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Whitten v. City of Omaha

United States District Court, D. Nebraska

August 9, 2016

CITY OF OMAHA, et al., Defendants.


          John M. Gerrard United States District Judge

         This 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 motions entirely.


         The 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, [1] 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.

         The 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 length:

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 evacuation.
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.

         The 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 5.

         Whitten 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.


         To 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.


         The 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.

         Scope of Record

         When 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. 2007).

         The 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 ...

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