United States District Court, D. Nebraska
MEMORANDUM AND ORDER
Smith Camp Chief United States District Judge
matter is before the Court on the Motion to Dismiss, ECF No.
27, filed by the Defendants, Officer Shada, Officer Turner,
and Officer Worley. Also before the Court are the various
motions filed by Plaintiff Joshua Dortch, ECF Nos. 18, 20,
23-6, and 31. For the reasons stated below, the foregoing
motions will be denied.
following facts are those alleged in the Amended Complaint,
ECF No. 7, which are assumed true for purposes of the Motion
was leaving his place of employment, Reinhart Food in Omaha,
Nebraska, when Defendants approached him and arrested him.
The Amended Complaint did not state the date or reason for
Dortch's arrest nor did it claim or allege he was
arrested unlawfully. It simply alleged Defendants “did
seize us bodily shackling - manacling us and putting us in
cruiser while they illegally searched our vehicle and seized
said our [$]5, 512.00. We subsequently to [sic] police
Defendants ‘we need the [$]5, 512.00 in middle
console.'” Am. Comp., ECF No. 7, Page ID 20. Dortch
filed this action, pro se, seeking the return of the $5,
512.00 that was seized during his arrest and $10 million in
damages. Defendants have moved to dismiss the Amended
Complaint under Federal Rule of Civil Procedure 12(b)(6) for
failure to state a claim upon which relief can be granted.
complaint must contain “a short and plain statement of
the claim showing that the pleader is entitled to
relief.” Fed.R.Civ.P. 8(a)(2). To satisfy this
requirement, a plaintiff must plead “enough facts to
state a claim to relief that is plausible on its face.”
Corrado v. Life Inv'rs Ins. Co. of Am., 804 F.3d
915, 917 (8th Cir. 2015) (quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). “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.”
Barton v. Taber, 820 F.3d 958, 964 (8th Cir. 2016)
(quoting Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009)). “Threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do
not suffice.” Zink v. Lombardi, 783 F.3d 1089,
1098 (8th Cir. 2015) (quoting Iqbal, 556 U.S. at
678), cert. denied, 135 S.Ct. 2941 (2015). The
complaint's factual allegations must be “sufficient
to ‘raise a right to relief above the speculative
level.'” McDonough v. Anoka Cty., 799 F.3d
931, 946 (8th Cir. 2015) (quoting Twombly, 550 U.S.
at 555). The Court must accept factual allegations as true,
but it is not required to accept any “legal conclusion
couched as a factual allegation.” Brown v. Green
Tree Servicing LLC, 820 F.3d 371, 373 (8th Cir. 2016)
(quoting Iqbal, 556 U.S. at 678). Thus, “[a]
pleading that offers ‘labels and conclusions' or
‘a formulaic recitation of the elements of a cause of
action will not do.'” Ash v. Anderson
Merchandisers, LLC, 799 F.3d 957, 960 (8th Cir. 2015)
(quoting Iqbal, 556 U.S. at 678), cert.
denied, 136 S.Ct. 804 (2016).
motion to dismiss, courts must rule “on the assumption
that all the allegations in the complaint are true, ”
and “a well-pleaded complaint may proceed even if it
strikes a savvy judge that actual proof of those facts is
improbable, and ‘that a recovery is very remote and
unlikely.'” Twombly, 550 U.S. at 555-56
(quoting Scheuer v. Rhodes, 416 U.S. 232, 236
(1974)). “Determining whether a complaint states a
plausible claim for relief . . . [is] a context-specific task
that requires the reviewing court to draw on its judicial
experience and common sense.” Mickelson v. Cty. of
Ramsey, 823 F.3d 918, 923 (8th Cir. 2016) (alternation
in original) (quoting Iqbal, 556 U.S. at 679).
an initial review of the Amended Complaint pursuant to 28
U.S.C. § 1915(e)(2)(B),  the Court concluded that Dortch
may proceed against Defendants in their individual capacities
on two claims under 42 U.S.C. § 1983: (1) a
“Fourth Amendment unreasonable search-and-seizure
claim, ” and (2) a “Fourteenth Amendment
pre-deprivation procedural-due-process claim.” ECF No.
8, Page ID 28.
argue Dortch's Fourth Amendment claim for an unreasonable
search of his vehicle and seizure of his $5, 512.00 must be
dismissed because he voluntarily asked Defendants to retrieve
the money from the center console of his vehicle after he was
arrested. Thus, Defendants contend Dortch consented
to the search and seizure. Based on the allegations in the
Amended Complaint, however, Dortch did not consent to the
search and seizure.
Fourth Amendment, “by virtue of the Fourteenth
Amendment, prohibits unreasonable searches and seizures by
state officers.” New Jersey v. T.L.O., 469
U.S. 325, 334 (1985) (citing Elkins v. United
States, 364 U.S. 206, 213 (1960)). Generally, a
warrantless search or seizure of personal property is
unreasonable unless it falls within one of the established
exceptions to the warrant requirement. United States v.
Sanders, 424 F.3d 768, 773 (8th Cir. 2005)
(“[S]earches conducted without a warrant . . . are
presumptively unreasonable, subject to a few specifically
established exceptions.”); United States v.
Lewis, 864 F.3d 937, 943 (8th Cir. 2017) (“A
warrantless seizure ‘is per se unreasonable, unless the
police can show that if falls within one of a carefully
defined set of exceptions.”) (quoting Coolidge v.
New Hampshire, 403 U.S. 443 (1971)). Voluntary consent
is one such exception. Sanders, 424 F.3d at 773
(consent to search); PPS, Inc. v. Faulkner Cty.,
Ark., 630 F.3d 1098, 1102 (8th Cir. 2011) (consent to a
seizure of personal property).
voluntary, consent must be “the product of an
essentially free and unconstrained choice by its maker . . .
rather than the product of duress or coercion, express or
implied.” United States v. Siwek, 453 F.3d
1079, 1084 (8th Cir. 2006). Whether consent is voluntarily