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Jones v. Custer County

United States District Court, D. Nebraska

April 25, 2018

JUDY K. JONES, Plaintiff,
CUSTER COUNTY, a political subdivision; STEVEN BOWERS, individually and in his capacity as County Attorney for Custer County; GLENN CLARK, both individually and in his capacity as Deputy County Attorney for Custer County; NEBRASKA STATE PATROL, a state agency; COL. DAVID SANKEY, Superintendent of Law Enforcement and Public Safety for the Nebraska State Patrol, individually and in his official capacity; JEFF ROGERS, individually and as an investigator of the Nebraska State Patrol; CHRIS KOBER, individually and as an investigator of the Nebraska State Patrol; and CUSTER COUNTY ATTORNEY'S OFFICE, a Nebraska Political Subdivision; Defendants.


          Laurie Smith Camp Chief United States District Judge

         This matter is before the Court on the Motion to Dismiss, ECF No. 53, filed by Defendants Chris Kober, Jeff Rogers, David Sankey, and the Nebraska State Patrol (the NSP Defendants). Also before the Court is the Motion to Dismiss, ECF No. 55, filed by Defendants Steven Bowers, Glenn Clark, Custer County, and the Custer County Attorney's Office (the Custer County Defendants). For the reasons stated below, the Motions will be granted, but Jones will be granted leave to file an amended complaint against Kober, Rogers, and Sankey, in their individual capacities, limited to the following claims: (1) a Fourteenth Amendment claim for manufactured false evidence, (2) a Fourteenth Amendment claim for reckless investigation, and (3) a § 1983 civil conspiracy claim.


         The following facts are those alleged in the Complaint, ECF No. 1, and assumed true for purposes of the pending Motions to Dismiss.

         Plaintiff Judy Jones was a practicing direct-entry midwife.[1] As a “devout Christian, ” she believed her practice was “based in scripture” and “an essential part of her religious practice.” Comp. ¶ 18, ECF No. 1, Page ID 5. On April 15, 2011, Jones entered into a contract with Jeff and Whitney Fenske “to spiritually minister to and support Whitney during her pregnancy and in the delivery of their child.” Id. at ¶ 19. On September 24, 2011, Whitney gave birth to a son at home and with Jones's services.

         Shortly after birth, the baby, Eli Fenske, had difficulty breathing and Jones provided “rescue breathing” until he was transported to a medical center in Broken Bow, Nebraska. Id. at ¶¶ 24-5. Eli was transported from the medical center in Broken Bow to a hospital in Kearney, Nebraska, and then to the University of Nebraska Medical Center (UNMC) in Omaha, Nebraska. He was placed on hospice care and discharged on October 11, 2011. On October 20, 2011, Eli died from “dehydration and malnutrition secondary to withdrawal of food and fluids on hospice care.” Id. at ¶ 37. Jones alleged the doctors and staff at the medical centers and hospitals failed to diagnose Eli with hypoglycemia, which was caused by “Smith-Lemli-Opitz syndrome.” Id. at ¶¶ 40. She contends that her direct-entry midwifery services did not contribute to the cause of death in any way.

         Jeff Rogers and Chris Kober of the Nebraska State Patrol investigated Eli Fenske's death. They interviewed both Whitney and Jeff Fenske; Dr. Angela Pruden, the Emergency Room staff physician at the Broken Bow medical center; Dr. David Bolam of (UNMC) in Omaha; and contacted the Nebraska Department of Health and Human Services Licensure Unit. However, they did not interview the coroner physician or obtain a copy of his autopsy report, and they did not review any of Eli Fenske's medical records. Nor did they interview any of the treating physicians at the hospital in Kearney, Nebraska. Ultimately, Rogers concluded that Jones acted recklessly in caring for Eli Fenske during his birth and, on December 10, 2012, he submitted an affidavit in support of an arrest warrant for the arrest of Jones on a charge of manslaughter.

         That same day, Jones was charged with manslaughter in a criminal complaint filed by Glenn Clark, the Deputy County Attorney for Custer County. On March 21, 2013, Clark filed an amended complaint and added a charge for practicing medicine without a license in violation of Nebraska's Uniform Credentialing Act, Neb. Rev. Stat. § 38-101 et seq. On April 4, 2013, the amended complaint was dismissed, without prejudice, by the County Court for Custer County, Nebraska, because charges under the Credentialing Act must be brought by the Nebraska Attorney General and because there was insufficient evidence to support the charge of manslaughter. No. subsequent investigation was conducted.

         On June 13, 2013, Jones was again charged by the Custer County Attorney's Office with manslaughter, practicing medicine or nursing without a license, criminal impersonation, negligent child abuse resulting in the death of child, and intentional child abuse resulting in the death of child. The charges were based on the same evidence as the prior charges against Jones. On July 31, 2017, the case was “bound over to District Court.” Comp. ¶ 69, ECF No. 1, Page ID.[2] On October, 19, 2015, the Custer County Attorney, Steven Bowers, dismissed the charges against Jones.

         Jones filed this action against the NSP Defendants and the Custer County Defendants under 42 U.S.C. § 1983 for violations of her First, Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution. Each person named as a defendant has been sued in both the individual and official capacity. The NSP Defendants and the Custer County Defendants argue Jones's Complaint should be dismissed under Federal Rule of Civil Procedure 12(b)(1)[3] and 12(b)(6).


         A 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).

         On a 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).


         In its “Preliminary Statement, ” the Complaint states “Jones brings this case for monetary damages for violation of her civil rights under the First, Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments to the Federal Constitution. This action is brought pursuant to 42 U.S.C. § 1983.” Comp. ¶ 1, ECF No. 2, Page ID 1; see also Pl.'s Br., ECF No. 62, Page ID 308 (summarizing “Constitutional injuries”).[4] Jones also enumerates a claim for “conspiracy to violate civil rights” and asserts a claim for failure to train or supervise under § 1983.

         “To state a claim under 42 U.S.C. § 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law.” Cook v. City of Bella Villa, 582 F.3d 840, 848-49 (8th Cir. 2009) (quoting West v. Atkins, 487 U.S. 42, 48 (1988)).

         The arguments presented by the NSP Defendants and the Custer County Defendants are substantially similar. The Court will first address common issues applicable to all parties, and then the separate issues raised by the NSP Defendants and the Custer County Defendants, in turn.

         I. Fifth, Sixth, and Eighth Amendment Claims

         Jones's § 1983 claims for violations of her Fifth, Sixth, and Eighth Amendment rights lack plausibility.[5] See McCoy v. Carter-Jones Timber Co., 352 Fed. App'x 119, 121-22 (8th Cir. 2009) (citing Smith v. Boyd, 945 F.2d 1041, 1042-43 (8th Cir. 1991) (District courts may properly dismiss § 1983 claims sua sponte for failure to state a claim for relief where the claims obviously fail on the facts alleged)).

         First, Jones claims all the Defendants violated her substantive due process rights under the Fifth Amendment. Pl.'s Br., ECF No. 62, Page ID 309. However, “[t]he due process clause of the Fifth Amendment applies only to the federal government[, ]” Truong v. Hassan, 829 F.3d 627, 630-31 (8th Cir. 2016) (citing Barnes v. City of Omaha, 574 F.3d 1003, 1005 n.2 (8th Cir. 2009)), and there are no allegations or claims in the Complaint that a federal government actor deprived Jones of substantive due process. Livers v. Schenck, 700 F.3d 340, 351 (8th Cir. 2012).

         Second, Jones claims money damages because conduct of all the Defendants deprived her of her right to a speedy trial under the Sixth Amendment. However, the charges against Jones were dismissed by Custer County before trial and “[t]he sole remedy for a violation of the speedy trial right [is] dismissal of the charges[.]” Betterman v. Montana, __U.S.__, 136 S.Ct. 1609, 1615 (2016) (citing Strunk v. United States, 412 U.S. 434, 440 (1973)); see also Dabbs v. Peoria Cty. Ill., No. 1:16-cv-01463-JBM-JEH, 2016 WL 7391514, at *3 (C.D. Ill.Dec. 21, 2016) (finding the plaintiff failed to state a speedy trial claim because the criminal proceedings against him were terminated and there was no other remedy the court could provide).

         Finally, Jones claims her pretrial detention, itself, constituted cruel and unusual punishment. Yet the Eighth Amendment's prohibition on cruel and unusual punishment does not apply to pretrial detainees.[6] Smith v. Conway Cty., Ark., 759 F.3d 853, 858 (8th Cir. 2014); see also Manuel v. City of Joliet, Ill, __U.S.__, 137 S.Ct. 911, 914 (2017) (“The Fourth Amendment . . . establishes the standards and procedures governing pretrial detention.”). Further, none of the Defendants was responsible for setting Jones's bail and there are no allegations that she was ordered to pay a fine. Kohl v. Casson, 5 F.3d 1141, 1149 (8th Cir. 1993) (affirming district court's dismissal of Eighth Amendment excessive bail claim “because none of the defendants set [the plaintiff's] bail”); see also Smith v. Scott Cty. Jail, No. 1:06-CV-145 CAS, 2007 WL 586801, at *2 (E.D. Mo. Feb. 21, 2007) (dismissing Eighth Amendment claim for excessive bail because “none of the defendants was personally and directly responsible for setting the amount of plaintiff's bail”).

         Accordingly, Jones's § 1983 claims for a violation of her Fifth, Sixth, and Eighth Amendment rights will be dismissed, with prejudice.[7]

         II. Statute of Limitations

         Both the NSP Defendants and the Custer County Defendants argue that Jones's entire action is barred by the applicable statute of limitations. Based on the facts alleged in her Complaint, Jones's First Amendment Free Exercise claim and her Fourth Amendment false imprisonment claim are not timely.

         The length of the statute of limitations for a § 1983 claim is the same as the length of the statute of limitations “for personal-injury torts” in “the State in which the cause of action arose.” Wallace v. Kato, 549 U.S. 384, 387 (2007). Thus, the applicable statute of limitations in this case is four years. Neb. Rev. Stat. § 25-207. However, “the accrual date of a § 1983 cause of action is a question of federal law that is not resolved by reference to state law.” Wallace, 549 U.S. at 388 (emphasis in original). “Aspects of § 1983 which are not governed by reference to state law are governed by federal rules conforming in general to common-law tort principles.” Id. (citing Heck v. Humphrey, 512 U.S. 477, 483 (1994)). “Under those principles, it is ‘the standard rule that accrual occurs when the plaintiff has a complete and present cause of action, ' that is, when ‘the plaintiff can file suit and obtain relief[.]'” Wallace, 549 U.S. at 388 (quoting Bay Area Laundry and Dry Cleaning Pension Tr. Fund v. Ferbar Corp. of Cal., 522 U.S. 192, 201 (1997)); see also Anthony K. v. Neb. Dep't of Health and Human Servs., 855 N.W.2d 788, 799 (Neb. 2014) (collecting Circuit Court cases).

         A. First Amendment Claim

         Jones alleges that “a condition of [her] bond, set by the Court on December 12, 2012, was to cease practice as a midwife.” Comp. ¶ 79, ECF No. 1, Page ID 13. She claims this violated her rights under the Free Exercise Clause of the First Amendment and that both the NSP Defendants and Custer County Defendants caused the violation. Regardless of the merits of this claim, [8] it is barred by the applicable four-year statute of limitations.

         The condition that Jones stop practicing as a midwife was imposed, and the statute of limitations began to run, on December 12, 2012. Anthony K., 855 N.W.2d at 799 (“A § 1983 claim accrues ‘when the plaintiff knows or should know that his or her constitutional rights have been violated.'”) (quoting Hileman v. Maze, 367 F.3d 694, 696 (7th Cir. 2004)). Jones filed her Complaint on October 17, 2017, more than four years after her claim accrued. Therefore, her First Amendment Free Exercise claim is not timely and will be dismissed, with prejudice.

         B. Fourth ...

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