United States District Court, D. Nebraska
MEMORANDUM AND ORDER
M. Gerrard United States District Judge
plaintiff in this case, Kenneth York, is bringing several
claims against Douglas County, Nebraska, arising out of his
allegedly unlawful arrest and detention on April 29, 2015.
The County has moved to dismiss his claims. The Court will
grant the County's motion, but will afford York leave to
replead his complaint.
events giving rise to this case began in the County Court for
Douglas County in August 2003, when York was sued on a
financial obligation. Filing 5-1 at
75-78. A default judgment was entered in March
2004. Filing 5-1 at 68. At the creditor's
request, the county court entered an order in aid of
execution on July 20, 2005, commanding York to appear on
August 22 to give testimony under oath. Filing 5-1
at 17. York did not appear, and on September 8, the county
court issued a capias warrant to the Douglas County Sheriff.
Filing 5-1 at 10-11. But, the same day, a suggestion
of bankruptcy was filed advising the county court that York
had filed a bankruptcy petition. Filing 5-1 at 8-9.
Accordingly, the county court terminated the pending
garnishment proceedings, stayed the case pursuant to 11
U.S.C. § 362, and cancelled the capias. Filing
5-1 at 5-9. The capias was received by the sheriff
on September 9, but was "returned with No Further Action
Taken, per the instruction" of the county court judge.
Filing 5-1 at 1.
to 2015: York alleges that he was sitting in his lawfully
parked car near 96th Street and Park Drive in Ralston,
Nebraska, when he was approached by two unnamed sheriff's
deputies, who checked his identification then arrested him on
the basis of the 2005 warrant. Filing 1-1 at 2. He
spent the night in jail. Filing 1-1 at 2. He sued
the County, the County sheriff, the two unnamed arresting
deputies, and an unnamed agent of the County "who
negligently filed a fraudulent or mistaken warrant"
(collectively, the County),  in state district court,
asserting several state-law claims and two federal
Constitutional claims. Filing 1-1. The County
removed the case to federal court based on the federal
questions presented. Filing 1. The County now moves
to dismiss York's claims. Filing 3.
STANDARD OF REVIEW
complaint must set forth a short and plain statement of the
claim showing that the pleader is entitled to relief.
Fed.R.Civ.P. 8(a)(2). This standard does not require detailed
factual allegations, but it demands more than an unadorned
accusation. Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). The complaint need not contain detailed factual
allegations, but must provide more than labels and
conclusions; and a formulaic recitation of the elements of a
cause of action will not suffice. Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007). For the purposes of a
motion to dismiss a court must take all of the factual
allegations in the complaint as true, but is not bound to
accept as true a legal conclusion couched as a factual
survive a motion to dismiss under Fed.R.Civ.P. 12(b)(6), a
complaint must also contain sufficient factual matter,
accepted as true, to state a claim for relief that is
plausible on its face. Iqbal, 556 U.S. at 678. 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. 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
shown-that the pleader is entitled to relief. Id. at
whether a complaint states a plausible claim for relief will
require the reviewing court to draw on its judicial
experience and common sense. Id.The facts alleged
must raise a reasonable expectation that discovery will
reveal evidence to substantiate the necessary elements of the
plaintiff’s claim. See Twombly, 550 U.S. at
545. The court must assume the truth of the
plaintiff’s factual allegations, and a well-pleaded
complaint may proceed, even if it strikes a savvy judge that
actual proof of those facts is improbable, and that recovery
is very remote and unlikely. Id. at 556.
complaint asserts eight claims for relief: (1) trespass upon
solitude, (2) false light invasion of privacy, (3) malicious
prosecution, (4) abuse of process, (5) false imprisonment,
(6) negligence, (7) Due Process, and (8) the Fourth
Amendment. But for reasons that will become apparent, it will
be helpful to group York's claims into two main
categories: his six state-law claims, and his two federal
State Law Claims
first six claims for relief are state-law tort claims. For
some, there is a question whether the facts alleged are
plausible or consistent with state law. But the primary
question for each of these claims is whether they may be
brought against the County pursuant to the Nebraska Political
Subdivisions Tort Claims Act (PSTCA), Neb. Rev. Stat. §
13-901 et seq.
PSTCA provides in relevant part that it does not apply to
"[a]ny claim arising out of assault, battery, false
arrest, false imprisonment, malicious prosecution, abuse of
process, libel, slander, misrepresentation, deceit, or
interference with contract rights." Neb. Rev. Stat.
§ 13-910(7). The exceptions set forth in § 13-910
are affirmative sovereign immunity defenses to claims brought
pursuant to the PSTCA. Harris v. Omaha Hous. Auth.,698 N.W.2d 58, 65 (Neb. 2005). "In other words, if a
political subdivision proves that a plaintiff's claim
comes within an exception pursuant to § 13-910, then the
claim fails based on sovereign immunity, and the political
subdivision is not liable." Harris, 698 N.W.2d
at 65. And an action may "arise out of" one of
these enumerated ...