Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Clayborne v. Parker

United States District Court, D. Nebraska

May 28, 2019

ROBERT EARL CLAYBORNE JR., Plaintiff,
v.
PARKER, Officer, #1577, Individual Capacity; JAMES, Sgt, #1370, Individual Capacity; CHAD HEIN, Officer, #1552, Individual Capacity; RIPLEY, Officer, #1256, Individual Capacity; MESSERSMITH, Officer, #1568, Individual Capacity; KOUNOVSKY, Officer, #1593, Individual Capacity; and SUNDERMEIER, Captain, #717, Individual Capacity; Defendants.

          MEMORANDUM AND ORDER

          RICHARD G. KOPF, SENIOR UNITED STATES DISTRICT JUDGE

         This matter is before the court on Defendants' Motion to Dismiss Plaintiff's Amended Complaint (“Motion to Dismiss”). (Filing No. 30.) For the reasons explained below, the Motion to Dismiss will be granted.

         I. BACKGROUND

         On December 18, 2017, Plaintiff, an inmate currently confined at the Tecumseh State Correctional Institution, filed this action against the City of Lincoln, Nebraska (“City of Lincoln”); the City of Lincoln Police Department (“Lincoln Police Department”); and several City of Lincoln Police Officers in their individual and official capacities. (Filing No. 1.) Plaintiff alleged that he was subject to an unreasonable search and seizure and excessive force in violation of his rights under the Fourth and Fourteenth Amendments and also cited to the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101-12213, as legal authority for his claims.

         The court conducted an initial review of Plaintiff's Complaint on October 9, 2018. (Filing No. 12.) The court dismissed Plaintiff's claims against the Lincoln Police Department as it is not a suable entity and concluded that Plaintiff had stated viable Fourth Amendment claims against Lincoln Police Officers James, Sundermeier, Parker, Hein, Ripley, Messersmith, and Kounovsky in their individual capacities. However, the court determined that Plaintiff had failed to state a claim against the City of Lincoln or the Lincoln Police Officers in their official capacities and also failed to state a claim under the ADA. The court granted Plaintiff leave to file an amended complaint with respect to his official-capacity and ADA claims and ordered that Plaintiff's Fourth Amendment claims against the officers in their individual capacities would proceed to service of process only after Plaintiff had an opportunity to amend his Complaint.

         Plaintiff filed his Amended Complaint on October 22, 2018. (Filing No. 13.) Plaintiff's Amended Complaint names as Defendants City of Lincoln Police Officers Parker, James, Hein, Ripley, Messersmith, Kounovsky, and Sundermeier in their individual capacities only. Again, Plaintiff claims that he was subjected to an unreasonable search and seizure and excessive force in violation of his rights under the Fourth and Fourteenth Amendments. (Id. at CM/ECF p. 3.) Specifically, Plaintiff alleges:

Lincoln Police forced entry & conspired to force entry inside my home to arrest me without an arrest warrant or search warrant supported with probable cause or oath or affirmation, particular[ly] describing the place to be searched & person to be seized, or without consent or exigent circumstances as a mental[ly] disabled Adult and placed me in detention in the Lancaster County Jail on Dec[ember] 27[, ] 2011 between 3[:]28am and 4:00am in Lincoln[, ] NE.

(Id. at CM/ECF p. 5.) Plaintiff also alleges the Defendants deprived him of his “civil right to due process as a mentally disabled adult under the [ADA].” (Id. at CM/ECF p. 3.)

         Plaintiff seeks monetary damages for several alleged harms, including “physical injury of restraint of liberty[, ] . . . pain and suffering[, ] mental distress, false arrest and unlawful detention.” (Id. at CM/ECF p. 6.)

         Upon review of Plaintiff's Amended Complaint, the court dismissed Plaintiff's ADA claims but permitted Plaintiff's Fourth Amendment claims to proceed to service of process. (Filing No. 14.)

         On February 22, 2019, Defendants filed the instant Motion to Dismiss Plaintiff's Amended Complaint (filing no. 30) and a brief (filing no. 31). Defendants contend that Plaintiff's Amended Complaint fails to state a claim upon which relief can be granted and that it is further barred by the statute of limitations. (Filing No. 31.) On March 5, 2019, Plaintiff filed his brief in opposition (filing no. 37) and an Index of exhibits (filing no. 38), which included a 2010 decision from the Social Security Administration, Office of Disability Adjudication and Review, finding that Plaintiff was “disabled” from March 10, 2008 through March 26, 2010. Defendants filed a reply brief (filing no. 40) on March 14, 2019.

         II. STANDARD OF REVIEW

         Defendants' Motion to Dismiss relies on Fed.R.Civ.P. 12(b)(6). “[W]hen it ‘appears from the face of the complaint itself that the limitation period has run,' a limitations defense may properly be asserted through a Rule 12(b)(6) motion to dismiss.” Varner v. Peterson Farms, 371 F.3d 1011, 1016 (8th Cir. 2004) (quoting Wycoff v. Menke, 773 F.2d 983, 984-85 (8th Cir. 1985)). And the court may also consider some information which is not contained within the complaint, such as materials that are part of the public record and materials that are necessarily embraced by the pleadings, without transforming the motion into one for summary judgment. Porous Media Corp. v. Pall Corp., 186 F.3d 1077, 1079 (8th Cir. 1999); see Greenman v. Jessen, 787 F.3d 882, 887 (8th Cir. 2015).

         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 to relief that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.