Opinion
8:02-CV-108
March 3, 2003
MEMORANDUM AND ORDER
Plaintiff Raymond Dillon alleges that he was seriously injured when James L. Huckabay, Sr., then a Brown County deputy sheriff, and Greg McBride, the Brown County Sheriff, in a Brown County Sheriff's vehicle, negligently collided with the three-wheeled vehicle he was operating. Huckabay was allegedly under the supervision of his passenger, McBride. The plaintiff brings suit under 42 U.S.C. § 1983 and the Fourth Amendment, alleging that Huckabay and McBride were acting within their official capacities at all relevant times.
Before me now are the defendants' motions, Filing Nos. 61, 62, and 63, brought under Federal Rules of Civil Procedure 12(b)(6) and 12(e). The defendants seek 1) to dismiss the first three claims of the amended complaint, Filing No. 58, for failure to state a claim, and 2) to make the fourth claim more definite and certain. The parties filed supporting briefs. Filing Nos. 64 and 117.
The three motions are identical except for the name of the defendant bringing the motion.
In considering a motion to dismiss under Rule 12(b)(6), the court accepts the factual allegations contained in the complaint as true and construes them in the light most favorable to the plaintiff. Parnes v. Gateway 2000, Inc., 122 F.3d 539, 545-546 (8th Cir. 1997). A complaint should not be dismissed unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim that would demonstrate an entitlement to relief. Id.
Claim I. Claim one of the amended complaint alleges that Huckabay and McBride's gross negligence was the proximate cause of the plaintiff's personal injuries. The defendants seek to dismiss this state law claim on the ground that the plaintiff failed to meet the requirements of the Nebraska Political Subdivisions Tort Claims Act, Neb. Rev. Stat. Ann. §§ 13-901 to 13-926 (Michie 1995 and 2001 Cum. Supp.) (hereafter, the act). The act bars a suit against a political subdivision unless the claim is first presented to the governing body of the political subdivision. If the governing body does not dispose of the claim within six months, the claimant may withdraw the claim and proceed with suit. Neb. Rev. Stat. Ann. §§ 13-906, 13-920(2).
The amended complaint corrects some of the pleading deficiencies I noted in my order, Filing No. 50, on the defendants' earlier motion to dismiss. The plaintiff now alleges that he complied with all the requirements of the act before filing this suit. He alleges that he filed a Notice of Claim under the act with the Clerk of Brown County on January 29, 2001, withdrew the claim when the county had not acted upon it after six months, and then filed this action on March 6, 2002. See Filing No. 58, Amended Complaint at 1-2, ¶¶ 6-10. Although the plaintiff offers no documentary proof that he filed and then withdrew his claim before bringing this suit, these allegations must be taken as true for purposes of the Rule 12(b)(6) motion. Because the procedure which the plaintiff followed appears to comply with the act's requirements, the defendants' motion is denied as to the first claim.
Claim II. Count two alleges that Huckabay and McBride's use of deadly force against the plaintiff "was in violation of the laws of the State of Nebraska, and was an unlawful and unreasonable seizure of the Plaintiff's person in violation of the Fourth Amendment to the United States Constitution." Id., at 4, ¶ 4. The plaintiff's prayer for relief for this claim states that "all gross negligent conduct by James L. Huckabay, Sr., and Greg McBride hereinbefore stated occurred while Defendants were acting within their official capacities with Brown County, Nebraska, and is imputed to Brown County." Id., at 4 (emphasis added). The defendants contend that this claim must be dismissed because the plaintiff has failed to properly plead his claim under section 1983, despite the court's advice in an earlier order on how to amend the complaint. See Filing No. 50, at 6-7.
A careful reading of the plaintiff's second claim reveals that the defendants are correct. The plaintiff nowhere alleges that he is bringing suit against Huckabay and McBride in both their individual and official capacities. Consequently, the suit is deemed to be only against the defendants in their official capacities. As such, the plaintiffs' suit is deemed to be against only the defendants' public employer, Brown County. Johnson v. Outboard Marine Corp., 172 F.3d 531, 535 (8th Cir. 1999).
But Brown County cannot be held liable for its employees' tortious acts under a theory of respondent superior alone. Monnell v. Department of Soc. Servs., 436 U.S. 658, 694 (1978); Springdale Educ. Ass'n v. Springdale Sch. Dist., 133 F.3d 649, 650. To recover under section 1983, the plaintiff must establish that Huckabay and McBride's acts were unconstitutional and implemented or executed an unconstitutional policy or custom of Brown County. Springdale Educ. Ass'n v. Springdale Sch. Dist., 133 F.3d at 651.
While a county sheriff's use of deadly force could be proved, under certain circumstances that may or may not exist here, to constitute an unconstitutional act, the second claim of the plaintiff's amended complaint does not identify — or even allege — an allegedly unconstitutional Brown County policy, training, or custom dealing with pursuit by law enforcement officials. Without such an allegation, the plaintiff's section 1983 claim for excessive force cannot stand, either against Brown County or the defendants in their official capacities. Accordingly, the second claim of the amended complaint is dismissed.
Claim III. Count three alleges that McBride and, vicariously, Brown County were grossly negligent in hiring and supervising Huckabay, thereby proximately causing the plaintiff's personal injuries. The plaintiff claims that McBride failed to conduct a background investigation of Huckabay before hiring him. This investigation allegedly would have revealed Huckabay's "previous propensity to use excessive force as a law enforcement officer and . . . foreseeable risk of harm to third parties." Filing No. 58, Amended Complaint at 5, ¶ 4. The third claim incorporates all allegations from the first claim, id., ¶ 1, but does not allege that McBride's alleged negligence violated any federal law or constitutional provision.
As a purely state law claim against Brown County, claim III is subject to the procedural requirements of the Nebraska Political Subdivisions Tort Claims Act. The plaintiff's failure to provide any documentary evidence of his state tort claim is of concern because the court cannot determine whether the plaintiff presented Brown County with both his negligence (claim I) and negligent hiring (claim III) theories. As mentioned in the claim I discussion, however, I am assuming for purposes of this motion to dismiss that the plaintiff followed the proper procedure in presenting both theories to Brown County before filing this suit.
But even with that assumption, and also assuming that a federal court could exercise pendent jurisdiction over this claim, the plaintiff's third claim nevertheless must be dismissed. The act prohibits claimants from recovering for injuries "based upon the exercise or performance of or the failure to exercise or perform a discretionary function or duty on the part of the political subdivision or an employee of the political subdivision, whether or not the discretion is abused." Neb. Rev. Stat. Ann. § 13-910(2) (Michie 2001 Cum. Supp.). The exemption for discretionary functions only covers "basic policy decisions and not ministerial acts arising therefrom." Koepf v. County of York, 251 N.W.2d 866, 870 (Neb. 1977). A function is discretionary if it involves an element of judgment or choice. Lemke v. Metropolitan Util. Dist., 502 N.W.2d 80, 87 (Neb. 1993).
The Eighth Circuit has determined that "decisions to 'investigate, hire, fire, and retain' employees are generally discretionary" and thus fall within the discretionary function exemption of the act. Larson ex rel. Larson v. Miller, 76 F.3d 1466, 1457 (8th Cir. 1996) (quoting trial court). McBride's decision to hire Huckabay, therefore, is therefore an exempt discretionary function under the act. The plaintiff's state law claim against McBride and Brown County for negligent hiring must fail.
To the extent claim III might be read as stating a cause of action under 42 U.S.C. § 1983, it also fails for the reasons stated in the discussion of claim II. Brown County cannot be held vicariously liable for its employees' tortious acts. Moreover, the plaintiff cannot establish that McBride's conduct in hiring Huckabay was unconstitutional or that McBride implemented or executed an unconstitutional policy or custom of Brown County. Hence, Brown County cannot be held liable under section 1983.
Count IV. In count four, the plaintiff alleges that unnamed Brown County officials with "final policymaking authority to investigate and supervise the activities of the Brown County Sheriff's Department" were grossly negligent in investigating complaints about the Brown County Sheriff's Office. Filing No. 58, Amended Complaint at 6, ¶ 1. The plaintiff also alleges that McBride, as an official of Brown County with "final policymaking authority to establish, implement, and enforce pursuit policies" for the sheriff's office, was grossly negligent in supervising established pursuit policies of that office. Id. at 7, ¶ 2. The amended complaint states that Brown County officials' failure to "diligently investigate and supervise the activities and policies of the Brown County Sheriff's Department constituted gross negligence and proximately caused temporary and permanent personal harm and constitutional injuries under the 4th Amendment of the United States Constitution to the Plaintiff." Id., ¶ 7.
As in the other three claims, the plaintiff alleges that McBride was acting only in his official capacity.
The defendants contend that these allegations are so vague and broad that they cannot discern 1) which officials are targeted; 2) what activities the officials were to investigate and supervise; 3) the precise "final" policymaking authority allegedly held by the county officials, or how that authority differs from Sheriff McBride's "final" policymaking authority over pursuit policies; 4) which officials received complaints about the Brown County Sheriff's Department, what the complaints were, or what "dangerous and questionable practices" officers were conducting "without proper training." See Filing No. 64, Defendants' Brief at 4.
Federal Rule of Civil Procedure 12(e) permits a motion for a more definite statement "[i]f a pleading to which a responsive pleading is permitted is so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading." "A motion for more definite statement is proper when a party is unable to determine issues he must meet, or where there is a major ambiguity or omission in the complaint that renders it unanswerable." Tinder v. Lewis Cnty. Nursing Home Dist., 207 F. Supp.2d 951, 959 (E.D.Mo. 2001) (citations omitted). Motions for a more definite statement are rarely granted, however, in light of the liberal notice pleading standard of Federal Rule of Civil Procedure 8 and the liberal discovery available to both sides. Id. at 959-60; Geir ex rel. Geir v. ESU No. 16, 144 F.R.D. 680, 685 (D.Neb. 1992), aff'd, 66 F.3d 940 (8th Cir. 1995).
Rule 8 requires only "a short and plain statement of the claim showing that the pleader is entitled to relief."
"Motions under Rule 12(e) are designed to strike at unintelligibility in a pleading rather than want of detail." Geir ex rel. Geir v. ESU No. 16, 144 F.R.D. at 685. The fourth claim of the amended complaint, while far from a model of clear pleading, is nonetheless sufficiently precise, "even under the heightened pleading standard for § 1983 actions, . . . to put defendants on notice of the nature of the claims asserted and enable them to prepare a responsive pleading." Id. (citing Brown v. Frey, 889 F.2d 159, 170 (8th Cir. 1989)).
Taken together with the rest of the amended complaint, the allegations of the fourth claim are sufficiently precise to notify the defendants that the plaintiff is alleging that Brown County's pursuit and deadly force policies, as implemented, are constitutionally infirm under section 1983 and the Fourth Amendment. Without any more information than this, the defendants can admit or deny the allegations of claim IV in their responsive pleading. The additional information required to refine and narrow the actual issues in the plaintiff's claim can be obtained through pretrial discovery. The defendants' motions for a more definite statement are therefore denied.
IT IS THEREFORE ORDERED:
1. The defendants' motions, Filing Nos. 61, 62, and 63, to dismiss the first three claims of the amended complaint, Filing No. 58, for failure to state a claim are granted as to claims two and three and denied as to claim one;
2. Claims two and three of the plaintiff's amended complaint are hereby dismissed with prejudice; and
3. The defendants' motions, Filing Nos. 61, 62, and 63, to make the fourth claim more definite and certain are denied.