United States District Court, D. Nebraska
BRICE D. NAGY, Plaintiff,
ALEX M. HUNTLEY, Individually and in his official capacity, et al., Defendants.
MEMORANDUM AND ORDER
M. Gerrard United States District Judge.
matter is before the Court on the defendants' motion to
dismiss (filing 3) Brice Nagy's 42 U.S.C. §
1983 claims against them. The Court will grant that motion
and remand Nagy's remaining state-law claim to state
claim arises out of a search performed by law enforcement at
his residence. See filing 1-1. Nagy was a
resident of Oxford, Nebraska, a village in Furnas County.
Filing 1-1 at 1. The defendants are Furnas County
itself, Furnas County Sheriff Kurt Kapperman, and Furnas
County Deputy Sheriffs Alex Huntley, Seth Gustafson, and Nick
Schleich. Filing 1-1 at 1.
to Nagy, the sequence of events culminating in the allegedly
unlawful search of his home began when his relationship with
a woman living in Furnas County "ended badly."
Filing 1-1 at 2. Some years later, Nagy's
ex-girlfriend began seeing Deputy Schleich. Filing 1-1 at
2. This, according to Nagy, motivated Deputy Schleich to
harass Nagy, threatening to "get" him. Filing
1-1 at 2. This allegedly included harassment such as
following Nagy around Oxford, and on one occasion parking his
patrol vehicle outside Nagy's home and "honk[ing]
his horn for a period of time." Filing 1-1 at
search which forms the basis for Nagy's claims was
executed on February 3, 2018, pursuant to a search warrant
issued the same day which commanded law enforcement to search
for evidence of underage drinking. Filing 1-1 at 2,
8. The warrant was issued pursuant to an affidavit and
application completed by Deputy Schleich, but the affidavit
contains several errors. See filing 1-1 at
begin with, the affidavit begins with, "COMES NOW,
Deputy Alex M. Huntley . . .," although the body of the
affidavit and the signature (which was notarized) all clearly
identify the affiant as Deputy Schleich. The notarization was
erroneously dated November 3, 2017. Filing 1-1 at 7.
And the affidavit identified the residence as "514 Ogden
Street" in Oxford, but Nagy alleges that he actually
lived at 506 Ogden Street, and that's where the search
was performed. Filing 1-1 at 3, 7.
also questions the sufficiency of the affidavit to establish
probable cause. Deputy Schleich averred that while driving
down Ogden Street, he had seen four vehicles and five males
standing in the backyard of the residence. Filing 1-1 at
7. He drove down the alley behind the residence and saw
a minor he knew carrying a case of beer up to the
house. Filing 1-1 at 7. The minor,
Deputy Schleich averred, quickly went into the house after he
saw police. Filing 1-1 at 7. Deputy Schleich also
reported seeing another minor he knew holding a case of beer
bottles in his left hand and drinking out of a beer bottle he
was holding in his right hand. Filing 1-1 at 7. And
he saw another minor standing outside with them. Filing
1-1 at 7. Finally, driving around the block, Deputy
Schleich reported seeing Nagy and an unknown male who
appeared to be a minor standing outside on the porch.
Filing 1-1 at 7.
Schleich contacted Deputy Gustafson, who advised him to have
another deputy watch the residence. Filing 1-1 at 7.
Deputy Schleich applied for a "no knock anytime Search
Warrant." Filing 1-1 at 7. The Furnas County
Court, however, issued a warrant that could be served
"daytime or nighttime," but did not authorize a
no-knock entry. Filing 1-1 at 8. The warrant was,
pursuant to the application, issued for "514 Ogden
Street." Filing 1-1 at 8.
alleges that the warrant was executed at 506 Ogden Street by
Deputies Schleich and Gustafson at about 10:00 p.m. on
February 3, which was about 4 hours after the observations
set forth in the affidavit. Filing 1-1 at 4. Nagy
alleges they broke down the door. Filing 1-1 at 5.
But nothing was seized as a result of the search. Filing
1-1 at 9. Nagy alleges that by then, no one was home.
Filing 1-1 at 4. Nagy also alleges that the people
seen "at 506 Ogden Street, Oxford, Nebraska on February
3, 2018 at approximately 6:00 who were carrying or consuming
alcoholic beverages in the backyard of said residence were
male individuals over 30 years of age and no reasonable law
enforcement officer could have mistaken 30 year old males for
minors." Filing 1-1 at 5.
sued the defendants in state court in Furnas County, and they
removed the case to this Court. See filing 1.
Nagy's complaint asserts two claims for relief. First,
his § 1983 claim is premised on an allegedly unlawful
search and a purported due process right to be "free
from harassment."Second, he asserts a state-law claim
pursuant to Neb. Rev. Stat. § 29-411, which
provides a remedy for property damage resulting from forced
entry in the execution of a search warrant. See id.
The defendants move to dismiss the § 1983 claim pursuant
to Fed. R. Civ. P. 12(b)(6). Filing 3.
complaint must set forth a short and plain statement of the
claim showing that the pleader is entitled to relief.
Fed. R. Civ. P. 8(a)(2). This standard does not
require detailed factual allegations, but it demands more
than an unadorned accusation. Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009). The complaint need not contain detailed
factual allegations, but must provide more than labels and
conclusions; and a formulaic recitation of the elements of a
cause of action will not suffice. Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007). For the purposes of a
motion to dismiss a court must take all of the factual
allegations in the complaint as true, but is not bound to
accept as true a legal conclusion couched as a factual
survive a motion to dismiss under Fed. R. Civ. P.
12(b)(6), a complaint must also contain sufficient
factual matter, accepted as true, to state a claim for relief
that is plausible on its face. Iqbal, 556 U.S. at
678. 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. Id. Where the well-pleaded facts
do not permit the court to infer more than the mere
possibility of misconduct, the complaint has alleged-but has
not shown-that the pleader is entitled to relief.
Id. at 679.
whether a complaint states a plausible claim for relief will
require the reviewing court to draw on its judicial
experience and common sense. Id. The facts alleged
must raise a reasonable expectation that discovery will
reveal evidence to substantiate the necessary elements of the
plaintiff's claim. See Twombly, 550
U.S. at 545. The court must assume the truth of the
plaintiff's factual allegations, and a well-pleaded
complaint may proceed, even if it strikes a savvy judge that
actual proof of those facts is improbable, and that recovery
is very remote and unlikely. Id. at 556.
deciding a motion to dismiss under Rule 12(b)(6), the Court
is normally limited to considering the facts alleged in the
complaint. If the Court considers matters outside the
pleadings, the motion to dismiss must be converted to one for
summary judgment. Fed. R. Civ. P. 12(d). However,
the Court may consider exhibits attached to the complaint and
materials that are necessarily embraced by the pleadings
without converting the motion. Mattes v. ABC
Plastics, Inc., 323 F.3d 695, 697 n.4 (8th Cir. 2003).
Documents necessarily embraced by the pleadings include those
whose contents are alleged in a complaint and whose
authenticity no party questions, but which are not physically
attached to the pleading. Ashanti v. City of Golden
Valley, 666 F.3d 1148, 1151 (8th Cir. 2012).
defendants' first argument is that the complaint fails to
state a § 1983 claim against Furnas County or
Sheriff Kapperman, because the complaint pleads grounds for
neither a policy-or-custom claim against Furnas County, nor
for a supervisory liability claim against Sheriff Kapperman.
See Brewington v. Keener,902 F.3d 796, 800-03 (8th
Cir. 2018). Nagy concedes the point. Filing 5 at 9.
Accordingly, Nagy's § 1983 claims will be dismissed
as to Furnas County and Sheriff Kapperman on that basis. So,