York v. Dunning et al

Filing 9

MEMORANDUM AND ORDER - The County's Motion to Dismiss 3 is granted. York's Motion to Remand 6 is denied as moot. The Clerk of the Court is directed to set an amended complaint deadline of August 15, 2016. Ordered by Judge John M. Gerrard. (MKR)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
KENNETH YORK,
Plaintiff,

8:16-CV-175

vs.
MEMORANDUM AND ORDER
TIMOTHY DUNNING, SHERIFF OF
DOUGLAS COUNTY, NEBRASKA,
et al.,
Defendants.
The plaintiff in this case, Kenneth York, is bringing several claims
against Douglas County, Nebraska, arising out of his allegedly unlawful
arrest and detention on April 29, 2015. The County has moved to dismiss his
claims. The Court will grant the County's motion, but will afford York leave
to replead his complaint.
I. BACKGROUND
The events giving rise to this case began in the County Court for
Douglas County in August 2003, when York was sued on a financial
obligation. Filing 5-1 at 75-78.1 A default judgment was entered in March
2004. Filing 5-1 at 68. At the creditor's request, the county court entered an
order in aid of execution on July 20, 2005, commanding York to appear on
August 22 to give testimony under oath. Filing 5-1 at 17. York did not
appear, and on September 8, the county court issued a capias warrant to the
Douglas County Sheriff. Filing 5-1 at 10-11. But, the same day, a suggestion
of bankruptcy was filed advising the county court that York had filed a
bankruptcy petition. Filing 5-1 at 8-9. Accordingly, the county court
terminated the pending garnishment proceedings, stayed the case pursuant
to 11 U.S.C. § 362, and cancelled the capias. Filing 5-1 at 5-9. The capias was
The County has submitted the county court records in support of its motion to
dismiss. See filing 5. When deciding a motion to dismiss under Fed. R. Civ. P. 12(b)(6), the
Court is normally limited to considering the facts alleged in the complaint, and if the Court
considers matters outside the pleadings, the motion to dismiss must be converted to one for
summary judgment. Fed. R. Civ. P. 12(d). But the Court may take judicial notice of state
court records without converting the motion to dismiss to one for summary judgment. Levy
v. Ohl, 477 F.3d 988, 991 (8th Cir. 2007). The Court takes such notice here.
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received by the sheriff on September 9, but was "returned with No Further
Action Taken, per the instruction" of the county court judge. Filing 5-1 at 1.
Fast-forward to 2015: York alleges that he was sitting in his lawfully
parked car near 96th Street and Park Drive in Ralston, Nebraska, when he
was approached by two unnamed sheriff's deputies, who checked his
identification then arrested him on the basis of the 2005 warrant. Filing 1-1
at 2. He spent the night in jail. Filing 1-1 at 2. He sued the County, the
County sheriff, the two unnamed arresting deputies, and an unnamed agent
of the County "who negligently filed a fraudulent or mistaken warrant"
(collectively, the County),2 in state district court, asserting several state-law
claims and two federal Constitutional claims. Filing 1-1. The County removed
the case to federal court based on the federal questions presented. Filing 1.
The County now moves to dismiss York's claims. Filing 3.
II. 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

The sheriff and the Doe defendants are expressly named in their official capacities
only. Filing 1-1 at 2. But a suit against a public servant in his "official capacity" is a suit
against the municipality itself, not the individual. See Brandon v. Holt, 469 U.S. 464, 47273 (1985). So, the only meaningful defendant is the County.
The County contends that the official-capacity defendants "should be dismissed as
redundant of Plaintiff’s claims against Douglas County." Filing 4 at 6. The Court declines to
do so. There is some benefit to expressly describing the County employees whose conduct is
at issue, and the County has not identified any way in which it is prejudiced.
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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.
III. DISCUSSION
York's complaint asserts eight claims for relief: (1) trespass upon
solitude, (2) false light invasion of privacy, (3) malicious prosecution, (4)
abuse of process, (5) false imprisonment, (6) negligence, (7) Due Process, and
(8) the Fourth Amendment. But for reasons that will become apparent, it will
be helpful to group York's claims into two main categories: his six state-law
claims, and his two federal Constitutional claims.
1. STATE LAW CLAIMS
York's first six claims for relief are state-law tort claims. For some,
there is a question whether the facts alleged are plausible or consistent with
state law. But the primary question for each of these claims is whether they
may be brought against the County pursuant to the Nebraska Political
Subdivisions Tort Claims Act (PSTCA), Neb. Rev. Stat. § 13-901 et seq.
The PSTCA provides in relevant part that it does not apply to "[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). The
exceptions set forth in § 13–910 are affirmative sovereign immunity defenses
to claims brought pursuant to the PSTCA. Harris v. Omaha Hous. Auth., 698
N.W.2d 58, 65 (Neb. 2005). "In other words, if a political subdivision proves
that a plaintiff's claim comes within an exception pursuant to § 13–910, then
the claim fails based on sovereign immunity, and the political subdivision is
not liable." Harris, 698 N.W.2d at 65. And an action may "arise out of" one of
these enumerated intentional torts even if it is styled as something else. See
Britton v. City of Crawford, 803 N.W.2d 508, 517 (Neb. 2011); see also
Johnson v. State, 700 N.W.2d 620, 624 (Neb. 2005).

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(a) Malicious Prosecution, Abuse of Process, and False Imprisonment
York's malicious prosecution, abuse of process, and false imprisonment
claims are easily disposed of, because they fall within, and are barred by, the
plain language of § 13-910(7). York does not oppose dismissal of those claims.
Filing 7 at 2. In addition, the malicious prosecution claim rests on the
allegation that an unnamed County employee "caused a false warrant to be
issued." Filing 1-1 at 5. The abuse of process claim includes a similar
allegation. Filing 1-1 at 6. But a warrant is ordered by a magistrate, and
issued by a court clerk—a sheriff's responsibility is to serve and execute the
warrant, not to issue it. Neb. Rev. Stat. § 25-2233. And in Nebraska, neither
a county court judge nor a county court clerk is an agent of the county: they
are state employees. See, Neb. Rev. Stat. §§ 24-501, -507, -514, -519. As the
County points out, "Douglas County does not have policy-making authority
over judges." Filing 4 at 14.
Of course, in some instances, a sheriff's office is involved in the
issuance of a warrant—for instance, if a deputy applies for a search warrant.
But that was clearly not the case here. In light of the court records, and the
basic structure of the Nebraska court system, York's bare allegation that a
County employee—i.e., a sheriff's office employee—somehow "caused a false
warrant to be issued" is not plausible.
(b) Trespass Upon Solitude
Neb. Rev. Stat. § 20-203 provides that "[a]ny person, firm, or
corporation that trespasses or intrudes upon any natural person in his or her
place of solitude or seclusion, if the intrusion would be highly offensive to a
reasonable person, shall be liable for invasion of privacy." York alleges that
his automobile was a place of solitude or seclusion and that the sheriff's
deputies invaded that privacy when they arrested him. Filing 1-1 at 3.
This claim is insufficient for two reasons. First, the invasion of privacy
tort defined by § 20-203 consists solely of an intentional interference with a
person's interest in solitude or seclusion, either as to his person or as to his
private affairs or concerns, of a kind that would be highly offensive to a
reasonable person. Whipps Land & Cattle Co. v. Level 3 Commc'ns, LLC, 658
N.W.2d 258, 269 (Neb. 2003). Examples include entering a hospital room and
photographing a person suffering from a rare disease, "window peeking" or
wiretapping, forging a court order to access a person's bank records, or
photographing a person in a tanning booth without consent. Id. at 269-70. In
other words, there is a distinction between a mere trespass and an intrusion
into the private affairs or concerns protected by § 20-203. Id. at 270. And
what York has alleged—if anything—does not rise above mere trespass.

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But second, although styled as a claim for "invasion of privacy" or
"trespass," this claim is simply a recasting of York's false imprisonment
claim—or, more precisely, it is a claim "arising out of . . . false imprisonment"
within the meaning of § 13-910(7). As the Nebraska Supreme Court
explained, in the context of the exception for assault and battery claims,
"[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)). 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.
The Court acknowledges that, as a general principle, trespass claims
(or invasion of privacy claims) may not be barred by exclusions such as § 13910(7). See, Raz v. United States, 343 F.3d 945, 947-48 (8th Cir. 2003); Metz
v. United States, 788 F.2d 1528, 1535-36 (11th Cir. 1986); Black v. Sheraton
Corp., 564 F.2d 531, 539 (D.C. Cir. 1977); O'Ferrell v. United States, 968 F.
Supp. 1519, 1531 (M.D. Ala. 1997); see also Johnson, 700 N.W.2d at 623
(relying on Federal Tort Claims Act for guidance on similar state law). But
the only injury York alleges from the intrusion into his automobile is his
allegedly wrongful arrest. See filing 1-1 at 4. Absent more, this is simply a
reframing of his false imprisonment claim and, as such, is barred by § 13910(7). See Cambara v. Schlote, No. 8:14-CV-260, 2015 WL 5775766, at *4-5
(D. Neb. Sept. 30, 2015).

(c) False Light Invasion of Privacy
York alleges that the County invaded his privacy "and placed him
before the public in a false light" by "recklessly or knowingly allowing a false
warrant to issue" for him and "recklessly arresting [him] on the basis of the
false warrant." Filing 1-1 at 5; see Neb. Rev. Stat. § 20-204. The Court
questions whether York has sufficiently alleged that "the public" was aware,
in the slightest, of his arrest. See Schoneweis v. Dando, 435 N.W.2d 666, 670
(Neb. 1989). And as noted above, the claim that the County caused the
warrant to issue is not plausible. But more importantly, this claim is also
barred by § 13-910(7).
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To the extent that York has alleged that he was placed in a false light
before the public, courts have uniformly held that such claims are barred by
exclusions for claims of "libel," "slander," and "misrepresentation." See,
Lorenzo v. United States, 719 F. Supp. 2d 1208, 1212 (S.D. Cal. 2010);
Edmonds v. United States, 436 F. Supp. 2d 28, 36-37 (D.D.C. 2006); O'Ferrell,
968 F. Supp. at 1529-30; Hobdy v. United States, 762 F. Supp. 1459, 1462-63
(D. Kan. 1991); Byrd v. United States, 668 F. Supp. 1529, 1530 (M.D. Fla.
1987); Bosco v. Army Corps of Eng'rs, 611 F. Supp. 449, 452-53 (N.D. Tex.
1985); cf. Metz, 788 F.2d at 1535-36. While the tort of false light privacy
differs from that of defamation in the nature of the injury asserted, the
substance of such a claim involves the communication of false statements,
and as such arises out of "libel, slander, [or] misrepresentation." Hobdy, 762
F. Supp. at 1462; see O'Ferrell, 968 F. Supp. at 1530; see also Schoneweis, 435
N.W.2d at 670 ("it is essential to a false light invasion of privacy claim that
the publicized matter be false"); cf. Moats v. Republican Party of Neb., 796
N.W.2d 584, 597-98 (Neb. 2011). And, to the extent that York's "false light"
claim rests on his allegedly false arrest, it is barred as arising out of false
arrest or false imprisonment. See Cambara, 2015 WL 5775766, at *4-5.
(d) Negligence
Finally, York alleges that the County negligently failed to verify the
validity of the warrant before arresting him. Filing 1-1 at 7-8. But this claim
is squarely precluded by Britton. York "cannot avoid the reach of the
intentional torts exception by framing [his] complaint in terms of negligent
failure" to prevent an intentional tort. Britton, 803 N.W.2d at 517 (citing
Shearer, 473 U.S. 52). York's alleged injury arises out of false arrest or false
imprisonment, and his claim is barred by § 13-910(7).
2. FEDERAL CONSTITUTIONAL CLAIMS
York's final two claims are claims under 42 U.S.C. § 1983 for alleged
violation of the Fourth Amendment and Due Process Clause. Filing 1-1 at 810. Specifically, he alleges that his Due Process rights were violated when the
County "issued a false warrant" for York and arrested him "on the basis of
that warrant." Filing 1-1 at 8. And he alleges that his Fourth Amendment
rights were violated when the County "issued a warrant for [York] without
probable cause and . . . arrested [York] on the basis of that warrant." Filing 11 at 9. For each claim, York alleges that
[t]he issuance of the defective warrant and the failure to verify
the warrant resulted directly from the custom or policy of,
Douglas County, The Douglas County Sheriff's Office, and/or

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Sheriff Timothy F. Dunning. The faulty policies of the
aforementioned Defendants includes the mismanagement of
warrants, and the failure to properly verify warrants; these
policies resulted in Plaintiff's unlawful arrest.
Filing 1-1 at 9-10.
But both claims suffer from the same two defects.3 First, as explained
above, in the absence of some other allegation, it is simply not plausible that
the County caused the capias warrant to issue. The county court magistrate
and clerk who issued the warrant are not agents of the County.
Second, the only real defendant here is the County, and County liability
under § 1983 attaches where—and only where—a deliberate choice to follow
a course of action is made from among various alternatives by the County's
policymakers. Szabla v. City of Brooklyn Park, Minnesota, 486 F.3d 385, 390
(8th Cir. 2007). Where an official policy is itself unconstitutional or directs
employees to take unconstitutional action, no evidence beyond a statement of
the policy and its exercise is necessary to establish § 1983 liability. Moyle v.
Anderson, 571 F.3d 814, 818 (8th Cir. 2009). If, however, a policy is
constitutional on its face, but it is asserted that a political subdivision should
have done more to prevent constitutional violations by its employees, a
plaintiff must establish the existence of a "policy" by demonstrating that the
inadequacies were a product of deliberate or conscious choice by
policymakers. Szabla, 486 F.3d at 390.
So, only where a political subdivision's failure to adopt adequate
safeguards was the product of deliberate indifference to the constitutional
rights of its inhabitants will the municipality be liable for an unconstitutional
policy under § 1983. Id. Deliberate indifference is a difficult standard to meet.
Spencer v. Knapheide Truck Equip. Co., 183 F.3d 902, 906 (8th Cir. 1999). It
is possible that a single violation of constitutional rights can trigger liability,
where the violation is accompanied by a showing that the political
subdivision had failed to train its employees to handle recurring situations
presenting an obvious potential for such a violation. Szabla, 486 F.3d at 393.
But generally, proof of a single incident of unconstitutional activity is not
sufficient to impose liability, unless there is also proof that it was caused by
an existing, unconstitutional policy. See City of Oklahoma City v. Tuttle, 471
U.S. 808, 823-24 (1985). If an existing policy is not itself unconstitutional,
"considerably more proof than the single incident will be necessary in every

The County also asserts that York's claims fail because his injury was de minimis.
Filing 4 at 28-30. The Court questions whether a night of imprisonment is a de minimis
intrusion on a citizen's rights. But the Court need not answer that question now.
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case to establish both the requisite fault . . . and the causal connection
between the 'policy' and the constitutional deprivation." Id. at 824.
The problem here is that York has alleged no facts from which it could
be inferred that an unconstitutional policy exists, or that the County has
been deliberately indifferent to an obvious need to adopt a policy. See, Szabla,
486 F.3d at 393; Zimmerman v. Bellows, 988 F. Supp. 2d 1026, 1034 (D.
Minn. 2013). In the absence of any allegation suggesting that the County has
a history of arresting people on cancelled warrants, York has failed to state a
claim for County liability on the basis of policy or custom. See Zimmerman,
988 F. Supp. 2d at 1034; see also, Reynolds v. Dormire, 636 F.3d 976, 981 (8th
Cir. 2011); Spencer, 183 F.3d at 906.
3. LEAVE TO REPLEAD
York asks for leave to amend his complaint, contending that the
County has not provided him with the information he would need to plead his
claims with more specificity. Filing 7 at 2. The County opposes that request.
Filing 8 at 3-6. But the Court cannot foreclose the possibility that York may
be able to allege facts establishing the existence of a County policy, or
deliberate indifference to the need for a policy, or that York may be able to
allege a state law claim if he can more specifically allege how it came to pass
that he was arrested on a cancelled warrant. Clearly, someone made a
mistake, and if that someone worked for the County, perhaps there is a
claim. The Court will permit leave to file an amended complaint. Such
complaint, if any, shall be filed on or before August 15, 2016.
4. MOTION TO REMAND
York also protectively filed a motion to remand his state-law claims to
state court, in the event that the Court determined that his federal claims
should be dismissed. Filing 6. Essentially, York has asked the Court to
decline supplemental jurisdiction over his state-law claims. See Carlsbad
Tech., Inc. v. HIF Bio, Inc., 556 U.S. 635, 639-40 (2009). But having
concluded that York should be allowed leave to replead—and, therefore, that
the Court will retain jurisdiction for the time being—the Court has addressed
his state-law claims. His motion to remand will be denied as moot.
IT IS ORDERED:
1.

The County's motion to dismiss (filing 3) is granted.

2.

York's motion to remand (filing 6) is denied as moot.

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3.

The Clerk of the Court is directed to set an amended
complaint deadline of August 15, 2016.

Dated this 25th day of July, 2016.
BY THE COURT:

John M. Gerrard
United States District Judge

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