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.
16, and the Motion for Rule 11 Sanctions, filed by the above
named Defendants. For the reasons stated below, the Motion to
Dismiss will be granted and the Motion for Rule 11 Sanctions
will be denied.
following facts are those alleged in the Complaint, ECF No.
1-1, Page ID 11, and assumed true for purposes of the pending
Motion to Dismiss.
about August 13, 2011, law enforcement officers Rick Schmidt,
Railee Van Winkle, Jerry Esch, Michael Doremus, Kelly
Scarlett, and Allen Dedlak responded to a call about a
disturbance at a home in Hastings, Nebraska, involving many
of Infante's family members and friends. Infante arrived
at the house after her sister called and asked that she come
help resolve an ongoing dispute. Infante's nephew, Juan
Anthony Espino, was arrested and charged with two counts of
domestic assault. Infante alleges she never interfered with
law enforcement when they arrived.
the investigation and resolution of the disturbance, Infante
allegedly overheard Officer Doremus say, “Maybe if we
put pressure on them . . . they'll get the hell out of
this neighborhood.” Comp. ¶ 19, ECF No. 1-1, Page
ID 14. Infante also alleges that “[a]fter the day of
the Distrubance, the investigating [ ] Officers continued
their interviews and investigations, and expanded their
investigations in an attempt to make out cases of criminal
conspiracy and witness tampering against [her] and other of
her family members” when there was no factual basis for
doing so. Id. at ¶ 21, Page ID 21. Infante was
arrested and charged with conspiracy and witness tampering in
“late December, 2011[, ]” but the charges were
“terminated in October 2012.” Id. at
¶ 24. She alleges the affidavit supporting the request
for her arrest warrant also contained false information.
October 6, 2014, Infante sued the City of Hastings, Nebraska;
Adams County, Nebraska; and the State of Nebraska in the
District Court for Adams County, asserting four causes of
action: (1) negligence, (2) deprivation of property for
public use without just compensation in violation of the
Nebraska Constitution, (3) deprivation of property without
just compensation in violation of Neb. Rev. Stat. §
76-705; and (4) deprivation of her rights under the First,
Sixth, Eighth and Fourteenth Amendments to the United States
Constitution under color of state law, in violation of 42
U.S.C. § 1983. The action was removed to this Court and
Infante's claims against the State of Nebraska were
dismissed with prejudice. Infante v. City of
Hastings, No. 4:15CV3047, 2015 WL 5167267 (D. Neb. Sept.
3, 2015). The rest of her claims were dismissed, without
prejudice, under Federal Rule of Civil Procedure 12(b)(6).
September 27, 2016, another lawsuit was filed in the District
Court for Adams County by different plaintiffs, but based on
the same facts as those alleged in Infante, 2015 WL
5167267. Again, the action was removed to this Court.
Perez v. City of Hastings, Neb., 4:16CV3158, 2017 WL
1066574 (D. Neb. March 21, 2017). The Court dismissed the
plaintiffs' § 1983 claims under Fed.R.Civ.P.
12(b)(6) and remanded the case to the District Court for
Adams County. Id. at *6-7.
17, 2017, Infante initiated this action in the District
Court of Adams County, Nebraska, and asserted various state
and federal law claims against the City of Hastings,
Nebraska; Adams County, Nebraska; the State of Nebraska; John
and Jane Does 1 through 10; Rick Schmidt; Raelee Van Winkle;
Jerry Esch; Michael Doremus; Kelly Scarlett; Allen Dedlak;
and Alyson Keiser Roudebush. The case was again removed to
this Court and Infante voluntarily dismissed her claims
against Adams County, the State of Nebraska, Alyson Keiser
Roudebush, and John and Jane Does 1 through 10. ECF No. 18
& 22. None of the individual defendants has been sued in
his or her individual capacity. The remaining defendants have
moved to dismiss Infante's Complaint in its entirety.
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 &
556 (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).
addition to several state law claims, Infante asserts claims
under 42 U.S.C § 1983 for violations of her rights under
the First, Sixth, Eighth and Fourteenth Amendments to the
United States Constitution. For the reasons discussed below,
the Court concludes that Infante failed to state plausible
§ 1983 claims against the City of Hastings, and any such
claims are barred by the applicable statute ...