United States District Court, D. Nebraska
WHITNEY HALLER and LEE WIESE, on behalf of WILLIAM WIESE, a minor child, Plaintiffs,
COUNTY OF DUNDY, NEBRASKA, JUSTIN NICHOLS, Dundy County Sheriff, in his official capacity, and CHARLES THIBEDEAU, in his individual capacity, Defendants.
MEMORANDUM AND ORDER
RICHARD G. KOPF SENIOR UNITED STATES DISTRICT JUDGE
matter is before the court on a motion to dismiss filed
pursuant to Federal Rule of Civil Procedure 12(b)(6). For the
reasons discussed below, the court finds that the motion to
dismiss should be granted in part (with respect to a federal
constitutional claim) and that the case should be remanded to
state court pursuant to 28 U.S.C. § 1367(c).
March 29, 2019, Defendants County of Dundy, Nebraska
(“Dundy”), and Justin Nichols, Dundy County
Sheriff, in his official capacity (“Nichols”)
(collectively, the “County”),  removed this
action from the District Court of Dundy County, Nebraska,
with the consent of Defendant Charles Thibedeau
(“Thiebedeau”), on the basis of federal question
jurisdiction (Filing 1). See 28 U.S.C. §§
1331, 1441(a) & (c). Plaintiffs are Whitney Haller
(“Haller”) and William Wiese
(“Wiese”), who sues on behalf of his minor son,
William Wiese (“minor Wiese”) (Filing 1-1).
case concerns the unlawful seizure and sexual assault of
Haller by Thiebedeau on March 22, 2017, while Thiebedeau was
on duty as a deputy sheriff for the County and Haller was
caring for minor Wiese (Filing 1-1, ¶¶ 23-34). On
January 18, 2018, Thiebedeau was convicted by a jury in the
District Court of Dundy County of kidnapping (a class II
felony),  third degree sexual assault (a class I
misdemeanor), and oppression under color of offense (a
class III misdemeanor),  and was subsequently sentenced to
consecutive terms of imprisonment for a minimum of 7½
years (Filing 1-1, ¶¶ 37, 38).
complaint (Filing 1-1) contains six claims (counts I-VI).
Counts I and II are alleged against the County, while counts
III through VI are alleged against Thiebedeau. On April 5, 2019,
the County filed a motion to dismiss counts I and II for
failure to state a claim upon which relief can be granted
(Filing 3), together with a supporting brief (Filing 4).
Plaintiffs filed an opposing brief on May 10, 2019 (Filing
14), and the County replied on May 17, 2019 (Filing 15).
is a negligence claim, in which Plaintiffs allege that the
County breached its duty of care to screen, hire, train, and
supervise deputy sheriffs in order to protect the public from
foreseeable risks of harm posed by the deputies (Filing 1-1,
¶¶ 40-42). Count II is a constitutional tort claim,
brought pursuant to 42 U.S.C. § 1983, in which Haller
alleges that County policies, customs, and practices violated
her constitutional rights, including her Fourth Amendment
right to be free from unreasonable searches and seizures
(Filing 1-1, ¶¶ 48, 51). The County contends that
there are not sufficient facts alleged to support either
claim, and, with respect to count I, that Nebraska's
Political Subdivisions Tort Claims Act does not waive
sovereign immunity for claims arising out of intentional
torts, see Neb. Rev. Stat. § 13-910(7).
Standard of Review
survive a motion to dismiss, a complaint must 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)). “Threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do
not suffice.” Id. Rather, well-pleaded factual
allegations must “plausibly give rise to an entitlement
to relief.” Id. at 679. That is, they must
“raise a right to relief above the speculative
level.” Twombly, 550 U.S. at 555; see
Usenko v. MEMC LLC, __ F.3d __, No. 18-1626, 2019 WL
2344827, at *2 (8th Cir. June 4, 2019).
plaintiff satisfies the plausibility requirement when he
“pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the
misconduct alleged.” Id. This standard
requires the plaintiff to allege “more than a sheer
possibility that a defendant has acted unlawfully.”
Id. “Determining whether a claim is plausible
is a ‘context-specific task that requires the reviewing
court to draw on its judicial experience and common
sense.'” Hamilton v. Palm, 621 F.3d 816,
818 (8th Cir. 2010) (quoting Iqbal, 556 U.S. at
assessing a motion to dismiss, the 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. Twombly, 550 U.S. at 555. The
facts alleged must raise a reasonable expectation that
discovery will reveal evidence to substantiate the necessary
elements of the plaintiff's claim. See Id. 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.
complaint's factual allegations do not need to be
“detailed, ” but they must be “more than
labels and conclusions” or “a formulaic
recitation of the elements of a cause of action.”
Id. at 555. The plaintiff is obligated to provide
within his complaint sufficient facts to establish “the
grounds of his entitlement to relief.” Id.
(cleaned up). The reviewing court should not assume the truth
of allegations that are merely conclusory in nature,
Iqbal, 556 U.S. at 681, and should reject
“catch-all assertions of law and unwarranted
inferences, ” Rand-Heart of N.Y., Inc. v.
Dolan, 812 F.3d 1172, 1176 (8th Cir. 2016) (quoting
In re K-tel Int'l, Inc. Sec. Litig., 300 F.3d
881, 889 (8th Cir. 2002)); see In re SuperValu,
Inc., 925 F.3d 955, 962 (8th Cir. 2019).
The Underlying Facts
purposes of ruling on the County's Rule 12(b)(6) motion
to dismiss, the court accepts as true the following
allegations of fact, which Plaintiffs have incorporated by
reference into counts I and II of their complaint:
13. ... Defendant Sheriff Nichols appointed Defendant Charles
Thibedeau as a full-time Deputy Sheriff for Dundy County on
or about October 1, 2016
* * *
15. After the Appointment, Defendant Sheriff Nichols directly
and indirectly supervised Defendant Deputy Thibedeau.
* * *
17. At all times relevant herein, Defendant Deputy Thibedeau
was not a certified law enforcement officer. Defendant Deputy
Thibedeau never obtained a certificate or diploma from the
Nebraska Commission on Law Enforcement and Criminal Justice
or from the Nebraska Law Enforcement Training Center.
18. ... Defendant Deputy Thibedeau was not qualified to be a
law enforcement officer in this state, did not meet the
minimum requirements to be a law enforcement officer, and had
physical and aggressive behaviors and past illegal drug use
in his history, all which should have prohibited Defendant
Deputy Thibedeau from becoming a law enforcement officer in
19. Despite Defendant Deputy Thibedeau's lack of
certification as a law enforcement officer and background,
Defendant Dundy County employed and Defendant Sheriff Nichols
appointed Defendant Deputy Thibedeau to protect the lives and
property of the public, held him out as a person who could
and would protect the public from harm, and equipped him with
a uniform, marked patrol vehicle, and handcuffs.
* * *
23. On March 22, 2017, while on duty as a Deputy County
Sheriff for Dundy County, Defendant Deputy Thibedeau sent
messages to Ms. Haller, stating he wanted to discuss a law
enforcement matter with her. Confused, Ms. Haller asked if
Defendant Deputy Thibedeau could come to her home where she
was caring for and supervising five-year-old minor Wiese.
Defendant Deputy Thibedeau responded that he could not come
to her home or talk with her on the phone. Instead, Defendant
Deputy Thibedeau told her to meet him at a remote location,
the Benkelman Golf Club, and that her significant other, Mr.
Wiese could not go with her.
24. Ms. Haller complied with Defendant Deputy Thibedeau's
directions and drove to the Benkelman Golf Club with
five-year-old William in the backseat of her vehicle.
25. At the Benkelman Golf Club, Ms. Haller parked her vehicle
near Defendant Deputy Thibedeau's marked patrol pickup.
No. other persons or vehicles were present. Defendant Deputy
Thibedeau had parked behind a line of buildings, blocking
others' view from the adjacent highway.
26. Ms. Haller left her vehicle with minor Wiese still inside
and approached Defendant Deputy Thibedeau who was wearing his
full uniform and duty belt that carried various law
enforcement equipment, including handcuffs.
27. Defendant Deputy Thibedeau informed Ms. Haller about an
imminent search of her residence by law enforcement, which
was a false statement.
28. Shortly thereafter, Defendant Deputy Thibedeau asked to
see Ms. Haller's breasts and Ms. Haller refused.
29. Defendant Deputy Thibedeau then demanded to touch Ms.
Haller's breasts. After she refused, Defendant Deputy
Thibedeau threatened to take her to jail on a warrant which
was not actually in existence.
30. Ms. Haller again refused Defendant Deputy Thibedeau
demands despite his threats of incarceration.
31. Defendant Deputy Thibedeau then forcibly handcuffed Ms.
Haller's hands behind her back and directed her to get
into the backseat of his patrol pickup.
32. While handcuffed behind her back and seated in the
backseat of Defendant Deputy Thibedeau's patrol pickup,
Defendant Deputy Thibedeau sexually assaulted Ms. Haller by
forcibly lifting her clothing and touching her bare breasts.
33. After the sexual assault, Defendant Deputy Thibedeau got
into the driver's seat of his patrol pickup and began to
drive towards the highway and away from the Benkelman Golf
Club, leaving minor Wiese alone and unattended in Ms.
Haller's vehicle. Ms. Haller begged Defendant Deputy
Thibedeau not to leave minor Wiese behind and pleaded for him
to let her go.
34. After Ms. Haller repeatedly pleaded with him, Defendant
Deputy Thibedeau stopped his patrol pickup, uncuffed Ms.
Haller, and released her. Defendant Deputy Thibedeau demanded
that she not tell anyone that he sexually assaulted her
because he would lose his job. Defendant Deputy Thibedeau
falsely stated that he had the power to make her warrant
“disappear” and that he could keep giving her
information about the law enforcement matter that he
35. Shortly after the sexual assault, Ms. Haller received a
message from Defendant Deputy Thibedeau that her warrant had
been “erased.” This was another false statement
made by Defendant Deputy Thibedeau.
36. That same day, Ms. Haller contacted authorities and
Defendant Deputy Thibedeau was arrested....
(Filing 1-1, pp. 4-8, ¶¶ 13, 15, 17-19, 23-36).
Haller's Federal Constitutional Claim
careful review of Plaintiffs' complaint, the court
concludes that insufficient facts have been alleged to state
a plausible claim for relief against the County under 42
U.S.C. § 1983. ...