Gardner v. Franklin, 4:21-CV-3145

CourtUnited States District Courts. 8th Circuit. United States District Court of Nebraska
Writing for the CourtJohn M. Gerrard, United States District Judge
PartiesGLENDA SUE GARDNER, Individually and as Personal Representative of the Estate of Jacob Gardner, and DAVID GARDNER, Plaintiffs, v. FREDERICK D. FRANKLIN, et al., Defendants.
Docket Number4:21-CV-3145
Decision Date31 May 2022

GLENDA SUE GARDNER, Individually and as Personal Representative of the Estate of Jacob Gardner, and DAVID GARDNER, Plaintiffs,

FREDERICK D. FRANKLIN, et al., Defendants.

No. 4:21-CV-3145

United States District Court, D. Nebraska

May 31, 2022


John M. Gerrard, United States District Judge


The murder of George Floyd by a Minneapolis police officer sparked civil rights demonstrations across the nation. Omaha resident James Scurlock was among the demonstrators. Scurlock was shot and killed by Jake Gardner outside the downtown Omaha bar that Gardner owned. A Douglas County, Nebraska grand jury indicted Gardner on several charges, including manslaughter. A few days later, Gardner committed suicide. The plaintiffs in this case are Gardner's parents, suing Douglas County and others for allegedly violating Gardner's civil rights and causing his death.

Gardner's parents are undoubtedly bereaved, and of course they have every right to be. The events that led to this case were tragic for Gardner's family and for Scurlock's, and the loss of a child is devastating under any circumstances. But not all tragic circumstances ultimately lead to legal liability. This is one of those instances. For the reasons that follow, the lawsuit filed by plaintiffs' counsel lacks legal merit under both federal and state law. As a result, the Court will grant the defendants' motions to dismiss the plaintiffs' complaint.



This case is still at the pleading stage, which means that, for now, the Court is required to assume that the plaintiffs' allegations are true. Specifically, the Court must assume the truth of the plaintiffs' 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. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007).

To survive a motion to dismiss under Fed.R.Civ.P. 12(b)(6), the complaint must contain sufficient factual matter, accepted as true, to state a claim for relief that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); see Fed. R. Civ. P. 8(a)(2). Determining whether a complaint states a plausible claim for relief will require the reviewing court to draw on its judicial experience and common sense. Iqbal, 556 U.S. at 679. The facts alleged must raise a reasonable expectation that discovery will reveal evidence to substantiate the necessary elements of the plaintiffs' claim. See Twombly, 550 U.S. at 545.

This standard does not require detailed factual allegations, but it demands more than an unadorned accusation. Iqbal, 556 U.S. at 678. The complaint must provide more than labels and conclusions; and a formulaic recitation of the elements of a cause of action will not suffice. Twombly, 550 U.S. at 555. And while the Court must take all of the factual allegations in the complaint as true, it is not bound to accept as true a legal conclusion couched as a factual allegation. Id.


George Floyd was killed by a Minneapolis police officer on May 25, 2020, sparking nationwide protests. Filing 1 at 6. Gardner owned "The Hive," a bar in downtown Omaha near some of the protests. See filing 1 at 6-7. On May 30,


with unrest continuing, Gardner went to The Hive, allegedly "to protect[] his business from rioters and looters." Filing 1 at 7. He was armed with a pistol. Filing 1 at 7.

According to the complaint, the bar's windows were broken at about 10:40 p.m. by what Gardner believed to have been bullets. Filing 1 at 7. The plaintiffs allege that Scurlock and others began throwing projectiles at The Hive and other businesses. Filing 1 at 7. Gardner, Gardner's father, and The Hive's bartender came outside to photograph the damage, and a confrontation ensued with Scurlock and others. Filing 1 at 7.

According to the complaint-and again, at this point in the proceedings the Court is required to assume these allegations are true-Gardner's father was assaulted. Filing 1 at 7. Gardner moved to defend his father and was tackled, so he drew his pistol and fired what was allegedly a warning shot. Filing 1 at 7. Scurlock jumped on Gardner's back and, the complaint says, "aggressively choked [him] for a sustained period of time"-specifically, for at least 18 seconds. Filing 1 at 7-8. Gardner, "fearing that he was about to lose his consciousness and fearing for his life," shot Scurlock. Filing 1 at 8. Scurlock later died as a result of his injuries. Filing 1 at 8.

Douglas County Attorney Don Kleine reviewed the evidence and announced his decision not to prosecute Gardner for the shooting, having concluded that Gardner acted in self-defense. Filing 1 at 8. That decision inspired further protests, so a week later, former Assistant U.S. Attorney Fred Franklin was appointed to act as a special prosecutor and a grand jury was convened. Filing 1 at 8. (Under Nebraska law, "upon request of the county attorney for good cause," a state court may appoint an attorney to act as county attorney in any investigation." Neb. Rev. Stat. § 23-1205.)

On September 15, the grand jury returned an indictment against Gardner for manslaughter, terroristic threats, attempted assault, and use of a


weapon to commit a felony. Filing 1 at 8. Franklin appeared at a press conference to announce the charges, and his remarks at the press conference are the basis for this lawsuit. See filing 1 at 12-20.

According to the complaint, Franklin's remarks included "untrue and biased statements," and Franklin "selectively reveal[ed] information from the grand jury proceedings which were designed to destroy [Gardner's] image and prejudice the community against him." Filing 1 at 8. The complaint alleges:

• Franklin called the case against Gardner "almost slam dunk."
• Franklin said Gardner's conduct, including texts and Facebook messages from that night, showed he intended to kill. "In fact, [Gardner] had made no such statements and had already called the police for assistance once before."
• Franklin said the evidence against Gardner came "primarily from Jake Gardner, himself."
• Franklin refused to comment on whether or not racist comments had been found on Gardner's phone and said the decision to prosecute wasn't made "because [Gardner] 'may or may not have been a racist' because 'being a racist is not against the law.' These statements and omissions combined to falsely imply that [Gardner] was a racist. In fact, there were no racist comments on Gardner's phone."

Filing 1 at 9.

The complaint alleges that the combined effect of these remarks was to "taint[] the available jury pool to such an extent that it would have been impossible for [Gardner] to receive a fair trial." Filing 1 at 9. And, according to the complaint, both Kleine and two unnamed investigators assisting Franklin knew that Franklin intended to make "false and misleading statements to the media . . . and willfully or negligently failed to prevent" them. Filing 1 at 9.

Gardner, according to the complaint, received death threats after the press conference, and experienced depression and emotional distress. Filing 1


at 10. Gardner allegedly suffered from post-traumatic stress disorder and "traumatic brain injury" from his military service. Filing 1 at 11. Gardner committed suicide on September 20, allegedly "[a]s a result of the extreme mental anguish suffered . . . because of the false statements made by [] Franklin and his loss of a chance for an impartial jury." Filing 1 at 11.

The complaint asserts six purportedly separate claims for relief against six purportedly separate defendants. See filing 1. The defendants are Franklin, Kleine, and the two John Doe investigators allegedly assisting Franklin (all in their official and individual capacities), along with Douglas County and "the Douglas County Attorney's Office." Filing 1 at 4-5. And the claims for relief are:

1. Conspiracy "to Deprive Mr. Gardner of His Right to a Fair Trial and Due Process," against all defendants;
2. Deprivation of the Sixth Amendment right to an impartial jury, against all defendants;
3. Deprivation of the Fourteenth Amendment right to due process, against all defendants;
4. "Constitutional Claim for Brady Rule Violation Against All Defendants Pursuant to Bivens v. Six Unknown Names Agents of Federal Bureau of Narcotics, " against all defendants;
5. Wrongful death, against all defendants; and
6. "Failing to Prevent the Deprivation of Jake Gardner's Rights," against all defendants except Franklin.

Filing 1 at 12-21. Kleine and Douglas County have moved to dismiss the claims against them. Filing 12. And Franklin and his two investigators have separately moved to dismiss the claims against them. Filing 21.



To begin with, it will be helpful to clarify who the parties are. First, the defendants. The "Douglas County Attorney's Office" isn't a separate entity capable of being sued-it's just an office of Douglas County. See Parsons v. McCann, 138 F.Supp.3d 1086, 1116 (D. Neb. 2015). And the claims against Kleine, Franklin, and the Doe defendants in their official capacities are also just claims against Douglas County. See id. Accordingly, the defendants are actually Kleine, Franklin, and two John Does-all in their individual capacities-and Douglas County. See id.

The plaintiffs also require some clarification. Both of Gardner's parents are purportedly suing as individuals and next of kin. Filing 1 at 4. And Gardner's mother is the personal representative of Gardner's estate. Filing 1 at 4. But as the defendants correctly note, only Gardner's estate is a proper plaintiff here. See Mader v. United States, 654 F.3d 794, 801 (8th Cir. 2011); see also Landrum v. Moats, 576 F.2d 1320, 1323 n.2 (8th Cir. 1978); see generally Anderson v. City...

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