. A violation of this right, known as a Brady violation, occurs when the
state has failed to provide a defendant with evidence favorable to her defense,
and the suppressed evidence reasonably could have produced a different
verdict. See Livers v. Schenck, 700 F.3d 340, 359 (8th Cir. 2012). In other
words, an individual's Fourteenth Amendment right to exculpatory evidence
is violated only if that individual is convicted. Id. Here, Medrano Cambara
was acquitted, so she cannot state a plausible claim for relief for a Brady
9

violation. The Court dismisses her § 1983 claim with respect to the alleged
violation of the Fourteenth Amendment right to exculpatory evidence.
(v) Fourteenth Amendment Due Process
The City Defendants argue that Medrano Cambara cannot state a
plausible claim for relief with respect to any violation of her Fourteenth
Amendment due process rights because she was acquitted. Filing 20 at 9.
They contend that "[i]t defies logic to assert a due process violation when the
due process protections provided" resulted in acquittal. Filing 20 at 9.
But in many circumstances a criminal defendant's due process rights
can be violated even without a conviction. For instance, in a § 1983 case
involving failure to investigate, the Eighth Circuit permitted the plaintiff to
bring claims for due process violations even though he was acquitted of
criminal charges. See Akins v. Epperly, 588 F.3d 1178, 1183 n.2 (8th Cir.
2009). The Fourteenth Amendment right that was violated was not the right
to be free from an unjust conviction, but the right to "obtain[] fair criminal
proceedings before being denied one's liberty in the most traditional sense."
Id. (quoting Wilson v. Lawrence Cnty., 260 F.3d 946, 956 n.8 (8th Cir. 2001)).
Thus, because there is no general rule that due process is violated only
upon conviction, Medrano Cambara is not barred from pursuing her
Fourteenth Amendment due process claims. The City Defendants' motion to
dismiss Medrano Cambara's § 1983 claim with respect to alleged violations of
her Fourteenth Amendment due process rights is denied.
2. HANEY AND PROJECT HARMONY'S MOTIONS TO DISMISS
Because Haney and Project Harmony raise largely the same legal
issues, the Court considers their motions together.
(a) Plaintiffs Ruben Cambara Cambara, Angie Cambara Medrano, and Diana
Cambara Medrano's § 1983 claims
As discussed above, the Court has dismissed the § 1983 claims as to
plaintiffs Ruben Cambara Cambara, Angie Cambara Medrano, and Diana
Cambara Medrano.
(b) Color of law under § 1983
Haney and Project Harmony argue that Medrano Cambara's § 1983
claims against them should be dismissed because they are not state actors,
and the plaintiffs have alleged no facts that could reasonably lead the Court
to infer that Haney or Project Harmony acted under color of state law. See,
filing 18 at 6; 22 at 4. Haney also argues that plaintiffs cannot state a
plausible claim that she violated their constitutional rights, while Project
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Harmony argues that to the extent that Haney did violate the plaintiffs'
constitutional rights, Project Harmony cannot be held liable for those
violations. Filing 18 at 10; 22 at 8.
Section 1983 allows plaintiffs to bring claims only against persons who
violate their constitutional rights under color of state law. § 1983. A private
actor can be considered to act under color of state law "if, though only if, there
is such a 'close nexus between the State and the challenged action' that
seemingly private behavior 'may be fairly treated as that of the State itself.'"
Brentwood Acad. v. Tennessee Secondary Sch. Athletic Ass'n, 531 U.S. 288,
295 (2001) (quoting Jackson v. Metro. Edison Co., 419 U.S. 345, 351 (1974)).
This "close nexus" exists where the private party is "'a willful
participant in joint activity with the State' in denying a plaintiff's
constitutional rights." Magee v. Trustees of Hamline Univ., Minn., 747 F.3d
532, 536 (8th Cir. 2014) (quoting Dossett v. First State Bank, 399 F.3d 940,
947 (8th Cir. 2005)). Thus, to survive a motion to dismiss, a "plaintiff must
plausibly allege 'a mutual understanding, or a meeting of the minds, between
the private party and the state actor.'" Id. In doing so, the plaintiff must
allege something more than "multiple contacts" between the private party
and the state; rather, she must plead "specific facts plausibly connecting" the
alleged concerted action to the alleged violation. Id.
Here, the plaintiffs alleges that Project Harmony is a non-profit
corporation, and that Haney is Project Harmony's employee. Filing 1-1 at 3.
Thus, both are private parties. The plaintiffs further allege that all of the
defendants "act[ed] in concert," but fail to make any more specific allegations
that there was a meeting of the minds between the state and Haney or
Project Harmony. See filing 1-1 at 8. Because the Court is unable to draw the
reasonable inference that Haney and Project Harmony acted under color of
state law, the § 1983 claims against Haney and Project Harmony are
dismissed. See Iqbal, 556 U.S. at 678. However, Medrano Cambara is granted
leave to replead her claims with more specificity. The Court does not reach
Haney's and Project Harmony's additional arguments with respect to § 1983.
(c) Negligence – Haney
The plaintiffs have alleged that Haney was negligent in forming her
medical opinions as to Brianna Medrano's cause of death, see filing 1-1 at 6,
and that, as a result, Medrano Cambara was subjected to wrongful
investigation and prosecution. See filing 1-1 at 7. Haney argues that
Nebraska does not recognize a negligence claim against a private party for
bringing about an individual's prosecution without exercising due care. Filing
18 at 12.
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Under Nebraska law, a private citizen is not liable for a prosecutor's
actions "so long as any ensuing prosecution is left entirely to the officials'
discretion." McKinney v. Okoye, 842 N.W.2d 581, 592 (Neb. 2014). However,
"a prosecution is not considered the result of the prosecuting authorities'
independent discretion if the informant either (1) directs or counsels officials
in such a way so as to actively persuade and induce the officers' decision or
(2) knows that the information provided is false or misleading." Id.
Here, plaintiffs have implied that Haney provided information either to
police or prosecutors. See filing 1-1 at 6. However, they have not pled any
facts that could plausibly support an inference either that Haney provided
this information knowing it was false, or that she pressured officials into
prosecuting Medrano Cambara. Thus, the Court dismisses the plaintiffs'
negligence claims against Haney. However, plaintiffs are granted leave to
replead this claim with greater particularity.
(d) Negligence – Project Harmony
Project Harmony argues that the plaintiffs' negligence claims should be
dismissed against Project Harmony as well. Plaintiffs' negligence claims
against Project Harmony are based on its alleged negligent supervision and
training of Haney. Filing 1-1 at 6. Project Harmony argues that because
Haney cannot be held liable for negligence under Nebraska law, it cannot be
held liable for her allegedly negligent actions either. Filing 22 at 12– 13.
Under Nebraska law, "for the doctrine of respondeat superior to apply,
an employee must be liable for a tort committed in the scope of his
employment. Likewise, an underlying requirement in actions for negligent
supervision and negligent training is that the employee is individually liable
for a tort or guilty of a claimed wrong against a third person, who then seeks
recovery against the employer." Schieffer v. Catholic Archdiocese of Omaha,
508 N.W.2d 907, 913 (Neb. 1993). In other words, an employer can only be
liable for the negligence of its employee if the employee is herself liable as
well.
As previously discussed, the Court has dismissed plaintiffs' negligence
claims against Haney. Thus, plaintiffs' negligence claims against Project
Harmony must be dismissed as well. However, plaintiffs are granted leave to
replead these claims with greater particularity.
IT IS ORDERED:
1. The County Defendants' and City Defendants' motions to
dismiss are granted in part and denied in part. Specifically,
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a. All the plaintiffs' claims against the County Attorneys'
Office and the Omaha Police Department are dismissed.
b. The plaintiffs' negligence claims against all City and
County Defendants are dismissed.
c. The § 1983 claims of Cambara Cambara, individually
and on behalf of Angie Cambara Medrano and Diana
Cambara Medrano, are dismissed.
d. The plaintiffs' § 1983 claims are dismissed with respect
to alleged violations of the rights of Fifth Amendment
due process, Sixth Amendment speedy trial, Eighth
Amendment cruel and unusual punishment, and
Fourteenth Amendment disclosure of exculpatory
information. Medrano Cambara may still pursue her §
1983 claims with respect to other alleged constitutional
violations.
2. Haney's and Project Harmony's motions to dismiss are
granted. Specifically,
a. The plaintiffs' § 1983 claims against Haney and Project
Harmony are dismissed. However, the plaintiffs are
granted leave to replead these claims with greater
particularity.
b. The plaintiffs' negligence claims against Haney and
Project Harmony are dismissed. However, the plaintiffs
are granted leave to replead these claims with greater
particularity.
3. The plaintiff's amended complaint, if any, shall be filed on
or before October 22, 2015.

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Dated this 30th day of September, 2015.
BY THE COURT:

John M. Gerrard
United States District Judge

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