Burr v. Gage County Sheriffs Department et al

Filing 8

MEMORANDUM AND ORDER - Plaintiff's claims against the Gage County Sheriff's Department and U.S. Marshals Fugitive Task Force are dismissed. Plaintiff shall have 30 days to file an amended complaint that states a claim upon which relief may be granted under the Fourth Amendment. Failure to file an amended complaint within the time specified by the court will result in the court dismissing this case without further notice to Plaintiff. The clerk of the court is directed to set the following pro se case management deadline: July 2, 2018: check for amended complaint. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party) (KLF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
CHARLES LEE BURR,
Plaintiff,

8:18CV4

vs.
GAGE COUNTY SHERIFFS
DEPARTMENT, and U.S.
MARSHALS FUGITIVE TASK
FORCE,

MEMORANDUM
AND ORDER

Defendants.
Plaintiff filed a Complaint on January 4, 2018. (Filing No. 1.) He has been
given leave to proceed in forma pauperis. (Filing No. 7.) The court now conducts
an initial review of Plaintiff’s Complaint to determine whether summary dismissal
is appropriate under 28 U.S.C. §§ 1915(e) and 1915A.
I. SUMMARY OF COMPLAINT
Plaintiff is a pretrial detainee in the custody of the Gage County Detention
Center in Beatrice, Nebraska. (Filing No. 1 at CM/ECF pp.2, 5.) He brings this
action pursuant to 42 U.S.C. § 1983 against the Gage County Sheriff’s Department
and the U.S. Marshals Fugitive Task Force. Liberally construed, he also sues U.S.
Marshals Tanner Hippen and Aaron Crooks and Gage County Sheriff’s
Department Deputies Z. Smith, Bebensee, and Matthew Ernst.1 (Id. at CM/ECF
p.7.)

1

See Miller v. Hedrick, 140 Fed. App’x 640, 641 (8th Cir. 2005) (citing Rice v. Hamilton
Air Force Base Commissary, 720 F.2d 1082, 1085 (9th Cir. 1983) (“[A] party may be properly in
a case if the allegations in the body of the complaint make it plain that the party is intended as a
defendant.”)).

Plaintiff asserts that the Defendants used excessive force to effect his arrest
on July 21, 2017, at Plaintiff’s stepfather’s house in Blue Spring, Nebraska. (Id. at
CM/ECF pp.5–7.) Plaintiff alleges that he was first tased in his right arm by
Deputy Smith through the passenger window of Plaintiff’s vehicle, after which
Plaintiff put up his hands and stated “I’m done.” (Id. at CM/ECF p.7.) Even though
he “was not resisting,” Plaintiff claims Deputy Bebensee broke out the driver’s
side window and Plaintiff was tased a second time in his left shoulder by U.S.
Marshal Tanner Hippen. (Id.) Plaintiff alleges the arresting officers then forcibly
removed him from the vehicle, slammed him to the ground, and beat him. As a
result, Plaintiff claims he suffered an acute kidney injury as well as abrasions,
bumps, and bruises for which he required an overnight stay in the hospital and
follow-up treatment. Plaintiff seeks $1.5 million in damages.
II. APPLICABLE LEGAL STANDARDS ON INITIAL REVIEW
The court is required to review prisoner and in forma pauperis complaints
seeking relief against a governmental entity or an officer or employee of a
governmental entity to determine whether summary dismissal is appropriate. See
28 U.S.C. §§ 1915(e) and 1915A. 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); 28 U.S.C. §
1915A(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.”).
2

“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).
III. DISCUSSION
Plaintiff seeks damages from the Defendants for violations of his Fourth
Amendment right to be free from excessive force. An officer may employ some
degree of physical force or threat thereof to effect an arrest or investigatory stop.
Chambers v. Pennycook, 641 F.3d 898, 905 (8th Cir. 2011). However, “[a]n
officer’s use of force violates the Fourth Amendment when it is objectively
unreasonable, given the facts and circumstances of the particular case, as ‘judged
from the perspective of a reasonable officer on the scene, rather than with the
20/20 vision of hindsight.’” Id. at 905–06 (quoting Graham v. Connor, 490 U.S.
386, 396–97 (1989)). In determining whether the force used to effect an arrest was
reasonable, courts must balance “the nature and quality of the intrusion on the

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individual’s Fourth Amendment interests against the countervailing governmental
interests at stake.” Id. at 906 (internal quotation marks and citations omitted).
A. Claims against Gage County Sheriff’s Department and Deputies
Plaintiff sues the Gage County Sheriff’s Department, and Gage County
Sheriff’s Department Deputies Z. Smith, Bebensee, and Matthew Ernst in their
official capacities. See Johnson v. Outboard Marine Corp., 172 F.3d 531, 535 (8th
Cir. 1999) (“This court has held that, in order to sue a public official in his or her
individual capacity, a plaintiff must expressly and unambiguously state so in the
pleadings, otherwise, it will be assumed that the defendant is sued only in his or
her official capacity.”). As an initial matter, the Gage County Sheriff’s Department
is not a distinct legal entity subject to suit. See Ketchum v. City of West Memphis,
Ark., 974 F.2d 81, 82 (8th Cir. 1992) (departments or subdivisions of local
government are “not juridical entities suable as such”); Friar v. Jackson Cnty.
Sheriff Dept., No. 1:14CV00097 BSM, 2014 WL 7073502, *2 (E.D. Ark. Dec. 12,
2014) (“[A] sheriff’s department is not subject to suit.”). Accordingly, Plaintiff’s
claims against the Gage County Sheriff’s Department are dismissed.
Liberally construed, Plaintiff’s claims against Deputies Smith, Bebensee,
and Ernst are claims against Gage County. “A suit against a public employee in his
or her official capacity is merely a suit against the public employer.” Johnson, 172
F.3d at 535. In order to state a plausible claim against Gage County, Plaintiff must
allege that a “policy” or “custom” caused a violation of his constitutional rights or
that Gage County failed to adequately train its employees. Snider v. City of Cape
Girardeau, 752 F.3d 1149, 1160 (8th Cir. 2014) (citing City of Canton v. Harris,
489 U.S. 378, 385 (1989)); Monell v. N.Y. Dep’t of Soc. Servs., 436 U.S. 658, 694
(1978)).

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An “official policy” involves a deliberate choice to follow a course of action
made from among various alternatives by an official who has the final authority to
establish governmental policy. Jane Doe A By and Through Jane Doe B v. Special
School Dist. of St. Louis County, 901 F.2d 642, 645 (8th Cir.1990) (citing Pembaur
v. City of Cincinnati, 475 U.S. 469, 483 (1986)). To establish the existence of a
governmental custom, a plaintiff must prove:
1) The existence of a continuing, widespread, persistent pattern of
unconstitutional misconduct by the governmental entity’s employees;
2) Deliberate indifference to or tacit authorization of such conduct by
the governmental entity’s policymaking officials after notice to the
officials of that misconduct; and
3) That plaintiff was injured by acts pursuant to the governmental
entity’s custom, i.e., that the custom was the moving force behind the
constitutional violation.
Jane Doe, 901 F.2d at 646.
Here, Plaintiff does not allege that there is a continuing, widespread,
persistent pattern of unconstitutional misconduct by Gage County’s employees, or
that Gage County’s policymaking officials were deliberately indifferent to or
tacitly authorized any unconstitutional conduct. In addition, Plaintiff does not
allege that an unconstitutional custom was the moving force behind the alleged
constitutional violation or that Gage County failed to adequately train its
employees. Plaintiff, thus, has failed to allege sufficient facts to “nudge” his claim
against Gage County across the line from conceivable to plausible.

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B. Claims against U.S. Marshals Fugitive Task Force and Marshals
Plaintiff also sues the U.S. Marshals Fugitive Task Force and U.S. Marshals
Tanner Hippen and Aaron Crooks under Bivens v. Six Unknown Named Agents of
the Federal Bureau of Narcotics, 403 U.S. 388 (1971).2 The U.S. Marshals Service
is a federal agency, and as such, Plaintiff cannot recover against the U.S. Marshals
Service (of which the Fugitive Task Force is part) for its alleged violation of his
constitutional rights. F.D.I.C. v. Meyer, 510 U.S. 471 (1994) (holding a Bivens
cause of action cannot be brought against a federal agency). As with the Gage
County Sheriff’s Department Deputies, Plaintiff has not specified in what capacity
U.S. Marshals Hippen and Crooks are sued so the court must assume they are sued
in their official capacity. See Johnson, supra.
Any claim against U.S. Marshals Hippen and Crooks in their official
capacities is a claim against the United States. Coleman v. Espy, 986 F.2d 1184,
1189 (8th Cir. 1993). “Sovereign immunity bars claims against federal officials in
their official capacity unless a waiver is unequivocally expressed by Congress.”
Id. With respect to constitutional tort claims for damages brought against the
United States or its agencies, Congress has not waived sovereign immunity.
F.D.I.C. v. Meyer, supra. Thus, Plaintiff cannot recover against the United States
on his Fourth Amendment excessive force claim because the federal government
and its agencies are immune from any such suit. Laswell v. Brown, 683 F.2d 261,
268 (8th Cir. 1982) (“Bivens and its progeny do not waive sovereign immunity for
actions against the United States; it implies a cause of action only against federal
officials.”).

2

Bivens actions are implied causes of action for damages against federal government officials in
their individual capacities for constitutional violations. Carpenter’s Produce v. Arnold, 189
F.3d 686, 687 (8th Cir. 1999). “As a general rule, Bivens claims and § 1983 claims are almost
identical and involve the same analysis.” Solomon v. Petray, 795 F.3d 777, 789 n.7 (8th Cir.
2015).

6

Subject to exceptions that are not relevant in this case, Congress has waived
sovereign immunity for negligence actions governed by the Federal Tort Claims
Act (FTCA). “The FTCA waives the government’s immunity in certain tort suits
by providing that the ‘United States shall be liable [for torts] . . . in the same
manner and to the same extent as a private individual under like circumstances.’”
Barnes v. U.S., 448 F.3d 1065, 1066 (8th Cir. 2006) (quoting 28 U.S.C. § 2674).
However, to the extent the Complaint can be construed as alleging claims under
the FTCA, Plaintiff has not alleged that he exhausted his administrative remedies
as required under the FTCA before filing his complaint, and exhaustion is a
jurisdictional prerequisite to filing a suit for recovery under the FTCA. Porter v.
Fox, 99 F.3d 271, 274 (8th Cir. 1996). “The FTCA bars claimants from bringing
suit in federal court until they have exhausted their administrative remedies.”
McNeil v. U.S., 508 U.S. 106, 113 (1993) (holding that despite the liberal
construction afforded to pro se pleadings, the prisoner’s complaint seeking FTCA
recovery was properly dismissed for failure to exhaust administrative remedies
before filing suit). Accordingly, to the extent Plaintiff seeks recovery from the
United States under the FTCA, his claim must be dismissed without prejudice.
C. Conclusion
Plaintiff’s Complaint fails to state a plausible claim for relief against the
Gage County Sheriff’s Department and its Deputies in their official capacities.
Plaintiff’s claims against the U.S. Marshals Fugitive Task Force and the two U.S.
Marshals in their official capacities are barred by sovereign immunity. However,
on its own motion, the court will grant Plaintiff leave to file an amended complaint
that states a Fourth Amendment excessive force claim upon which relief may be
granted against the named individual Gage County Sheriff’s Department Deputies
and U.S. Marshals. Failure to file an amended complaint within the time specified
by the court will result in the court dismissing this action without further notice to
Plaintiff.
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IT IS THEREFORE ORDERED:
1.
Plaintiff’s claims against the Gage County Sheriff’s Department and
U.S. Marshals Fugitive Task Force are dismissed.
2.
Plaintiff shall have 30 days to file an amended complaint that states a
claim upon which relief may be granted under the Fourth Amendment. Failure to
file an amended complaint within the time specified by the court will result in the
court dismissing this case without further notice to Plaintiff.
3.
The clerk of the court is directed to set the following pro se case
management deadline: July 2, 2018: check for amended complaint.
Dated this 1st day of June, 2018.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

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