Haller v. Cnty. of Dundy

• Decision Date: 02 July 2019
• Docket Number: 4:19CV3028
• Parties: WHITNEY HALLER and LEE WIESE, on behalf of WILLIAM WIESE, a minor child, Plaintiffs, v. COUNTY OF DUNDY, NEBRASKA, JUSTIN NICHOLS, Dundy County Sheriff, in his official capacity, and CHARLES THIBEDEAU, in his individual capacity, Defendants.
• Court: U.S. District Court — District of Nebraska

WHITNEY HALLER and LEE WIESE,on behalf of WILLIAM WIESE, a minor child, Plaintiffs, v. COUNTY OF DUNDY, NEBRASKA, JUSTIN NICHOLS, Dundy County Sheriff,in his official capacity, and CHARLES THIBEDEAU, in his individual capacity, Defendants.

4:19CV3028

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA

July 2, 2019

MEMORANDUM AND ORDER

This 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).

I. Introduction

On March 29, 2019, Defendants County of Dundy, Nebraska ("Dundy"), and Justin Nichols, Dundy County Sheriff, in his official capacity ("Nichols") (collectively, the "County"),¹ removed this action from the District Court of DundyCounty, 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).

The 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),² third degree sexual assault (a class I misdemeanor)³, and oppression under color of offense (a class III misdemeanor),⁴ and was subsequently sentenced to consecutive terms of imprisonment for a minimum of 7½ years (Filing 1-1, ¶¶ 37, 38).

Plaintiffs' 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 againstThiebedeau.⁵ 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).

Count I 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).⁶ 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).

II. Standard of Review

"To 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).

A 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 679).

In 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.

A 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.3d1172, 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).

III. The Underlying Facts

For 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 ("Appointment").⁷

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15. After the Appointment, Defendant Sheriff Nichols directly and indirectly supervised Defendant Deputy Thibedeau.

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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 minimumrequirements 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 any capacity.⁸

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.

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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

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