Cambara Cambara et al v. Schlote et al

Filing 80

MEMORANDUM AND ORDER regarding plaintiff Keny Medrano Cambara's motion for clarification of previous orders: 72 and 35 .Ordered by Judge John M. Gerrard. (CCB)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
RUBEN CAMBARA CAMBARA, et.
al,
8:14-CV-260
Plaintiffs,
vs.

MEMORANDUM AND ORDER

AMBER SCHLOTE, et. al,
Defendants.
This matter is before the Court on plaintiff Keny Medrano Cambara's
Motion for Clarification and for Enlargement of Time to Amend Complaint
(filing 78). The Court, in an October 21, 2016 Order, granted Medrano
Cambara's motion for extension of time. Pursuant to the that Order, Medrano
Cambara has until October 31, 2016 to file an amended complaint.
The plaintiff also asks the Court for "clarification" regarding its
previous orders. There should be no confusion. But, to reiterate:
The Court, in its September 30, 2015 Memorandum and Order,
dismissed the following constitutional claims as to the City and County
Defendants1 without providing Medrano Cambara leave to replead: Fifth
Amendment due process, Eighth Amendment cruel and unusual punishment,
and Fourteenth Amendment disclosure of exculpatory information. Filing 35
at 8-10. The Court, in its subsequent Memorandum and Order, dismissed
these claims with respect to Haney and Project Harmony. Filing 72 at 16 n.4.
The aforementioned claims are dismissed as to each defendant and are no
longer before this Court.
Medrano Cambara's Sixth Amendment claim is also dismissed as to
each defendant. The Court granted Medrano Cambara leave to replead this
claim, and it was subsequently dismissed in the Court's September 12, 2016
The Court did not reach any of Medrano Cambara's constitutional claims as asserted
against Haney and Project Harmony in the first Memorandum and Order because she
failed to establish, for purposes of 12(b)(6), that either party was a "state actor." See filing
35 at 10-11. Her amended complaint cured this defect (although other problems remain).
So, the Court did not address the constitutional claims against Project Harmony or Haney
until its September 12, 2016 Order. See filing 72 at 13-16.
1

Memorandum and Order. Filing 72 at 7. The Sixth Amendment claim is
dismissed as to each defendant and is no longer before this Court.
Medrano Cambara's claims under Fourth Amendment unreasonable
seizure and Fourteenth Amendment due process are also denied as to all
defendants. But, as set forth in this Court's September 12, 2016
Memorandum and Order, she is provided leave to replead these claims (and
these claims only) against the City and County Defendants, and Project
Harmony and Haney. See filing 72 at 18-20. These claims were denied in the
September 12, 2016 Order upon consideration of the defendants' renewed
motions to dismiss and corresponding briefing. Each defendant addressed,
among other issues, the inadequacies as pled of Medrano Cambara's
remaining constitutional claims—that is, her claims under the Fourth and
Fourteenth Amendments. See, filing 45 at 27-34; filing 48 at 8-11; filing 50 at
4-5; filing 54 at 4 (incorporating by reference County Defendants' arguments
with respect to the alleged constitutional violations). These arguments, at
least with respect to the City and County Defendants, addressed in part the
insufficiencies with respect to Medrano Cambara's "policy, practice or
custom" allegations. See, filing 54 at 7-9; filing 45 at 36-42.
In sum, and with respect to the § 1983 claims, the Court will consider
only Medrano Cambara's re-pled claims under the Fourth and Fourteenth
Amendment as to each defendant, should she file an amended complaint. The
Court refers counsel to pages 18-21 of the September 12, 2016 Order for
further instruction (filing 72).
Finally, given the nature and procedural history of this case, the Court
is not inclined to consider additional, newly-asserted arguments by the
defendants in any subsequent motions to dismiss under Fed. R. Civ. P.
12(b)(6). The Court's patience has already been tested by the piecemeal
nature of this litigation to this point. In other words, the substance of any
renewed 12(b)(6) motion, assuming the defendants choose to file one, should
be limited to arguments already raised in previous motions, or arguments
that were not available to the defendants at the time of their previous filings.
Dated this 24th day of October, 2016.
BY THE COURT:

John M. Gerrard
United States District Judge

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