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Perez v. The City of Hastings

United States District Court, D. Nebraska

March 21, 2017

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.


          Robert F. Rossiter, Jr. United States District Judge.

         This 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.[1]

         In 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 motivated.

         Now 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[2] (“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.

         I. BACKGROUND[3]

         In the 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 Lopez's complaint.

         During 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.”

         On 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.”

         On 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.

         Roudebush, 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.”

         On 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.

         On 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 removal.

         On 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.

         The 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.

         II. ...

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