Tyler v. Mayo et al

Filing 9

MEMORANDUM AND ORDER - Plaintiff's Complaint fails to state a claim upon which relief may be granted. However, Plaintiff shall have until August 15, 2011, to amend his Complaint to clearly state a claim upon which relief may be granted, in acco rdance with this Memorandum and Order. If Plaintiff fails to file an amended complaint, Plaintiffs current Complaint (filing no. 1) will be dismissed without prejudice and without further notice for failure to state a claim upon which relief may be granted. The Clerk of the court is directed to set a pro se case management deadline in this case using the following text: Review amended complaint on August 15, 2011; dismiss if not filed. Plaintiff's Motion for Order 6 and Motion for a Temporary Restraining Order 8 are denied. Ordered by Chief Judge Joseph F. Bataillon. (Copy mailed/e-mailed to pro se party)(KBJ)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
BILLY TYLER,
Plaintiff,
v.
UNKNOWN MAYO, deputy U.S.
Marshal, and UNKNOWN LEWIS,
deputy U.S. Marshal,
Defendants.

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8:11CV167

MEMORANDUM
AND ORDER

Plaintiff filed his Complaint on May 13, 2011. (Filing No. 1.) Plaintiff has
previously been given leave to proceed in forma pauperis. (Filing No. 7.) Also
pending are Plaintiff’s Motion for Order (filing no. 6) and Motion for Temporary
Restraining Order (filing no. 8). The court now conducts an initial review of the
Complaint to determine whether summary dismissal is appropriate under 28 U.S.C.
§§ 1915(e) and 1915A.
I.

SUMMARY OF COMPLAINT

Plaintiff filed his complaint against United States Marshals Mayo and Lewis
on May 13, 2011. Plaintiff’s Complaint is very difficult to decipher. As best as the
court can tell, Plaintiff alleges that he was “permanently banned from [the] U.S.
Courthouse in Omaha.” (Filing No. 1 CM/ECF at pp. 1, 3.) Plaintiff requests
monetary damages in the amount of $100,000,000 and “anything else just.” (Id. at
CM/ECF p. 3.)
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 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).
A pro se plaintiff 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, 129 S. Ct.
1937, 1950 (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
A.

Access to Courts

The court liberally construes Plaintiff’s Complaint to allege an access to courts
claim. To prove a violation of the right of meaningful access to the courts, Plaintiff
must establish that Defendants did not provide him with an opportunity to litigate his
claim in “a court of law, which resulted in actual injury, that is, the hindrance of a
nonfrivolous and arguably meritorious underlying legal claim.” Hartsfield v. Nichols,
511 F.3d 826, 831 (8th Cir. 2008) (citation omitted). “To prove actual injury,
[Plaintiff] must ‘demonstrate that a nonfrivolous legal claim had been frustrated or
was being impeded.’” Id. (quoting Lewis v. Casey, 518 U.S. 343, 353 (1996)).

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Here, Plaintiff has not alleged sufficient facts to demonstrate that Defendants
frustrated or impeded his ability to bring a nonfrivolous legal claim. Thus, Plaintiff’s
access to courts claim against Defendants fails to state a claim upon which relief may
be granted. However, on the court’s own motion, Plaintiff shall have 30 days to file
an amended complaint that clearly alleges that Defendants impeded his ability to
bring a nonfrivolous legal claim. Any amended complaint shall restate the allegations
of Plaintiff’s current Complaint (filing no. 1) and any new allegations. Failure to
consolidate all claims into one document may result in the abandonment of claims.
B.

Equal Protection

The court also liberally construes Plaintiff’s Complaint to allege a Fifth
Amendment equal protection claim against Defendants. “[The Supreme Court’s]
approach to Fifth Amendment equal protection claims has . . . been precisely the same
as to equal protection claims under the Fourteenth Amendment.” San Francisco Arts
& Athletics, Inc. v. U.S. Olympic Comm., 483 U.S. 522, 543 n.21,(1987) (quoting
Weinberger v. Wiesenfeld, 420 U.S. 636, 638, n.2 (1975)). To state an equal
protection claim, Plaintiff must establish that he was treated differently from other
similarly situated individuals. Johnson v. City of Minneapolis, 152 F.3d 859, 862
(8th Cir. 1998).
It is unclear from Plaintiff’s Complaint how and why he was “banned” from the
courthouse in Omaha and whether he was treated differently from similarly situated
individuals. Accordingly, Plaintiff has failed to allege sufficient facts to state an
equal protection claim upon which relief may be granted. However, as with his
access to courts claim, Plaintiff shall have 30 days in which to amend his Complaint
and properly allege that he was deprived of a right secured by the Constitution or
laws of the United States. Any amended complaint shall restate the allegations of
Plaintiff’s current Complaint (filing no. 1) and any new allegations. Failure to
consolidate all claims into one document may result in the abandonment of claims.
If Plaintiff fails to file an amended complaint in accordance with this Memorandum
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and Order, Plaintiff’s current Complaint (filing no. 1) will be dismissed without
prejudice for failure to state a claim upon which relief can be granted.
IV.

MOTION FOR TEMPORARY RESTRAINING ORDER

Plaintiff has also filed a Motion for a Temporary Restraining Order. (Filing
No. 8.) The standards set forth by Dataphase Sys., Inc. v. C.L. Sys., Inc., 640 F.2d
109 (8th Cir. 1981), apply to Plaintiff’s Motion. In Dataphase, the court, sitting en
banc, clarified the factors district courts should consider when determining whether
to grant a motion for preliminary injunctive relief:
(1) the threat of irreparable harm to the movant; (2) the state of balance
between this harm and the injury that granting the injunction will inflict
on other parties litigant; (3) the probability that movant will succeed on
the merits; and (4) the public interest.
Id. at 114. “No single factor in itself is dispositive; rather, each factor must be
considered to determine whether the balance of equities weighs toward granting the
injunction.” United Indus. Corp. v. Clorox Co., 140 F.3d 1175, 1179 (8th Cir. 1998).
“At base, the question is whether the balance of equities so favors the movant that
justice requires the court to intervene to preserve the status quo until the merits are
determined . . . .” Dataphase, 640 F.2d at 113.
Here, the court finds that the Dataphase factors do not favor Plaintiff to a
degree sufficient to warrant issuance of preliminary injunctive relief. In light of this,
and in consideration of all of the factors, the court sees no reason to “intervene to
preserve the status quo until the merits are determined . . . .” Dataphase, 640 F.2d at
113.
IT IS THEREFORE ORDERED that:
1.
Plaintiff’s Complaint fails to state a claim upon which relief may be
granted. However, Plaintiff shall have until August 15, 2011, to amend his
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Complaint to clearly state a claim upon which relief may be granted, in accordance
with this Memorandum and Order. If Plaintiff fails to file an amended complaint,
Plaintiff’s current Complaint (filing no. 1) will be dismissed without prejudice and
without further notice for failure to state a claim upon which relief may be granted.
2.
In the event that Plaintiff files an amended complaint, Plaintiff shall
restate the allegations of the current Complaint (filing no. 1), and any new allegations.
Failure to consolidate all claims into one document will result in the abandonment of
claims.
3.
The Clerk of the court is directed to set a pro se case management
deadline in this case using the following text: Review amended complaint on August
15, 2011; dismiss if not filed.
4.
Plaintiff’s Motion for Order (filing no. 6) and Motion for a Temporary
Restraining Order (filing no. 8) are denied.
DATED this 15th day of July, 2011.
BY THE COURT:
s/ Joseph F. Bataillon
Chief United States District Judge

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