United States District Court, D. Nebraska
MICHELLE OGDEN, as Personal Representative of the Estate of ZACHARI JOHNSON, Plaintiff,
UNITED STATES OF AMERICA, et al., Defendants.
MEMORANDUM AND ORDER
M. Gerrard United States District Judge.
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.
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.
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.
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.
was shot and killed on June 4, 2012, after his (presumably
unauthorized) entry onto Offutt AFB's grounds. Filing 3
at 7. 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.
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.
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). Filing 3.
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. And the motion
also argued for dismissal of all the individual defendants,
including Bickal, for failure to state a claim. Filing 10.
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.
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).
Motion to Strike
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.
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).
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
Motion to Dismiss
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.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.
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.
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.
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).
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).
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.
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
those grounds, the Court will dismiss the plaintiff's
claims against all of the individual defendants-Bickal, the
Air Force Defendants, ...