Parsons v. McCann

Decision Date30 September 2015
Docket NumberNo. 8:14CV207.,8:14CV207.
Citation138 F.Supp.3d 1086
Parties Dakota PARSONS and Denice Parsons, Plaintiffs, v. Blane McCANN, individually and as Superintendent of Westside Community Schools; Kent Kingston, individually and as Executive Director of Westside Community Schools; Westside Community Schools; Brenda Beadle, individually and in her official capacity as a Douglas County Attorney; Don Kleine, a Douglas County Attorney; Douglas County Attorney's Office; Mark Foxall, as Director of the Douglas County Department of Corrections; the City of Omaha ; the Omaha Police Department; Douglas County Nebraska, a political subdivision of the State; and John Does 1 Through 15, Defendants.
CourtU.S. District Court — District of Nebraska

138 F.Supp.3d 1086

Dakota PARSONS and Denice Parsons, Plaintiffs,
v.
Blane McCANN, individually and as Superintendent of Westside Community Schools; Kent Kingston, individually and as Executive Director of Westside Community Schools; Westside Community Schools; Brenda Beadle, individually and in her official capacity as a Douglas County Attorney; Don Kleine, a Douglas County Attorney; Douglas County Attorney's Office; Mark Foxall, as Director of the Douglas County Department of Corrections; the City of Omaha ; the Omaha Police Department; Douglas County Nebraska, a political subdivision of the State; and John Does 1 Through 15, Defendants.

No. 8:14CV207.

United States District Court, D. Nebraska.

Signed Sept. 30, 2015.


138 F.Supp.3d 1093

Diana J. Vogt, James D. Sherrets, Sherrets, Bruno Law Firm, Omaha, NE, for Plaintiffs.

John M. Lingelbach, Margaret C. Hershiser, Peter J. Leo, Koley, Jessen Law Firm, Ryan J. Wiesen, Thomas O. Mumgaard, City of Omaha, Omaha, NE, for Defendants.

MEMORANDUM AND ORDER

RICHARD G. KOPF, Senior District Judge.

This is a 42 U.S.C. § 1983 action stemming from plaintiff Dakota Parsons' 29–week stay in the Douglas County Corrections Center while he was a participant in Young Adult Court, allegedly without a probable cause hearing, without being charged with an offense, and without the opportunity to be released on bond. After my previous order (Filing 52) finding that Plaintiffs' original complaint failed to state a federal claim upon which relief may be granted—but giving Plaintiffs leave to amend their complaint—Plaintiffs have filed an amended complaint (Filing 54), and Defendants have filed another round of motions to dismiss (Filings 55, 58, 60, 62, 66).

I. PLAINTIFFS' AMENDED COMPLAINT

Dakota Parsons ("Dakota") and his mother, Denice Parsons ("Denice" or "Dakota's mother"), allege numerous claims arising from an incident at Westside High School ("WHS") in Omaha, Nebraska, that occurred following a band concert on October 25, 2012.1 Dakota, who was a student at WHS, threw a firecracker out of a door following the concert. The firecracker exploded on the pavement, and no one was injured. During school the next day, October 26, 2012, Dakota's backpack was searched, and it was found to contain materials to make another firecracker, or exploding device, and marijuana. Police subsequently searched the Parsons' home, allegedly finding additional marijuana in Dakota's room. Dakota was arrested and charged with possession with intent to distribute marijuana, unlawful possession of explosive materials, and possession of a destructive device.

After his arrest, and after an administrative hearing, Dakota was informed that he would be expelled from school until January 2014. Dakota appealed the decision, and his term of expulsion was reduced to the remainder of the 2012–2013 school year. On November 30, 2012, defendant Blane McCann ("McCann"), Westside Community Schools Superintendent, sent a certified letter to Dakota's mother confirming that Dakota would be expelled for the remainder of the 2012–2013 school year and expressing his "disappointment with the hearing officer's recommendations."

On January 14, 2013, Dakota appeared before a judge, who dropped his bond requirement and released Dakota on his own recognizance. Dakota, his counsel, and defendant Brenda Beadle, a Douglas County Attorney, agreed that Dakota's case should be transferred to the Young Adult Court ("YAC"). Dakota was officially accepted into the YAC on February 15, 2013. Dakota and Denice Parsons met with WHS school officials in April 2013 regarding Dakota's continued education. WHS agreed to provide a tutor, and Dakota signed up to take high school classes online through the University of Nebraska–Lincoln.

On June 17, 2013, Dakota appeared before a district judge in charge of the YAC. He entered a plea of no contest to unlawful possession of explosive materials in the first degree, a class IV felony, and the two

138 F.Supp.3d 1094

other charges were dropped. Dakota signed a court order and agreement to participate in the YAC program. (Filing 46–1 at CM/ECF pp. 3–7.)2 This program imposed a number of conditions upon Dakota that he agreed to follow, including "submit[ting] to search and seizure of your premises, person or vehicle upon request of the YAC staff," not "associat[ing] with anyone who possesses firearms, ammunition or illegal weapons," and not "possess[ing] firearms, ammunition or illegal weapons." The agreement also provided that "[a]ny violation of the above conditions is cause for revocation of participation in the Young Adult Court and a sentence to confinement," as well as "revocation of Defendant's bond ... [and] violation of probation charges being filed against him/her." Because Dakota was a minor, the 90–day YAC incarceration period was waived, and he was required to wear an ankle monitor until he turned 18.

On July 10, 2013, Dakota turned 18 and his ankle monitor was removed. Dakota continued to satisfactorily progress through the YAC program, including being subject to drug testing, undergoing a chemical-dependency test, and calling a YAC representative each evening to check in. On July 23, 2013, Denice and Dakota Parsons met with a WHS guidance counselor to establish a timetable for completing online classwork before the beginning of Dakota's senior year on August 15, 2013.

On July 25, 2013, the police came to the Parsons' residence because they had received a report that Dakota had been observed "making explosives." Denice Parsons informed the police that the prior day, a company named Midwest Wildlife Solutions had used a trap and smoke device to treat the Parsons' lawn for groundhogs. Nevertheless, the police conducted a search of the home and removed some "old, unusable fireworks from the garage." Dakota left a voice message for Nick Lurz of the YAC regarding the July 25, 2013, police visit. Lurz did not respond to the message, but on August 2, 2013, Lurz conducted a visit and search of Plaintiffs' home. Lurz found some airsoft guns and pellets, but did not inform Dakota and his mother that these items were a violation of Dakota's YAC agreement. Denice agreed to remove these items from the home.

Plaintiffs allege that in early August 2013, "unknown members of the Westside school system (on information and belief including McCann), unknown members of the Omaha Police Department, and possibly other persons met to ‘discuss' Parsons." Plaintiffs do not have "any detailed information regarding the participants at this meeting or the substance of the discussion." The Parsons allege that this meeting was "instigated by McCann and/or other representatives of Westside Community Schools as part of a plan to keep Parsons from returning to school on August 15, 2013 as required by the hearing officer's order." Neither Dakota nor his attorney were informed about the meeting, and Dakota's counsel did not learn of the meeting until Douglas County Attorney Brenda Beadle told counsel about the

138 F.Supp.3d 1095

meeting "several months after the meeting occurred." Plaintiffs allege that Beadle met with, and took directions from, a member of the school board "without having a complaint from a law enforcement agency," and that Beadle "agree[d] to have Parsons arrested for the purpose of keeping him out of Westside High School." Plaintiffs claim that Beadle inserted herself into this investigatory meeting and provided advice and direction to the police.

On August 12, 2013, Dakota was scheduled to take a final educational test that was necessary for him to return to WHS on August 15. However, on that same day, YAC representatives appeared at the Parsons' home in bullet-proof vests, followed shortly thereafter by several Omaha police officers, who confiscated several items from the home. The officers did not communicate the reason for the search to Dakota and Denice Parsons. Dakota was arrested and jailed in the Douglas County Corrections Center ("DCC") without being informed of the charges or what precipitated his arrest. Plaintiffs allege that Dakota was arrested without probable cause and without a valid warrant because the warrant indicated that he had violated "probation," but he had never been placed on probation.3 (Filing 46–1 at CM/ECF p. 9.) The plaintiffs also assert that the warrant was invalid because it was not supported by an affidavit.

On October 17, 2013, Dakota had his first hearing regarding the August 12, 2013, arrest. During the hearing, neither the Douglas County Attorney nor the YAC presented the reason for Dakota's August 12, 2013, arrest; the court ordered a psychological examination; and Dakota continued to be jailed without bond. Thereafter, additional hearings were held regarding the county attorney's request that Dakota continue to be held without bond. As of January 2014, after being jailed for five months, Dakota had still not received a probable cause hearing and had not been informed of the facts supporting the August 2013 arrest.

On or about February 7, 2014, Dakota's attorney filed a writ of habeas corpus alleging Dakota's unlawful detention at DCC. A hearing on the writ of habeas corpus was scheduled for March 6, 2014. One day before the hearing was to occur, the YAC judge ordered...

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