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Parsons v. McCann

United States District Court, D. Nebraska

March 31, 2015

DAKOTA PARSONS, and DENICE PARSONS, Plaintiffs,
v.
BLANE McCANN, et al., Defendants.

MEMORANDUM AND ORDER

RICHARD G. KOPF, Senior District Judge.

This matter is before me on five Motions to Dismiss. (Filings 26, 28, 30, 37, and 39.) As set forth below, I will grant the Motions to Dismiss. However, I will also provide Plaintiffs with the opportunity to file an amended complaint.

I. PLAINTIFFS' COMPLAINT

Dakota Parsons ("Dakota") and his mother Denice Parsons ("Denice" or "Dakota's Mother") filed their Complaint in this matter on July 18, 2014. (Filing 1.) In the Complaint, Plaintiffs allege numerous claims stemming from an incident at Westside High School ("WHS") that occurred following a band concert on October 25, 2012. (Id. at CM/ECF p. 3.) Dakota, who was a student at WHS, threw a firecracker out of a door following the concert. (Id. ) The firecracker exploded on the pavement. (Id. ) Although no one was injured, Dakota's backpack was searched and it contained materials to make another firecracker, or exploding device, and marijuana. (Id. ) Police subsequently searched Plaintiffs' home, allegedly finding additional marijuana in Dakota's room. (Id. ) Dakota was arrested and charged with Possession with Intent to Distribute Marijuana, Unlawful Possession of Explosive Materials, and Possession of a Destructive Device. (Id.; see also Filing 32-3.)[1]

After his arrest, and after an administrative hearing, Dakota was informed that he would be expelled from school until January 2014. (Filing 1 at CM/ECF p. 4.) Dakota appealed the decision, and his term of expulsion was reduced to the remainder of the 2012-2013 school year. (Id. ) On November 30, 2012, Defendant Blane McCann ("McCann"), Westside Community Schools Superintendent, sent a certified letter to Dakota's Mother confirming that he would be expelled for the remainder of the 2012-2013 school year. (Id. at CM/ECF p. 5.)

On June 17, 2013, Dakota appeared before a district judge in charge of the Young Adult Court ("YAC"). (Id. at CM/ECF p. 6.) He entered a plea of no contest to Unlawful Possession of Explosive Materials in the First Degree, a class IV felony. (Id.; see also Filings 32-3, 32-4.) Dakota was found suitable for the YAC and signed a court order and agreement to participate in the YAC program. (Id. ) This program imposed a number of conditions upon Dakota that he agreed to follow. (Id. ) One of the conditions specifically states: "Do not associate with anyone who possesses firearms, ammunition or illegal weapons. You shall not possess firearms, ammunition or illegal weapons." (Filing 32-4 at CM/ECF p. 1.) The agreement also provided that "any violation of the above conditions is cause for revocation of participation in the Young Adult Court and a sentence to confinement." (Filing 1 at CM/ECF p. 2.) In addition, because Dakota was a minor, a 90-day YAC incarceration period was waived and he was required to wear an ankle monitor until he turned 18. (Id. at CM/ECF p. 6.)

On July 10, 2013, Dakota turned 18 and his ankle monitor was removed. (Id. ) Dakota continued to progress through the YAC program and, after meeting with a WHS guidance counselor, began completing online coursework. (Id. at CM/ECF p. 7.)

On July 25, 2013, the police came to the Parsons' residence because they had received a report that Dakota had been observed "making explosives." (Id. ) The police conducted a search of the home and removed some "unusable fireworks from the garage." (Id. )

On August 2, 2013, Nick Lurz ("Lurz") of the YAC conducted a visit and search of Plaintiffs' home. (Id. at CM/ECF p. 8.) Lurz found some airsoft guns and pellets. (Id. ) Dakota's Mother agreed to remove these items from the home. (Id. )

On August 12, 2013, Dakota was scheduled to take a final educational test, which was necessary for him to return to WHS. (Id. ) However, on that same day, Dakota was arrested and jailed in the Douglas County Corrections Center ("DCC"). (Id. at CM/ECF p. 9.) Plaintiffs allege that Dakota was arrested without probable cause and without a valid warrant because the warrant indicated that he had violated "probation, " but had never been placed on probation. (Id. ) He also asserts that the warrant is invalid because it is not supported by an affidavit. (Id. )

On October 17, 2013, Dakota had his first hearing regarding the August 12, 2013, arrest. (Id. at CM/ECF p. 10.) During the hearing, the court ordered a psychological examination and Dakota continued to be held without bond. (Id. ) Thereafter, additional hearings were held, and Dakota was ultimately released on March 5, 2014, on his own recognizance. (Id. at CM/ECF pp. 10-12.) Plaintiffs allege that Dakota was unlawfully arrested and falsely imprisoned for a total of 203 days. (Id. at CM/ECF p. 13.) As a result, Dakota is suffering from "PTSD" and other "ongoing psychological ill effects." (Id. ) Further, Dakota asserts that Westside Community Schools refuses to allow him to complete his education and graduate. (Id. )

Plaintiffs seek monetary damages, punitive damages, the return of all personal property confiscated from Plaintiffs' home, costs, attorney's fees, and other relief as may be appropriate. (Id. at CM/ECF pp. 24-25.)

II. PROCEDURAL BACKGROUND

Between September 29, 2014, and October 21, 2014, Defendants McCann, Executive Director of Westside Schools Kent Kingston ("Kingston"), Westside Community Schools, Douglas County Attorney's Office, DCC Director Foxall, Bob Blanchard and Lurz moved to dismiss Plaintiffs' claims against them. (Filings 26, 27, 28, 29, 30, 31, 32, 33, and 34.) However, Plaintiffs subsequently moved to voluntarily dismiss Blanchard and Lurz, and I granted the motion. (Filings 43 and 44.) Plaintiffs' claims against Blanchard and Lurz have been dismissed from this matter without prejudice. (Filing 44.)

On October 22, 2014, Defendants City of Omaha, the Omaha Police Department ("OPD"), Douglas County, Nebraska ("Douglas County"), Douglas County Attorney Brenda Beadle ("Beadle"), and Douglas County Attorney Don Kleine ("Kleine") also moved to Dismiss Plaintiffs' claims. (Filings 37, 38, 39 and 40.) On November 17, 2014, Plaintiffs filed a Brief in Opposition to the pending Motions to Dismiss. (Filing 41.) Defendants have filed ...


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