Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Ogden v. United States

United States District Court, D. Nebraska

February 14, 2018

MICHELLE OGDEN, as Personal Representative of the Estate of ZACHARI JOHNSON, Plaintiff,
v.
UNITED STATES OF AMERICA, et al., Defendants.

          MEMORANDUM AND ORDER

          John M. Gerrard United States District Judge.

         This case presents relatively straightforward facts, but has become procedurally complicated. So, this matter is before the Court on a motion to dismiss (filing 8), motion to extend the time to complete service of process (filing 14), motion for leave to file a second amended complaint (filing 15), and a motion to strike (filing 20) a second amended complaint (filing 19) that was filed without leave.

         For the following reasons, the Court will grant the motion to dismiss, dismissing the plaintiff's claims against the individual defendants for lack of jurisdiction because they are were not served with process, and are immune from suit in their official capacities. The Court will grant the motion to strike the second amended complaint, and deny the plaintiff's motion for leave to file an amended complaint because the proposed amendment would also be futile. And the Court will deny the plaintiff's motion for an extension of time to serve process, because that motion is moot.

         I. BACKGROUND

         The plaintiff in this case is Michelle Ogden, personal representative of the Estate of Zachari Johnson. Filing 3 at 1. Johnson was tragically shot and killed on the premises of Offutt Air Force Base, and his death is the underlying cause of this litigation.

         There are several defendants in this case, but they fall into four general categories. The primary defendant is the United States government. Filing 3. (The United States has answered the plaintiff's complaint, see filing 11, and the plaintiff's claims against the United States are not at issue in this order.) The next defendant is Douglas Bickal, the civilian security guard who shot Johnson. Filing 3 at 3. The "Air Force Defendants" are Michael B. Donley, Deborah Lee James, C. Robert Kehler, John E. Hyten, Michael J. Allshouse, and Marty Reynolds, all of whom have held relevant positions in the Air Force chain of command for Offutt AFB. Filing 3 at 3. And the "Unnamed Defendants" are four John Doe defendants responsible for Offutt AFB's security forces. Filing 3 at 3-4.

         Johnson was shot and killed on June 4, 2012, after his (presumably unauthorized) entry onto Offutt AFB's grounds. Filing 3 at 7.[1] He entered through the commercial truck entrance, and was pursued by Offutt AFB security and Bellevue, Nebraska police officers. Filing 3 at 7. Johnson attempted to force his way off the base, and struck a parked vehicle and concrete fixture at a gate. Filing 3 at 7.

         Bickal was on duty at that gate, and approached Johnson's vehicle with his sidearm drawn. Filing 3 at 8. Bickal was about 6 feet from Johnson's driver's side door, and a Bellevue officer with his sidearm drawn was about 15 feet behind Johnson's vehicle. Filing 3 at 9. Johnson was unarmed. Filing 3 at 8. Bickal ordered Johnson to raise his hands, and Johnson complied. Filing 3 at 8. But then Johnson's vehicle lurched forward, and Bickal fired his weapon three times, killing Johnson. Filing 3 at 9.

         The plaintiff lodged an administrative claim pursuant to the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346 & 2671 et seq., and the Air Force acknowledged receipt of the claim in a letter dated December 18, 2013. Filing 16-4; filing 16-5. The Air Force denied the claim on June 22, 2016. Filing 16-8. The plaintiff filed this case on December 21, 2016, just before the 6-month post-denial statute of limitations for her FTCA claim expired. Filing 1; see28 U.S.C. § 2401(b). No. summons was requested on the initial complaint, and the plaintiff filed an amended complaint on February 3, 2017. Filing 3. That complaint alleged eight claims for relief: three constitutional tort claims (excessive force, failure to train, and failure to supervise) and five state-law tort claims (wrongful death, "fear of impending death, " negligent hiring, negligent supervision and entrustment, and negligence).[2] Filing 3.

         On June 20, the United States answered, filing 11, and the Air Force Defendants moved to dismiss, filing 8, arguing in part that the case should be dismissed pursuant to Fed.R.Civ.P. 4(m) for failure to complete service on them within 90 days of filing the complaint, filing 10 at 3-5. By that time, it was 7 months since the case had been filed.[3] And the motion also argued for dismissal of all the individual defendants, including Bickal, for failure to state a claim. Filing 10.

         The Air Force Defendants argued, in part, that extending the plaintiff's time to serve process would be futile, because the complaint did not state a claim against them. Filing 10 at 4-5. The plaintiff argued otherwise. Filing 16. The plaintiff also filed a separate motion for an extension of time to effect service. Filing 14. And the plaintiff moved for leave to file a second amended complaint, which would have added a reference to the Fourth Amendment and clarified that the Air Force Defendants and Unnamed Defendants were being sued in their individual capacities. Filing 15. But before that motion was ruled on-indeed, just 5 days later-the plaintiff filed her second amended complaint without leave to do so. Filing 19. The individual defendants moved to strike the second amended complaint. Filing 20.

         II. DISCUSSION

         It is important to clarify, at the outset, who the parties are, and what the claims are. But to do that, it is first necessary to clarify what the pleadings are, which is the issue presented by the defendants' motion to strike (filing 20).

         1. Motion to Strike

         The plaintiff filed her initial complaint on December 21, 2016. Filing 1. The plaintiff could amend her complaint once as a matter of course within 21 days after serving it. Fed.R.Civ.P. 15(a)(1)(A). So-not having served it at all-she filed her amended complaint on February 3, 2017. Filing 3.

         She filed a motion for leave to file a second amended complaint on July 26 but, without waiting for leave, filed her second amended complaint on August 1. At that point, though, she had already used her single amendment as of right. See Rule 15(a)(1). So, she could amend her pleading "only with the opposing party's written consent or the court's leave." Rule 15(a)(2). She had neither. And she has not explained filing the second amended complaint, because she did not respond to the defendants' motion to strike it (filing 20).

         The Court will, therefore, grant the motion to strike, and strike the second amended complaint (filing 19). The plaintiff's operative complaint is her first amended complaint (filing 3).

         2. Motion to Dismiss

         The plaintiff's operative complaint lists the parties set forth above: the United States, Bickal, the Air Force Defendants, and the Unnamed Defendants. Filing 3. But the complaint is silent as to the capacity in which Bickal, the Air Force Defendants, and the Unnamed Defendants are sued. Filing 3. In other words, the complaint does not say whether they are being sued in their official capacities or their personal, individual capacities. See, generally, Kentucky v. Graham, 473 U.S. 159, 165-66 (1985). And if a plaintiff's complaint is silent about the capacity in which she is suing a public official, the Court interprets the complaint as including only official-capacity claims. Baker v. Chisom, 501 F.3d 920, 923 (8th Cir. 2007). It must be presumed that the defendants are sued only in their official capacities. Id.[4]So, the defendants to the operative complaint are the United States and a number of individual defendants in their official capacities, and only their official capacities.

         The complaint also asserts the eight claims for relief set forth above, but is not always clear about which claims are asserted against which defendants. The first claim-"use of excessive force"-is clearly directed solely at Bickal. The remaining seven claims, however, are simply asserted against the "defendants" generally.

         But the United States is not a proper defendant for the plaintiff's constitutional claims. Bivens claims cannot be brought against the United States itself. F.D.I.C. v. Meyer, 510 U.S. 471 (1994). And constitutional claims cannot be remedied through the FTCA. Washington v. Drug Enf't Admin., 183 F.3d 868, 873 (8th Cir. 1999). So, the plaintiff's Bivens claims can be asserted only against individual defendants.

         The plaintiff's state-law claims, however, can only be asserted against the United States, and not any individual defendants. When someone is injured by a tort committed by an employee of the United States who is acting within the scope of his employment, that employee cannot be sued- rather, the injured person must sue the United States which is liable in its employee's stead. Knowles v. United States, 91 F.3d 1147, 1150 (8th Cir. 1996); see United States v. Smith, 499 U.S. 160, 161-62 (1991); see also Simmons v. Himmelreich, 136 S.Ct. 1843, 1850 (2016).

         In short, victims of purposeful wrongdoing on the part of federal officers can bring (1) constitutional tort claims against those officers under Bivens, and (2) specified intentional tort claims against the United States under the FTCA. Washington, 183 F.3d at 873. As noted above, the United States has answered, and the FTCA claims brought against the United States are not implicated in this set of motions. It is the individual defendants, and the constitutional claims, with which the Court is concerned. The motion to dismiss (filing 8) raises a number of issues, but the Court will grant the motion on the jurisdictional grounds that it is obliged to consider first. See Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 93-102 (1998); Wong v. Wells Fargo Bank N.A., 789 F.3d 889, 895 (8th Cir. 2015).

         First, the Air Force Defendants have not been served and, as a result, the Court lacks jurisdiction over them. Printed Media Servs., Inc. v. Solna Web, Inc., 11 F.3d 838, 843 (8th Cir. 1993); see Murphy Bros. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 350 (1999). When process and service of process are questioned on a pretrial motion to dismiss, it is the plaintiff's burden to establish a prima facie case. Northrup King Co. v. Compania Productora Semillas Algodoneras Selectas, S.A., 51 F.3d 1383, 1387 (8th Cir. 1995). And here, the plaintiff cannot do so, conceding that she has failed to effect service on the Air Force Defendants. Filing 16 at 5.

         Second, as explained above, the complaint only pleads claims against the individual defendants in their official capacities. A suit against federal officials in their official capacities is treated as a suit against the United States, and "a Bivens action cannot be prosecuted against the United States and its agencies because of sovereign immunity." Buford v. Runyon, 160 F.3d 1199, 1203 (8th Cir. 1998); see Searcy v. Donelson, 204 F.3d 797, 798 (8th Cir. 2000); Phelps v. U.S. Fed. Gov't, 15 F.3d 735, 739 (8th Cir. 1994). And sovereign immunity is jurisdictional. Meyer, 510 U.S. at 475. Accordingly, the Court lacks jurisdiction over all the individual defendants in their official capacities-which is, again, the only capacities in which they were sued in the plaintiff's operative complaint.

         On those grounds, the Court will dismiss the plaintiff's claims against all of the individual defendants-Bickal, the Air Force Defendants, ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.