United States District Court, D. Nebraska
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.
MEMORANDUM AND ORDER
M. Gerrard Chief United States District Judge
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
STANDARD OF REVIEW
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
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.
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.
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.
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.
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.
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.
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,  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
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