United States District Court, D. Nebraska
TOMPSON L. AWNINGS, Plaintiff,
JOSHUA FULLERTON, RYAN DUNCAN, JEREMY CARTHER, TODD ROBERTS, AND DOES 1-10, Defendants.
MEMORANDUM AND ORDER
R. Zwart United States Magistrate Judge
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
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.
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).
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.
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.
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.
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.
"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).
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
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 ...