United States District Court, D. Nebraska
MEMORANDUM AND ORDER
Smith Camp, Senior United States District Judge
matter is before the Court on the Motion to Dismiss, ECF No.
10, filed by Defendants City of Omaha (the City), Kerry
Iselin, and Clinton Gormley; and the Motion to Dismiss, ECF
No. 13, filed by Defendant Robert Laney. For the reasons
stated below, the Motions filed by the Defendants will be
granted, in part.
following facts are a summary of those alleged in the
Complaint, ECF No. 1-1, and are assumed true for the purposes
of the Motions to Dismiss. In October 2016, Defendants
Iselin, Laney, Gormley and John Does 1-100 (referred to
collectively as “the Officers”) “executed a
search against” Polak and removed him from his home.
When Polak attempted to surrender, despite not being
commanded to do so, he was handcuffed and beaten by the
Officers. As a result, Polak suffered injuries, including a
black eye, and his personal property was destroyed.
filed a Complaint in the District Court of Douglas County,
Nebraska, and Defendants removed the case to this Court.
Polak's Complaint asserts causes of action against the
City and the Officers, in their individual and official
capacities, under 42 U.S.C. § 1983 and state tort law.
City, Iselin, and Gormley seek dismissal of Polak's
claims pursuant to Fed.R.Civ.P. 12(b)(6). Laney seeks
dismissal pursuant to Fed.R.Civ.P. 12(b)(1) based on
sovereign immunity, arguing that he was acting under color of
federal law, not state law, at the time of Polak's
arrest. Laney also seeks dismissal pursuant to Fed.R.Civ.P.
12(b)(6), arguing he is entitled to qualified immunity.
Motion to Dismiss Pursuant to Fed. R. Civ. R.
order to properly dismiss for lack of subject matter
jurisdiction under Rule 12(b)(1), the complaint must be
successfully challenged on its face or on the factual
truthfulness of its averments.” Titus v.
Sullivan, 4 F.3d 590, 593 (8th Cir. 1993) (citing
Osborn v. United States, 918 F.2d 724, 729 n.6 (8th
Cir. 1990)). “In a facial challenge to jurisdiction,
the court presumes all of the factual allegations concerning
jurisdiction to be true and will grant the motion only if the
plaintiff fails to allege an element necessary for subject
matter jurisdiction.” Young Am. Corp. v. Affiliated
Comput. Servs., 424 F.3d 840, 843-44 (8th Cir. 2005)
(citing Titus, 4 F.3d at 593). In a factual
challenge to jurisdiction, “there is substantial
authority that the trial court is free to weigh the evidence
and satisfy itself as to the existence of its power to hear
the case.” Osborn, 918 F.2d at 730. In short,
no presumptive truthfulness attaches to plaintiff's
allegations, and the existence of disputed material facts
will not preclude the trial court from evaluating for itself
the merits of jurisdictional claims. Iowa League of
Cities v. EPA, 711 F.3d 844, 861 (8th Cir. 2013) (citing
Osborn, 918 F.2d 724, 730). The plaintiff has the
burden of proving jurisdiction exists. Osborn, 918
F.2d 730. “Once the evidence is submitted, the district
court must decide the jurisdictional issue, not simply rule
that there is or is not enough evidence to have a trial on
the issue.” Id. at 724.
no statute or rule prescribes a format for evidentiary
hearings on jurisdiction, ‘any rational mode of inquiry
will do.'” Brown v. Grand Island Mall Holdings,
Ltd., No. 09- 3068, 2010 WL 489531, at *2 (D. Neb. Feb.
8, 2010) (quoting Osborn, 918 F.2d at 730).
“So long as the court has afforded the parties notice
and a fair opportunity to be heard, an evidentiary hearing is
unnecessary.” Id. (citing Johnson v.
United States, 534 F.3d 958, 964-65 (8th Cir. 2008)).
immunity is jurisdictional in nature.” F.D.I.C. v.
Meyer, 510 U.S. 471, 475 (1994). “Indeed, the
‘terms of [the United States'] consent to be sued
in any court define that court's jurisdiction to
entertain the suit.'” Id. (quoting
United States v. Sherwood, 312 U.S. 584, 586
(1941)); see also Jones v. United States, 16 F.3d
979, 981 (8th Cir 1994) (dismissing a §1983 action where
federal actors acted under color of federal law under
Motion to Dismiss Pursuant to Fed. R. Civ. R.
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). “[A]lthough a
complaint need not include 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.'” C.N. v. Willmar
Pub. Sch., Indep. Sch. Dist. No. 347, 591 F.3d 624,
629-30 (8th Cir. 2010) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007)). “Instead, the
complaint must set forth ‘enough facts to state a claim
to relief that is plausible on its face.'”
Id. at 630 (citing Twombly, 550 U.S. at
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.'” Ritchie v. St. Louis Jewish
Light, 630 F.3d 713, 716 (8th Cir. 2011) (quoting
Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009)).
“'Courts must accept . . . specific factual
allegations as true but are not required to accept . . .
legal conclusions.” Outdoor Cent., Inc. v.
GreatLodge.com, Inc., 643 F.3d 1115, 1120 (8th Cir.
2011) (quoting Brown v. Medtronic, Inc., 628 F.3d
451, 459 (8th Cir. 2010)). “A pleading that merely
pleads ‘labels and conclusions,' or a
‘formulaic recitation' of the elements of a cause
of action, or ‘naked assertions' devoid of factual
enhancement will not suffice.” Hamilton v.
Palm, 621 F.3d 816, 817-18 (8th Cir. 2010) (quoting
Iqbal, 556 U.S. at 678). The complaint's factual
allegations must be “sufficient to ‘raise a right
to relief above the speculative level.'”
Williams v. Hobbs, 658 F.3d 842, 848 (8th Cir. 2011)
(quoting Parhurst v. Tabor, 569 F.3d 861, 865 (8th
ruling on a defendant's motion to dismiss, a judge must
rule “on the assumption that all the allegations in the
complaint are true, ” and “a well-pleaded
complaint may proceed even if it strikes a savvy judge that
actual proof of those facts is improbable, and ‘that a
recovery is very remote and unlikely.'”
Twombly, 550 U.S. at 555 & 556 (quoting
Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)). The
complaint, however, must still “include sufficient
factual allegations to provide the grounds on which the claim
rests.” Drobnak v. Andersen Corp., 561 F.3d
778, 783 (8th Cir. 2009).
recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice.”
Iqbal, 556 U.S. at 678 (citing Twombly, 550
U.S. at 555). “Determining whether a complaint states a
plausible claim for relief will . . . be a context-specific
task that requires the reviewing court to draw on its
judicial experience and common sense.” Id. at
42 U.S.C. § 1983 ...