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Stamm v. County of Cheyenne

United States District Court, D. Nebraska

June 11, 2018

LISA STAMM, and VANESSA HUMARAN, Plaintiffs,
v.
COUNTY OF CHEYENNE, NEBRASKA, acting through the Cheyenne County Sheriff's Department; JOHN JENSON, acting in his individual and official capacities; CITY OF SCOTTSBLUFF, NEBRASKA, acting through the City of Scottsbluff Police Department; KEVIN SPENCER, acting in his individual and official capacities; COUNTY OF SCOTTS BLUFF, NEBRASKA, acting through the Scotts Bluff County Sheriff's Department; and MARK OVERMAN, in his individual and official capacities, Defendants.

          MEMORANDUM AND ORDER

          Richard G. Kopf, Senior United States District Judge.

         This matter is before the court on Defendants' motions to dismiss Plaintiffs' Amended Complaint (Filing Nos. 25, 27), which will be granted pursuant to Federal Rule of Civil Procedure 12(b)(6). Also at issue are two motions that were filed by Plaintiffs in response to Defendants' motions: (1) Plaintiffs' unopposed motion to dismiss two counts of the Amended Complaint (Filing No. 33), which will be granted; and (2) Plaintiffs' motion to file evidence under restricted access (Filing No. 39), which will be denied.

         I. INTRODUCTION

         Plaintiffs, Lisa Stamm (“Stamm”) and Vanessa Humaran (“Humaran”), are employed by the Nebraska Crime Commission (“Commission”), [1] which is not a party to this action. Named as Defendants are the Sheriff of Cheyenne County, Nebraska, John Jenson (“Jenson”), the Chief of Police of the City of Scottsbluff, Nebraska, Kevin Spencer (“Spencer”), and the Sheriff of Scotts Bluff County, Nebraska, Mark Overman (“Overman”), together with the political subdivisions they each represent.

         Humaran claims her personal information stored on the Nebraska Criminal Justice Information System (“NCJIS”), which is maintained by the Commission, was illegally accessed by Spencer in June and September 2016, and was then unlawfully distributed to Jenson and Overman, to other employees or officials of their political subdivisions, and possibly to law enforcement agencies in other counties in western Nebraska (Amended Complaint [Filing No. 24], ¶¶ 22, 25). Similarly, Stamm claims her personal information on NCJIS was illegally accessed by Jenson in June 2017 and then unlawfully disseminated (Amended Complaint, ¶¶ 31, 33).

         Stamm also claims that Overman and Spencer filed frivolous written complaints with the Nebraska Attorney General about Stamm's private postings on Facebook regarding the use of medicinal marijuana, and she alleges on information and belief that her Facebook account was illegally accessed (Amended Complaint, ¶ 27). In addition, Stamm alleges on information and belief that one or more Defendants made “harassing, threatening and intimidating” telephone calls to her during July and August 2017, calling her a “cop hater” and telling her to “quit putting dead babies on the highway.” (Amended Complaint, ¶ 30) She also alleges upon information and belief that one or more Defendants used unlawful means to obtain her private telephone number (Amended Complaint, ¶ 30).

         The NCJIS searches on Humaran were conducted “shortly after” she assumed some of the duties of administering the Justice Assistant Grant (“JAG”), which for approximately 25 years had provided funding for the Western Intelligence Narcotic Group (“WING”), a drug task force comprised of law enforcement agencies located in the Nebraska panhandle. Participating agencies included the Scottsbluff Police Department and the Cheyenne County and Scotts Bluff County Sheriff's Departments (Amended Complaint, ¶¶ 16, 17, 24). JAG funding for the WING program was discontinued in May 2017 (Amended Complaint, ¶ 15).

         Sometime during 2016, Humaran was “a member of the JAG strategic planning group, attend[ed] JAG meetings, and participat[ed] in the staff review group that made recommendations for funding JAG programs such as the WING program.” (Amended Complaint, ¶ 13) Humaran does not allege that she actually played any role in making a funding recommendation for the WING program, but she claims the NCJIS searches Defendant Spencer performed in June and September 2016 were done “for the sole purpose of harassing and intimidating [her].” (Amended Complaint, ¶ 24) However, there are no facts alleged to indicate in what manner she was harassed or intimidated by the searches. Humaran states that “at all time alleged” she was the Juvenile Justice Administrator for the Commission, but also alleges that in 2017 she became the Assistant Grant Administrator (Amended Complaint, ¶ 13). Again, there are no facts alleged to show that she actually played any part in discontinuing JAG funding for the WING program in her capacity as Assistant Grant Administrator, or, for that matter, that she was subjected to any allegedly unlawful conduct during 2017.

         Stamm “at all time alleged” was the Grants Division Chief for the Commission, and her duties “also included administering the Justice Assistance Grant which is funded through the U.S. Department of Justice.” (Amended Complaint, ¶ 12) There is no indication of what role, if any, Stamm played in the discontinuance of JAG funding for the WING program, but it is alleged that “[f]ollowing the defunding of the WING grant in May, 2017 due to their egregious and habitual non-compliance, Plaintiff Stamm has been subjected to unlawful, intimidating, threatening, and harassing conduct by the Defendants, ” including the complaints made to the Attorney General about her private Facebook postings and the telephone calls she received in July and August 2017 (Amended Complaint, ¶ 26).

         Both Plaintiffs also assert a gender-based equal protection claim against all Defendants, alleging that “[m]ale members of the Nebraska Crime Commission ... who worked with the Defendants on their unsuccessful grant application, ... [or] who voted to deny the WING grant were not subjected to unlawful NCJIS searches or the other unlawful actions.” (Amended Complaint, ¶¶ 35, 52) It is further claimed that “due to the Plaintiffs' gender (female), Defendants Jenson, Spencer and Overman by and through a mutual understanding and meeting of the minds, sought to deprive the female Plaintiffs equal protections under the law through their conspiracy and together they conspired to prevent by force, intimidation, or threat the Plaintiffs from discharging their duties and/or hindering, impeding or interrupting their official duties and/or conspiring to deprive Plaintiffs of their statutorily and constitutionally protected rights to equal protection, equal privileges, immunities, free speech (Stamm only), privacy, liberty, and against unlawful search and seizure in violation of 42 U.S.C. §1985.” (Amended Complaint, ¶ 34) In addition, a section 1983 conspiracy claim is asserted against all Defendants (Amended Complaint, ¶¶ 39, 58).

         Plaintiffs' Amended Complaint contains a total of ten claims (or counts), seven of which are alleged by both Plaintiffs against all Defendants:

• Defendants have violated Plaintiffs' constitutional and statutory right to privacy in contradiction of the Constitutions of the State of Nebraska (Art. 1, § 3), the United States of America (14th Amendment) and 42 U.S.C. § 1983. (Count 1 of Amended Complaint, ¶ 43)
• Defendants have violated Plaintiffs' constitutional and statutory right to Equal Protection under the laws in contradiction of the Constitutions of the State of Nebraska (Art. 1, § 1), the United States of America (14th Amendment) and 42 U.S.C. § 1983. (Count 4 of Amended Complaint, ¶ 52)
• Defendants have violated Plaintiffs' constitutional right to liberty in contradiction of the Constitutions of the State of Nebraska (Art. 1, § 1), the United States of America (14th Amendment) and 42 U.S.C. § 1983. (Count 5 of Amended Complaint, ¶ 55)
• Defendants have engaged in a conspiracy to violate the Plaintiffs' constitutional and statutorily protected rights in contradiction of the Constitutions of the State of Nebraska, the United States of America, and 42 U.S.C. § 1983. (Count 6 of Amended Complaint, ¶ 58)
• Defendants have engaged in a conspiracy to violate the Plaintiffs' constitutional and statutorily protected rights of the Plaintiffs in contradiction to 42 U.S.C. § 1985. (Count 7 of Amended Complaint, ¶ 61)
• Defendants have violated Plaintiffs' rights arising under Neb. Rev. Stat. §§ 28-924, 28-925, 28-926, 29-3518 and 42 U.S.C. § 1983. (Count 8 of Amended Complaint, ¶ 64)
• Defendants have conspired to violate Plaintiff's [sic] rights arising under Neb. Rev. Stat. §§ 28-924, 28-925, 28-926, 29-3518 and 42 U.S.C. § 1983.” (Count 9 of Amended Complaint, ¶ 67)

         Plaintiffs have filed a motion to dismiss the last two claims (Counts 8 and 9), which allege Defendants violated state statutes that limit use of the NCJIS database.

         Two claims are alleged only by Plaintiff Stamm. One of these claims is alleged only against Defendants Jenson and Cheyenne County, while the other is alleged against all Defendants:

• Defendants Jenson and Cheyenne County, Nebraska, violated Plaintiff Stamm's constitutional and statutory right against unlawful search and seizure in contradiction of the Constitutions of the State of Nebraska (Art. 1, § 7), the United States of America (4th Amendment) and 42 U.S.C. § 1983. (Count 2 of Amended Complaint, ¶ 46)
• Defendants have violated Plaintiff Stamm's right to free speech in contradiction of the Constitutions of the State of Nebraska (Art. 1, § 1), the United States of America (1st Amendment) and 42 U.S.C. § 1983. (Count 10 of Amended Complaint, ¶ 70)

         The final claim is alleged by Plaintiff Humaran against Defendants Spencer and the City of Scottsbluff:

• Defendants Spencer and the City of Scottsbluff, Nebraska violated Plaintiff Humaran's constitutional and statutory right against unlawful search and seizure in contradiction of the Constitutions of the State of Nebraska (Art. 1, § 7), the United States of America (4th Amendment) and 42 U.S.C. § 1983. (Count 3 of Amended Complaint. ¶ 49)

         II. DISCUSSION

         This action originated in the District Court of Lancaster County, Nebraska, and was removed to this court by Defendants on November 2, 2017. The notice of removal states that the action “contains only federal civil rights causes of action asserted under 42 U.S.C. §1983 and 42 U.S.C. §1985, ” and that the court “has original jurisdiction over the action under 28 U.S.C. § 1331.” (Filing No. 1, ¶¶ 1, 4)

         As outlined above, however, Plaintiffs also allege that Defendants violated various provisions of the Nebraska Constitution.[2] A plaintiff may not bring a state claim under the aegis of § 1983.[3] See Preston v. City of Pleasant Hill, 642 F.3d 646, 650 (8th Cir. 2011). Thus, the court does not have original jurisdiction over these state constitutional claims under § 1331, but may only exercise supplemental jurisdiction pursuant to 28 U.S.C. § 1367. See Preston, 642 F.3d at 650.

         Plaintiffs generally allege for their § 1985 claim (Count 7) that Defendants conspired to violate Plaintiffs' “constitutional and statutorily protected rights.” To the extent Plaintiffs are attempting to rely upon provisions of the Nebraska Constitution or statutes, this conspiracy claim also fails as a matter of law. “To state a claim under the equal protection provisions of the first part of § 1985(3), ... [a plaintiff] must allege that an independent federal right has been infringed.” Federer v. Gephardt, 363 F.3d 754, 757-58 (8th Cir. 2004) (emphasis supplied); see also Nieto v. United Auto Workers Local 598, 672 F.Supp. 987, 991 (E.D. Mich. 1987) (§ 1985(3) “has been interpreted as requiring a violation of federal law, whether federal statutory law or the Constitution.”); Weise v. Reisner, 318 F.Supp. 580, 583 (E.D. Wis. 1970) (“§ 1985 runs only to a deprivation of the federal right to equal protection of the law or of equal privileges and immunities under the law.”).

         Returning to the state-law claims over which the court might be able to exercise supplemental jurisdiction, it is alleged in Counts 1, 2, 3, 4, 5, and 10 of the Amended Complaint that Defendants violated Plaintiffs' “constitutional and statutory right[s] ... in contradiction of the Constitution[ ] of the State of Nebraska ....” (Amended Complaint, ¶¶ 43, 46, 49, 52, 55, 70) Also, it is alleged in Count 6 of the Amended Complaint that “Defendants have engaged in a conspiracy to violate the Plaintiffs' constitutional and statutorily protected rights in contradiction of the Constitution[ ] of the State of Nebraska ....” (Amended Complaint, ¶ 58)

         Even if the Nebraska constitutional provisions cited by Plaintiffs, Article I, §§ 1, 3, and 7, might be self-executing (an unresolved issue under Nebraska law), [4] the Nebraska Supreme Court has held that legislative action is necessary to waive the state's sovereign immunity. See McKenna v. Julian, 763 N.W.2d 384, 390-91 (Neb. 2009) (finding it unnecessary determine whether due process and search and seizure provisions of Nebraska Constitution are self-executing because Political Subdivisions Tort Claim Act did not waive sovereign immunity for suit against city and police officer). Neb. Rev. Stat. § 20-148(1) authorizes the bringing of suit for “the deprivation of any rights, privileges, or immunities secured by the United States Constitution or the Constitution and laws of the State of Nebraska, ” but there is an express exception for political subdivisions.

         “The statute clearly exempts political subdivisions and their employees from civil remedies for any deprivation of constitutional and statutory rights.” McCurry v. Swanson, No. 8:08CV448, 2009 WL 2969504, at *3-4 (D. Neb. Sept. 8, 2009) (citing McKenna, 763 N.W.2d at 390-91); see McKenney v. Harrison, No. 8:09CV129, 2009 WL 1606458, at *2 (D. Neb. June 3, 2009) (finding it unnecessary to speculate about whether the Nebraska Supreme Court would consider Article I, §§ 3, 7, of the Nebraska Constitution to be self-executing because claims brought against city and its police officers who were alleged to be acting within the scope of their employment were barred by sovereign immunity, expressly preserved in Neb. Rev. Stat. § 20-148).[5]Section 20-148 is a procedural statute designed to allow plaintiffs to bypass administrative procedures in discrimination actions against private employers; it does not operate to waive sovereign immunity and has no application here.” Potter v. Bd. of Regents of the Univ. of Nebraska, 844 N.W.2d 741, 749-50 (Neb. 2014).

         Nebraska's sovereign immunity doctrine is a matter of substantive law, which this court must apply in exercising supplemental jurisdiction. See Montin v. Moore, 846 F.3d 289, 293 (8th Cir. 2017) (holding district court did not err in dismissing medical malpractice claim without prejudice because State Tort Claim Act's waiver of immunity required suit to be filed in state court). The Nebraska Supreme Court has held that a trial court lacks subject matter jurisdiction over an action against the state unless the state has consented to suit, and that lack of subject matter jurisdiction may be raised at any time by any party or by the court sua sponte. Davis v. State, 902 N.W.2d 165, 186 (Neb. 2017). “Even in the absence of a challenge from any party, [federal] courts have an independent obligation to determine whether subject matter jurisdiction exists.” Sac & Fox Tribe of the Mississippi in Iowa, Election Bd. v. Bureau of Indian Affairs, 439 F.3d 832, 836 (8th Cir. 2006). And “[i]f the court determines at any time that it lacks subject matter jurisdiction, the court must dismiss the action.” Fed.R.Civ.P. 12(h)(3).

         Thus, even though Defendants have not expressly raised the issue of sovereign immunity, [6] the court concludes that lacks subject matter jurisdiction over all state-law claims alleged by Plaintiffs (as contained within Counts 1, 2, 3, 4, 5, 6, and 10 of the Amended Complaint), and will therefore dismiss such claims without prejudice. Alternatively, because the court has determined that all federal law claims should be dismissed, these state-law claims will be dismissed without prejudice pursuant to 28 U.S.C. § 1367(3).

         Consequently, in the discussion which follows, Counts 1, 2, 3, 4, 5, 6, and 10 of the Amended Complaint will be analyzed solely with reference to alleged deprivations of Plaintiffs' federal constitutional rights. Analysis of the § 1985 conspiracy claim (Count 7) will also be limited to the United States Constitution. These federal claims will be discussed in the following order: Plaintiffs' separate Fourth Amendment claims of unlawful search and seizure (Counts 2 and 3); Plaintiffs' joint claims of alleged deprivations of their Fourteenth Amendment rights to privacy (Count 1), liberty (Count 5), and equal protection (Count 4); Plaintiff Stamm's First Amendment claim (Count 10); and, finally, Plaintiffs' joint claims of conspiracy (Counts 6 and 7). First, however, the court will take up Plaintiffs' motions.

         A. Plaintiffs' Motion to Dismiss

         On March 6, 2018, after Defendants filed their motions to dismiss, Plaintiffs filed a motion stating that they “do not wish to prosecute Counts XIII [sic] and IX of the First Amended Complaint” and requesting the court to “enter an Order dismissing Counts XIII [sic] and IX of the First Amended Complaint.” (Filing No. 32) It was also stated that Plaintiffs' counsel “has contacted attorneys for the Defendants and they have no objection to said motion.” (Id.) An amended motion was filed later that same date, in which Plaintiffs stated that their previous filing “improperly referenced the counts to be dismissed” and that they are in fact seeking “to dismiss Counts VIII and IX of the First Amended Complaint.” (Filing No. 33)[7] It was again represented that the motion “is unopposed by both defense counsel.” (Id.)

         “Although there exists some disagreement on whether a plaintiff must follow Fed.R.Civ.P. 15(a) or 41(a) when dismissing less than all of the claims involved in an action, [the Eighth Circuit] in Johnston v. Cartwright, 355 F.2d 32, 39 (8th Cir. 1966), recognized that the differences were more technical than substantial: ‘(I)t may not be material whether the court acts under Rule 15(a) which relates to amendments ... or Rule 41(a)(2).'” Wilson v. Crouse-Hinds Co., 556 F.2d 870, 873 (8th Cir. 1977) (footnote omitted); see also Thomas v. United Steelworkers Local 1938, 743 F.3d 1134, 1141 n. 9 (8th Cir. 2014) (finding it unnecessary to decide whether plaintiff's attempt to dismiss only some of his claims, rather than the entire action, was governed by Federal Rule of Civil Procedure 41(a)). Any differences between Rule 15(a) and Rule 41(a) are not material in this case because Defendants do not object to Plaintiffs' motion.[8]

         The court therefore will grant Plaintiffs' motion to dismiss, as amended, and will dismiss Counts 8 and 9 of Plaintiffs' Amended Complaint without prejudice. This will, of course, render moot those portions of Defendants' motions to dismiss that pertain to Counts 8 and 9.

         B. Plaintiffs' Motion to File Evidence Under Restricted Access

         On April 5, 2018, Plaintiffs filed a motion “for an Order allowing Plaintiff Lisa Stamm to file newly obtained supplemental evidence” in response to Defendants' motions to dismiss, and, “[i]nsofar as the recently obtained evidence sought to be filed is highly sensitive, private, and confidential, ... to file it under restricted access.” (Filing No. 39) The motion will be denied for noncompliance with local rules.

         Nebraska Civil Rule 5.3 specifies that a party seeking to restrict access to documents must state in the motion “why redaction would not reduce or eliminate the need for restriction, ” and further provides that the document must be “filed separately as a restricted document.” NECivR 5.3(c)(1)(A) & (B).[9] “In ruling on the motion, the assigned judge may lift the restriction on the document, strike it, or order the filing party to place a redacted copy of the document on the public docket.” NECivR 5.3(c)(2). Plaintiffs have not adequately explained in their motion or supporting brief why restriction is necessary, and, more importantly, they have not filed the documents with the court.

         The court also denies the motion as untimely under Nebraska Civil Rule 7.1. “[A] motion is submitted on the briefs and any evidence filed when the time limit specified in Nebraska Civil Rule 7.1(c) expires.” NECivR 7.1(f). Rule 7.1(c) provides that “[t]he moving party may file a reply brief and index of evidence within 7 days after the opposing party files and serves the opposing brief” and that “[n]o party may file further briefs or evidence without the court's leave.” NECivR 7.1(c).

         Plaintiffs indicate in the brief filed in support of the motion that the “newly obtained supplemental evidence” was “obtained on March 29, 2018” and it pertains to the claim that “Defendant Jenson, acting within the scope and course of his employment with Cheyenne County, conducted an illegal NCJIS search of Plaintiff Stamm on June 12, 2017.” (Filing No. 40) They state that the evidence “will shed substantial light upon the nature and substance of the highly confidential and intimate information Jenson obtained on Stamm as a result of the illegal search” and “will further demonstrate that the information illegally obtained by Jenson was HIPPA [sic] protected.” (Id.)

         Defendants Jensen and Cheyenne County filed a reply brief in support of their motion to dismiss on March 9, 2018 (Filing No. 34), at which time the motion was placed under submission. While the court could grant Plaintiffs leave to file evidence after that date, Plaintiffs have failed to explain why the evidence could not have been discovered earlier. Absent any such ...


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