Irma Perez v. John and Jane Does 1-10 , 931 F.3d 641 ( 2019 )

United States Court of Appeals
For the Eighth Circuit
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No. 18-2524
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Irma Perez; John Espino; Joshua Espino; Jeremy Espino; Manuel Espino
Plaintiffs - Appellants
v.
John and Jane Does 1-10, All of Whom Are Named Defendants in Their
Individual Capacity; Rick Schmidt, All of Whom Are Named Defendants In Their
Individual Capacity; Raelee Van Winkle, All of Whom Are Named Defendants In
Their Individual Capacity; Jerry Esch, All of Whom Are Named Defendants In
Their Individual Capacity; Michael Doremus, All of Whom Are Named
Defendants In Their Individual Capacity; Kelly Scarlett, All of Whom Are Named
Defendants In Their Individual Capacity; Allen Sedlak, All of Whom Are Named
Defendants In Their Individual Capacity
Defendants - Appellees
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Appeal from United States District Court
for the District of Nebraska - Lincoln
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Submitted: June 11, 2019
Filed: July 23, 2019
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Before LOKEN, KELLY, and ERICKSON, Circuit Judges.
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ERICKSON, Circuit Judge.
Irma Perez, John Espino, Joshua Espino, Jeremy Espino, and Manuel Espino
(collectively “Plaintiffs”) are Hispanic residents of Hastings, Nebraska. They were
arrested in December 2011 on charges of conspiracy and witness tampering for their
alleged actions in the aftermath of a domestic disturbance in Hastings. All charges
were eventually dismissed. On April 7, 2016, Plaintiffs filed suit in Adams County
(Nebraska) District Court, alleging a variety of state and federal claims against
various city and county employees, the State of Nebraska, Adams County, and the
City of Hastings.
At issue in this appeal is Plaintiffs’ Second Amended Complaint, which was
filed in the Adams County District Court, alleging only federal claims under 42
U.S.C. § 1983 against Rick Schmidt, Raelee Van Winkle, Jerry Esch, Michael
Doremus, Kelly Scarlett, and Allen Sedlak (collectively the “Officer Defendants”)
and John and Jane Does 1-10 (collectively the “Doe Defendants”). The Second
Amended Complaint alleges that the investigation, arrest, confinement, and
prosecutions were racially motivated and violated the First, Sixth, Eighth, and
Fourteenth Amendments. The Officer Defendants removed the case to the United
States District Court for the District of Nebraska and moved to dismiss pursuant to
Federal Rule of Civil Procedure 12(b)(6).
On April 9, 2018, the district court1 granted the motion to dismiss, concluding
that the § 1983 claims were time-barred and that Plaintiffs failed to state a claim upon
which relief may be granted. On June 12, 2018, the district court denied Plaintiffs’
motion to alter or amend the judgment. Plaintiffs now appeal, arguing that the district
court erred by (1) granting the motion to dismiss and (2) denying the motion to alter
or amend the judgment. Having jurisdiction under 28 U.S.C. § 1291, we affirm.
1
The Honorable Robert F. Rossiter, Jr., United States District Judge for the
District of Nebraska.
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I. Background
A. Allegations in the Second Amended Complaint
In this appeal from a grant of a motion to dismiss, we accept as true the
allegations in the Second Amended Complaint. Varga v. U.S. Bank Nat’l Ass’n, 764
F.3d 833, 836 (8th Cir. 2014) (citation omitted).
During the early morning hours of August 13, 2011, a disturbance occurred at
the 1200 block of North Lexington Street in Hastings involving several family
members, friends, and acquaintances of Plaintiffs. The Officer Defendants, each of
whom is employed by the Hastings Police Department, responded to the scene. Upon
arrival the officers separated the involved parties and began to take witness
statements. Meanwhile, Perez called Alma Rosa Infante and asked her to help settle
the disturbance. When Infante arrived, she and her daughter spoke with several of the
individuals involved to “determine what had caused the [d]isturbance, and what,
exactly, had occurred” and to ensure that “the underlying complaint against their
family member be fairly and fully investigated.” Plaintiffs and Infante did not intend
to interfere with the Officer Defendants or their investigation. Based on their
investigation, the Officer Defendants arrested Juan Anthony Espino, who was later
charged with five counts, including domestic assault.
Plaintiffs observed the interviews conducted by the Officer Defendants at the
scene and believed that the officers were “more interested in coaching witnesses in
order to build a criminal case against them or their family members, than they were
interested in getting to the truth about the [d]isturbance.” The following day, the
Officer Defendants “expanded their investigations in an attempt to make out cases of
criminal conspiracy and witness tampering against the Plaintiffs and other of their
family members . . . [without] a factual basis for doing so.” On August 15, 2011,
Officer Doremus spoke to Shawn Parks, a cooperating witness or confidential
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informant who was involved in some form in the disturbance. Officer Doremus told
Parks, “Maybe if we put pressure on them and you put enough pressure on them,
they’ll get the hell out of this neighborhood.”
On December 29, 2011, Plaintiffs were arrested by unnamed “law enforcement
officers” pursuant to arrest warrants that were based upon “false and misleading
information” that was more than ninety days old. Plaintiffs were held the next five
days in maximum-security confinement and charged in county court with conspiracy
and witness tampering. On December 19, 2011, or January 19, 2012, each of the
Officer Defendants prepared an affidavit in cooperation with Adams County Attorney
Alyson Keiser Roudebush to use in the prosecution.
On January 19, 2012, Plaintiffs appeared for their preliminary hearings, which
were conducted on affidavit evidence alone over the objections of defense counsel.
The cases were bound over to the Adams County District Court “in clear violation of
their rights to due process and in violation of the Confrontation Clause.” The first
case proceeded to a jury trial and resulted in one of the Plaintiffs being acquitted.
The other Plaintiffs filed pleas in abatement to contest the validity of their preliminary
hearings. In October 2012, the state district court sustained their pleas and dismissed
the charges, finding that there was “no evidence in the record to substantiate or bind
over” and “no basis in statute or case law for preliminary hearings to proceed forward
on affidavits only.” Plaintiffs claim damages, asserting that the investigation, arrest,
confinement, and prosecutions subjected them to ridicule and destroyed their good
reputations.
B. Procedural History
The original Complaint was filed on April 7, 2016, in Adams County District
Court. On September 27, 2016, Plaintiffs filed an Amended Complaint, stating eight
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causes of action, seven arising under state law and a 42 U.S.C. § 1983 federal law
claim.
In October 2016, the defendants jointly removed the action to the United States
District Court for the District of Nebraska, and over the next few weeks various
defendants filed motions to dismiss the Amended Complaint. On March 21, 2017,
the district court dismissed the § 1983 claims without prejudice because (1) the State
and its employees acting in their official capacities are not persons against whom a
§ 1983 claim for money damages may be asserted and (2) Plaintiffs failed to state a
claim against the remaining defendants. The district court declined to exercise
supplemental jurisdiction over the state-law claims and remanded the surviving
claims to the state court.
Upon remand, the defendants filed motions to dismiss as well as a motion for
summary judgment. The motions were set for hearing on July 10, 2017. Forty-three
minutes before the motion hearing was to commence, Plaintiffs voluntarily dismissed
the remaining state-law causes of action. That same day, the state court formally
dismissed the Amended Complaint.2
On August 15, 2017, Plaintiffs filed a motion for leave to amend the now non-
extant Amended Complaint, attaching a proposed Second Amended Complaint
essentially restating all of the previously dismissed claims. On August 24, 2017,
Plaintiffs filed an amended motion with an attached “revised” Second Amended
Complaint, which now repled only the § 1983 claims against the Officer Defendants
and Doe Defendants in their individual capacities.
2
Under these circumstances, the state court judgment of July 10 disposed of the
entire case.
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On December 28, 2017, the state district court granted the amended motion for
leave to amend. The state district court explained that a Nebraska court’s discretion
to deny leave to amend is limited and “appropriate only in . . . limited circumstances
in which undue delay, bad faith on the part of the moving party, futility of the
amendment, or unfair prejudice to the nonmoving party can be demonstrated.” The
state district court found that “[n]one of those factors . . . are clearly evident in this
case.” The state court opinion is silent as to how a complaint that had been dismissed
in its entirety could be amended, deciding instead that the relevant Nebraska rule that
leave to amend “shall be freely given when justice so requires” controlled. On
January 2, 2018, Plaintiffs filed the Second Amended Complaint.
The Officer Defendants once again removed the action to the United States
District Court and moved to dismiss the Second Amended Complaint pursuant to
Federal Rule of Civil Procedure 12(b)(6). On April 9, 2018, the district court granted
the motion and dismissed the Second Amended Complaint. The district court
concluded that the § 1983 claims against the Officer Defendants were time barred by
the applicable four-year statute of limitations and that, in the alternative, Plaintiffs
failed to state a plausible claim for relief against the Officer Defendants. With regard
to the Doe Defendants, the district court noted the general prohibition against naming
fictitious parties as defendants and concluded that Plaintiffs failed to make allegations
specific enough to permit the identity of the Doe Defendants to be ascertained after
reasonable discovery.
On May 7, 2018, Plaintiffs filed a motion to alter or amend the judgment
pursuant to Federal Rules of Civil Procedure 59(e) and 60, arguing that the district
court did not “consider[] . . . the amendments made to the Plaintiffs’ complaint filed
in the State District Court.” On June 12, 2018, the district court denied the motion.
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II. Discussion
A. Jurisdiction
As an initial matter, we address the Officer Defendants’ argument, raised for
the first time on appeal, that the district court lacked jurisdiction over the case
following the second removal. The Officer Defendants argue that under Nebraska
law, once an entire case is voluntarily dismissed, the court lacks jurisdiction to
consider any further motions or enter any further orders. It follows, they argue, that
the filing of the Second Amended Complaint and any subsequent state and federal
proceedings are a nullity.
We have grave reservations about the state court’s ability to amend an entirely
dismissed complaint under Nebraska law. That said, we need not determine whether
it was permissible under Nebraska law for the state court to grant leave to amend and
allow Plaintiffs to file the Second Amended Complaint. Under the removal statute,
28 U.S.C. § 1441, the district court “is not precluded from hearing and determining
any claim in [a civil action removed under that section] because the State court from
which such civil action is removed did not have jurisdiction over that claim.” 28
U.S.C. § 1441(f); see also St. Clair v. Fred Spigarelli, P.C., 348 F. App’x 190, 191
(8th Cir. 2009) (per curiam) (concluding that the district court erred by dismissing a
“removed case on the basis of a state law venue defect” because the doctrine of
derivative jurisdiction was abrogated by § 1441(f)); North Dakota v. Fredericks, 940
F.2d 333, 336–38 (8th Cir. 1991) (holding that the derivative jurisdiction doctrine has
been completely abandoned). It is sufficient that the district court had original
jurisdiction over this action arising out of federal law and that the proper procedures
for removal were followed. Applying these principles we conclude the district court
had jurisdiction over the § 1983 claims and the Second Amended Complaint is
properly before us.
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B. Pleading Standards
We turn to the issues raised by Plaintiffs on appeal. Plaintiffs first contend that
the district court erred by granting the motion to dismiss because (1) the § 1983
claims were not time-barred and (2) the Second Amended Complaint adequately
pleads a claim upon which relief may be granted. Because the Second Amended
Complaint did not meet federal pleading standards, we will not address the statute of
limitations question.
We review the district court’s grant of a motion to dismiss de novo, “accepting
the well-pleaded allegations in the complaint as true and drawing all reasonable
inferences in favor of the plaintiff.” Varga, 764 F.3d at 838 (citing Fed. R. Civ. P.
12(b)(6)). “To survive a motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to relief that is plausible on its
face.’” Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). A claim has
sufficient facial plausibility to survive where the plaintiff has pled enough facts to
allow the court to reasonably infer that the defendant is liable for the alleged
misconduct. Id. at 838–39 (citing Iqbal, 556 U.S. at 678).
The district court did not err in dismissing the claims against the Officer
Defendants. Here the Plaintiffs’ pleading consists almost entirely of non-specific
conclusory allegations—mostly against the Officer Defendants as a group—and fails
to provide enough factual detail to support a plausible claim that any of the Officer
Defendants deprived them of their rights under the First, Sixth, Eighth, and
Fourteenth Amendments. Plaintiffs have not pled any facts that tie any of the Officer
Defendants’ actions to the Plaintiffs’ race or ethnicity. Nor have they shown how
Plaintiffs were treated differently from any similarly situated non-Hispanic residents.
Despite the claim that Plaintiffs’ arrest and confinement were unlawful, no allegations
tie any of the Officer Defendants to any wrongdoing related to Plaintiffs’ arrest or
confinement. The only actual alleged conduct attributable to the Officer Defendants
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related to the investigation or prosecution does not plausibly give rise to a
constitutional violation. Rather, the Second Amended Complaint consists mostly of
legal conclusions and speculation, which is insufficient under Rule 12(b)(6). See
Hamilton v. Palm, 621 F.3d 816, 817–18 (8th Cir. 2010) (citing Iqbal, 556 U.S. at
678).3
Likewise, the district court committed no error in dismissing the claims against
the Doe Defendants. It is generally impermissible to name fictitious parties as
defendants in federal court, but “an action may proceed against a party whose name
is unknown if the complaint makes allegations specific enough to permit the identity
of the party to be ascertained after reasonable discovery.” Estate of Rosenberg by
Rosenberg v. Crandell, 56 F.3d 35, 37 (8th Cir. 1995) (citations omitted). The
allegations in the Second Amended Complaint regarding the Doe Defendants are not
sufficiently specific to satisfy the exception to the general prohibition against
fictitious parties. The Second Amended Complaint does not sufficiently allege who
the Doe Defendants are, what they allegedly did, what their position is for the City,
or any other facts that would permit the Doe Defendants to be noticed or identified
through discovery.
Lastly, the district court did not clearly abuse its discretion when it denied
Plaintiffs’ motion to amend or alter the judgment. Plaintiffs have not pointed to any
manifest errors of law or fact or demonstrated any exceptional circumstances that
would justify this extraordinary relief. See United States v. Metro. St. Louis Sewer
Dist., 440 F.3d 930, 933 (8th Cir. 2006) (discussing Fed. R. Civ. P. 59(e)); Sellers v.
Mineta, 350 F.3d 706, 716 (8th Cir. 2003) (discussing Fed. R. Civ. P. 60(b)).
3
Plaintiffs’ argument that the law of the case doctrine should govern is without
merit. There is no indication that the state district court considered—let alone, ruled
based on—federal pleading standards when it determined that amendment was not
futile.
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Plaintiffs’ argument that the district court did not consider the amendments to their
complaint is without merit.
III. Conclusion
For the foregoing reasons, we affirm the judgment of the district court.
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