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Stephenson v. Bruno

United States District Court, D. Nebraska

February 6, 2015

DAVID BRUNO, et al., Defendants.


LYLE E. STROM, Senior District Judge.

This matter is before the Court on the motion (Filing No. 28) of the defendants to dismiss the plaintiff's amended complaint (Filing No. 16) pursuant to Federal Rules of Civil Procedure 12(b)(5) and 12(b)(6). Plaintiff Eric Stephenson ("Stephenson") appears pro se and is proceeding in forma pauperis. Stephenson has filed an timely response which does not address the issues.[1] The Court finds as follows.


Stephenson filed his original complaint (Filing No. 1) pursuant to 28 U.S.C. § 1983 on May 12, 2014. He named the following individuals as the defendants: David Bruno, C.J. Roberts, Lincoln Police Department ("LPD") Officer D. Lind, and Deputy County Attorney Holly Parsley. The allegations in the complaint set forth that Bruno, acting as an investigator for the Nebraska Department of Health and Human Services ("DHHS"), took steps to remove Stephenson's five-week-old infant (hereinafter referred to by his initials, "M.S.") from Stephenson's care. On October 30, 2012, the Juvenile Court of Lancaster County, Nebraska, placed M.S. in the custody of DHHS. Thereafter, LPD officers forced their way into a motel room occupied by Stephenson, his girlfriend, and M.S. The officers forcibly removed M.S. from Stephenson's arms by placing Stephenson in a choke hold and twisting his arms. Stephenson later pled no contest to child abuse and was sentenced to 30 to 48 months imprisonment. In addition, his parental rights to M.S. were terminated (Filing No. 1, at 2-7; see also Filing No. 14, at 1-4).

Stephenson alleged in the original complaint that Bruno falsely accused him of exposing M.S. to domestic violence and drug abuse, his investigation into the allegations of abuse were negligent, and he violated Stephenson's right to substantive due process. He also alleged that LPD officers violated his right to substantive due process by "induc[ing]" him to commit child abuse. Finally, he alleged LPD officers failed to read him his Miranda rights following his arrest (Filing No. 1, at 8-9).

This Court reviewed Stevenson's original complaint (Filing No. 14). The Court granted Stephenson leave to file an amended complaint. This Court then evaluated Stevenson's amended complaint (Filing No. 21). In the amended complaint, Stephenson named as defendants Deputy County Attorney Holly Parsley, LPD Officers Dustin Lind, Craig Price, Jacob Wilkinson, and Angela Morehouse ( Id. at 3). The Court dismissed a number of claims and some defendants with prejudice. The Court allowed Stephenson to pursue a § 1983 action for violation of his Fourth Amendment protection against excessive force against defendants LPD officers Dustin Lind ("Lind"), Craig Price ("Price"), and Jacob Wilkinson ("Wilson") (collectively, the "defendants") in their individual capacities.

On November 12, 2014, the Court instructed Stephenson (Filing No. 21, at 9-11) to perfect service of process on the remaining defendants within 120 days of that order, which would be approximately March 13, 2015. Stephenson attempted to perfect service on or about November 26, 2014 (Filing No. 23). Each of the three summons were returned "executed upon defendant" Lind, Price, and Wilkinson (Filing No. 24, Filing No. 25, and Filing No. 26). The returned summons all bear the signature of Captain Morrow, who checked a box certifying he was designated by law to accept service of process on behalf of the LPD, where the defendants work.

Defendants raise two issues: first, that Stephenson failed to perfect service against the defendants in their individual capacities and second, that Stephenson failed to sufficiently plead his case against the defendants.


Federal Rule of Civil Procedure 12(b)(5) requires a plaintiff to follow the procedures set forth in Federal Rule of Civil Procedure 4. "If a defendant is improperly served, a federal court lacks jurisdiction over the defendant." Printed Media Servs., Inc., v. Solna Web, Inc., 11 F.3d 838, 843 (8th Cir. 1993).

Pursuant to Federal Rule Civil Procedure 12(b)(6), the Court must determine whether the complaint lacks a "cognizable legal theory" or "sufficient facts alleged under a cognizable legal theory." Balisteri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1990). The Court generally accepts as true the allegations in the complaint, construes the pleading in the light most favorable to the party opposing the motion, and resolves all doubts in the pleader's favor. Palmer v. Illinois Farmers Ins. Co., 666 F.3d 1081 (8th Cir. 2012). Pro se complaints are held to a less stringent standard than those drafted by attorneys and courts are charged with liberally construing a complaint filed by a pro se litigant to allow for the development of a potentially meritorious case. Jackson v. Nixon, 747 F.3d 537, 544 (8th Cir. 2014); see Hughes v. Rowe, 449 U.S. 5, 9 (1980). Liberal construction, however, does not mean a court can ignore a clear failure to allege facts which set forth a claim currently cognizable in a federal district court. Stringer v. St. James R-1 School Dist., 446 F.3d 799 (8th Cir. 2006).

To survive a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), the plaintiff must allege "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Determining whether a complaint states a plausible claim for relief is "a context-specific task" that requires the court "to draw on its judicial experience and common sense." Id. at 556. Under Twombly, a court considering a motion to dismiss may begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth. Ashcroft v. Iqbal, 556 U.S. 662, 664 (2009). Although legal conclusions "can provide the framework of a complaint, they must be supported by factual allegations." Id. Accordingly, the Supreme Court has prescribed a "two-pronged approach" for evaluating Rule 12(b)(6) challenges. Id. First, a court should divide the allegations between factual and legal allegations; factual allegations should be accepted as true, but legal allegations should be disregarded. Id. Second, the factual allegations must be examined for facial plausibility. Id.

"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. at 677-78 (stating that the plausibility standard does not require a probability, but asks for more than a sheer possibility that a defendant has acted unlawfully). A court must find "enough factual matter (taken as true) to suggest" that "discovery will reveal evidence" of the elements of the claim. Twombly, 550 U.S. at 558, 556. When the allegations in a complaint, however true, could not raise a claim of entitlement to ...

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