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Nagy v. Huntley

United States District Court, D. Nebraska

October 22, 2018

BRICE D. NAGY, Plaintiff,
ALEX M. HUNTLEY, Individually and in his official capacity, et al., Defendants.


          John M. Gerrard United States District Judge.

         This 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 court.


         Nagy's 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.

         According 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 2.

         The 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 7.

         To 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.

         Nagy 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.[1] 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.

         Deputy 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.

         Nagy 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.

         Nagy 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."[2]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.


         A 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 allegation. Id.

         And to 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.

         Determining 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.

         When 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).


         The 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 ยง 1983 claims will be dismissed as to Furnas County and Sheriff Kapperman on that basis. So, ...

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