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Polak v. City of Omaha

United States District Court, D. Nebraska

March 25, 2019

CITY OF OMAHA, a political subdivision of the State of Nebraska; KERRY ISELIN, ROBERT LANEY, CLINTON GORMLEY, and JOHN DOES 1-100, both individually and officially as officers of the Omaha Police Department; Defendants.


          Laurie Smith Camp, Senior United States District Judge

         This 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.


         The 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.

         Polak 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.

         The 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.


         I. Motion to Dismiss Pursuant to Fed. R. Civ. R. 12(b)(1)

         “In 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.

         “As 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)).

         “Sovereign 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 Fed.R.Civ.P. 12(b)(1)).

         II. Motion to Dismiss Pursuant to Fed. R. Civ. R. 12(b)(6)

         A 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 570).

         “'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.'” 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., 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 Cir. 2009)).

         When 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).

         Threadbare 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 679.


         I. Municipal Liability

         A. 42 U.S.C. ยง 1983 ...

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