United States District Court, D. Nebraska
MEMORANDUM AND ORDER
M. Gerrard United States District Judge
matter is before the Court on the defendants' motion to
dismiss for failure to state a claim (filing 39) and several
associated motions (filings 49, 50, and 53) filed by the
plaintiff. The Court will grant the defendants' motion in
part and deny it in part, and will deny the plaintiff's
plaintiff, Matthew Whitten, is suing the City of Omaha and
several Omaha police officers under 42 U.S.C. § 1983 for
claims arising from his arrest on July 11, 2014. Filing 28 at
2. Whitten's operative complaint alleges that he was
contacted outside his home and questioned by two of the
defendants, officers John Martin and Matthew Backora,
about terroristic threats he had been said to have made.
Filing 28 at 2. The affidavit Martin later submitted in
applying for a search warrant provides some background: it
had been reported by a debt collector for Wells Fargo Bank
that during a call with Whitten, Whitten had made threats,
including "You tell me when, I'll get the gun, rob
these places and pull the trigger" and "I have a
friend and he'll go along, between us we can take out
these four communities." Filing 41-1 at 2. But Whitten
alleges that when he was contacted, he told the officers that
he did not intend to threaten anyone, did not plan any
robberies, and did not have any weapons. Filing 28 at 2.
Martin's affidavit is consistent with that account.
Compare filing 28 at 2 with filing 41-1 at 2.
officers asked Whitten if he would consent to a search of his
home, but he refused. Filing 28 at 3. Martin spoke to his
superior Sergeant Sean Sheridan (who is also a defendant),
and then arrested Whitten. Martin applied for, and obtained,
a search warrant from a county court judge. Filing 41-1 at
1-5. Because Whitten's precise allegations in this regard
will prove to be important, the Court sets them forth at
Defendant Martin, lacked probable cause to believe that the
Plaintiff had made any statements to another person or
persons with a) the intent to terrorize another or b) with
the intent of causing evacuation of a building, place of
assembly or a facility of public transportation or c) in
reckless disregard of the risk of causing such terror or
Defendant Martin applied for and was granted a search warrant
to search Plaintiff's home for Firearms, Ammunition,
Explosives, and Items of Venue.
Nothing in the application for the search warrant establishes
even a remote possibility that contraband or evidence of
criminal activity would be found in the premises.
The affidavit in support of the search warrant was so lacking
in the indicia of probable cause as to render official belief
in its existence entirely unreasonable.
A reasonably well-trained officer in Defendant Martin's
position would have known that the application for the search
warrant failed to establish probable cause and that he should
not have applied for nor executed the warrant.
On July 11, 2014, Defendants conspired and agreed amongst
themselves to illegally search the home of Plaintiff. In
furtherance of this conspiracy, Defendants executed a search
warrant and knew or should have known that the totality of
the circumstances alleged in the warrant was insufficient for
a finding of probable cause.
Filing 28 at 3.
search warrant was executed, and the return and inventory
states, as relevant, that the search revealed a container
that tested positive for methamphetamine and a "Black
Omaha Police Wallet with OPD Badge inside." Filing 41-1
at 6. Whitten alleges that he was not charged with
terroristic threats, but was charged with other offenses
arising out of what was discovered during the search. Filing
28 at 4-5. He spent 21 days in jail. Filing 28 at 4. But
eventually, Whitten alleges, his motion to suppress was
sustained by a state district court, and the case against him
was dismissed on the prosecution's motion. Filing 28 at
is suing Martin, Backora, and Sheridan, in their official and
individual capacities, for unlawful arrest, an unreasonable
search, and conspiracy to violate his constitutional rights.
Filing 28 at 8. And he is suing the City based on policies
and customs that he says caused his civil rights to be
violated. Filing 28 at 10-11; see Monell v. Dep't of
Soc. Servs. of City of New York, 436 U.S. 658, 690-91
(1978). The defendants move, pursuant to Fed.R.Civ.P.
12(b)(6), to dismiss his claims for (1) unreasonable search,
and (2) unreasonable seizure after the search warrant was
executed. Filing 39. Whitten has (twice) moved, filings 49
and 53, to strike "all false, immaterial, impertinent,
or defamatory representations" from the defendants'
brief, and (twice) moved for sanctions pursuant to
Fed.R.Civ.P. 11, filings 50 and 53.
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.
defendants contend that Whitten's unlawful search claim
should be dismissed because reliance on the search warrant
was objectively reasonable; and that his unlawful seizure
claim should be dismissed to the extent that it relies on his
detention after the search, because the search revealed
evidence sufficient to warrant charging him with a crime. See
filing 40. But the defendants' arguments rely on the
affidavit and application for search warrant, the warrant
itself, and the return and inventory from the search-
materials that were not attached to the complaint.
Whitten's primary response to the defendants' motion
to dismiss is that the defendants are impermissibly trying to
submit evidence in support of a Rule 12(b)(6) motion. Filing
48 at 2. So, before reaching the merits of the parties'
motions, the Court must consider the scope of the record.
deciding a motion to dismiss under Rule 12(b)(6), the Court
is normally limited to considering the facts alleged in the
complaint. If the Court considers matters outside the
pleadings, the motion to dismiss must be converted to one for
summary judgment. Rule 12(d). However, the Court may consider
exhibits attached to the complaint and materials that are
necessarily embraced by the pleadings without converting the
motion. Mattes v. ABC Plastics, Inc., 323 F.3d 695,
697 n.4 (8th Cir. 2003). Documents necessarily embraced by
the pleadings include those whose contents are alleged in a
complaint and whose authenticity no party questions, but
which are not physically attached to the pleading.
Ashanti v. City of Golden Valley, 666 F.3d 1148,
1151 (8th Cir. 2012). Some materials that are part of the
public record or do not contradict the complaint may also be
considered. Levy v. Ohl, 477 F.3d 988, 991 (8th Cir.
plaintiff must supply any documents upon which its complaint
relies, and if the plaintiff does not provide such documents
the defendant is free to do so. BJC Health Sys. v.
Columbia Cas. Co., 348 F.3d 685, 688 (8th Cir. 2003).
But most courts view "matters outside the pleading"
as being any written or oral evidence in support of or in
opposition to the pleading that provides some substantiation
for, and does not merely reiterate, what is ...