Duggin v. City of Neb.

LORRAINE DUGGIN, individually and as Co-Special Administrator forthe Estate of Susan D. Kiscoan, deceased; and JOHN (JACK) KISCOAN,individually and as Co-Special Administrator for the Estate ofSusan D. Kiscoan, deceased; Plaintiffs, v. THE CITY OF OMAHA, NEBRASKA, DAVID VOLENEC, MICHAEL JENKINS,CORTES CLARK, and DOES 1-10, Defendants.

8:19CV453

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA

January 24, 2020

MEMORANDUM AND ORDER

This matter is before the Court on the Motion to Dismiss for Failure to State a Claim, ECF No. 6, filed by Defendants City of Omaha, David Volenec, Michael Jenkins, and Cortes Clark. For the following reasons, the Motion will be granted in part.

BACKGROUND

The following facts are those alleged in the Complaint, ECF No. 1-1, and are assumed true for purposes of this motion.

Susan Kiscoan was diagnosed with Addison's Disease¹ in 2012. On or about September 14, 2017, Susan walked to the Omaha airport seeking medical help. Paramedics assisted Susan and found that she appeared to be dehydrated. Paramedicstransported Susan to the CHI Health - University Campus (University Clinic) for further care.

When they arrived, paramedics notified the emergency room nurses of Susan's possible mental illness. Susan refused treatment at the University Clinic and asked to be taken to Lakeside Hospital. Emergency room staff informed Susan that if she refused treatment, she had a right to leave against medical advice and find her own transportation to Lakeside Hospital. The University Clinic staff eventually told Susan that she must leave the facility. She refused to leave, and emergency room staff contacted the Omaha Police Department (OPD).

Officers Jenkins and Clark, law enforcement officers employed by the OPD, were dispatched to the University Clinic for a party refusing to leave the premises. They arrived at shortly after 3:30 p.m. that afternoon. When they arrived, Officers Jenkins and Clark made contact with the University Clinic security staff and Sergeant Volenec, also a law enforcement officer with the OPD. Officers Jenkins and Clark advised Susan to leave the premises, but she refused.

Officers Jenkins and Clark arrested Susan and transported her to the Douglas County Correctional Center (Correctional Center). She was booked for trespassing and taken into custody of the Correctional Center.

Susan died on September 28, 2017. Plaintiffs Lorraine Duggin and Jack Kiscoan, Susan's parents, bring this suit individually and as co-special administrators of Susan's estate. Plaintiffs allege that Defendants were negligent and violated Susan's civil rights by arresting her instead of taking her into protective custody and, as a result, Susan suffered serious and permanent injuries.

Plaintiffs filed this action in the District Court of Douglas County, Nebraska, on September 12, 2019, ECF No. 1-1. On October 16, 2019, Defendants removed the case to this Court, ECF No. 1. On November 18, 2019, Defendants filed this Motion to Dismiss, ECF No. 6.

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 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 acause 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) (alteration in original) (quoting Iqbal, 556 U.S. at 679).

DISCUSSION

Plaintiffs bring a two-count complaint alleging negligence and violation of civil rights under 42 U.S.C. § 1983. Defendants move to dismiss the individual Defendants in their official capacities due to the City being a Defendant, the negligence claims due to sovereign immunity, and the § 1983 claims due to failure to state a claim.

I. Official Capacity Claims against City Officials

Defendants argue that because the City is a named Defendant, the inclusion of the individual Defendants in their official capacities is redundant and they should be dismissed.² It is true that "[c]laims against individuals in their official capacities areequivalent to claims against the entity for which they work . . . ." Gorman v. Bartch, 152 F.3d 907, 914 (8th Cir. 1998) (citing Hafer v. Melo, 502 U.S. 21, 24-27 (1991)). However, this redundancy alone does not necessitate dismissal of Plaintiffs' official-capacity claims. See, e.g., Chalepah v. City of Omaha, No. 8:18-CV-381, 2019 WL 802094, at *3 (D. Neb. Feb. 21, 2019); Higgins v. Dankiw, No. 8:08CV15, 2008 WL 5282925, at *5 (D. Neb. Dec. 18, 2008) (listing cases in which city officials were sued in their official capacities while the city is also a named party).

II. First Cause of Action - Negligence

Plaintiffs allege Defendants negligently chose to arrest Susan rather than take her into protective custody, and the City negligently failed to train, supervise, and monitor its police officers. These claims are brought pursuant to the Nebraska Political Subdivision Tort Claims Act (PSTCA), Neb. Rev. Stat. § 13-901 et seq. Compl. ¶ 19, ECF No. 1-1. Defendants argue that these claims are not subject to the waiver of sovereign immunity under the discretionary function exception to the PSTCA.

The PSTCA "eliminates, in part, the traditional immunity of political subdivisions for the negligent acts of their employees." Doe v. Omaha Pub. Sch. Dist., 727 N.W.2d 447, 453 (Neb. 2007) (citing Talbot v. Douglas Cty., 544 N.W.2d 839 (Neb. 1996)). The PSTCA is to be construed "in favor of the political subdivision and against the waiver of sovereign immunity." McKenna v. Julian, 763 N.W.2d 384, 390 (Neb. 2000), abrogated on other grounds by Doe v. Bd. of Regents of Univ. of Neb., 788 N.W.2d 264 (Neb. 2010) (citing Geddes v. York Cty., 729 N.W.2d 661 (2007)).

A. Negligent Arrest and Failure to Take Susan into Emergency Protective Custody

"[A] plaintiff may not recover for a claim 'based upon the exercise or performance of or the failure to exercise or perform a discretionary function or duty on the part of thepolitical subdivision or an employee of the political subdivision." Larson v. Miller, 76 F.3d 1446, 1456 (8th Cir. 1996) (en banc) (quoting Neb. Rev. Stat. § 13-910(2)). This exception "extends only to basic policy decisions made in governmental activity, and not to ministerial activities implementing such policy decisions." Omaha Pub. Sch. Dist., 727 N.W.2d at 456-57.

Nebraska courts follow a two-step analysis to determine if the discretionary function exception applies:

First, the court must consider whether the action is a matter of choice for the acting employee. If the court concludes that the challenged conduct involves an element of judgment, it must then determine whether that judgment is of the kind that the discretionary function exception was designed to shield.

Omaha Pub. Sch. Dist., 727 N.W.2d at 457 (citing Aguallo v. City of Scottsbluff, 678 N.W.2d 82 (Neb. 2004); Parker v. Lancaster Cty. Sch. Dist. No. 001, 591 N.W.2d 532 (Neb. 1999)).

Under the first step, courts assess whether the "challenged conduct involves an element of judgment . . . ." Aguallo, 678 N.W.2d at 91. Plaintiffs allege Defendants were negligent for arresting Susan rather than putting her in emergency protective custody as authorized under Nebraska law. Nebraska law states:

A law enforcement officer who has probable cause to believe that a person is mentally ill and dangerous . . . and that the harm described in section 71-908 . . . is likely to occur before mental health board proceedings under the Nebraska Mental Health Commitment Act . . . may be initiated to obtain custody of the person may take such person into emergency protective custody . . . .

Neb. Rev. Stat. § 71-919 (emphasis added). Under Nebraska's rules of statutory construction, "[w]hen the word may appears, permissive or discretionary action is presumed . . . ." Neb. Rev. Stat. § 49-802. It is therefore an exercise of judgment anddiscretion whether to take a person into emergency protective custody under section 71-919. Under the first prong of the...