Stagemeyer v. County of Dawson, 7:01CV5003.

192 F.Supp.2d 998

Douglas W. STAGEMEYER, individually and as parent and next friend; and Matthew D. Stagemeyer, by and through his parent and next friend, Plaintiffs, v. COUNTY OF DAWSON, Nebraska; Kurt R. McBride, individually and in his official capacity as Deputy County Attorney of Dawson County, Nebraska; Elizabeth F. Waterman, individually and in her official capacity as County Attorney of Dawson County, Nebraska; Lt. Gregory L. Vandenberg, individually and in his official capacity as a Lieutenant with the Nebraska State Patrol; Mike Dowling, individually and in his official capacity as a Trooper with the Nebraska State Patrol; Kenneth C. Ayers, individually and in his official capacity as a Trooper with the Nebraska State Patrol; C.T. Phaby, individually and in his official capacity as a Trooper with the Nebraska State Patrol; K. Moody, individually and in his official capacity as a Trooper with the Nebraska State Patrol; D. Covert, individually and in his official capacity as a Trooper with the Nebraska State Patrol; C. Carter, individually and in his official capacity as a Trooper with the Nebraska State Patrol; Capt. Parrish, individually and in his official capacity as a Captain with the Nebraska State Patrol; and Tom Nesbitt, individually and in his official capacity as Superintendent with the Nebraska State Patrol, Defendants.

No. 7:01CV5003.

United States District Court, D. Nebraska.

March 20, 2002.

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John F. Recknor, Randall L. Wertz, Recknor & Associates, Lincoln, NE, for Plaintiff.

Randall L. Goyette, Baylor, Evnen LAw Firm, Lincoln, NE, Melanie J. Whittamore-Mantzios, Atty. General's Office, Lincoln, NE, for Defendant.

MEMORANDUM AND ORDER

KOPF, District Judge.

Plaintiffs, a former school board president and his son, bring this action for money damages against state police officers and county prosecutors who allegedly violated Plaintiffs' rights under federal and state law when police performed an illegal search and seizure at a New Year's Eve party that led to criminal prosecution, but not conviction, of both plaintiffs. Pending before the court is a motion to dismiss¹ (filing 24) filed by defendants Nesbitt, Vandenberg, Dowling, Ayers, Phaby, Moody, Covert, Carter, and Parrish in their individual and official capacities, who assert failure to state a claim upon which relief may be granted pursuant to Fed. R.Civ.P. 12(b)(6), qualified immunity, and sovereign immunity.²

I. THE ALLEGATIONS

A. The Parties

The plaintiffs' amended complaint (filing 41) alleges that, at relevant times, defendant Vandenberg was a Nebraska State Patrol lieutenant; defendants Dowling, Ayers, Phaby, Moody, Covert, and Carter were Nebraska State Patrol troopers; and defendants Parrish and Nesbitt were a Nebraska State Patrol captain and superintendent, respectively. Plaintiffs allege that the defendants were acting under the "color of law," both individually and in their official capacities, and as "policy makers." (Filing 41 ¶¶ 11-19.) Plaintiff Douglas Stagemeyer was the president of the Eustice-Farnham School Board at the relevant time, and plaintiff Matthew Stagemeyer is Douglas Stagemeyer's son.

B. The Incident

Plaintiffs allege that on December 31, 1999, they were invited guests at a residence referred to in the complaint as Plum Creek Canyon # 12-C, Dawson County, Nebraska. While Plaintiffs were guests at the Plum Creek property, defendants Vandenberg, Dowling, Ayers, Phaby, Moody, and Covert allegedly entered the property, residence, and buildings at Plum Creek without a search warrant and without the permission of the property owners or the plaintiffs. Plaintiffs allege that such defendants had ample time to obtain a search warrant, yet intentionally refused to do so. Plaintiffs also allege that Defendants "had notice" that Plaintiffs were invitees at the Plum Creek property. (Filing 41 ¶ 22.)

After completing the search, the above-named defendants "seized" the plaintiffs and ordered plaintiff Matthew Stagemeyer to give a breath sample for alcohol analysis, which indicated 0.0 percent alcohol in his system. At that time, neither plaintiff felt "free to leave." (Filing 41 ¶ 23.)

C. The School Board Meeting

As a result of the above-described search and seizure, a special meeting of the Eustice-Farnham School Board was scheduled for January 5, 2000. Defendants Parrish and Vandenberg attended this meeting, at which time they "unlawfully and untruthfully stated" that juveniles who were present at the Plum Creek property on December 31, 1999, were victims of alcohol poisoning and had been "near death because of extreme consumption of alcohol." (Filing 41 ¶ 27.) As a result of these statements, members of the community demanded that plaintiff Douglas Stagemeyer resign as president of the Eustice-Farnham School Board, which he did.

D. The Prosecution

As a result of the search and seizure performed by the above-described defendants, defendant Carter authored an investigative memorandum dated January 6, 2000, which falsely stated that Douglas Stagemeyer informed Carter that a juvenile had given false information to law enforcement on December 31, 1999, at Plum Creek Canyon # 12-C. Defendant Carter forwarded this memorandum to defendant Kurt McBride, Deputy County Attorney for Dawson County, Nebraska, and defendant Elizabeth Waterman, County Attorney for Dawson County, who criminally charged Matthew Stagemeyer with one count of minor in possession of alcohol and Douglas Stagemeyer with one count of contributing to the delinquency of a minor.

On July 7, 2000, a Dawson County judge found plaintiff Matthew Stagemeyer not guilty on the criminal charge of minor in possession of alcohol. On April 3, 2000, a Dawson County judge dismissed Douglas Stagemeyer's criminal charges after defendants Waterman and McBride "maliciously" filed an amended complaint charging Douglas Stagemeyer with 19 counts of contributing to the delinquency of a minor in response to Stagemeyer's Request for Bill of Particulars as to the one-count complaint that had originally been filed against him.

Plaintiffs allege that the criminal prosecutions against them were initiated and carried out "with specific intent of malice ... without probable cause...."

E. Plaintiffs' Claims

Plaintiffs bring five causes of action against the defendants: (1) Violation of Civil Rights — specifically, that Defendants, without probable cause and with malice, violated Plaintiffs' freedom from illegal search, seizure, and detention, as secured by the Fourth, Sixth, and Fourteenth Amendments and by 42 U.S.C. §§ 1983 and 1988; (2) Section 1983 Malicious Prosecution — the defendants caused legal proceedings to be commenced against Plaintiffs with malice and without probable cause; (3) Malicious Prosecution (State Law); (4) Abuse of Process (State Law)— with malice and without probable cause, the defendants misused legal criminal process in prosecuting Plaintiffs under Nebraska criminal law; (5) Oppression Under the Color of Office (State Law)—acting as public servants or peace officers, the defendants willfully injured, deceived, harmed, or oppressed Plaintiffs or attempted to do so.

II. STANDARDS

A. Failure to State a Claim

In considering a motion to dismiss under Fed.R.Civ.P. 12(b)(6), allegations in the complaint must be viewed in the light most favorable to the plaintiffs. Fusco v. Xerox Corp., 676 F.2d 332, 334 (8th Cir.1982). "[A] complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957) (footnote omitted). "Thus, as a practical matter, a dismissal under Rule 12(b)(6) is likely to be granted only in the unusual case in which a plaintiff includes allegations that show on the face of the complaint that there is some insuperable bar to relief." Jackson Sawmill Co., Inc. v. United States, 580 F.2d 302, 306 (8th Cir.1978), cert. denied, 439 U.S. 1070, 99 S.Ct. 839, 59 L.Ed.2d 35 (1979).

B. Qualified Immunity

"Government officials performing discretionary functions are entitled to qualified immunity unless they violate clearly established statutory or constitutional rights of which a reasonable person would have known." Whisman v. Rinehart, 119 F.3d 1303, 1309 (8th Cir.1997) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). Qualified immunity is an affirmative defense that will be upheld on a Fed.R.Civ.P. 12(b)(6) motion only when qualified immunity is established on the face of the complaint. Id. On a motion to dismiss, the qualified-immunity inquiry is a two-step process, accepting all well pleaded facts in the complaint as true. Id.

The threshold question is whether the plaintiff has alleged the violation of a constitutional right. If plaintiffs meet this standard, we next determine whether that right was clearly established at the time of the alleged violation. A right is clearly established when the contours of the right are sufficiently clear that a reasonable official would understand that what he is doing violates that right. In determining whether the legal right at issue is clearly established, this circuit applies a flexible standard, requiring some, but not precise[,] factual correspondence with precedent, and demanding that officials apply general, well-developed legal principles.

Id. (internal quotations and citations omitted).

C. Sovereign Immunity

A suit against a state actor in his official capacity is barred by the Eleventh Amendment unless: (1) the state has unequivocally waived its sovereign immunity and has consented to suit in federal court, or (2) Congress has unequivocally, by legislation, abrogated state immunity in order to effectuate the provisions of the Fourteenth Amendment. Kentucky v. Graham, ...