Poole v. City of Lincoln, 071321 NEDC, 4:21CV3030

Docket Nº4:21CV3030
Opinion JudgeCheryl R. Zwart United States Magistrate Judge
Party NameELISE POOLE, and JACKIE BUNTGEN, Plaintiffs, v. CITY OF LINCOLN, LANCASTER COUNTY, JEFF BLIEMEISTER, Lincoln Police Chief; TERRY WAGNER, Lancaster County Sheriff; and OFFICERS JANE OR JOHN DOES, 1-21, in their individual capacities as employees of Lancaster County and/or the City of Lincoln; Defendants.
Case DateJuly 13, 2021
CourtUnited States District Courts, 8th Circuit, United States District Court of Nebraska

ELISE POOLE, and JACKIE BUNTGEN, Plaintiffs,

v.

CITY OF LINCOLN, LANCASTER COUNTY, JEFF BLIEMEISTER, Lincoln Police Chief; TERRY WAGNER, Lancaster County Sheriff; and OFFICERS JANE OR JOHN DOES, 1-21, in their individual capacities as employees of Lancaster County and/or the City of Lincoln; Defendants.

No. 4:21CV3030

United States District Court, D. Nebraska

July 13, 2021

MEMORANDUM AND ORDER

Cheryl R. Zwart United States Magistrate Judge

Plaintiff Elise Poole (“Poole”) participated in protests and demonstrations in downtown Lincoln, Nebraska on May 30 and May 31, 2020. (Filing No. 1 at CM/ECF p. 5). Plaintiffs allege Poole was seriously injured when Defendants, in response to the peaceful and lawful demonstration, shot rubber bullets and other “less-lethal munitions” at the protesters. Poole was eighteen at the time, and a minor under Nebraska law. Her mother, Plaintiff Jackie Buntgen (“Buntgen”), is responsible for paying Poole's medical expenses incurred on May 31, 2020.

Plaintiffs' complaint seeks relief under 42 U.S.C. § 1983 for violations of Poole's First, Fourth, and Fourteenth Amendment rights and civil conspiracy. Plaintiffs also allege a state negligence claim.

Defendants, the City of Lincoln (“City”) and Police Chief Jeff Bliemeister, in his individual and official capacities, (“collectively City Defendants”) move to dismiss Plaintiffs' Complaint pursuant to Fed. R. Civ. P 12(b)(1) and 12(b)(6). (Filing No. 20). Defendants Lancaster County, Nebraska (“County”) and Lancaster County Sheriff Terry Wagner, in his official and individual capacities, (collectively “County Defendants”) likewise move to dismiss Plaintiffs' complaint pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6). (Filing No. 17). In addition the County Defendants move to partially strike the complaint pursuant to Fed. R. Civ. P. 12(f). (Filing No. 17).

The motions to dismiss will be granted in part and denied in part. The County Defendants' motion to strike will be denied.

MOTIONS TO DISMISS

I. Standard of Review

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 survive a motion to dismiss under Fed. R. Civ. P. 12(b)(6), 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); 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)). In analyzing a motion to dismiss, the Court must “accept as true all factual allegations in the complaint and draw all reasonable inferences in favor of the nonmoving party, but [is] not bound to accept as true ‘[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements' or legal conclusions couched as factual allegations.” McDonough v. Anoka Cty., 799 F.3d 931, 945 (8th Cir. 2015) (quoting Ashcroft, 556 U.S. at 678).

II. Plaintiff's Complaint

Plaintiffs' complaint alleges:

On May 30 and 31, 2020, Ms. Poole participated in peaceful protests in downtown Lincoln, Nebraska. She was unarmed. (Filing No. 1, at CM/ECF p. 1).

While participating in protests on May 30, 2020, Poole was exposed to law enforcement weapons, including pepper spray, deployed by Defendants as a method of crowd control. (Filing No. 1, at CM/ECF p. 6).

During the evening protest on May 31, 2020, at approximately 10:00 p.m., Poole and her fellow protesters moved toward 12th and H Streets in Lincoln, Nebraska. As they reached that area, they were met by a line of law enforcement officers in riot gear, all of whom were employees with or agents of the City of Lincoln and/or Lancaster County. (Filing No. 1, at CM/ECF pp. 2, 4). Plaintiffs do not currently know the precise number and identity of these officers, but each officer was acting under color of state law and within the course and scope of his or her employment. (Filing No. 1, at CM/ECF p. 4). Many of these officers were not trained on crowd control methods, or on how or whether to use projectiles, such as KIPs, rubber bullets, and eXact iMpact Sponge Rounds when performing their duties. (Filing No. 1, at CM/ECF pp. 3, 9). Although categorized as “less-lethal, ” a strike from these projectiles can nonetheless be lethal or cause serious injuries. (Filing No. 1, at CM/ECF p. 4).

Upon arriving at the 12th and H area, the protesters kneeled on the sidewalk and chanted "hands up, don't shoot!" (Filing No. 1, at CM/ECF p. 7). The Defendant Officers responded by indiscriminately firing KIPs, rubber bullets, and eXact iMpact Sponge Rounds at them. This response was due to the actions of a few alleged “agitators” and in response to the verbal barrage leveled at the officers on May 30, 2020. (Filing No. 1, at CM/ECF pp. 3-5).

Poole attempted to leave the area before gas canisters were thrown or projectiles were fired by the Defendant Officers (Officers Jane or John Does, 1-21, in their individual capacities as employees of Lancaster County and/or the City of Lincoln, also referred to hereafter as the “Doe Defendants”). However, the Officers used their vehicles to block points of entry to and exit from the area. (Filing No. 1, at CM/ECF p. 8). As Poole attempted to leave, an officer (specific identity unknown) threw a gas canister which exploded directly in front of Poole, impairing her vision and further restricting her mobility. (Filing No. 1, at CM/ECF p. 8). Seconds later, an officer (specific identity unknown) indiscriminately shot a rubber bullet into the crowd. The rubber bullet struck Poole's face at close range, severing her nose from her face. (Filing No. 1, at CM/ECF pp. 2, 8-9). Poole immediately dropped to the ground. (Filing No. 1, at CM/ECF p. 8).

At the time this shot was fired, there was no reasonable basis for firing projectiles at or near Poole or anyone else gathered on the sidewalk. (Filing No. 8). Poole did not commit a crime, and she was not suspected of committing a crime. Poole did not pose a threat to Defendants or anyone else. (Filing No. 1, at CM/ECF p. 11).

Due to their senior roles in their respective departments, the decisions of Lincoln Police Chief Jeffrey Bliemeister and Lancaster County Sheriff Terry Wagner represent the official policy of the City of Lincoln and Lancaster County, respectively. (Filing No. 1, at CM/ECF p. 9). Prior to May 31, 2020, Bliemeister and Wagner knew the LPD officers and Sheriff's Office deputies were indiscriminately using less-lethal force against protestors to control and suppress demonstrations when there was no imminent threat to safety. Yet, Bliemeister and Wagner met, discussed, and approved the use of weaponry, including rubber bullets and eXact iMpact Sponge Rounds, prior to the May 31, 2020 demonstrations. With deliberate indifference to others, Bliemeister and Wagner equipped their officers with “less-lethal” weaponry without providing any training and instruction on how and when to use such weaponry. (Filing No. 1, at CM/ECF pp. 9-10). Bliemeister and Wagner failed to act to remedy the ongoing violations of the protestors' constitutional rights by the LPD officers and Sheriff's Office deputies, respectively, by failing to train, supervise, or discipline the officers and deputies or issue corrective policies to prevent further violations. In addition, Bliemeister and Wagner acted with deliberate indifference by failing to rectify the LPD's and the Sheriff's Office's unconstitutional custom of using less-lethal force to control and suppress peaceful demonstrations. (Filing No. 1, at CM/ECF pp. 10-11).

All the Defendants agreed with, assisted, and supported each other when they approached the group of peaceful protesters during the night of May 31, 2020. Consistent with their joint agreement and efforts, they collectively used rubber bullets other means of “non-lethal” force to disperse the demonstration, failed to intervene to stop the indiscriminate, excessive and unlawful use of rubber bullets, and advised, assisted, ratified and/or directed the actions and inactions which caused Poole's injuries. (Filing No. 1, at CM/ECF p. 9). The use of non-lethal force violated the constitutional rights of the protesters, and it was done in a negligent manner inconsistent with the safe and effective use of such force in direct violation of the City's policies. (Filing No. 1, at CM/ECF p. 8).

Plaintiffs allege that due to the Defendants' conduct, Poole was severely and permanently injured, with Buntgen obligated to pay Poole's medical expenses resulting from Defendants' actions and inactions. Plaintiffs seek recovery of their damages.

III. Plaintiffs' Claims

Plaintiffs' complaint identifies five counts. Counts I through IV seek recovery under 42 U.S.C. § 1983; Count V is a common law negligence claim brought under Nebraska's Political Subdivision Tort Claims Act (“PSTCA”). Defendants ask the court to dismiss all these claims.

A. Claims Under 42 U.S.C. § 1983

To state a claim for relief under 42 U.S.C. § 1983, a plaintiff must allege sufficient facts to show “(1) that the defendant(s) acted under color of state law, and (2) that the alleged wrongful conduct deprived the plaintiff of a constitutionally protected federal right.” Zutz v. Nelson, 601 F.3d 842, 848 (8th Cir. 2010). Here, there is no dispute that the actions of the defendants were conducted under color of state law. The...

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