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Parsons v. McCann

United States District Court, D. Nebraska

September 30, 2015

DAKOTA PARSONS and DENICE PARSONS, Plaintiffs,
v.
BLANE MCCANN, individually and as Superintendent of Westside Community Schools; KENT KINGSTON, individually and as Executive Director of Westside Community Schools; WESTSIDE COMMUNITY SCHOOLS; BRENDA BEADLE, individually and in her official capacity as a Douglas County Attorney; DON KLEINE, a Douglas County Attorney; DOUGLAS COUNTY ATTORNEY'S OFFICE; MARK FOXALL, as Director of the Douglas County Department of Corrections; the CITY OF OMAHA; the OMAHA POLICE DEPARTMENT; DOUGLAS COUNTY NEBRASKA, a political subdivision of the State; and JOHN DOES 1 THROUGH 15, Defendants

          For Dakota Parsons, Denice Parsons, Plaintiffs: Diana J. Vogt, James D. Sherrets, SHERRETS, BRUNO LAW FIRM, Omaha, NE.

         For Blane McCann, individually and as Superintendent of Westside Community Schools, Kent Kingston, individually and as Executive Director of Westside Community Schools, Westside Community Schools, Defendants: John M. Lingelbach, Margaret C. Hershiser, Peter J. Leo, KOLEY, JESSEN LAW FIRM, Omaha, NE.

         For Brenda Beadle, individually and in her official capacity as a Douglas County Attorney, Don Kleine, a Douglas County Attorney, Douglas County Attorney Office, Mark Foxall, as Director of the Douglas County Department of Corrections, Douglas County Nebraska, a political subdivision of the State, Defendants: Timothy K. Dolan, DOUGLAS COUNTY ATTORNEY'S OFFICE - CIVIL DIVISION, Omaha, NE.

         For City of Omaha, Omaha Police Department, Defendants: Ryan J. Wiesen, Thomas O. Mumgaard, CITY OF OMAHA, Omaha, NE.

         MEMORANDUM AND ORDER

         Richard G. Kopf, Senior United States District Judge.

         This is a 42 U.S.C. § 1983 action stemming from plaintiff Dakota Parsons' 29-week stay in the Douglas County Corrections Center while he was a participant in Young Adult Court, allegedly without a probable cause hearing, without being charged with an offense, and without the opportunity to be released on bond. After my previous order (Filing 52) finding that Plaintiffs' original complaint failed to state a federal claim upon which relief may be granted--but giving Plaintiffs leave to amend their complaint--Plaintiffs have filed an amended complaint (Filing 54), and Defendants have filed another round of motions to dismiss (Filings 55, 58, 60, 62, 66).

         I. PLAINTIFFS' AMENDED COMPLAINT

         Dakota Parsons (" Dakota" ) and his mother, Denice Parsons (" Denice" or " Dakota's mother" ), allege numerous claims arising from an incident at Westside High School (" WHS" ) in Omaha, Nebraska, that occurred following a band concert on October 25, 2012.[1] Dakota, who was a student at WHS, threw a firecracker out of a door following the concert. The firecracker exploded on the pavement, and no one was injured. During school the next day, October 26, 2012, Dakota's backpack was searched, and it was found to contain materials to make another firecracker, or exploding device, and marijuana. Police subsequently searched the Parsons' home, allegedly finding additional marijuana in Dakota's room. Dakota was arrested and charged with possession with intent to distribute marijuana, unlawful possession of explosive materials, and possession of a destructive device.

         After his arrest, and after an administrative hearing, Dakota was informed that he would be expelled from school until January 2014. Dakota appealed the decision, and his term of expulsion was reduced to the remainder of the 2012-2013 school year. On November 30, 2012, defendant Blane McCann (" McCann" ), Westside Community Schools Superintendent, sent a certified letter to Dakota's mother confirming that Dakota would be expelled for the remainder of the 2012-2013 school year and expressing his " disappointment with the hearing officer's recommendations."

         On January 14, 2013, Dakota appeared before a judge, who dropped his bond requirement and released Dakota on his own recognizance. Dakota, his counsel, and defendant Brenda Beadle, a Douglas County Attorney, agreed that Dakota's case should be transferred to the Young Adult Court (" YAC" ). Dakota was officially accepted into the YAC on February 15, 2013. Dakota and Denice Parsons met with WHS school officials in April 2013 regarding Dakota's continued education. WHS agreed to provide a tutor, and Dakota signed up to take high school classes online through the University of Nebraska-Lincoln.

         On June 17, 2013, Dakota appeared before a district judge in charge of the YAC. He entered a plea of no contest to unlawful possession of explosive materials in the first degree, a class IV felony, and the two other charges were dropped. Dakota signed a court order and agreement to participate in the YAC program. (Filing 46-1 at CM/ECF pp. 3-7.)[2] This program imposed a number of conditions upon Dakota that he agreed to follow, including " submit[ting] to search and seizure of your premises, person or vehicle upon request of the YAC staff," not " associat[ing] with anyone who possesses firearms, ammunition or illegal weapons," and not " possess[ing] firearms, ammunition or illegal weapons." The agreement also provided that " [a]ny violation of the above conditions is cause for revocation of participation in the Young Adult Court and a sentence to confinement," as well as " revocation of Defendant's bond . . . [and] violation of probation charges being filed against him/her." Because Dakota was a minor, the 90-day YAC incarceration period was waived, and he was required to wear an ankle monitor until he turned 18.

         On July 10, 2013, Dakota turned 18 and his ankle monitor was removed. Dakota continued to satisfactorily progress through the YAC program, including being subject to drug testing, undergoing a chemical-dependency test, and calling a YAC representative each evening to check in. On July 23, 2013, Denice and Dakota Parsons met with a WHS guidance counselor to establish a timetable for completing online classwork before the beginning of Dakota's senior year on August 15, 2013.

         On July 25, 2013, the police came to the Parsons' residence because they had received a report that Dakota had been observed " making explosives." Denice Parsons informed the police that the prior day, a company named Midwest Wildlife Solutions had used a trap and smoke device to treat the Parsons' lawn for groundhogs. Nevertheless, the police conducted a search of the home and removed some " old, unusable fireworks from the garage." Dakota left a voice message for Nick Lurz of the YAC regarding the July 25, 2013, police visit. Lurz did not respond to the message, but on August 2, 2013, Lurz conducted a visit and search of Plaintiffs' home. Lurz found some airsoft guns and pellets, but did not inform Dakota and his mother that these items were a violation of Dakota's YAC agreement. Denice agreed to remove these items from the home.

         Plaintiffs allege that in early August 2013, " unknown members of the Westside school system (on information and belief including McCann), unknown members of the Omaha Police Department, and possibly other persons met to 'discuss' Parsons." Plaintiffs do not have " any detailed information regarding the participants at this meeting or the substance of the discussion." The Parsons allege that this meeting was " instigated by McCann and/or other representatives of Westside Community Schools as part of a plan to keep Parsons from returning to school on August 15, 2013 as required by the hearing officer's order." Neither Dakota nor his attorney were informed about the meeting, and Dakota's counsel did not learn of the meeting until Douglas County Attorney Brenda Beadle told counsel about the meeting " several months after the meeting occurred." Plaintiffs allege that Beadle met with, and took directions from, a member of the school board " without having a complaint from a law enforcement agency," and that Beadle " agree[d] to have Parsons arrested for the purpose of keeping him out of Westside High School." Plaintiffs claim that Beadle inserted herself into this investigatory meeting and provided advice and direction to the police.

         On August 12, 2013, Dakota was scheduled to take a final educational test that was necessary for him to return to WHS on August 15. However, on that same day, YAC representatives appeared at the Parsons' home in bullet-proof vests, followed shortly thereafter by several Omaha police officers, who confiscated several items from the home. The officers did not communicate the reason for the search to Dakota and Denice Parsons. Dakota was arrested and jailed in the Douglas County Corrections Center (" DCC" ) without being informed of the charges or what precipitated his arrest. Plaintiffs allege that Dakota was arrested without probable cause and without a valid warrant because the warrant indicated that he had violated " probation," but he had never been placed on probation.[3] (Filing 46-1 at CM/ECF p. 9.) The plaintiffs also assert that the warrant was invalid because it was not supported by an affidavit.

         On October 17, 2013, Dakota had his first hearing regarding the August 12, 2013, arrest. During the hearing, neither the Douglas County Attorney nor the YAC presented the reason for Dakota's August 12, 2013, arrest; the court ordered a psychological examination; and Dakota continued to be jailed without bond. Thereafter, additional hearings were held regarding the county attorney's request that Dakota continue to be held without bond. As of January 2014, after being jailed for five months, Dakota had still not received a probable cause hearing and had not been informed of the facts supporting the August 2013 arrest.

         On or about February 7, 2014, Dakota's attorney filed a writ of habeas corpus alleging Dakota's unlawful detention at DCC. A hearing on the writ of habeas corpus was scheduled for March 6, 2014. One day before the hearing was to occur, the YAC judge ordered Dakota released on his own recognizance, without bond being required, and without Dakota having to appear in court. Plaintiffs allege that Dakota was unlawfully arrested and falsely imprisoned for a total of 203 days. As a result, Dakota suffers from " PTSD" and other " ongoing psychological ill effects." Further, Dakota asserts that Westside Community Schools refuses to allow him to complete his education and graduate.

         The plaintiffs allege that the state-run YAC program allows prosecutors " complete discretion in recommending actions to the taken by the Court," lacks " firm standards . . . regarding when a participant may be jailed," and " always follow[s] the recommendations of the county attorney." Plaintiffs allege that " prosecutors in the county attorney's office have complete and unfettered discretion to determine who is jailed for what matters," and " the program is abused by the County Attorney's office as a regular practice." The plaintiffs state that if imprisonment standards had been in place, Beadle " could not have agreed to have Parsons jailed for the purpose of keeping him from returning to Westside High School for his senior year."

         Plaintiffs specifically state that the " policies, customs and practices" of Douglas County, the City of Omaha, and the Omaha Police Department " allow a participant in YAC to be arrested and held without bond and without a showing of proximate [sic] cause at the unfettered discretion of the county attorney." Specifically, the " Douglas County Prosecuting Attorney's office has established a pattern and practice of utilizing the lack of standards and the complete and unfettered discretion of the prosecutors to direct the arrest of YAC participants regardless of probable cause." Further, Plaintiffs assert that Westside Community Schools has " policies, customs and practices" that gave defendant McCann and other administrators " the ability to act contrary to the determination of the hearing officer who directed that Parsons be allowed to return to school. Westside allows administrators unfettered discretion to interfere with the right to attend school and the right to have the benefit of the decision of an administrative hearing officer regarding expulsion."

         Plaintiffs seek monetary damages, punitive damages, the return of all personal property confiscated from Plaintiffs' home, costs, attorney's fees, an injunction directing the Douglas County Attorney to establish standards for arrest and bail applicable to all defendants in the YAC program, and other relief as may be appropriate.

         II. ANALYSIS

         A. Plaintiffs' Claims

         Plaintiffs allege several claims through 42 U.S.C. § 1983:

(1) False arrest claim against Beadle, Kleine, the Douglas County Attorney's Office, Douglas County, Omaha Police Department (" OPD" ), the City of Omaha, McCann, Westside Community Schools, and Does 1-15 (police officers) for arresting Dakota without a valid warrant and without probable cause;
(2) Wrongful search and seizure claim against Douglas County, OPD, the City of Omaha, and Does 1-15 (police officers) for their search of the Parsons' residence on August 12, 2013, performed without a warrant, without probable cause, and not under the YAC agreement;
(3) Unlawful imprisonment claim against Foxall (individually and as Director of the Douglas County Department of Corrections), Beadle, Kleine, Douglas County, McCann, and Westside Community Schools for causing Dakota to be jailed and detained without bond for almost seven months without being charged with any crime;
(4) Equal protection claim against McCann for refusing to allow Dakota to attend WHS to earn his diploma after his expulsion was completed;
(5) Civil conspiracy claim against all defendants for conspiring to prevent Dakota from returning to school by taking him into custody without a properly supported warrant or probable cause and keeping him confined without bond and a showing of probable cause; and
(6) Eighth Amendment claim against Beadle and the Douglas County Attorney's Office for requesting that Dakota be held without bond without showing that Dakota was a flight risk or a risk to community safety.

         Plaintiffs also assert what appear to be state-law claims:

(7) Abuse of process claim against the Douglas County Attorney's Office, Beadle, " representatives" of WHS, and OPD for utilizing the court's process of arrest and setting bail for the " ulterior motive of arresting Parsons and keeping him incarcerated so that he could not return to school" ; and
(8) Violation of " Free Instruction" Clause of Nebraksa Constitution & Neb. Rev. Stat. § 79-283 against McCann for refusing to allow Dakota to attend WHS to earn his diploma after his expulsion was completed, in violation of the Nebraska Constitution, which provides for " free instruction in the common schools" and Neb. Rev. Stat. § 79-283 (Westlaw 2015), which provides that if a student is expelled from school during the first term of the school year, the maximum period for which the student may be expelled is for the remainder of the school year.

         B. Motion to Dismiss Standard of Review

         " To survive a motion to dismiss, 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, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). " 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. This " plausibility standard" is not one of probability, " but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. Where a complaint contains facts that are " merely consistent with" a defendant's liability, it " stops short of the line between possibility and plausibility of 'entitlement to relief.'" Twombly, 550 U.S. at 557 (brackets omitted).

         " Determining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Iqbal, 556 U.S. at 679. " But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged--but it has not 'show[n]'--'that the pleader is entitled to relief.'" Id. (quoting Fed.R.Civ.P. 8(a)(2)). " While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations." Id. " Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. at 678.

         C. The Motions to Dismiss

         1. Omaha Police Department; Douglas County Attorney's Office; Beadle, Kleine & Foxall in Official Capacities

         Whether a party, other than an individual or a corporation, has the capacity to be sued is determined " by the law of the state where the court is located." Fed.R.Civ.P. 17(b). Each county in Nebraska may sue and be sued in its own name, Neb. Rev. Stat. § 23-101 (Westlaw 2015), but the same is not true of county offices or departments. See Winslow v. Smith, 672 F.Supp.2d 949, 964 (D. Neb. 2009) (sheriff's and county attorney's offices); Griggs v. Douglas County Corrections Center, No. 8:07CV404, 2008 WL 1944557, at *1 (D. Neb. Apr. 29, 2008) (county corrections department); Holmstedt v. York County Jail Supervisor (Name Unknown), 15 Neb.App. 893, 739 N.W.2d 449, 461 (Neb.App. 2007) (county sheriff's department), rev'd on other grounds, 275 Neb. 161, 745 N.W.2d 317 (Neb. 2008); Jameson v. Plischke, 184 Neb. 97, 165 N.W.2d 373, 376 (Neb. 1969) (county board of supervisors). Further, cities of the metropolitan class may sue and be sued, Neb. Rev. Stat. § 14-101 (Westlaw 2015), but the same is not true of city police departments. Meyer v. Lincoln Police Dep't, 347 F.Supp.2d 706 (D. Neb. 2004) (city police department is agency of city and has no separate legal status under Nebraska law); Williams v. Raynor Rensch & Pfieffer, No. 8:11CV446, 2015 WL 2127095 (D. Neb. May 6, 2015) (city police department is subdivision or department of city government and is not separately subject to suit). Therefore, defendants Omaha Police Department and the Douglas County Attorney's Office must be dismissed from this case as not subject to suit.

         I also note that Plaintiffs' claims against Brenda Beadle in her official capacity as Douglas County Attorney, Don Kleine in his official capacity as Douglas County Attorney, and Mark Foxall in his official capacity as Director of the Douglas County Department of Corrections are actually claims against Douglas County itself. Elder-Keep v. Aksamit, 460 F.3d 979, 986 (8th Cir. 2006) (" A suit against a public official in his official capacity is actually a suit against the entity for which the official is an agent." ); Parrish v. Luckie, 963 F.2d 201, 203 n.1 (8th Cir. 1992) (" Suits against persons in their official capacity are just another method of filing suit against the entity. A plaintiff seeking damages in an official-capacity suit is seeking a judgment against the entity." ) (citation omitted). Therefore, Plaintiffs' claims against Beadle, Kleine, and Foxall in their official capacities will be dismissed as redundant of their claims against Douglas County. Veatch v. Bartels Lutheran Home, 627 F.3d 1254, 1257 (8th Cir. 2010); Artis v. Francis Howell North Band Booster Ass'n, Inc., 161 F.3d 1178, 1182 (8th Cir. 1998).

         2. City of Omaha

         Plaintiffs purport to bring section 1983 claims against the City of Omaha for false arrest, wrongful search and seizure, and civil conspiracy pursuant to the Fourth, Fifth,[4] and Fourteenth Amendments of the United States Constitution. Plaintiffs' claims are based on the actions of several City of Omaha police officers[5] who allegedly wrongfully arrested Dakota Parsons, searched the Parsons' home without a valid warrant, and seized property from the home at the request of, and in concert with, defendants McCann and Westside Community Schools to prevent Dakota from returning to school, and not for the valid purposes of insuring compliance with the YAC agreement or investigating possible violations of the law. (Filing 54 ¶ ¶ 119-136.) Plaintiffs further allege that City of Omaha policies, customs, and practices proximately caused the constitutional violations at issue in this case, and that the " City of Omaha is liable for the misconduct of the John Doe defendants [police officers] because the policies, customs and practices of the City of Omaha and the Omaha Police Department allow a participant in YAC to be arrested and held without bond and without a showing of proximate [sic] cause at the unfettered discretion of the county attorney." (Filing 54 ¶ 116 (use of italics indicates new language added to amended complaint).) The City of Omaha moves to dismiss all claims against it pursuant to Fed.R.Civ.P. 12(b)(6). (Filing 55.)

         a. § 1983 Actions Against Municipalities

         " A municipality may be liable under § 1983 where 'action pursuant to official municipal policy of some nature caused a constitutional tort.'" Hollingsworth v. City of St. Ann, No. 14-1583, 800 F.3d 985, 2015 WL 5155354, at *5 (8th Cir. Sept. 3, 2015) (quoting Monell v. Dep't of Soc. Servs., 436 U.S. 658, 691, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978)). The Supreme Court invalidated heightened pleading requirements in section 1983 suits against municipalities in Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 168, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993). " When a complaint is filed, a plaintiff may not be privy to the facts necessary to accurately describe or identify any policies or customs which may have caused the deprivation of a constitutional right. Moreover, such a holding would disregard the liberality of Fed.R.Civ.P. 8(a)(2) which requires merely 'a short and plain statement of the claim showing that the pleader is entitled to relief,' and 8(f), which states 'pleadings shall be so construed as to do substantial justice.' . . . At a minimum, a complaint must allege facts which would support the existence of an unconstitutional policy or custom." Doe ex rel. Doe v. School Dist. of City of Norfolk, 340 F.3d 605, 614 (8th Cir. 2003).

         A plaintiff is not required to make specific reference to an unconstitutional policy or custom to survive a motion to dismiss; rather, a plaintiff's complaint must contain " allegations, reference, or language by which one could begin to draw an inference that the conduct complained of . . . resulted from an unconstitutional policy or custom of the [defendant]." Id. (" the failure of the [plaintiffs] to specifically plead the existence of an unconstitutional policy or custom, in itself, is not fatal to their claim for relief" ); Crumpley-Patterson v. Trinity Lutheran Hosp., 388 F.3d 588, 591 (8th Cir. 2004) (the plaintiff " need not . . . specifically plead the existence of an unconstitutional policy or custom to survive a motion to dismiss" ).

         b. Policy

         There is " an important distinction between claims based on official policies and claims based on customs. Because an official policy speaks for itself about the intent of public officials, proof of a single act by a policymaker may be sufficient to support liability." Jenkins v. County of Hennepin, 557 F.3d 628, 633 (8th Cir. 2009) (citing McGautha v. Jackson County, 36 F.3d 53, 56 (8th Cir. 1994)); see also Crawford v. Van Buren County, 678 F.3d 666, 669 (8th Cir. 2012) (" Although rare, a public official's single incident of unconstitutional activity can establish the requisite policy if the decision is taken by the highest officials responsible for setting policy in that area of the government's business." (internal quotation marks and citation omitted)).

         " To establish the existence of a policy, [a plaintiff] must point to 'a deliberate choice of a guiding principle or procedure made by the municipal official who has final authority regarding such matters.'" Jenkins, 557 F.3d at 633 (quoting Mettler v. Whitledge, 165 F.3d 1197, 1204 (8th Cir. 1999)). A plaintiff " must also show that the policy was unconstitutional and that it was 'the moving force' behind the harm that he suffered." Id. Two circumstances that may lead to municipal liability are (1) a municipality's action or policy " itself violates federal law, or directs an employee to do so," and (2) where " an official policy is lawful on its face and does not compel unconstitutional action," but " municipal action has led an employee to violate a plaintiff's rights," and that action was " taken with deliberate indifference as to its known or obvious consequences." Hollingsworth, 2015 WL 5155354, at *5 (internal quotation marks and citations omitted). While it is not clear which of these circumstances exists at this very early stage in the case, I conclude that Plaintiffs' new allegations in their amended complaint are sufficient to allege the existence of an unconstitutional policy of the City of Omaha. Accordingly, I shall deny the City of Omaha's motion to dismiss Plaintiffs' section 1983 " policy" claims against it, without prejudice to the City raising the same argument in a properly supported motion for summary judgment.[6]

         c. Custom

         " In contrast to the evidence required to establish an official policy, [the Eighth Circuit has] emphasized that a custom can be shown only by adducing evidence of a 'continuing, widespread, persistent pattern of unconstitutional misconduct.'" Jenkins, 557 F.3d at 634 (quoting Mettler, 165 F.3d at 1204). " '[L]iability may be established through proof that the alleged misconduct was so pervasive among the non-policy making employees of the municipality as to constitute a " custom or usage" with the force of law,'" and therefore liability " 'cannot arise from a single act.'" Crawford, 678 F.3d at 669 (8th Cir. 2012) (quoting McGautha, 36 F.3d at 56-57).

         In their amended complaint, the plaintiffs have only alleged an isolated incident of police misconduct involving Dakota Parsons; there are no allegations that the City of Omaha and its police officers engaged in such conduct with others. As with their original complaint, the plaintiffs have still not alleged facts suggesting a continuing, widespread, persistent pattern of unconstitutional misconduct by the City of Omaha and its employee police officers. (Filing 52 at CM/ECF p. 7.) Even if Plaintiffs' allegations could be construed to suggest such a pattern or custom, they have failed to allege any facts whatsoever of deliberate indifference to, or tacit authorization of, the pattern of misconduct. Therefore, the City of Omaha's motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) shall be granted with regard to Plaintiffs' " custom" claims against the City of Omaha.

         3. Mark Foxall Individually

         Plaintiffs bring section 1983 claims against Mark Foxall, Director of the Douglas County Department of Corrections, individually, for civil conspiracy and unlawful imprisonment because Foxall " caused Parsons to be jailed and detained without being charged with any crime or violation and to be held without bond." (Filing 54, Amended Complaint ¶ 139.) Plaintiffs assert that Dakota Parsons was jailed based on a bench warrant that was not supported by an affidavit of probable cause, was " arrested and held in jail for an extended time at the request of McCann to prevent Parsons from returning to school," and " was jailed for nearly seven months without being informed of the charges against him and without being allowed bond." (Filing 54 ¶ ¶ 140-143.) Foxall moves to dismiss the claims against him, arguing that the amended complaint does not allege that he was personally involved in the wrongful conduct or, alternatively, that he is entitled to qualified immunity or quasi-judicial absolute immunity. (Filing 59 at CM/ECF p. 1.)

         a. Civil Conspiracy

To prove a 42 U.S.C. § 1983 conspiracy claim, a plaintiff must show: (1) that the defendant conspired with others to deprive him of constitutional rights; (2) that at least one of the alleged co-conspirators engaged in an overt act in furtherance of the conspiracy; and (3) that the overt act injured the plaintiff. The plaintiff is additionally required to prove a deprivation of a constitutional right or privilege in order to prevail on a § 1983 civil conspiracy claim.

Burton v. St. Louis Bd. of Police Comm'rs, 731 F.3d 784, 798 (8th Cir. 2013) (citations omitted).

         Here, Plaintiffs purport to allege a civil conspiracy against " all Defendants" (Filing 54 at CM/ECF p. 25 (Count V heading)), but fail to allege any facts whatsoever regarding Foxall. Plaintiffs allege that defendants Beadle, the Douglas County Attorney's Office, representatives of Westside High School, and members of the Omaha Police Department met and " conspired to find a way to prevent Parsons from returning to school," using an unlawful arrest and detention to do so. (Filing 54 at CM/ECF ¶ ¶ 166-173.)

         There are simply no allegations that Foxall participated in any aspect of this alleged conspiracy and, for that reason, Plaintiffs' civil conspiracy claim against Foxall individually must be dismissed. Mayorga v. Missouri, 442 F.3d 1128, 1132 (8th Cir. 2006) (" To establish personal liability of the supervisory defendants, [the plaintiff] must allege specific facts of personal involvement in, or direct responsibility for, a deprivation of his constitutional rights." ); Madewell v. Roberts, 909 F.2d 1203, 1208 (8th Cir. ...


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