Hasenbank v. State of Nebraska

Filing 14

MEMORANDUM AND ORDER that this case may proceed to service of process against Ryan Martin in his individual capacity. Hasenbank's claims against the State of Nebraska, CPS, and Dale Weis are dismissed. The clerk is directed to send to Hasenban k a copy of the Complaint, a copy of this Memorandum and Order, and one summons form and one USM 285 form. If requested to do so in this matter, the US Marshal will serve all process in this case without prepayment of fees from Hasenbank. In making such a request, Hasenbank must complete the USM 285 form to be submitted to the clerk with the completed summons forms. The clerk is directed to set a pro se case management deadline in this case for 12/14/15: check for completion of service of summons. Ordered by Judge John M. Gerrard. (Copy mailed to pro se party as directed) (JSF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
HEATHER HASENBANK,
Plaintiff,
v.
STATE OF NEBRASKA, CPS,
RYAN MARTIN, and DALE WEIS,
Defendants.

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8:15CV88

MEMORANDUM
AND ORDER

This matter is before the court on its second pre-service screening of Plaintiff
Heather Hasenbank’s Complaint (Filing No. 4). In this pre-service screening, the
court will consider the allegations raised in Hasenbank’s Complaint and also those
raised in her supplemental pleadings (Filing Nos. 5, 9, 10, 11, and 13). Liberally
construed, Hasenbank alleged facts in her pleadings setting forth that Defendant Ryan
Martin and others removed Hasenbank’s children from her home on March 7, 2014,
without a court order and in the absence of exigent circumstances. (See Filing No. 11
at CM/ECF pp. 11-12.) For relief, Hasenbank seeks $4.9 million. (Filing No. 13 at
CM/ECF p. 5.) For the reasons that follow, the court will allow this action to proceed
to service of process against Ryan Martin in his individual capacity and dismiss this
action as to Hasenbank’s claims against the State of Nebraska, CPS, and Dale Weis.
I. APPLICABLE LEGAL STANDARDS ON INITIAL REVIEW
The court is required to review in forma pauperis complaints to determine
whether summary dismissal is appropriate. See 28 U.S.C. § 1915(e). The court must
dismiss a complaint or any portion of it that states a frivolous or malicious claim, that
fails to state a claim upon which relief may be granted, or that seeks monetary relief
from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B).

Pro se plaintiffs must set forth enough factual allegations to “nudge[] their
claims across the line from conceivable to plausible,” or “their complaint must be
dismissed.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 569-70 (2007); see also
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.”).
“The essential function of a complaint under the Federal Rules of Civil
Procedure is to give the opposing party ‘fair notice of the nature and basis or grounds
for a claim, and a general indication of the type of litigation involved.’” Topchian v.
JPMorgan Chase Bank, N.A., 760 F.3d 843, 848 (8th Cir. 2014) (quoting Hopkins v.
Saunders, 199 F.3d 968, 973 (8th Cir. 1999)). However, “[a] pro se complaint must
be liberally construed, and pro se litigants are held to a lesser pleading standard than
other parties.” Topchian, 760 F.3d at 849 (internal quotation marks and citations
omitted).
Liberally construed, Plaintiff here alleges federal constitutional claims. To state
a claim under 42 U.S.C. § 1983, a plaintiff must allege a violation of rights protected
by the United States Constitution or created by federal statute and also must show that
the alleged deprivation was caused by conduct of a person acting under color of state
law. West v. Atkins, 487 U.S. 42, 48 (1988); Buckley v. Barlow, 997 F.2d 494, 495
(8th Cir. 1993).
II. DISCUSSION
The circumstances under which a child can be removed from his or her parents’
custody without a court order are extremely limited. K.D. v. Cnty. of Crow Wing, 434
F.3d 1051, 1056 (8th Cir. 2006). In cases in which continued parental custody poses
an imminent threat to the child’s health or welfare, emergency removal of children
without a court order is constitutionally permitted. Id. Here, Hasenbank alleged
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Martin, a law enforcement officer, and other government officials went to
Hasenbank’s home and removed her children from her care and custody without a
court order despite Hasenbank’s insistence that they produce a warrant. Nothing in
the pleadings suggests the children were in imminent danger. Thus, upon review of
Hasenbank’s pleadings, and in light of the liberal pleading standard afforded to pro
se litigants, the court finds this action may proceed to service of process against
Defendant Ryan Martin based on alleged violations of Hasenbank’s Fourth and
Fourteenth Amendment rights. The court cautions Hasenbank that this is only a
preliminary determination based on the allegations in her Complaint and other
pleadings; it is not a determination of the merits of the pleadings or any defenses that
may be raised in response to the pleadings.
This matter may not proceed to service of process against Defendant Dale Weis
because Hasenbank did not allege any specific acts committed by Weiss. A complaint
that only lists a defendant’s name in the caption without alleging that the defendant
was personally involved in the alleged misconduct fails to state a claim against that
defendant. See Krych v. Hvass, 83 F. App’x 854, 855 (8th Cir. 2003) (citing Potter
v. Clark, 497 F.2d 1206, 1207 (7th Cir. 1974) (holding that court properly dismissed
a pro se complaint where the complaint did not allege that defendant committed a
specific act and the complaint was silent as to defendant except for his name appearing
in caption)). Because Hasenbank failed to allege that Weis was personally involved
in violating her constitutional rights, she failed to state a claim upon which relief may
be granted against him.
This matter may not proceed to service of process against the State of Nebraska
or CPS1 because the Eleventh Amendment to the United States Constitution provides
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The court can reasonably infer from Hasenbank’s allegations that “CPS” refers
to the Nebraska Department of Health and Human Services, the agency that employed
the caseworker who, together with Defendant Ryan Martin, removed Hasenbank’s
children from her home. (See Filing No. 11 at CM/ECF pp. 8, 11-12.)
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states, state agencies, and state officials acting in their official capacities with
immunity from suits brought by citizens of other states and from suits brought by a
state’s own citizens. See Hadley v. North Arkansas Cmty. Technical Coll., 76 F.3d
1437, 1438 (8th Cir. 1996), cert. denied, 519 U.S. 1148 (1997); Hans v. Louisiana,
134 U.S. 1, 15 (1890). An exception to this immunity was recognized by the Supreme
Court in Ex Parte Young, 209 U.S. 123 (1908), which permits prospective injunctive
relief against state officials for ongoing federal law violations. This exception does
not apply here where Hasenbank seeks monetary relief for past violations of federal
law against the State of Nebraska and one of its agencies. See Green v. Mansour, 474
U.S. 64 (1985). For these reasons, the court will dismiss Hasenbank’s claims against
the State of Nebraska and CPS.
IT IS THEREFORE ORDERED that:
1.
This matter may proceed to service of process against Ryan Martin in his
individual capacity based on alleged violations of Hasenbank’s Fourth and Fourteenth
Amendment rights.
2.
Hasenbank’s claims against the State of Nebraska, CPS, and Dale Weis
are dismissed.
3.
The clerk of the court is directed to send to Hasenbank a copy of the
Complaint, a copy of this Memorandum and Order, and one summons form and one
USM 285 Form.
Federal Rule of Civil Procedure 4(m) requires service of the complaint on a
defendant within 120 days of filing the complaint. However, Hasenbank is granted,
on the court’s own motion, an extension of time until 120 days from the date of this
order to complete service of process.

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4.
If requested to do so in this matter, the United States Marshal will serve
all process in this case without prepayment of fees from Hasenbank. In making such
a request, Hasenbank must complete the USM 285 form to be submitted to the clerk
of the court with the completed summons forms. Without these documents, the
United States Marshal will not serve process. Upon receipt of the completed forms,
the clerk of the court will sign the summons form and forward it to the Marshal for
service on the defendant, together with a copy of the Complaint.
5.
The clerk of the court is directed to set a pro se case management
deadline in this case with the following text: December 14, 2015: Check for
completion of service of summons.
DATED this 12th day of August, 2015.
BY THE COURT:
s/ John M. Gerrard
United States District Judge

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

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