Tyler v. Bride et al

Filing 8

MEMORANDUM AND ORDER regarding: Complaint 1 filed by Billy Tyler. After conducting initial review, Plaintiff's Complaint is dismissed without prejudice pursuant to 28U.S.C. § 1915(e)(2). Plaintiff's Motion for Temporary Restraining Order and Preliminary Injunctive Relief (Filing No. 6 ) is denied as moot. A separate judgment will be entered in accordance with this Memorandum and Order. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party)(JAB)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
BILLY TYLER,
Plaintiff,
v.
JUDGE GILBRIDE, DOUGLAS
PETERSON, RYAN POST, and
DAVID LOPEZ,
Defendants.

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4:17CV3057

MEMORANDUM
AND ORDER

Plaintiff Billy Tyler filed this case on May 8, 2017, and was granted leave to
proceed in forma pauperis on May 31, 2017. The court now conducts an initial review
of Plaintiff’s Complaint (Filing No. 1) to determine whether summary dismissal is
appropriate under 28 U.S.C. § 1915(e)(2).
I. SUMMARY OF COMPLAINT
While not entirely clear, Plaintiff’s Complaint and incomplete attachment
(Filing No. 1) appear to allege that defendants Nebraska Attorney General Douglas
Peterson and Assistant Attorneys General Ryan Post and David Lopez violated
Plaintiff’s First Amendment rights by “pursu[ing]” him for engaging in the
unauthorized practice of law by giving legal advice to, and drafting or filing legal
documents on behalf of, other persons. Plaintiff alleges that he has a First Amendment
right to “freely talk[] . . . [and] walk[] through the Douglas County Courthouse . . .
with whomever we please whilst discoursing on any subject we please . . . .”
Plaintiff also names as a defendant Judge Gilbride, but his Complaint does not
contain any allegations as to the judge. However, Plaintiff’s later-filed Motion for
Temporary Restraining Order and Preliminary Injunctive Relief (Filing No. 6) alleges

that Plaintiff appeared before Judge Gilbride, a state district court judge, in a showcause hearing regarding Plaintiff’s “walking thru Douglas County Courthouse helping
other persons complete legal documents, giving verbal instructions to other persons
regarding legal documents . . . .”
A search of Nebraska state-court electronic records confirms that state district
court judge Mary C. Gilbride issued an injunction against Plaintiff on November 5,
2015, prohibiting him from engaging in the unauthorized practice of law; defendants
Peterson, Post, and Lopez filed a Motion for Order to Show Cause against Plaintiff in
the District Court of Douglas County, Nebraska, on February 9, 2017, seeking to hold
Plaintiff in contempt for the “willful disobedience of the injunction issued November
5, 2015”; Plaintiff filed a notice of appeal with the Nebraska Court of Appeals before
a hearing on the Motion for Order to Show Cause was held; and Tyler’s appeal is still
pending. See State of Nebraska v. Billy R. Tyler, Case No. CI 15-6725 (Neb. Dist. Ct.
of Douglas County); State v. Billy Roy Tyler, A-17-524 (Neb. Ct. App.).
Plaintiff only requests injunctive relief. (Filing No. 6.)
II. 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

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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).
III. DISCUSSION
Summary dismissal of Plaintiff’s Complaint is appropriate for at least two
reasons.
A. Rooker-Feldman Doctrine
To the extent Plaintiff’s claim can be construed as challenging the 2015
injunction prohibiting Plaintiff from engaging in the unauthorized practice of law, the
Rooker-Feldman doctrine requires that this case be dismissed for lack of subjectmatter jurisdiction.
This doctrine provides that, with the exception of habeas corpus petitions, lower
federal courts lack subject-matter jurisdiction over challenges to state court judgments
or to review claims that are inextricably intertwined with state court decisions. Mosby
v. Ligon, 418 F.3d 927, 931 (8th Cir. 2005). See D.C. Court of Appeals v. Feldman,
460 U.S. 462, 476 (1983); Rooker v. Fid. Trust Co., 263 U.S. 413 (1923). Specifically,
the doctrine “bars federal courts from hearing cases brought by the losing parties in
state court proceedings alleging ‘injury caused by the state-court judgment and
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seeking review and rejection of that judgment.’” Mosby, 418 at 931 (quoting Exxon
Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280 (2005)). In this case, a
Nebraska state court has entered an injunction prohibiting Plaintiff’s unauthorized
practice of law, which Plaintiff now appears to challenge on First Amendment
grounds. Under such circumstances, the Rooker-Feldman doctrine deprives this court
of subject-matter jurisdiction over Plaintiff’s claim. Riehm v. Engelking, 538 F.3d 952,
965 (8th Cir. 2008) (“If a federal plaintiff asserts as a legal wrong an allegedly
erroneous decision by a state court, and seeks relief from a state court judgment based
on that decision, Rooker-Feldman bars subject matter jurisdiction in federal district
court.” (internal quotation marks and citation omitted)).
B. Younger Abstention
Alternatively, and to the extent any portion of Plaintiff’s Complaint could
survive the jurisdictional bar of the Rooker-Feldman doctrine, Younger abstention is
warranted. Under the Younger abstention doctrine, abstention is mandatory where: (1)
there is an ongoing state proceeding; (2) an important state interest is implicated; and
(3) the plaintiff has an avenue open for review of constitutional claims in the state
court. Younger v. Harris, 401 U.S. 37 (1971); see Aaron v. Target Corp., 357 F.3d
768, 774 (8th Cir. 2004) (“Under Younger v. Harris, [] federal courts should abstain
from exercising jurisdiction in cases where equitable relief would interfere with
pending state proceedings in a way that offends principles of comity and federalism”).
Here, each of the Younger conditions is satisfied. The proceedings in the
District Court for Douglas County for Plaintiff’s alleged violation of the state-issued
2015 injunction are ongoing, including what appears to be the premature appeal of
that matter to the Nebraska Court of Appeals. Second, challenges to the unauthorized
practice of law in Nebraska further important state interests. Tyler v. Coffey, No.
8:14CV209, Filing 8, at CM/ECF pp. 7-8 (D. Neb. Dec. 11, 2014) (“Nebraska has an
important obligation to regulate individuals who practice law within Nebraska”).
Finally, there is no indication that the state courts could not afford Plaintiff the
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opportunity for judicial review of his civil rights challenges. Carson P. ex rel.
Foreman v. Heineman, 240 F.R.D. 456, 529 (D. Neb. 2007) (“‘federal court oversight
of state court operations, even if not framed as direct review of state court judgments’
. . . is problematic, calling for Younger abstention. . . . The relief that the plaintiffs
seek would interfere extensively with the ongoing state proceedings for each
plaintiff.” (quoting 31 Foster Children v. Bush, 329 F.3d 1255, 1278-1279 (11th Cir.
2003)).
Therefore, Younger dictates that this court abstain from deciding Plaintiff’s
federal constitutional claim, and dismiss this matter without prejudice. Anderson v.
Schultz, 871 F.2d 762, 766 (8th Cir. 1989) (dismissal without prejudice is appropriate
when district court abstains under Younger).
For the foregoing reasons, the court will dismiss this action without granting
Plaintiff the opportunity to file an amended complaint because it is apparent that such
amendment would be futile due to the fundamental jurisdictional and abstention issues
involved here.
C. Caution to Plaintiff
The court notes that its conclusion in this case is consistent with past decisions
involving the same type of injunction, but different defendants. Plaintiff may recall
that he filed a lawsuit in this court in 2015 challenging the same state-court injunction
involved in this case, and Plaintiff’s 2015 case was dismissed on Rooker-Feldman
grounds, among others. Tyler v. Gilbride, No. 8:15CV462, 2016 WL 1555704 (D.
Neb. Apr. 15, 2016). Further, this court has abstained from exercising jurisdiction
over Plaintiff’s past challenges to the state district court’s enforcement of a civil
injunction entered against Plaintiff in the Nebraska Supreme Court.1
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In State ex rel. Com’n on Unauthorized Practice of Law v. Tyler, 811 N.W.2d
678, 682 (Neb. 2012), the Nebraska Supreme Court determined that Tyler is a
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The court recognizes that Nebraska has an important obligation to
regulate individuals who practice law within Nebraska. See Middlesex
Cnty. Ethics Comm. v. Garden State Bar Assn., 457 U.S. 423, 432
(1982). Tyler has filed several cases in this court requesting relief from
Nebraska’s regulation of his unauthorized practice of law. In each case,
the court has abstained from exercising jurisdiction over his claims under
Younger v. Harris, 401 U.S. 37 (1971), and Middlesex County Ethics
Committee v. Garden State Bar Association, 457 U.S. 423, 432 (1982).
(See Case No. 8:13CV13, Filing No. 6; Case No. 8:12CV94, Filing No.
8 (aff’d Filing No. 16); Case No. 8:12CV277, Filing No. 7 (aff’d Filing
No. 14).)
Tyler v. Coffey, No. 8:14CV209, Filing 8, at CM/ECF pp. 7-8 (D. Neb. Dec. 11, 2014)
(outlining Plaintiff’s consistent abuse of the judicial process in both state and federal
courts).
In light of Plaintiff’s numerous and unsuccessful previous lawsuits challenging
the existence or enforcement of the aforementioned state-court-issued injunctions
prohibiting Plaintiff from engaging in the unauthorized practice of law, Plaintiff is
advised that should he file future lawsuits in this court challenging such injunctions,
the court may consider the imposition of sanctions. Bauer v. Lauth, No. 4:16-CV-410
CAS, 2016 WL 6679846, at *6 (E.D. Mo. Nov. 14, 2016) (noting that pro se parties
are subject to Rule 11 sanctions and barring pro se plaintiffs from filing any further
pleadings in federal district court that related to state foreclosure proceedings without
prior approval of federal district court); Luther v. Am. Nat’l Bank of Minnesota, No.
CV 13-184, 2013 WL 12073798, at *16 (D. Minn. Aug. 21, 2013), aff’d sub nom.
Luther v. Am. Nat. Bank of Minnesota, 563 F. App’x 503 (8th Cir. 2014) (“the Court
nonlawyer who has repeatedly engaged in the unauthorized practice of law. The court
enjoined Tyler “from engaging in the unauthorized practice of law in any manner,
including but not limited to . . . giving advice or counsel to another entity . . . [and]
selecting, drafting, or completing, for another entity or person, legal documents which
affect the legal rights of the entity or person.” Id. at 741-42.
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strongly cautions [the pro se] Plaintiff that further efforts to file a new lawsuit in this
Court attempting to again raise claims against these Defendants related in any way to
those previously resolved in favor of Defendants may very well subject Plaintiff to
significant future Rule 11 monetary sanctions from this Court”); Beaner v. United
States, 361 F. Supp. 2d 1063, 1068 (D.S.D. 2005) (plaintiff’s pro se status does not
insulate plaintiff from the reach of Rule 11 sanctions).
Accordingly,
IT IS ORDERED:
1.
Plaintiff’s Complaint is dismissed without prejudice pursuant to 28
U.S.C. § 1915(e)(2);
2.
Plaintiff’s Motion for Temporary Restraining Order and Preliminary
Injunctive Relief (Filing No. 6) is denied as moot; and
3.
A separate judgment will be entered in accordance with this
Memorandum and Order.
DATED this 8th day of June, 2017.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

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