Akins v. Albers et al

Filing 8

MEMORANDUM AND ORDER - Plaintiff's claims for monetary relief against Albers, Eurie, and Everly are dismissed. Plaintiff shall have until 30 days from the date of this Memorandum and Order to file an amended complaint that clearly states a cl aim upon which relief may be granted against Defendants in accordance with this Memorandum and Order. If Plaintiff fails to file an amended complaint, his claims against Defendants will be dismissed without further notice. The clerk's office is directed to send to Plaintiff a copy of the civil complaint form. The clerk's office is directed to set a pro se case management deadline in this case using the following text: Check for amended complaint on February 13, 2015. Ordered by Judge John M. Gerrard. (Copy mailed to pro se party with civil complaint form)(GJG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
SAMAR AKINS,
Plaintiff,
v.
BARB ALBERS, GRETCHIN
EURIE, KIMBERLY TAYLOR
RILEY, LYNN QUENZER, LIZ
EVERLY, and JOE KELLY,
Defendants.

)
)
)
)
)
)
)
)
)
)
)
)

4:14CV3150

MEMORANDUM
AND ORDER

Plaintiff Samar Akins filed his Complaint in this matter on July 29, 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 the Complaint to determine whether
summary dismissal is appropriate under 28 U.S.C. § 1915(e)(2).
I. SUMMARY OF COMPLAINT
Plaintiff brought this action against three State of Nebraska employees—Barb
Albers, Gretchen Eurie, and Liz Everly—and two City of Lincoln, Nebraska,
employees—Kimberly Taylor Riley and Lynn Quenzer. He also brought this action
against Joe Kelly, who he alleges is “the County Attorney for the city of Lincoln.”
(Filing No. 1 at CM/ECF p. 3.) He alleges he is a convicted felon who has been unable
to obtain housing because of his felony conviction. He discussed housing
discrimination against felons with each of the Defendants, some of them on several
occasions, and they each refused to assist him in advocating against housing
discrimination. Plaintiff seeks money damages in the amount of $50,000.00 from each
Defendant. (Id. at CM/ECF p. 4.)

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). The court must
dismiss a complaint or any portion of it 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.”
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.”).
“The essential function of a complaint under the Federal Rules of Civil Procedure
is to give the opposing party ‘fair notice of the nature and basis or grounds for a claim,
and a general indication of the type of litigation involved.’” Topchian v. JPMorgan
Chase Bank, N.A., 760 F.3d 843, 848 (8th Cir. 2014) (quoting Hopkins v. Saunders, 199
F.3d 968, 973 (8th Cir. 1999)). However, “[a] pro se complaint must be liberally
construed, and pro se litigants are held to a lesser pleading standard than other parties.”
Topchian, 760 F.3d at 849 (internal quotation marks and citations omitted).
Liberally construed, Plaintiff here alleges federal constitutional claims. To state
a claim under 42 U.S.C. § 1983, a plaintiff must allege a violation of rights protected
by the United States Constitution or created by federal statute and also must show that
the alleged deprivation was caused by conduct of a person acting under color of state
law. West v. Atkins, 487 U.S. 42, 48 (1988); Buckley v. Barlow, 997 F.2d 494, 495 (8th
Cir. 1993).

2

III. DISCUSSION OF CLAIMS
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 damages claims against
state officials acting in their personal capacities, nor does it bar claims brought pursuant
to 42 U.S.C. §1983 that seek equitable relief from state employee defendants acting in
their official capacity.
Plaintiff has sued three state employees—Albers, Eurie, and Everly—and seeks
only monetary relief against them. To the extent he seeks to sue them in their official
capacities, the Eleventh Amendment bars claims for damages by private parties against
employees of a state sued in their official capacities.

In addition, Plaintiff’s allegations do not give Defendants fair notice of the
claims against them and do not state a plausible claim for relief. Plaintiff generally
alleged Defendants failed to assist him in advocating against housing discrimination.
He does not explain how Defendants’ failure to assist him in this regard states a claim
for relief. Separately, his Complaint is silent as to any actions taken by these
individuals, with two exceptions. First, Plaintiff alleged Eurie “went to the extremes
of denying [him] assistance in this area by obstructing the investigation process in the
claims [he has] against two real[]ty compan[ies].” (Filing No. 1 at CM/ECF p. 2.)
Second, Plaintiff alleged Riley “refused to allow [him] to file any claims with the
Human Rights Commission” and “would not return [his] call.” (Id. at CM/ECF pp. 23.) Plaintiff provides no facts in support of his assertions that Eurie obstructed an
investigation and Riley did not allow him to file claims.
3

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 sufficiently describes his
claims against Defendants. Plaintiff should be mindful to clearly explain what each
Defendant did to him, when each Defendant did it, how each Defendant’s actions
harmed him, and what specific legal rights Plaintiff believes each Defendant violated.
IT IS THEREFORE ORDERED that:
1.
dismissed.

Plaintiff’s claims for monetary relief against Albers, Eurie, and Everly are

2.
Plaintiff shall have until 30 days from the date of this Memorandum and
Order to file an amended complaint that clearly states a claim upon which relief may
be granted against Defendants in accordance with this Memorandum and Order. If
Plaintiff fails to file an amended complaint, his claims against Defendants will be
dismissed without further notice.
3.
The clerk’s office is directed to send to Plaintiff a copy of the civil
complaint form.
4.
The clerk’s office is directed to set a pro se case management deadline in
this case using the following text: Check for amended complaint on February 13, 2015.
DATED this 12th day of January, 2015.
BY THE COURT:
s/ John M. Gerrard
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.

4