United States District Court, D. Nebraska
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.
MEMORANDUM AND ORDER
Smith Camp Chief United States District Judge
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.
following facts are those alleged in the Complaint, ECF No.
1, and assumed true for purposes of the pending Motions to
Judy Jones was a practicing direct-entry
midwife. 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
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.
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.
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.
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. On October, 19, 2015, the Custer County
Attorney, Steven Bowers, dismissed the charges against 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) and 12(b)(6).
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
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).
“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
injuries”). Jones also enumerates a claim for
“conspiracy to violate civil rights” and asserts
a claim for failure to train or supervise under § 1983.
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)).
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.
Fifth, Sixth, and Eighth Amendment Claims
§ 1983 claims for violations of her Fifth, Sixth, and
Eighth Amendment rights lack plausibility. 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
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
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
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. 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
Jones's § 1983 claims for a violation of her Fifth,
Sixth, and Eighth Amendment rights will be dismissed, with
Statute of Limitations
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
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).
First Amendment Claim
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,  it is barred by
the applicable four-year statute of limitations.
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