Jones v. Custer Cnty.
| Decision Date | 26 April 2018 |
| Docket Number | 8:17CV394 |
| Parties | JUDY K. JONES, Plaintiff, v. CUSTER COUNTY, a political subdivision; STEVEN BOWERS, individually and in his capacity as County Attorney for Custer County; GLENN CLARK, both individually and in his capacity as Deputy County Attorney for Custer County; NEBRASKA STATE PATROL, a state agency; COL. DAVID SANKEY, Superintendent of Law Enforcement and Public Safety for the Nebraska State Patrol, individually and in his official capacity; JEFF ROGERS, individually and as an investigator of the Nebraska State Patrol; CHRIS KOBER, individually and as an investigator of the Nebraska State Patrol; and CUSTER COUNTY ATTORNEY'S OFFICE, a Nebraska Political Subdivision; Defendants. |
| Court | U.S. District Court — District of Nebraska |
This matter is before the Court on the Motion to Dismiss, ECF No. 53, filed by Defendants Chris Kober, Jeff Rogers, David Sankey, and the Nebraska State Patrol (the NSP Defendants). Also before the Court is the Motion to Dismiss, ECF No. 55, filed by Defendants Steven Bowers, Glenn Clark, Custer County, and the Custer County Attorney's Office (the Custer County Defendants). For the reasons stated below, the Motions will be granted, but Jones will be granted leave to file an amended complaint against Kober, Rogers, and Sankey, in their individual capacities, limited to the following claims: (1) a Fourteenth Amendment claim for manufactured false evidence, (2) a Fourteenth Amendment claim for reckless investigation, and (3) a § 1983 civil conspiracy claim.
The following facts are those alleged in the Complaint, ECF No. 1, and assumed true for purposes of the pending Motions to Dismiss.
Plaintiff Judy Jones was a practicing direct-entry midwife.1 As a "devout Christian," she believed her practice was "based in scripture" and "an essential part of her religious practice." Comp. ¶ 18, ECF No. 1, Page ID 5. On April 15, 2011, Jones entered into a contract with Jeff and Whitney Fenske "to spiritually minister to and support Whitney during her pregnancy and in the delivery of their child." Id. at ¶ 19. On September 24, 2011, Whitney gave birth to a son at home and with Jones's services.
Shortly after birth, the baby, Eli Fenske, had difficulty breathing and Jones provided "rescue breathing" until he was transported to a medical center in Broken Bow, Nebraska. Id. at ¶¶ 24-5. Eli was transported from the medical center in Broken Bow to a hospital in Kearney, Nebraska, and then to the University of Nebraska Medical Center (UNMC) in Omaha, Nebraska. He was placed on hospice care and discharged on October 11, 2011. On October 20, 2011, Eli died from "dehydration and malnutrition secondary to withdrawal of food and fluids on hospice care." Id. at ¶ 37. Jones alleged the doctors and staff at the medical centers and hospitals failed to diagnose Eli with hypoglycemia, which was caused by "Smith-Lemli-Opitz syndrome." Id. at ¶¶ 40. She contends that her direct-entry midwifery services did not contribute to the cause of death in any way.
Jeff Rogers and Chris Kober of the Nebraska State Patrol investigated Eli Fenske's death. They interviewed both Whitney and Jeff Fenske; Dr. Angela Pruden, the Emergency Room staff physician at the Broken Bow medical center; Dr. David Bolam of (UNMC) in Omaha; and contacted the Nebraska Department of Health and Human Services Licensure Unit. However, they did not interview the coroner physician or obtain a copy of his autopsy report, and they did not review any of Eli Fenske's medical records. Nor did they interview any of the treating physicians at the hospital in Kearney, Nebraska. Ultimately, Rogers concluded that Jones acted recklessly in caring for Eli Fenske during his birth and, on December 10, 2012, he submitted an affidavit in support of an arrest warrant for the arrest of Jones on a charge of manslaughter.
That same day, Jones was charged with manslaughter in a criminal complaint filed by Glenn Clark, the Deputy County Attorney for Custer County. On March 21, 2013, Clark filed an amended complaint and added a charge for practicing medicine without a license in violation of Nebraska's Uniform Credentialing Act, Neb. Rev. Stat. § 38-101 et seq. On April 4, 2013, the amended complaint was dismissed, without prejudice, by the County Court for Custer County, Nebraska, because charges under the Credentialing Act must be brought by the Nebraska Attorney General and because there was insufficient evidence to support the charge of manslaughter. No subsequent investigation was conducted.
On June 13, 2013, Jones was again charged by the Custer County Attorney's Office with manslaughter, practicing medicine or nursing without a license, criminal impersonation, negligent child abuse resulting in the death of child, and intentional child abuse resulting in the death of child. The charges were based on the same evidence as the prior charges against Jones. On July 31, 2017, the case was "bound over to District Court." Comp. ¶ 69, ECF No. 1, Page ID.2 On October, 19, 2015, the Custer County Attorney, Steven Bowers, dismissed the charges against Jones.
Jones filed this action against the NSP Defendants and the Custer County Defendants under 42 U.S.C. § 1983 for violations of her First, Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution. Each person named as a defendant has been sued in both the individual and official capacity. The NSP Defendants and the Custer County Defendants argue Jones's Complaint should be dismissed under Federal Rule of Civil Procedure 12(b)(1)3 and 12(b)(6).
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). To satisfy this requirement, a plaintiff must plead "enough facts to state a claim to relief that is plausible on its face." Corrado v. Life Inv'rs Ins. Co. of Am., 804 F.3d 915, 917 (8th Cir. 2015) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "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." Barton v. Taber, 820 F.3d 958, 964 (8th Cir. 2016) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Zink v. Lombardi, 783 F.3d 1089, 1098 (8th Cir. 2015) (quoting Iqbal, 556 U.S. at 678), cert. denied, 135 S. Ct. 2941 (2015). The complaint's factual allegations must be "sufficient to 'raise a right to relief above the speculative level.'" McDonough v. Anoka Cty., 799 F.3d 931, 946 (8th Cir. 2015) (quoting Twombly, 550 U.S. at 555). The Court must accept factual allegations as true, but it is not required to accept any "legal conclusion couched as a factual allegation." Brown v. Green Tree Servicing LLC, 820 F.3d 371, 373 (8th Cir. 2016) (quoting Iqbal, 556 U.S. at 678). Thus, "[a] pleading that offers 'labels and conclusions' or 'a formulaic recitation of the elements of a cause of action will not do.'" Ash v. Anderson Merchandisers, LLC, 799 F.3d 957, 960 (8th Cir. 2015) (quoting Iqbal, 556 U.S. at 678), cert. denied, 136 S. Ct. 804 (2016).
On a motion to dismiss, courts must rule "on the assumption that all the allegations in the complaint are true," and "a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and 'that a recovery is very remote and unlikely.'" Twombly, 550 U.S. at 555 & 556 (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)). "Determining whether a complaint states a plausible claim for relief . . . [is] a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Mickelson v. Cty. of Ramsey, 823 F.3d 918, 923 (8th Cir. 2016) (alternation in original) (quoting Iqbal, 556 U.S. at 679).
In its "Preliminary Statement," the Complaint states Comp. ¶ 1, ECF No. 2, Page ID 1; see also Pl.'s Br., ECF No. 62, Page ID 308 (summarizing "Constitutional injuries").4 Jones also enumerates a claim for "conspiracy to violate civil rights" and asserts a claim for failure to train or supervise under § 1983.
"To state a claim under 42 U.S.C. § 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law." Cook v. City of Bella Villa, 582 F.3d 840, 848-49 (8th Cir. 2009) (quoting West v. Atkins, 487 U.S. 42, 48 (1988)).
The arguments presented by the NSP Defendants and the Custer County Defendants are substantially similar. The Court will first address common issues applicable to all parties, and then the separate issues raised by the NSP Defendants and the Custer County Defendants, in turn.
Jones's § 1983 claims for violations of her Fifth, Sixth, and Eighth Amendment rights lack plausibility.5 See McCoy v. Carter-Jones Timber Co., 352 Fed. App'x 119, 121-22 (8th Cir. 2009) ().
First, Jones claims all the Defendants violated her substantive due process rights under the Fifth Amendment. Pl.'s Br., ECF No. 62, Page ID 309. However, "[t]he due process clause of the Fifth Amendment applies only to the federal government[,]" Truong v. Hassan, 829 F.3d 627, 630-31 (8th Cir. 2016) (citing Barnes v. City of Omaha, 574 F.3d 1003,...
To continue reading
Request your trial