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Gary Lamont Abraham v. Douglas County

May 16, 2013

GARY LAMONT ABRAHAM, PLAINTIFF,
v.
DOUGLAS COUNTY, NEBRASKA, DEFENDANT.



The opinion of the court was delivered by: Lyle E. Strom, Senior Judge United States District Court

MEMORANDUM OPINION

This matter is before the Court on defendant Douglas County, Nebraska's ("Douglas County" or "defendant") Motion for Summary Judgment (Filing No. 49). For the reasons discussed below, the Court finds that defendant is entitled to summary judgment.

I. BACKGROUND

Plaintiff Gary Abraham ("Abraham") filed his complaint in this matter on September 7, 2011, against the Douglas County Sheriff's Department (Filing No. 1 at CM/ECF p. 1). The Court conducted an initial review of Abraham's complaint on October 14, 2011 (Filing No. 6). On initial review, the Court determined that Abraham had failed to state a claim upon which relief could be granted and provided him with an opportunity to amend his complaint. (Id.) Abraham filed an amended complaint on October 25, 2011, against Douglas County (Filing No. 7). Abraham's amended complaint is the operative complaint in this matter. In his amended complaint, Abraham seeks to hold Douglas County liable under 28 U.S.C. § 1983 for the allegedly unconstitutional actions of Douglas County Officers Christopher Yordt ("Yordt") and Joseph Martinec ("Martinec").

On November 21, 2012, defendant filed a Motion for Summary Judgment and a Brief and Index of Evidence in support of its Motion (Filing Nos. 49, 50, and 51). Abraham filed a Response to Defendant's Motion on December 6, 2012 (Filing No. 53).

II. DEFENDANT'S UNDISPUTED MATERIAL FACTS

The party seeking the entry of summary judgment in its favor must set forth "a separate statement of material facts about which the moving party contends there is no genuine issue to be tried and that entitles the moving party to judgment as a matter of law." NECivR 56.1(a)(1). If the non-moving party opposes the motion, that party must "include in its [opposing] brief a concise response to the moving party's statement of material facts." NECivR 56.1(b)(1). Such response must "address each numbered paragraph in the movant's statement and, in the case of any disagreement, contain pinpoint references to affidavits, pleadings, discovery responses, deposition testimony (by page and line), or other materials upon which the opposing party relies." Id. "Properly referenced material facts in the movant's statement are considered admitted unless controverted in the opposing party's response." Id.

Defendant submitted a statement of material facts in accordance with the Court's Local Rules. Further, defendant submitted evidence that was properly authenticated by affidavit. Abraham filed a response to defendant's Motion for Summary Judgment, but the response did not include anything that could be construed as a "concise response" to defendant's statement of materials facts under the court's local rules. (See Filing No. 53.) The Court deems this matter fully submitted and adopts the following relevant, undisputed material facts.

1. At all times relevant to this action, Abraham resided at 3327 North 163rd Plaza, Apartment 302, Omaha, Nebraska ("Apartment 302").

2. Yordt, Martinec, Denise Rieder ("Rieder"), and Matthew Martin ("Martin) are experienced law enforcement officers with the Douglas County Sheriff's Office ("DCSO"). They were each certified by the Nebraska Commission on Law Enforcement and Criminal Justice to perform duties as law enforcement officers. They completed training at the Nebraska Law Enforcement Training Center in Grand Island, Nebraska, and they receive other, ongoing training every year.

3. Timothy Dunning ("Dunning") is the sheriff of the DCSO. He is the ultimate decision and policy maker for the DCSO.

4. The DCSO distributes all policies and procedures to DCSO staff when they are hired and also as they are updated, including the policies regarding searches and seizures and the administrative investigation of complaints.

5. Prior to August 23, 2011, Yordt, Martinec, Rieder, and Martin had been trained on the provisions of GO-7-2007, which is the DCSO policy governing searches and seizures. Accordingly, they had been trained to afford all persons detained or arrested the full use of their constitutional rights and to treat them in a professional manner. Moreover, they had been instructed that

(1) they could make an investigatory stop of an individual only when they had reasonable suspicion supported by specific facts that a crime had been or was about to be committed by the person stopped; (2) they could conduct a pat-down search for weapons for officer safety only when they reasonably believed that the individual presented a potential danger to them; (3) they could only cross the threshold of a private residence in an arrest situation when exigent circumstances existed; (4) exigent circumstances existed only when there was an emergency situation requiring swift action to prevent imminent danger to life or serious damage to property, or to forestall the imminent escape of a suspect or destruction of evidence; (5) exigent entry was only allowed ...


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