United States District Court, D. Nebraska
MEMORANDUM AND ORDER
F. BATAILLON SENIOR UNITED STATES DISTRICT JUDGE.
matter is before the Court on defendant's motion to
dismiss plaintiff's first cause of action under
Fed.R.Civ.P. 12(b)(6) as to the claims for assault and
battery. Filing No. 3. Plaintiff filed this action based on
allegations that he was beaten by several members of the
Omaha Police Department on October 18, 2018, during an
arrest. Filing No. 1. Plaintiff did not respond to this
to Dismiss under Fed. R. Civ. P. 12(b)(6)
the Federal Rules, 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); Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 556 n.3.
(2007); Braden v. Wal-Mart Stores, Inc., 588 F.3d
585, 594 (8th Cir. 2009). “Specific facts are not
necessary; the statement need only ‘give the defendant
fair notice of what the . . . claim is and the grounds upon
which it rests.'” Erickson v. Pardus, 551
U.S. 89, 93 (2007) (quoting Twombly, 550 U.S. at
555). In order to survive a motion to dismiss under
Fed.R.Civ.P. 12(b)(6), the plaintiff's obligation to
provide the grounds for his entitlement to relief
necessitates that the complaint contain “more than
labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.”
Twombly, 550 U.S. at 555.
deciding a motion to dismiss under Rule 12(b)(6), a court
must accept the allegations contained in the complaint as
true and draw reasonable inferences in favor of the nonmoving
party. Cole v. Homier Dist. Co., Inc., 599 F.3d 856,
861 (8th Cir. 2010). Determining whether a complaint states a
plausible claim for relief is “a context-specific
task” that requires the court “to draw on its
judicial experience and common sense.” Ashcroft v.
Iqbal, 556 U.S. 662, 679 (2009).
follow a “two-pronged approach” to evaluate Rule
12(b)(6) challenges. Iqbal, 556 U.S. at 679. First,
a court divides the allegations between factual and legal
allegations; factual allegations should be accepted as true,
but legal allegations should be disregarded.
Id.Second, the factual allegations must be parsed
for facial plausibility. Id.“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.”
Id. at 677. The Court should not “incorporate
some general and formal level of evidentiary proof into the
‘plausibility' requirement of Iqbal and
Twombly.” Whitney v. Guys, Inc., 700
F.3d 1118, 1128 (8th Cir. 2012). The question at this
preliminary stage is not whether a plaintiff might be able to
prove its claim, but whether it has “adequately
asserted facts (as contrasted with naked legal conclusions)
to support” those claims. Id. The court must
find “enough factual matter (taken as true) to
suggest” that “discovery will reveal
evidence” of the elements of the claim.
Twombly, 550 U.S. at 558, 556. When the allegations
in a complaint, however true, could not raise a claim of
entitlement to relief, the complaint should be dismissed for
failure to set a claim under Fed.R.Civ.P. 12(b)(6).
Twombly, 550 U.S. at 558; Iqbal, 556 U.S.
at 679. Dismissal under Rule 12(b)(6) is appropriate only if
it is clear that no relief can be granted under any set of
facts that could be proven consistent with the allegations.
O'Neal v. State Farm Fire & Cas. Co., 630
F.3d 1075, 1077 (8th Cir. 2011).
the claims for assault and battery, defendant contends that
these claims are covered by the Nebraska Political
Subdivisions Tort Claims Act. To the extent that plaintiff is
seeking to recover under state tort law, argues defendant,
the City of Omaha is immune from suit under the theory of
sovereign immunity. SeeNeb. Rev. Stat.
§§13-901. The Act defines a "tort claim"
as: "any claim against a political subdivision for money
… on account of personal injury or death, caused by
the negligent or wrongful act or omission of any employee of
the political subdivision, while acting within the scope of
his or her office or employment, under circumstances in which
the political subdivision, if a private person, would be
liable to the claimant for such damage, loss, injury, or
death . . ." Neb. Rev. Stat. § 13-903(4). In this
case the plaintiff is asking for monetary damages. The
Unicameral has stated that “no suit shall be maintained
against such political subdivision or its officers, agents,
or employees on any tort claim except to the extent, and only
to the extent, provided by the Political Subdivisions Tort
Claims Act." Neb. Rev. Stat. § 13-902.
the Act does not apply to:
“(7) Any claim arising out of assault, battery, false
arrest, false imprisonment, malicious prosecution, abuse of
process, libel, slander, misrepresentation, deceit or
interference with contract rights . . .” Neb. Rev.
Stat. § 13-910(7).
Court has carefully reviewed the record, and in particular
the motion, brief, and the complaint and finds the motion to
dismiss should be granted. These allegations referring to
intentional assault and battery are clearly barred and are
subject to the Nebraska Political Subdivisions Tort Claims
Act as well as sovereign immunity. See McKenna v.
Jullian, 277 Neb. 522, 528 (2009); Neb. Rev. Stat.
§ 13-910(7). Accordingly, the Court will grant the
motion to dismiss.
IT IS ORDERED THAT defendant's motion to dismiss, Filing
No. 3, plaintiff's claims in the First Cause of Action of