York v. Dunning
| Decision Date | 25 July 2016 |
| Docket Number | 8:16-CV-175 |
| Parties | KENNETH YORK, Plaintiff, v. TIMOTHY DUNNING, SHERIFF OF DOUGLAS COUNTY, NEBRASKA, et al., Defendants. |
| Court | U.S. District Court — District of Nebraska |
The plaintiff in this case, Kenneth York, is bringing several claims against Douglas County, Nebraska, arising out of his allegedly unlawful arrest and detention on April 29, 2015. The County has moved to dismiss his claims. The Court will grant the County's motion, but will afford York leave to replead his complaint.
The events giving rise to this case began in the County Court for Douglas County in August 2003, when York was sued on a financial obligation. Filing 5-1 at 75-78.1 A default judgment was entered in March 2004. Filing 5-1 at 68. At the creditor's request, the county court entered an order in aid of execution on July 20, 2005, commanding York to appear on August 22 to give testimony under oath. Filing 5-1 at 17. York did not appear, and on September 8, the county court issued a capias warrant to the Douglas County Sheriff. Filing 5-1 at 10-11. But, the same day, a suggestion of bankruptcy was filed advising the county court that York had filed a bankruptcy petition. Filing 5-1 at 8-9. Accordingly, the county court terminated the pending garnishment proceedings, stayed the case pursuant to 11 U.S.C. § 362, and cancelled the capias. Filing 5-1 at 5-9. The capias wasreceived by the sheriff on September 9, but was "returned with No Further Action Taken, per the instruction" of the county court judge. Filing 5-1 at 1.
Fast-forward to 2015: York alleges that he was sitting in his lawfully parked car near 96th Street and Park Drive in Ralston, Nebraska, when he was approached by two unnamed sheriff's deputies, who checked his identification then arrested him on the basis of the 2005 warrant. Filing 1-1 at 2. He spent the night in jail. Filing 1-1 at 2. He sued the County, the County sheriff, the two unnamed arresting deputies, and an unnamed agent of the County "who negligently filed a fraudulent or mistaken warrant" (collectively, the County),2 in state district court, asserting several state-law claims and two federal Constitutional claims. Filing 1-1. The County removed the case to federal court based on the federal questions presented. Filing 1. The County now moves to dismiss York's claims. Filing 3.
A complaint must set forth a short and plain statement of the claim showing that the pleader is entitled to relief. Fed. R. Civ. P. 8(a)(2). This standard does not require detailed factual allegations, but it demands more than an unadorned accusation. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The complaint need not contain detailed factual allegations, but must provide more than labels and conclusions; and a formulaic recitation of the elements of a cause of action will not suffice. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). For the purposes of a motion to dismiss a court must take all of the factual allegations in the complaint as true, but is not bound to accept as true a legal conclusion couched as a factual allegation. Id.
And to survive a motion to dismiss under Fed. R. Civ. P. 12(b)(6), a complaint must also contain sufficient factual matter, accepted as true, to state a claim for relief that is plausible on its face. Iqbal, 556 U.S. at 678. 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. Id. Where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint hasalleged—but it has not shown—that the pleader is entitled to relief. Id. at 679.
Determining whether a complaint states a plausible claim for relief will require the reviewing court to draw on its judicial experience and common sense. Id. The facts alleged must raise a reasonable expectation that discovery will reveal evidence to substantiate the necessary elements of the plaintiff's claim. See Twombly, 550 U.S. 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.
York's complaint asserts eight claims for relief: (1) trespass upon solitude, (2) false light invasion of privacy, (3) malicious prosecution, (4) abuse of process, (5) false imprisonment, (6) negligence, (7) Due Process, and (8) the Fourth Amendment. But for reasons that will become apparent, it will be helpful to group York's claims into two main categories: his six state-law claims, and his two federal Constitutional claims.
York's first six claims for relief are state-law tort claims. For some, there is a question whether the facts alleged are plausible or consistent with state law. But the primary question for each of these claims is whether they may be brought against the County pursuant to the Nebraska Political Subdivisions Tort Claims Act (PSTCA), Neb. Rev. Stat. § 13-901 et seq.
The PSTCA provides in relevant part that it does not apply to "[a]ny claim arising out of assault, battery, false arrest, false imprisonment, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights." Neb. Rev. Stat. § 13-910(7). The exceptions set forth in § 13-910 are affirmative sovereign immunity defenses to claims brought pursuant to the PSTCA. Harris v. Omaha Hous. Auth., 698 N.W.2d 58, 65 (Neb. 2005). "In other words, if a political subdivision proves that a plaintiff's claim comes within an exception pursuant to § 13-910, then the claim fails based on sovereign immunity, and the political subdivision is not liable." Harris, 698 N.W.2d at 65. And an action may "arise out of" one of these enumerated intentional torts even if it is styled as something else. See Britton v. City of Crawford, 803 N.W.2d 508, 517 (Neb. 2011); see also Johnson v. State, 700 N.W.2d 620, 624 (Neb. 2005).
York's malicious prosecution, abuse of process, and false imprisonment claims are easily disposed of, because they fall within, and are barred by, the plain language of § 13-910(7). York does not oppose dismissal of those claims. Filing 7 at 2. In addition, the malicious prosecution claim rests on the allegation that an unnamed County employee "caused a false warrant to be issued." Filing 1-1 at 5. The abuse of process claim includes a similar allegation. Filing 1-1 at 6. But a warrant is ordered by a magistrate, and issued by a court clerk—a sheriff's responsibility is to serve and execute the warrant, not to issue it. Neb. Rev. Stat. § 25-2233. And in Nebraska, neither a county court judge nor a county court clerk is an agent of the county: they are state employees. See, Neb. Rev. Stat. §§ 24-501, -507, -514, -519. As the County points out, "Douglas County does not have policy-making authority over judges." Filing 4 at 14.
Of course, in some instances, a sheriff's office is involved in the issuance of a warrant—for instance, if a deputy applies for a search warrant. But that was clearly not the case here. In light of the court records, and the basic structure of the Nebraska court system, York's bare allegation that a County employee—i.e., a sheriff's office employee—somehow "caused a false warrant to be issued" is not plausible.
Neb. Rev. Stat. § 20-203 provides that "[a]ny person, firm, or corporation that trespasses or intrudes upon any natural person in his or her place of solitude or seclusion, if the intrusion would be highly offensive to a reasonable person, shall be liable for invasion of privacy." York alleges that his automobile was a place of solitude or seclusion and that the sheriff's deputies invaded that privacy when they arrested him. Filing 1-1 at 3.
This claim is insufficient for two reasons. First, the invasion of privacy tort defined by § 20-203 consists solely of an intentional interference with a person's interest in solitude or seclusion, either as to his person or as to his private affairs or concerns, of a kind that would be highly offensive to a reasonable person. Whipps Land & Cattle Co. v. Level 3 Commc'ns, LLC, 658 N.W.2d 258, 269 (Neb. 2003). Examples include entering a hospital room and photographing a person suffering from a rare disease, "window peeking" or wiretapping, forging a court order to access a person's bank records, or photographing a person in a tanning booth without consent. Id. at 269-70. In other words, there is a distinction between a mere trespass and an intrusion into the private affairs or concerns protected by § 20-203. Id. at 270. And what York has alleged—if anything—does not rise above mere trespass.
But second, although styled as a claim for "invasion of privacy" or "trespass," this claim is simply a recasting of York's false imprisonment claim—or, more precisely, it is a claim "arising out of . . . false imprisonment" within the meaning of § 13-910(7). As the Nebraska Supreme Court explained, in the context of the exception for assault and battery claims, Britton v. City of Crawford, 803 N.W.2d 508, 517 (Neb. 2011) (alterations in original) (quoting United States v. Shearer, 473 U.S. 52, 105 (1985)). In Britton, the plaintiff alleged that a police officer was negligent in his decision to shoot a suspect instead of engaging in negotiation or other nonviolent conflict resolution. Id. at 512. The Nebraska Supreme Court concluded the...
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