Akins v. Bruning et al

Filing 6

MEMORANDUM AND ORDER that Plaintiff shall have 30 days from the date of this Memorandum and Order to file an amended complaint that states a claim upon which relief may be granted. Failure to file an amended complaint in accordance with this Memoran dum and Order will result in dismissal of this matter without further notice. The clerk's office is directed to set a pro se case management deadline in this case using the following text: September 1, 2014: Check for amended complaint. Ordered by Judge Joseph F. Bataillon. (Copy mailed to pro se party) (ADB)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
SAMAR AKINS,
Plaintiff,
v.
JON BRUNING, Attorney General,
DAVE HEINEMAN, Governor, and
CHRIS BEUTLER, Mayor, Lincoln,
Defendants.

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4:14CV3092

MEMORANDUM
AND ORDER

Plaintiff Samar Akins (“Plaintiff”) filed his Complaint in this matter on May 5,
2014. (Filing No. 1.) Plaintiff has been given leave to proceed in forma pauperis.
(Filing No. 5.) The court now conducts an initial review of Plaintiff’s claims to
determine whether summary dismissal is appropriate under 28 U.S.C. § 1915(e)(2).
I. SUMMARY OF COMPLAINT
Plaintiff purports to bring this action on behalf of “every African American man,
woman, and child in the State of Nebraska.” (Filing No. 1 at CM/ECF p. 1.) Liberally
construed, Plaintiff alleges Defendants are responsible for violations of rights under the
Federal Constitution’s Equal Protection Clause. Plaintiff generally alleges that African
Americans lack equal access to housing, educational, and employment opportunities.
Plaintiff argues that Defendants, as public officials in Nebraska, are responsible for
rectifying these inequities. (Id.)
For relief, Plaintiff seeks “financial compensation to all Blacks in the state [in
the amount] of [$]25,000 individually.” He also asks that the court order Defendants
to “create policys [sic], laws, and funding to help elevate the African American
community in Neb. to a [sic] equal level with the whites in the state.” (Id. at CM/ECF
p. 6.)

II. APPLICABLE LEGAL STANDARDS ON INITIAL REVIEW
The court is required to review in forma pauperis complaints to determine
whether summary dismissal is appropriate. See 28 U.S.C. § 1915(e)(2). The court
must dismiss a complaint or any portion thereof that states a frivolous or malicious
claim, that fails to state a claim upon which relief may be granted, or that seeks
monetary relief from a defendant who is immune from such relief. 28 U.S.C. §
1915(e)(2)(B).
Pro se plaintiffs must set forth enough factual allegations to “nudge[] their
claims across the line from conceivable to plausible,” or “their complaint must be
dismissed” for failing to state a claim upon which relief can be granted. Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 569-70 (2007); see also Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (“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.”). Regardless of whether a plaintiff is represented
or is appearing pro se, the plaintiff’s complaint must allege specific facts sufficient to
state a claim. See Martin v. Sargent, 780 F.2d 1334, 1337 (8th Cir. 1985). However,
a pro se plaintiff’s allegations must be construed liberally. Burke v. North Dakota
Dep’t of Corr. & Rehab., 294 F.3d 1043, 1043-44 (8th Cir. 2002) (citations omitted).
III. DISCUSSION OF CLAIMS
Plaintiff’s Complaint is deficient in three respects. First, Plaintiff purports to
bring this action on behalf of “every African American man, woman, and child in the
State of Nebraska.” (Filing No. 1 at CM/ECF p. 1.) However, pro se litigants may not
represent the interests of other parties. Litschewski v. Dooley, No. 11-4105-RAL, 2012
WL 3023249, at *1 n. 1 (D.S.D. July 24, 2012), aff’d, 502 Fed.Appx. 630 (8th Cir.
2013). Moreover, in order for a plaintiff to proceed with his claims, he must have
standing. As a general rule, to establish standing a plaintiff must assert his legal rights

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or interests and not “the legal rights or interests of third parties.” Warth v. Seldin, 422
U.S. 490, 498-99 (1975).
Second, Plaintiff seeks money damages from state employees acting in their
official capacities. However, the Eleventh Amendment bars claims for damages by
private parties against a state, state instrumentalities, and an employee of a state sued
in the employee’s official capacity. See, e.g., Egerdahl v. Hibbing Cmty. Coll., 72 F.3d
615, 619 (8th Cir. 1995); Dover Elevator Co. v. Arkansas State Univ., 64 F.3d 442,
446-47 (8th Cir. 1995). Any award of retroactive monetary relief payable by the state,
including for back pay or damages, is proscribed by the Eleventh Amendment absent
a waiver of immunity by the state or an override of immunity by Congress. See, e.g.,
id.; Nevels v. Hanlon, 656 F.2d 372, 377-78 (8th Cir. 1981).
Sovereign immunity does not bar claims brought pursuant to 42 U.S.C. §1983
which seek equitable relief from state employee defendants acting in their official
capacity. Here, Plaintiff also asks the court to order Defendants to “create policys [sic],
laws, and funding to help elevate the African American community in Neb. to a [sic]
equal level with the whites in the state.” (Filing No. 1 at CM/ECF p. 6.) However,
Plaintiff’s request for “polic[ies], laws, and funding” is vague, overbroad, and does not
state a claim for relief.
Third, Plaintiff has not stated an equal protection claim upon which relief may
be granted. The Equal Protection Clause of the Fourteenth Amendment provides that
no state shall “deny to any person within its jurisdiction the equal protection of the
laws.” U.S. Const. amend. XIV, § 1. The clause essentially directs “that all persons
similarly situated should be treated alike.” City of Cleburne v. Cleburne Living Center,
473 U.S. 432, 439 (1985). To state an equal protection claim, a plaintiff must establish
that he was treated differently from others similarly situated to him. Johnson v. City
of Minneapolis, 152 F.3d 859, 862 (8th Cir. 1998). Here, Plaintiff has not alleged that
he was treated differently from others similarly situated to him. In addition, as set forth
above, Plaintiff has not asserted his own legal rights or interest.

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On the court’s own motion, Plaintiff will have 30 days from the date of this
Memorandum and Order to file an amended complaint that asserts his legal rights or
interests and not the legal rights or interests of third parties, and that sets forth a short
and plain statement of the claims against each defendant. If Plaintiff fails to file an
amended complaint in accordance with this Memorandum and Order, this matter will
be dismissed without prejudice and without further notice.
IT IS THEREFORE ORDERED that:
1.
On the court’s own motion, Plaintiff shall have 30 days from the date of
this Memorandum and Order to file an amended complaint that states a claim upon
which relief may be granted. Failure to file an amended complaint in accordance with
this Memorandum and Order will result in dismissal of this matter without further
notice.
2.
In the event Plaintiff files an amended complaint, Plaintiff shall restate the
allegations of the current Complaint and any new allegations. Failure to consolidate
all claims into one document may result in the abandonment of claims.
3.
The clerk’s office is directed to set a pro se case management deadline in
this case using the following text: September 1, 2014: Check for amended complaint.
DATED this 29th day of July, 2014.
BY THE COURT:

s/ Joseph F. Bataillon
United States District Judge

*This opinion may contain hyperlinks to other documents or Web sites. The U.S. District Court for the District
of Nebraska does not endorse, recommend, approve, or guarantee any third parties or the services or products they provide
on their Web sites. Likewise, the court has no agreements with any of these third parties or their Web sites. The court
accepts no responsibility for the availability or functionality of any hyperlink. Thus, the fact that a hyperlink ceases to
work or directs the user to some other site does not affect the opinion of the court.

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