United States District Court, D. Nebraska
IRMA PEREZ, JOHN ESPINO, JOSHUA ESPINO, JEREMY ESPINO, and MANUEL ESPINO, Plaintiffs,
THE CITY OF HASTINGS, NEBRASKA; ADAMS COUNTY, NEBRASKA; THE STATE OF NEBRASKA; JOHN AND JANE DOES 1 THROUGH 10, in both their official and individual capacities; RICK SCHMIDT, in both his official and individual capacity; RAELEE VAN WINKLE, in both an official and individual capacity; JERRY ESCH, in both his official and individual capacity; MICHAEL DOREMUS, in both his official and individual capacity; KELLY SCARLETT, in both his official and individual capacity; ALYSON KEISER ROUDEBUSH, in both her official and individual capacity; and ALLEN DEDLAK, in both his official and individual capacity, Defendants.
MEMORANDUM AND ORDER
F. Rossiter, Jr. United States District Judge.
case arises from what plaintiffs Irma Perez
(“Perez”), John Espino, Joshua Espino, Jeremy
Espino, and Manuel Espino (collectively,
“plaintiffs”) describe as a
“disturbance” that occurred in Hastings, Adams
County, Nebraska, on August 13, 2011.
their Amended Complaint (Filing No. 1-1), the plaintiffs, all
of whom are Hispanic, assert state and federal claims against
the defendants, alleging “the investigation, arrest,
confinement, and prosecution of the Plaintiffs”
following the domestic disturbance were unlawful and racially
before the Court are multiple dispositive motions filed by
the various defendants. Defendant the State of Nebraska
(“State”) moves to dismiss the case pursuant to
Federal Rule of Civil Procedure 12(b)(1) and (6) (Filing No.
9). Defendants Adams County, Nebraska and Alyson Keiser
Roudebush (“Roudebush” and collectively,
“County defendants”) move to dismiss the case
pursuant to Rule 12(b)(6) and (d) (Filing No. 12). Defendants
City of Hastings, Rick Schmidt (“Schmidt”),
Raelee Van Winkle (“Van Winkle”), Jerry Esch
(“Esch”), Michael Doremus
(“Doremus”), Kelly Scarlett
(“Scarlett”), and Allen Sedlak
(“Sedlak” and collectively, “City
defendants”) move to dismiss the plaintiffs'
federal claims pursuant to Rule 12(b)(6) and move for partial
summary judgment on the remaining claims pursuant to Federal
Rule of Civil Procedure 56 (Filing No. 15). For the reasons
stated below, the Court finds the plaintiffs' federal
claims should be dismissed and their state claims should be
remanded to state court.
early morning hours of August 13, 2011, Jennifer Lopez
(“Lopez”), Espino, and some of the
plaintiffs' other friends and family were involved in a
domestic disturbance in Hastings, Nebraska. The police were
called, and Hastings Police Department Officers Schmidt, Van
Winkle, Esch, Doremus, Kelly, and Scarlett responded. The
officers interviewed witnesses and arrested Espino based on
the disturbance, Perez telephoned Alma Rose Infante
(“Infante”) for help in settling the disturbance.
The two went to the scene and spoke with the people involved.
“Infante's mission was to determine the truth,
” not to interfere with the police investigation.
Hoping to ensure “the underlying complaint against
their family member [would] be fairly and fully investigated,
” the plaintiffs developed the “impression that
the investigating HPD Officers were more interested in
coaching witnesses in order to build a case against them or
their family members, than they were interested in getting to
the truth about the Disturbance.”
August 15, 2011, Espino was charged with domestic assault and
was later bound over for trial. That same day, Shawn Parks,
who was at the scene of the domestic disturbance and had a
prior relationship with the police as a confidential
informant, participated in a conversation with Doremus during
which Doremus stated, “Maybe if we put pressure on them
and you put enough pressure on them, they'll get the hell
out of this neighborhood.”
December 29, 2011, the plaintiffs were arrested by
unspecified officers and charged with conspiracy and witness
tampering. The arrest warrants were based on information that
was more than ninety days old and the supporting
documentation “contained false and misleading
information.” The plaintiffs were held “in
maximum security confinement” for five days.
the Adams County Deputy County Attorney, prosecuted the cases
in the District Court of Adams County, Nebraska (“Adams
County District Court”). An unspecified plaintiff was
acquitted after a jury trial. The remaining plaintiffs filed
pleas in abatement, which were sustained in October 2012. In
dismissing the charges, the trial court “criticized the
preliminary proceedings.” According to the plaintiffs,
their “investigation, arrest, confinement and
prosecution subjected them to a considerable amount of
ridicule and destroyed their good reputation.”
April 7, 2016, the plaintiffs sued the defendants in Adams
County District Court, asserting claims under state and
federal law. They filed an Amended Complaint on September 27,
2016. In their Amended Complaint, the plaintiffs assert eight
claims: (1) malicious prosecution; (2) false arrest and
imprisonment; (3) negligence; (4) intentional infliction of
emotional distress; (5) libel and slander per se; (6)
false-light publicity; (7) joint-venture false-light
publicity; and (8) deprivation of their “rights
guaranteed by the First, Sixth, Eighth, and Fourteenth
Amendments to the Constitution of the United States, ”
in violation of 42 U.S.C. § 1983. In describing their
claims, the plaintiffs make little effort to differentiate
between the defendants.
October 12, 2016, the defendants jointly removed the case to
this Court pursuant to 28 U.S.C. §§ 1441 and 1446.
The defendants maintain this Court has federal-question
jurisdiction over the plaintiffs' civil-rights claims
under 42 U.S.C. § 1983 and supplemental jurisdiction
over their state-law claims. See 28 U.S.C.
§§ 1331, 1367. The plaintiffs did not challenge
November 18, 2016, the State moved to dismiss this case,
asserting, among other things, that the plaintiffs' (1)
state- and federal-law claims are barred by sovereign
immunity; (2) state-law claims are barred by the Nebraska
State Tort Claims Act (“NSTCA”), Neb. Rev. Stat.
§ 81-8, 209 et seq.; and (3) negligence claims
fail “to state a cognizable cause of action.”
See Fed. R. Civ. P. 12(b)(1), (6). The City
defendants and County defendants each followed suit on
November 21, 2016, arguing, in part, that the Amended
Complaint fails to state a claim on various grounds.
Id. Asserting the plaintiffs failed to comply with
the Nebraska Political Subdivisions Tort Claims Act
(“NPSTCA”), Neb. Rev. Stat. § 13-901 et
seq., the City defendants also move for partial summary
judgment on the plaintiffs' state-law claims.
See Fed. R. Civ. P. 56.
plaintiffs oppose dismissal, contending “What we have
at this point are bald assertions, in their respective
briefs, that the State of Nebraska, Adams County, and the
City of Hastings are protected from Plaintiffs' state law
claims by reason of the” NSTCA and NPSTCA. As the
plaintiffs see it, “the assertions of immunity by the
State, the County, and the City, are insufficient for the
purposes of a definitive ruling on their respective
motions.” With respect to their § 1983 claims, the
plaintiffs maintain they have “sufficiently alleged
that individual Defendants, including those now being
denominated as John and Jane Doe, have violated
Plaintiff's rights to due process and equal protection
under the Fourteenth Amendment.” The plaintiffs seek
damages, attorney fees, and costs.