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Awnings v. Fullerton

United States District Court, D. Nebraska

July 14, 2016

TOMPSON L. AWNINGS, Plaintiff,
v.
JOSHUA FULLERTON, RYAN DUNCAN, JEREMY CARTHER, TODD ROBERTS, AND DOES 1-10, Defendants.

          MEMORANDUM AND ORDER

          Cheryl R. Zwart United States Magistrate Judge

         This matter is before the court on Defendants' motion to strike Plaintiff's demand for jury trial. (Filing No. 58). For the following reasons, the motion will be denied.

         BACKGROUND

         Plaintiff's Complaint brings claims against movants Fullerton and Duncan pursuant to 42 U.S.C. § 1983. Plaintiff alleges Defendants Fullerton and Duncan deprived him of his Fourth Amendment right to be free from unreasonable searches and seizures. (Filing No. 1). That is, Plaintiff claims Fullerton did not have probable cause to arrest Plaintiff and completed the arrest by means of unreasonable force. Plaintiff claims Duncan used unreasonable force when assisting in his arrest. All other claims asserted against Duncan and Fullerton in Plaintiff's Complaint have been dismissed by this court. (See Filing No. 40).

         Plaintiff's claims against Fullerton and Duncan are brought in their individual capacities. The Complaint states that Fullerton and Duncan "[were] at all relevant times herein . . . duly appointed and acting officer[s], servant[s], employee[s], and agent[s] of the Lincoln Police Department ("LPD"), an agency of the City of Lincoln, Nebraska, a municipal entity created and authorized under the laws of the State of Nebraska. [Their] acts and omissions described herein were under the color and authority of the laws, statutes, ordinances, regulations, customs and/or usages of the State of Nebraska, the City of Lincoln, Nebraska, and LPD." (Filing No. 1 ¶¶ 2, 3 at CM/ECF pp. 1-2). The plaintiff seeks relief in the form of compensatory and punitive damages. (Filing No. 1 at CM/ECF p. 11).

         Defendants Fullerton and Duncan argue Plaintiff is not entitled to a trial by jury on his claims against them in accordance with Neb. Rev. Stat. § 13-907 of the Nebraska Political Subdivisions Tort Claims Act ("PSTCA"). Plaintiff argues that under the Seventh Amendment, he is entitled to a jury trial because he is alleging a claim for damages under 42 U.S.C. § 1983.

         ANALYSIS

         Section 1983 of Title 42 of the U.S. Code does not expressly provide for the right to a jury trial. See § 1983; see also City of Monterey v. Del Monte Dunes, 526 U.S. 687, 707-08 (1999). Therefore any right to a jury trial on Plaintiff's claims must be based on a Seventh Amendment analysis.

         The Seventh Amendment did not create a right to jury trial, but instead it preserved that right in the federal courts as it existed at common law in 1791. Baltimore v. Carolina Line Inc. v. Redman, 295 U.S. 654, 657 (1935). Where a federal statute does not specifically incorporate a right to a jury trial, the court "fit[s] it into the nearest historical analogy to determine whether there is a right to a jury trial." Buss v. Douglas, 59 F.R.D. 334, 334-35 (D. Neb. 1973). "Under the historical analogy analysis, if a claim presents what would have been at common law an ‘equitable' claim, there is no right to a jury trial, and, if the claim would have been ‘legal' in nature at common law, it may be triable to a jury today." Id.

         When the Seventh Amendment was adopted there was no action equivalent to 42 U.S.C. § 1983. However, it is now well settled that the Seventh Amendment right to a jury trial "extends to statutory claims unknown to the common law, so long as the claims can be said to ‘sound basically in tort, ' and seek legal relief." Monterey, 526 U.S. at 709 (quoting Curtis v. Loether, 415 U.S. 189, 195-96 (1974)). And there is no doubt that § 1983 claims alleging unreasonable force was used during an arrest sound in tort. Monterey, 526 U.S. at 709. Therefore a § 1983 claim for damages is entitled to a jury trial. See Id.

         However, "at common law no action for damages . . . lay against public officials acting in their official capacities as agents of the sovereign." Buss, 59 F.R.D. 336. "[I]f the action is a common law suit or the particular issues arise in a common law suit, but no right of jury trial existed under the common law of England as to that type of action, then there is no right to jury trial by virtue of the Seventh Amendment." Westcott v. Omaha, CV88-0-28, 1988 WL 383125 (April 11, 1988).

         A sovereign may consent to a lawsuit against it or its agents on its own terms. United States v. Sherwood, 312 U.S. 584, 586 (1941). Nebraska has waived its sovereign immunity on a limited basis through the adoption of the Political Subdivision Tort Claims Act (PTSCA). See Neb. Rev. Stat. § 13-902. Under the PSTCA, Nebraska does not consent to trial by jury and instead holds:

Jurisdiction, venue, procedure, and rights of appeal in all suits brought under the Political Subdivisions Tort Claims Act . . . shall be determined in the same manner as if the suits involved private individuals, except that such suits shall be ...

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