United States District Court, D. Nebraska
KENT W. RINNE, Plaintiff,
CITY OF BEATRICE, DERRICK HOSICK, Beatrice Police Department Officer #306, ANTHONY CHISANO, Beatrice Police Department Officer #304, and NATASHA NESBITT, Beatrice Police Officer #316, Defendants.
AMENDED MEMORANDUM AND ORDER
RICHARD G. KOPF SENIOR UNITED STATES DISTRICT JUDGE
brings this 42 U.S.C. § 1983 action against the City of
Beatrice and three of its police officers, in their
individual and official capacities, alleging that the
Defendants used excessive force while falsely arresting and
imprisoning him in violation of his Fourth and Fourteenth
Amendment rights. Plaintiff further claims that the City
failed to properly train its officers on various aspects of
conducting criminal investigations; maintains policies,
customs, and practices that caused the Plaintiff to suffer
violations of his constitutional rights; and ratified the
officers' unconstitutional conduct by failing to
Defendants have moved to partially dismiss Plaintiff's
Complaint under Fed.R.Civ.P. 12(b)(6) (Filing No. 7),
asserting that: (1) Plaintiff's section 1983 claims
against the City and the police officers in their official
capacities must be dismissed because Plaintiff has failed to
allege sufficient facts to establish the existence of a
municipal policy, custom, or failure to train that caused
Plaintiff's injuries; and (2) Plaintiff's
false-imprisonment claim must be dismissed as duplicative of
Plaintiff's false-arrest claim.
Standard of Review
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 survive a motion to
dismiss, the factual allegations in a complaint “must
be enough to raise a right to relief above the speculative
level.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007). A complaint must be dismissed if it does not
plead “enough facts to state a claim to relief that is
plausible on its face.” Id. at 570. “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.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (stating that the plausibility standard does not
require a probability, but asks for more than a sheer
possibility that a defendant has acted unlawfully).
purposes of a motion to dismiss, the court must “assume
that well-pleaded factual allegations in the complaint are
true and construe the complaint, and all reasonable
inferences arising therefrom, most favorably to the
pleader.” Westcott v. City of Omaha, 901 F.2d
1486, 1488 (8th Cir. 1990) (internal quotation marks and
citation omitted). The court will not, however,
“blindly accept the legal conclusions drawn by the
pleader from the facts.” Id.“When the
allegations in a complaint, however true, could not raise a
claim of entitlement to relief, the complaint should be
dismissed for failure to [state] a claim under Fed.R.Civ.P.
12(b)(6).” Hawkins Constr. Co. v. Peterson
Contractors, Inc., 970 F.Supp.2d 945, 949 (D. Neb.
complaint “does not need detailed factual allegations,
a plaintiff's obligation to provide the grounds of his
entitlement to relief requires more than labels and
conclusions, and a formulaic recitation of the elements of a
cause of action will not do.” Twombly, 550
U.S. at 555 (internal quotation marks, brackets, and
citations omitted). “The essential function of a
complaint under the Federal Rules of Civil Procedure is to
give the opposing party ‘fair notice of the nature and
basis or grounds for a claim, and a general indication of the
type of litigation involved.'” Topchian v.
JPMorgan Chase Bank, N.A., 760 F.3d 843, 848 (8th Cir.
2014) (quoting Hopkins v. Saunders, 199 F.3d 968,
973 (8th Cir. 1999)).
Plaintiff's Factual Allegations
purposes of ruling on Defendants' Rule 12(b)(6) motion,
the court considers the following material facts alleged in
Plaintiff's Complaint as true:
17. At or around 7:00 PM on Thursday, August 25, 2016,
Plaintiff was at his home located at 1200 South 6th Street in
18. At or about 7:30 PM on Thursday, August 25, 2016,
defendant Officer Derrick Hosick was driving northbound in
the 900 block of South 6th Street when he allegedly
encountered a vehicle driving southbound in the 800 block of
South 6th Street that was traveling at 50 miles per hour in a
35 mile per hour speed zone. Officer Hosick made a u-turn to
pursue the speeding vehicle, but lost line of sight with the
vehicle when it passed over a bridge at the Big Blue River.
19. Plaintiff was not the driver of the vehicle pursued by
Officer Hosick. Plaintiff was at home and not driving his
vehicle at the time Officer Hosick first saw the vehicle he
20. Officer Hosick continued south of the bridge where he saw
plaintiff leaving his home and walking in the direction of
his car. Plaintiff was stopped by Officer Derrick Hosick,
armed and in uniform.
21. While Plaintiff was lawfully on his own premises, Officer
Derrick Hosick attempted to conduct a field sobriety test
without probable cause. Officer Hosick did not mention the
22. Without probable cause, Officer Hosick used excessive
force to attempt maneuver [sic] Plaintiff to the patrol unit
to administer a preliminary breath test. Plaintiff informed
Officer Hosick that he was not drunk and stated that he
wanted to wait for his wife to get home.
23. At this point, Officer Natasha Nesbitt arrived and began
to assist Officer Hosick. Plaintiff was manhandled by the
officers while they placed him under arrest, forced his arms
behind his back, and put him in the back of the patrol unit.
Plaintiff informed the officers that he had a previous
surgery on his right shoulder and had trouble putting his
hands behind his back. Plaintiff informed the officers that
he had recent knee surgery and could not sit in the back of
the patrol unit.
24. Officer Anthony Chisano arrived and forcefully attempted
to put Plaintiff in the back of the patrol unit.
25. During the altercation, the excessive force used by
Officers Hosick, Nesbitt and Chisano caused an acute full
tear of Plaintiffs left rotator cuff, a full tear of
Plaintiff's previously repaired right rotator cuff,
injury to Plaintiffs left wrist, and chronic headaches, among
26. Plaintiff was arrested and received a criminal citation
for driving under the influence, refusal to submit to a
preliminary breath test and failing to obey a police officer.
On or about October 4, 2016, Plaintiff was arraigned on only
two charges, driving under the influence and refusal to
submit to preliminary breath test.
27. After the charges were filed, the Gage County Attorney
conducted further review of the evidence and
“determined that the facts did not rise to a level of
probable cause to support an arrest for these two
charges.” On or about November 23, 2016, the charges
for driving under the influence and refusal to submit to a
preliminary breath test were dropped by the Gage County
31. After posting bond on August 26, 2016, Plaintiff sought
medical treatment for the injuries caused by the use of
excessive force. Two MRI's at Beatrice Hospital showed an
acute full tear of Plaintiff's left rotator cuff and an
acute full tear of the previously repaired right rotator cuff
as a result of the unreasonable and excessive force inflicted
by the Officers. In addition to the torn rotator cuffs,
Plaintiff suffered injuries to his left wrist, chronic