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Chalepah v. The City of Omaha

United States District Court, D. Nebraska

February 21, 2019

RENITA CHALEPAH, as Personal Representative of the Estate of Zachary Nicholas Bear Heels for the benefit of the Heirs and Next of Kin and as Personal Representative of the Estate of Zachary Nicholas Bear Heels, Deceased, Plaintiff,
THE CITY OF OMAHA, a Nebraska Political Subdivision, et al., Defendants.


          John M. Gerrard Chief United States District Judge

         The plaintiff is the mother of Zachary Bear Heels, a young man whose life was lost in the early morning hours of June 5, 2017, while in the custody of the individual defendants, all of whom were City of Omaha police officers. On behalf of Bear Heels' Estate and his heirs and next of kin, the plaintiff brings this action pursuant to 42 U.S.C. § 1983 regarding the alleged violation of Bear Heels' Constitutional rights protected by the Fourth and Fourteenth Amendments, and also regarding the defendants' alleged violation of the Americans with Disabilities Act, 42 U.S.C. § 12132. The defendants have moved for partial dismissal of the plaintiff's Complaint pursuant to Fed. R Civ. P. 12(b)(6) and 12(b)(1). The defendants' motion will be denied.


         A motion pursuant to Rule 12(b)(1) challenges whether the court has subject matter jurisdiction. The party asserting subject matter jurisdiction bears the burden of proof. Great Rivers Habitat Alliance v. FEMA, 615 F.3d 985, 988 (8th Cir. 2010).

         To survive a Rule 12(b)(6) motion to dismiss, 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). For the purposes of a motion to dismiss a court must take all the factual allegations in the complaint as true, but is not bound to accept as true a legal conclusion couched as a factual allegation. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). 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.


         Zachary Bear Heels was traveling by bus from Murdo, in south-central South Dakota, to Oklahoma City, Oklahoma. Bear Heels suffered with bipolar disorder and schizoaffective disorder and took anti-psychotic medication to help control his symptoms.

         Late at night on Saturday, June 3, 2017, Bear Heels was not allowed to re-board the bus after it had stopped in Omaha due to complaints about his conduct from another bus passenger. Filing 1 at 3. The next day, June 4, Omaha Police officers were called to a business located near 60th and Center Street regarding a report of someone licking the windows. The responding officers encountered Bear Heels, who was described as talking quietly and appeared to be dehydrated. The officers gave him some water and asked if they could take him to a shelter. The officers observed that Bear Heels appeared to be under the influence of drugs or mentally ill, but believed that they did not have a lawful reason to detain him. Filing 1 at 4.

         That night in the early morning hours of Monday, June 5, defendants Jennifer Strudl and Makayla Mead were dispatched to a convenience store located at 60th and Center Street at around 12:30 a.m. regarding a disturbance involving a person who was refusing to leave. Officer James Mosby was in the area and also responded to the call. Upon arrival, Strudl observed Bear Heels dancing in front of the store. Strudl and Mosby contacted Bear Heels and attempted to obtain his identification and his reasons for being in the area. They observed that Bear Heels' speech was garbled, and he displayed signs of impairment. Strudl and Mosby placed Bear Heels in handcuffs without incident. Mosby was called away to another incident, so Strudl and Mead placed Bear Heels in the back seat of Strudl's police cruiser while they considered how they should proceed. Filing 1 at 5. They told Bear Heels they would take him where he wanted to go.

         Strudl and Mead ran a records check and learned that on June 4, the plaintiff had reported Bear Heels as missing. Strudl spoke with defendant Sgt. Erik Forehead for advice on what they should do. Forehead believed that Bear Heels did not meet the criteria to be taken into protective custody and that there was an insufficient basis to justify arresting him. Shortly after 1:00 a.m., Strudl called the plaintiff to discuss options for her son. Filing 1 at 6. Bear Heels was allowed to talk to his mother. Strudl reported that Bear Heels' speech during this conversation was mostly unintelligible. The plaintiff explained to Strudl that she was doing all she could to get Bear Heels back home to Oklahoma so that she could get him the help he needed. The plaintiff asked Strudl and Mead to take Bear Heels to a crisis center until she could drive from Oklahoma to pick him up. Mead contacted Sgt. Forehead regarding the plaintiff's request to take Bear Heels to a crisis center. Forehead continued to maintain that there was no justification for Bear Heels to be detained. Strudl and Mead told the plaintiff that they were going to take Bear Heels to the bus station. By this time, Bear Heels had been sitting handcuffed in the back seat of Strudl's cruiser for nearly 40 minutes. Filing 1 at 6.

         Around 1:30, defendant Scotty Payne arrived on the scene. Strudl told Payne she was going to take Bear Heels to the bus station and drop him off. However, when Strudl opened the back door of her cruiser to fasten Bear Heels' seatbelt, Bear Heels-still handcuffed behind his back-got out and tried to get away. Strudl, Mead and Payne went after Bear Heels to try and get him back into Strudl's cruiser. They caught him and were able to pin him against a bottled water display, but were unable to get him back to the cruiser. Filing 1 at 7. Defendant Ryan McClarty arrived on the scene while Strudl, Mead and Payne were trying to get Bear Heels back to Strudl's cruiser. McClarty pulled Bear Heels to the ground, and Payne told him that he would be tasered if he did not cooperate. Strudl, Mead, Payne and McClarty started carrying Bear Heels back to Strudl's cruiser when Bear Heels broke free and landed on his feet. Payne shouted "Taser, Taser," McClarty grabbed Bear Heels, and Payne discharged his Taser with the electrodes embedding in Bear Heels' abdomen and right thigh. Filing 1 at 7.

         McClarty pulled Bear Heels to the ground again and started dragging him by his ponytail and waistband toward Strudl's cruiser. Mead helped by grabbing Bear Heels' arm. All the while, Payne's Taser electrodes remained embedded in Bear Heels while Payne discharged his Taser approximately six more times. Filing 1 at 8. Bear Heels was placed in a seated position on the ground, with his back against the right rear tire of Strudl's cruiser. Bear Heels was offering no resistance and Payne discharged the Taser three more times. Filing 1 at 8. After hitting Bear Heels with ten Taser discharges, [1] Payne stepped forward and while standing over Bear Heels, who was not resisting, said "You're gonna get it again." Bear Heels was able to free his left hand from the handcuffs and-while still on the ground-swung his arms and legs at McClarty. McClarty jumped on Bear Heels and struck him with a closed fist thirteen times on the head and then attempted to place Bear Heels in a neck restraint. Payne, again, discharged his Taser. Filing 1 at 8.

         Soon after subduing Bear Heels, Payne radioed for a rescue squad. Payne, McClarty, Strudl and Mead continued to pin Bear Heels to the ground as they waited for the rescue squad to arrive. During this wait, Sgt. Forehead arrived at the scene and assisted his officers by helping to secure the handcuffs and place flex cuffs on Bear Heels' legs. Filing 1 at 9. The rescue squad arrived within seven minutes from when Payne called for assistance. By the time Omaha Fire and Rescue handcuffed Bear Heels to a gurney and got him into the rescue unit, he had stopped breathing and had no pulse. Upon arrival at ...

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