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Williams v. Raynor Rensch & Pfieffer

United States District Court, D. Nebraska

May 6, 2015

RAYNOR RENSCH & PFIEFFER, et al., Defendants.


JOHN M. GERRARD, District Judge.

This matter is before the Court on the motions for dismissal or for summary judgment filed by defendants (filings 194, 196, 198, 200, 202, and 204) and the motion for summary judgment filed by plaintiff Shannon Williams (filing 214), who is proceeding before the Court pro se. Williams has also requested an evidentiary hearing (filing 246) and requested leave to conduct discovery (filing 248). All three of Williams' motions will be denied. The motions of defendants John Brazda, Dave Bruck, and John Stuck (filing 194); the City of Bellevue (and its Police Department) (filing 196); Douglas County, Mark Foxall, and Jeffrey Newton (filing 198); and the City of Omaha and Omaha Police Department (filing 204) will be granted, and all claims against these defendants will be dismissed. The remaining defendants' motions (filings 200 and 202) will be granted in part and denied in part. The handful of claims remaining against those defendants rest solely on state law and do not satisfy the amount in controversy requirement for diversity jurisdiction. The Court will decline to exercise its supplemental jurisdiction over those claims, which will be remanded to the District Court for Douglas County, Nebraska.


This case arrives with a lengthy and complicated procedural history and detailed factual background. Before proceeding further, it will help to provide a broad outline of the circumstances leading up to this case and introduce the parties involved. The Court will then provide a more detailed accounting of this case's procedural background, as it is essential to understanding Williams' complaint. Further facts will be discussed below as they become relevant.

Starting no later than 2006, Williams was involved in a conspiracy to import marijuana into the Omaha, Nebraska area.[1] In 2007, a warrant was issued for Williams' arrest for various violations of his term of supervised release imposed as part of his sentence for a previous federal drug conviction. Williams evaded arrest for some time. Meanwhile, in October 2008, defendant Terry Haddock, an attorney, began representing an associate of Williams, Richard Conway. Conway had been arrested following delivery of a controlled shipment of marijuana from another of Williams' associates. Conway, in turn, put Haddock in contact with Williams (who was still in hiding). Unbeknownst to Williams, Conway had agreed to cooperate with authorities, who were interested in Williams due to his ongoing drug activities and his violations of supervised release. Williams, and his continuing drug operations, became the target of an investigation by a joint task force directed by the FBI, and which included police officers from Omaha and Bellevue, Nebraska (including defendants Bruck, Brazda, and Stuck).

In late 2008, Williams began contacting Haddock by telephone. Haddock and Williams discussed, among other things, the marijuana charges pending against Conway. During one conversation, Williams suggested that he intended to kill two of the key witnesses against Conway, a threat which Haddock reported to law enforcement. (Haddock also passed other useful information to law enforcement, which ultimately helped the authorities locate Williams.) Williams and Haddock also discussed various legal matters. For example, Williams asked Haddock, on behalf of a friend, about the sentencing disparities between crack and powder cocaine under the federal sentencing guidelines. And they discussed the outstanding warrant for the supervised release violation. However, as the Eighth Circuit found, "[a]t all times, Williams was represented by either [Eric] Whitner or his cocounsel, attorney Steve Lefler-not Haddock." Williams, 720 F.3d at 683. In January 2009, Williams caused $15, 000 to be paid to Haddock for legal services that Haddock had provided to Conway and another of Williams' friends.

When Williams was finally apprehended in February 2009, he was incarcerated at the Douglas County Correctional Center ("DCCC") in Omaha, Nebraska, where Conway was also being held. In early 2009, Haddock worked with law enforcement officers and officials at DCCC to place Conway in the same cell with Williams. Conway was fitted with a recording device and recorded several hours of conversation in which Williams made incriminating statements.

While he was in custody at the DCCC, Williams paid Whitner to sneak a cell phone in, which Williams used to continue managing his drug operations from inside the detention center. Eventually, Williams came to distrust Whitner, and he asked Conway if Haddock would be willing to smuggle a cell phone into the DCCC. Williams agreed to pay Haddock $1, 000 a month for this service. Haddock passed this information onto the authorities, and they devised a plan to use Haddock to record Williams' phone conversations and acquire evidence regarding his ongoing drug and money-laundering operations.

On April 22, 2009, Haddock made his first trip to the DCCC to bring Williams the phone. Between then and December 2009, he made a total of sixty-three visits to Williams. These meetings occurred in the DCCC's attorney-client meeting rooms. Haddock repeatedly told Williams that he was not acting as Williams' attorney, but merely facilitating his use of the (contraband) cell phone. As the Eighth Circuit explained, the ruse worked as follows:

During each of Haddock's visits to Williams, detention-center officials knew that Haddock was operating as an informant on Williams and was not Williams's actual attorney. Haddock, however, convinced Williams that the detention-center officials thought that he was Williams's attorney and that was why he was allowed to see Williams, even though Williams knew that Haddock was not his attorney.

Williams, 720 F.3d at 684.

Over the course of these sixty-three visits, Haddock recorded nearly 200 hours of conversations between himself and Williams and between Williams and various people he called. Many of these calls involved criminal activities. In December 2009, Williams and several others were indicted for conspiring to violate federal drug and money-laundering laws. Evidence gathered from Haddock's recordings was used to convict Williams, who is currently serving a 480-month sentence on those charges.

However, Williams also used the cell phone to make calls to Lefler, who was representing him on the supervised release violation. The recording, disclosure, and use of those calls forms the basis of much of Williams' operative complaint. Filing 188. Williams seeks compensatory and punitive damages, as well as injunctive relief, based on various claims arising under the United States Constitution (and the corresponding provisions of the Nebraska constitution), federal and state wiretap and racketeering statutes, and state contract and tort law. Williams' operative complaint names 18 defendants, which may be divided into five groups. Filing 188 at 1.

The first group, the "Federal Defendants, " consists of defendants Stuck, Brazda, and Bruck, who were law enforcement officers with the Bellevue and Omaha Police Departments. They participated in the joint state-FBI task force that investigated Williams and used Haddock as an informant. As the Court explains below, all three officers were acting under color of federal, rather than state, law.[2]

The second group, the "Municipal Defendants, " consists of the City of Omaha and the City of Bellevue. Williams has also sued the cities' police departments. However, a police department is simply a department or subdivision of a city's government; it is not a juridical entity suable as such. Ketchum v. City of West Memphis, 974 F.2d 81, 82 (8th Cir. 1992); Meyer v. Lincoln Police Dept., 347 F.Supp.2d 706 (D. Neb. 2004). So, the Court will dismiss all of Williams' claims against the Omaha and Bellevue Police Departments as separate entities.

The third group, the "Douglas County Defendants, " consists of Douglas County; Jeffrey Newton, the director of the DCCC; and his assistant director, Mark Foxall. The fourth group, the "Law Firm Defendants, " consists of the law firm of Raynor Rensch & Pfeiffer ("RR&P")-Haddock's former law firm-as well as its partners John P. Raynor, Richard J. Rensch, and William E. Pfeiffer; and various other attorneys who worked for the firm: Patrick M. Heng, John J. Kohl, and Sean P. Rensch. Last, there is defendant Haddock, who does not fit precisely into any of the groups above.


With this broad outline in hand, the Court turns to a more detailed examination of the proceedings leading up to this case. The Court will take a moment, however, to clarify what matters it has considered in ruling on the pending motions. The defendants have moved to dismiss Williams' complaint for failure to state a claim under Rule 12(b)(6), and alternatively, for summary judgment under Rule 56. The Federal Defendants have also moved to dismiss Williams' official-capacity claims against them-which are, in effect, claims against the United States-as barred by sovereign immunity. This presents a question of jurisdiction under Rule 12(d)(1).

The Court has resolved the non-jurisdictional aspects of the pending motions on the pleadings, under Rule 12(b)(6). Even assuming the truth of Williams' allegations, he has failed to plead a plausible claim for relief on each and every claim that the Court has considered. The prior proceedings discussed in part III, infra, are judicially-noticeable public records that the Court may consider in reviewing a Rule 12(b)(6) motion to dismiss without converting the motion into one for summary judgment under Rule 12(d). See Levy v. Ohl, 477 F.3d 988 (8th Cir. 2007). More precisely, the Court takes notice of the documents and orders filed in these cases, not for the truth of their contents but only to determine what the documents stated. See, e.g., Global Network Commc'ns, Inc. v. City of New York, 458 F.3d 150, 157 (2d Cir. 2006); see also Veteran Constructors, Inc. v. Beeler Barney and Assocs. Masonry Contractors, Inc., case no. 2:13-cv-64-f, 2014 WL 4199238, at *3 (E.D. N.C. Aug. 22, 2014).

But the Court would reach the same result under Rule 56. Williams has verified his complaint, and submitted evidentiary materials and affidavits in support of his complaint and his motion for summary judgment. The Court has carefully considered these materials, and they do not change the Court's analysis or decision. Williams' claims fail not because he has failed to substantiate the allegations in his complaint, but because those allegations, even if proven, would not entitle Williams to relief. For the same reasons, Williams' request for an evidentiary hearing (filing 246) and his request to conduct limited discovery (filing 248) are denied.[3]

A. Jurisdiction - Fed.R.Civ.P. 12(b)(1)

A motion pursuant to Federal Rule of Civil Procedure 12(b)(1) challenges whether the Court has subject matter jurisdiction. The party asserting subject matter jurisdiction bears the burden of proof. Great Rivers Habitat Alliance v. FEMA, 615 F.3d 985, 988 (8th Cir. 2010). A Rule 12(b)(1) motion can be presented as either a "facial" or "factual" challenge. Osborn v. United States, 918 F.2d 724, 729 n.6 (8th Cir. 1990).

Sovereign immunity is a jurisdictional, threshold matter that is properly addressed under Rule 12(b)(1). See, Lors v. Dean, 746 F.3d 857, 861 (8th Cir. 2014); Brown v. United States, 151 F.3d 800, 803-04 (8th Cir. 1998). The Federal Defendants' motion, based on sovereign immunity, asks the Court to consider matters beyond the pleadings, and presents a factual challenge. When reviewing a factual challenge, the Court considers matters outside the pleadings, and the nonmovant does not receive the benefit of Rule 12(b)(6) safeguards. Osborn, 918 F.2d at 729 n.6. Moreover, unlike a motion for summary judgment, the Court is free to resolve disputed issues of fact. Jessie v. Potter, 516 F.3d 709, 712 (8th Cir. 2008).

B. Failure to State a Claim - Fed.R.Civ.P. 12(b)(6)

To survive a motion to dismiss under Fed.R.Civ.P. 12(b)(6), a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. 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. Id. While the Court must accept as true all facts pleaded by the nonmoving party and grant all reasonable inferences from the pleadings in favor of the nonmoving party, Gallagher v. City of Clayton, 699 F.3d 1013, 1016 (8th Cir. 2012), a pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do. Iqbal, 556 U.S. at 678. 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. at 679.

C. Summary Judgment - Fed.R.Civ.P. 56

Summary judgment is proper if the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(a). The movant bears the initial responsibility of informing the Court of the basis for the motion, and must identify those portions of the record which the movant believes demonstrate the absence of a genuine issue of material fact. Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc). If the movant does so, the nonmovant must respond by submitting evidentiary materials that set out specific facts showing that there is a genuine issue for trial. Id.

On a motion for summary judgment, facts must be viewed in the light most favorable to the nonmoving party only if there is a genuine dispute as to those facts. Id. Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the evidence are jury functions, not those of a judge. Id. But the nonmovant must do more than simply show that there is some metaphysical doubt as to the material facts. Id. In order to show that disputed facts are material, the party opposing summary judgment must cite to the relevant substantive law in identifying facts that might affect the outcome of the suit. Quinn v. St. Louis Cnty., 653 F.3d 745, 751 (8th Cir. 2011). The mere existence of a scintilla of evidence in support of the nonmovant's position will be insufficient; there must be evidence on which the jury could conceivably find for the nonmovant. Barber v. C1 Truck Driver Training, LLC, 656 F.3d 782, 791-92 (8th Cir. 2011). Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial. Torgerson, 643 F.3d at 1042.


A. The Supervised Release Violation

On December 10, 2007, the United States Probation Office filed a Petition for Offender Under Supervision against Williams, alleging several violations of his term of supervised release, which was imposed as part of a 1994 conviction for conspiracy to possess cocaine with intent to distribute. See case no. 8:93-cr-27 filing 618 [hereinafter, "VSR filing ___" (Violation of Supervised Release)]. The violations did not relate to Williams' large-scale marijuana operations, but involved, among other things, charges of driving under the influence, possession of a small amount of marijuana, and failing to report to his probation officer. VSR filing 618. A warrant for Williams' arrest was promptly issued, but Williams was not arrested until February 2009. See VSR filing 622. On April 3, 2009, an Amended Petition was issued, which added a violation related to charges Williams was facing in Arizona state court for indecent exposure and felony possession of marijuana. VSR filing 629 at 3.

Williams was represented by Whitner, and then Lefler, in the supervised release proceedings. See VSR filings 631, 650, and 651. On September 30, 2009, Williams signed a plea agreement in which he admitted all of the violations alleged in the Amended Petition, and agreed, under Fed. R. Crim. P. 11(c)(1)(C), to receive a sentence of 5 years' imprisonment. In exchange, the Arizona charges were to be dismissed. VSR filing 677. On October 1, the Court (Senior United States District Judge Bataillon) accepted Williams' plea. VSR filings 678 and 689. At the hearing, Williams again admitted to the allegations in the Amended Petition. VSR filing 689 at 10-16. On Williams' motion, sentencing was continued multiple times and was eventually postponed until his criminal case had been resolved. See generally VSR docket sheet, filings 678 through 728.

B. The 2009 Criminal Case[4]

On December 16, 2009, an indictment was filed in this Court, charging Williams and others with conspiracy to violate federal drug and moneylaundering laws. Case no. 8:09-cr-457, filing 1 [hereinafter "CR Filing ___"]. Judge Strom was assigned to the case. Following the indictment, Williams learned that the authorities had used Conway and Haddock to record his conversations and calls at the DCCC. In response, Williams filed a motion to dismiss the indictment or suppress the evidence and statements gathered from the recordings. CR filings 213 and 215. In March 2011, after several evidentiary hearings, the Court denied Williams' motions, concluding that the government had not violated Williams' constitutional rights in recording his conversations or calls. CR Filing 723.

Williams' case proceeded to trial, which lasted for most of April 2011. See CR filings 769 and 830. On April 28, Williams was found guilty on all counts. CR Filing 834. On November 7, he was sentenced to a total of 480 months' imprisonment. CR filing 1180. Williams appealed, arguing, among other things, that the District Court erred in failing to suppress the recordings of his phone calls. CR filing 1177; United States v. Williams, No. 11-3437, filing of Nov. 8, 2011 [hereinafter, "App. filing of [date]"]. Although Williams was represented by appellate counsel, he also submitted a supplemental pro se brief. See App. filing of Nov. 20, 2012. On July 11, 2013, the Eighth Circuit issued a decision affirming the District Court, rejecting all of Williams' arguments ( pro se and otherwise), and affirming Williams' conviction. United States v. Williams, 720 F.3d 674 (8th Cir. 2013).[5]

C. Further Supervised Release Proceedings

As noted above, while the criminal case against Williams was pending, the supervised release proceedings had been continued several times on Williams' motion. And the supervised release proceedings were also reassigned to Judge Strom. VSR filing 691. On June 30, 2011, Williams (through new counsel) filed a Motion to Withdraw Admissions and to Dismiss the Amended Petition. VSR filing 705. Williams alleged, among other things, that the government used Haddock to convince Williams to plead guilty to the violations in the Amended Petition and that Haddock had disparaged Lefler's abilities as an attorney. Williams argued that this constituted outrageous government conduct in violation of his right to due process under the Fifth Amendment, and interference with his right to counsel in violation of the Sixth Amendment. VSR filings 705, 706, and 717. On August 22, the Court denied Williams' motion. VSR filing 721.

Sentencing was set for November 2011, to coincide with Williams' sentencing in the criminal case. See CR filing 1216 at 2. On November 4, 2011, Williams was sentenced in the criminal case, but sentencing on his supervised release violations was continued for further proceedings. Then, on November 9, the government filed a Motion for Reconsideration and Motion to Dismiss, asking the Court to reconsider its earlier decision (on Williams' motion to dismiss) and to dismiss the Amended Petition in the interests of justice. VSR filing 729. Although styled as a motion to reconsider, the government's motion was not an admission that Williams' prior motion had merit. Rather, the government concluded that because Williams had recently been sentenced to 480 months' imprisonment in the criminal case, the interests of justice were not served by seeking to impose another 5 years' imprisonment. VSR filing 729. The Court granted the government's motion on November 10 and dismissed the Amended Petition. VSR filing 731.

D. The Present Lawsuit

This suit was initially filed in Nebraska state court on November 3, 2011, and was removed to this Court in December 2011, where it was assigned to Judge Strom. After various proceedings, Williams requested leave to file an amended complaint on August 30, 2013. Filing 141. The Court granted the motion, but ordered Williams to file an amended complaint "containing all claims against all defendants." Filing 176 at 12. Williams filed his operative complaint on February 7, 2014. Filing 188. The defendants then filed the pending motions to dismiss or for summary judgment. In June 2014, the case was reassigned to the undersigned judge. Filing 222. Briefing on these and other motions continued until September 2014, and all motions are now ripe for disposition.


In his operative complaint, Williams has taken the "kitchen sink" or "shotgun" approach to pleading. He has pleaded nearly every claim-and his claims are numerous-against every defendant under a variety of legal theories. Williams' claims implicate numerous constitutional provisions, including (but not limited to) the Fourth, Fifth, Sixth, and Fourteenth Amendments, as well as their counterparts in the Nebraska constitution. He also alleges violations of: the federal wiretap statute, Title III of the Omnibus Crime Control and Safe Streets Act of 1968, Pub. L. 90-351, 82 Stat. 212-223, codified at 18 U.S.C. §§ 2510-2520 [hereinafter, the "Federal Wiretap Act"]; Nebraska's intercepted communication statutes, Neb. Rev. Stat. §§ 86-271 to 86-2, 116 [hereinafter, the "Nebraska Wiretap Act"]; the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. §§ 1961-1968; Nebraska's "little RICO" known as the Public Protection Act, Neb. Rev. Stat. §§ 28-1352 to 28-1356; as well as state-law claims for breach of contract, fraud, unjust enrichment, and invasion of privacy. See filing 188 at 7-8.

Williams' pleadings are far from the "short and plain" statement required by Fed.R.Civ.P. 8. However, the Court has carefully considered all of the potentially cognizable claims set forth in Williams' operative complaint. With the exception of a handful of state-law claims that will be remanded to state court, the Court finds all of Williams' claims to be without merit.[6] In this Memorandum and Order, the Court has set forth its analysis of the majority of Williams' claims. The Court finds it unnecessary to discuss the remainder in such detail.

In its discussion below, the Court first takes a moment to sort through Williams' individual and official-capacity claims. The Court then considers defendants' arguments that most or all of Williams' claims are barred by either collateral estoppel or Heck v. Humphrey, 512 U.S. 477 (1994). Finally, the Court discusses the merits of Williams' remaining claims-or at least those that warrant discussion.

A. Individual and Official Capacities; State and Non-State Actors

Individual (or "personal") capacity suits seek to impose personal liability upon a government official for actions he or she takes under color of state (or federal) law. Hafer v. Melo, 502 U.S. 21, 25 (1991); Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971); see also Consejo de Desarrollo Economico de Mexicali, A.C. v. United States, 482 F.3d 1157, 1174 (9th Cir. 2007). Official-capacity suits, in contrast, generally represent only another way of pleading an action against an entity of which an officer is an agent. Hafer, 502 U.S. at 25. Suits ...

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