Stamm v. Cnty. of Cheyenne, 4:17CV3146

Citation326 F.Supp.3d 832
Decision Date11 June 2018
Docket Number4:17CV3146
Parties Lisa STAMM, and Vanessa Humaran, Plaintiffs, v. COUNTY OF CHEYENNE, NEBRASKA, acting through the Cheyenne County Sheriff's Department; John Jenson, acting in his individual and official capacities; City of Scottsbluff, Nebraska, acting through the City of Scottsbluff Police Department; Kevin Spencer, acting in his individual and official capacities; County of Scotts Bluff, Nebraska, acting through the Scotts Bluff County Sheriff's Department; and Mark Overman, in his individual and official capacities, Defendants.
CourtUnited States District Courts. 8th Circuit. United States District Court of Nebraska

326 F.Supp.3d 832

Lisa STAMM, and Vanessa Humaran, Plaintiffs,
v.
COUNTY OF CHEYENNE, NEBRASKA, acting through the Cheyenne County Sheriff's Department; John Jenson, acting in his individual and official capacities; City of Scottsbluff, Nebraska, acting through the City of Scottsbluff Police Department; Kevin Spencer, acting in his individual and official capacities; County of Scotts Bluff, Nebraska, acting through the Scotts Bluff County Sheriff's Department; and Mark Overman, in his individual and official capacities, Defendants.

4:17CV3146

United States District Court, D. Nebraska.

Signed June 11, 2018


326 F.Supp.3d 840

Kathleen M. Neary, Powers Law Firm, Lincoln, NE, for Plaintiffs.

Brandy R. Johnson, Governmental Law, Vincent Valentino, Valentino Law Office, Jerry L. Pigsley, Woods, Aitken Law Firm, Lincoln, NE, for Defendants.

MEMORANDUM AND ORDER

Richard G. Kopf, Senior United States District Judge

This matter is before the court on Defendants' motions to dismiss Plaintiffs' Amended Complaint (Filing Nos. 25, 27), which will be granted pursuant to Federal Rule of Civil Procedure 12(b)(6). Also at issue are two motions that were filed by Plaintiffs in response to Defendants' motions: (1) Plaintiffs' unopposed motion to dismiss two counts of the Amended Complaint (Filing No. 33), which will be granted; and (2) Plaintiffs' motion to file evidence under restricted access (Filing No. 39), which will be denied.

I. INTRODUCTION

Plaintiffs, Lisa Stamm ("Stamm") and Vanessa Humaran ("Humaran"), are employed by the Nebraska Crime Commission ("Commission"),1 which is not a party to this action. Named as Defendants are the Sheriff of Cheyenne County, Nebraska, John Jenson ("Jenson"), the Chief of Police of the City of Scottsbluff, Nebraska, Kevin Spencer ("Spencer"), and the Sheriff of Scotts Bluff County, Nebraska, Mark Overman ("Overman"), together with the political subdivisions they each represent.

Humaran claims her personal information stored on the Nebraska Criminal Justice Information System ("NCJIS"), which is maintained by the Commission, was illegally accessed by Spencer in June and September 2016, and was then unlawfully distributed to Jenson and Overman, to other employees or officials of their political subdivisions, and possibly to law enforcement agencies in other counties in western Nebraska (Amended Complaint [Filing No. 24], ¶¶ 22, 25). Similarly, Stamm claims her personal information on NCJIS was illegally accessed by Jenson in June 2017 and then unlawfully disseminated (Amended Complaint, ¶¶ 31, 33).

326 F.Supp.3d 841

Stamm also claims that Overman and Spencer filed frivolous written complaints with the Nebraska Attorney General about Stamm's private postings on Facebook regarding the use of medicinal marijuana, and she alleges on information and belief that her Facebook account was illegally accessed (Amended Complaint, ¶ 27). In addition, Stamm alleges on information and belief that one or more Defendants made "harassing, threatening and intimidating" telephone calls to her during July and August 2017, calling her a "cop hater" and telling her to "quit putting dead babies on the highway." (Amended Complaint, ¶ 30) She also alleges upon information and belief that one or more Defendants used unlawful means to obtain her private telephone number (Amended Complaint, ¶ 30).

The NCJIS searches on Humaran were conducted "shortly after" she assumed some of the duties of administering the Justice Assistant Grant ("JAG"), which for approximately 25 years had provided funding for the Western Intelligence Narcotic Group ("WING"), a drug task force comprised of law enforcement agencies located in the Nebraska panhandle. Participating agencies included the Scottsbluff Police Department and the Cheyenne County and Scotts Bluff County Sheriff's Departments (Amended Complaint, ¶¶ 16, 17, 24). JAG funding for the WING program was discontinued in May 2017 (Amended Complaint, ¶ 15).

Sometime during 2016, Humaran was "a member of the JAG strategic planning group, attend[ed] JAG meetings, and participat[ed] in the staff review group that made recommendations for funding JAG programs such as the WING program." (Amended Complaint, ¶ 13) Humaran does not allege that she actually played any role in making a funding recommendation for the WING program, but she claims the NCJIS searches Defendant Spencer performed in June and September 2016 were done "for the sole purpose of harassing and intimidating [her]." (Amended Complaint, ¶ 24) However, there are no facts alleged to indicate in what manner she was harassed or intimidated by the searches. Humaran states that "at all time alleged" she was the Juvenile Justice Administrator for the Commission, but also alleges that in 2017 she became the Assistant Grant Administrator (Amended Complaint, ¶ 13). Again, there are no facts alleged to show that she actually played any part in discontinuing JAG funding for the WING program in her capacity as Assistant Grant Administrator, or, for that matter, that she was subjected to any allegedly unlawful conduct during 2017.

Stamm "at all time alleged" was the Grants Division Chief for the Commission, and her duties "also included administering the Justice Assistance Grant which is funded through the U.S. Department of Justice." (Amended Complaint, ¶ 12) There is no indication of what role, if any, Stamm played in the discontinuance of JAG funding for the WING program, but it is alleged that "[f]ollowing the defunding of the WING grant in May, 2017 due to their egregious and habitual non-compliance, Plaintiff Stamm has been subjected to unlawful, intimidating, threatening, and harassing conduct by the Defendants," including the complaints made to the Attorney General about her private Facebook postings and the telephone calls she received in July and August 2017 (Amended Complaint, ¶ 26).

Both Plaintiffs also assert a gender-based equal protection claim against all Defendants, alleging that "[m]ale members of the Nebraska Crime Commission ... who worked with the Defendants on their unsuccessful grant application, ... [or] who voted to deny the WING grant were not subjected to unlawful NCJIS searches

326 F.Supp.3d 842

or the other unlawful actions." (Amended Complaint, ¶¶ 35, 52) It is further claimed that "due to the Plaintiffs' gender (female), Defendants Jenson, Spencer and Overman by and through a mutual understanding and meeting of the minds, sought to deprive the female Plaintiffs equal protections under the law through their conspiracy and together they conspired to prevent by force, intimidation, or threat the Plaintiffs from discharging their duties and/or hindering, impeding or interrupting their official duties and/or conspiring to deprive Plaintiffs of their statutorily and constitutionally protected rights to equal protection, equal privileges, immunities, free speech (Stamm only), privacy, liberty, and against unlawful search and seizure in violation of 42 U.S.C. § 1985." (Amended Complaint, ¶ 34) In addition, a section 1983 conspiracy claim is asserted against all Defendants (Amended Complaint, ¶¶ 39, 58).

Plaintiffs' Amended Complaint contains a total of ten claims (or counts), seven of which are alleged by both Plaintiffs against all Defendants:

• Defendants have violated Plaintiffs' constitutional and statutory right to privacy in contradiction of the Constitutions of the State of Nebraska (Art. 1, § 3), the United States of America (14th Amendment) and 42 U.S.C. § 1983. (Count 1 of Amended Complaint, ¶ 43)

• Defendants have violated Plaintiffs' constitutional and statutory right to Equal Protection under the laws in contradiction of the Constitutions of the State of Nebraska (Art. 1, § 1), the United States of America (14th Amendment) and 42 U.S.C. § 1983. (Count 4 of Amended Complaint, ¶ 52)

• Defendants have violated Plaintiffs' constitutional right to liberty in contradiction of the Constitutions of the State of Nebraska (Art. 1, § 1), the United States of America (14th Amendment) and 42 U.S.C. § 1983. (Count 5 of Amended Complaint, ¶ 55)

• Defendants have engaged in a conspiracy to violate the Plaintiffs' constitutional and statutorily protected rights in contradiction of the Constitutions of the State of Nebraska, the United States of America, and 42 U.S.C. § 1983. (Count 6 of Amended Complaint, ¶ 58)

• Defendants have engaged in a conspiracy to violate the Plaintiffs' constitutional and statutorily protected rights of the Plaintiffs in contradiction to 42 U.S.C. § 1985. (Count 7 of Amended Complaint, ¶ 61)

• Defendants have violated Plaintiffs' rights arising under Neb. Rev. Stat. §§ 28–924, 28–925, 28–926, 29–3518 and 42 U.S.C. § 1983. (Count 8 of Amended Complaint, ¶ 64)

• Defendants have conspired to violate Plaintiff's [sic ] rights arising under Neb. Rev. Stat. §§ 28–924, 28–925, 28–926, 29–3518 and 42 U.S.C. § 1983." (Count 9 of Amended Complaint, ¶ 67)

Plaintiffs have filed a motion to dismiss the last two claims (Counts 8 and 9), which allege Defendants violated state statutes that limit use of the NCJIS database.

Two claims are alleged only by Plaintiff Stamm. One of these claims is alleged only against Defendants Jenson and Cheyenne County, while the other is alleged against all Defendants:

• Defendants Jenson and
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