United States of America et al v. Housing Authority of the City of Omaha et al

Filing 14

MEMORANDUM AND ORDER - IT IS THEREFORE ORDERED that on the court's own motion: Plaintiff shall have until August 13, 2012, to obtain the services of a licensed attorney and have the attorney file an appearance in this matter. Failure to comply with this Memorandum and Order will result in dismissal of this matter without further notice. Ordered by Chief Judge Laurie Smith Camp. (Copy mailed to pro se party)(TCL )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
BONNIE KELLY,

)
)
Plaintiff,
)
)
v.
)
)
HOUSING AUTHORITY OF THE CITY )
OF OMAHA, STANLEY TIMM, FRANK )
BROWN, City Councilman, WILLIAM )
BEGLEY, OHA Board of
)
Commissioners, TONY WELCHEN,
)
OHA Board of Commissioners, JOAN )
NIGRO, OHA Board of
)
Commissioners, DONNA WIMAN,
)
OHA Board of Commissioners, NELL )
WINFORD, OHA Board of
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Commissioners, and JOHN AND
)
JANE DOE 1-50,
)
)
Defendants.
)

CASE NO. 8:12CV79

MEMORANDUM
AND ORDER

Plaintiff filed her Complaint in this matter on February 23, 2012. (Filing No. 1.)
Plaintiff has been given leave to proceed in forma pauperis. (Filing No. 7.) 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 has filed this action pro se. She brings this qui tam action as an individual

relator under the False Claims Act against numerous agencies and individuals. (Filing No.
1.) Generally, she alleges that Defendants have defrauded the United States Government
of millions of dollars by submitting false information to the United States Department of
Housing and Urban Development. (Id. at CM/ECF p. 2.) The United States has declined
to intervene in this matter. (Filing No. 12.)

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, 104344 (8th Cir. 2002), (citations omitted).
III.

DISCUSSION OF CLAIMS
As set forth above, Plaintiff brings this action pro se under the False Claims Act as

an individual relator. (Filing No. 1.) The False Claims Act imposes liability on any person
who presents a false or fraudulent claim for payment to the government.
31 U.S.C. § 3729(a)(1). It authorizes private individuals to bring civil actions in the

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government’s name, referred to as qui tam actions. 31 U.S.C. § 3730(b)(1). In a qui tam
action under the False Claims Act, individuals actually “sue on behalf of the government
as agents of the government, which is always the real party in interest.” United States ex.
rel. Rodgers v. State of Ark., 154 F.3d 865, 868 (8th Cir.1998), (internal citation and
quotation omitted); see also Stalley v. Catholic Health Initiatives, 509 F.3d 517, 521 (8th
Cir. 2007), (“A qui tam statute effectively assigns part of the government’s interest to a
relator so that the relator has standing to assert an injury suffered by the government.”).
The law in the Eighth Circuit is clear that a pro se plaintiff may not prosecute a qui
tam action on behalf of the United States. United States v. Onan, 190 F.2d 1, 6-7 (8th Cir.
1951). As set forth in Onan:
[W]e do not think that Congress could have intended to authorize a layman
to carry on such suit as attorney for the United States but must have had in
mind that such a suit would be carried on in accordance with the established
procedure which requires that only one licensed to practice law may conduct
proceedings in court for anyone other than himself. While the Supreme
Court has given this Section 232 a liberal construction . . . it is unthinkable
that Congress by this Act intended to license laymen to practice law. The
practice of law is affected with a public interest and an attorney at law as
distinguished from a layman, has both public and private obligations, being
sworn to act with all good fidelity toward both his client and the court.
Id. Citing Onan, many other federal circuit courts agree. See U.S. ex rel. Mergent Servs.
v. Flaherty, 540 F.3d 89, 92 (2d Cir. 2008), (“Because relators lack a personal interest in
False Claims Act qui tam actions, we conclude that they are not entitled to proceed pro
se.”); Timson v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008), (holding that a non-attorney
pro se plaintiff may not litigate a qui tam action under the False Claims Act); Stoner v.
Santa Clara Cnty. Office of Educ., 502 F.3d 1116, 1126-27 (9th Cir. 2007), (“Because qui
tam relators are not prosecuting only their ‘own case’ but also representing the United
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States and binding it to any adverse judgment the relators may obtain, we cannot interpret
§ 1654 as authorizing qui tam relators to proceed pro se in FCA actions.”); U.S. ex rel. Lu
v. Ou, 368 F.3d 773, 775-76 (7th Cir. 2004), (holding that non-attorney pro se litigants may
not proceed in a qui tam action on behalf of the United States), overruled on other grounds
by U.S. ex rel. Eisenstein v. City of New York, New York, 556 U.S. 928 (2009).
The United States has declined to intervene in this matter. Consistent with the law
in this Circuit, and that of other Circuits that have considered the issue, this court
concludes that Plaintiff may not bring this qui tam action pro se.
IT IS THEREFORE ORDERED that on the court’s own motion: Plaintiff shall have
until August 13, 2012, to obtain the services of a licensed attorney and have the attorney
file an appearance in this matter. Failure to comply with this Memorandum and Order will
result in dismissal of this matter without further notice.
DATED this 12th day of July, 2012.
BY THE COURT:

s/Laurie Smith Camp
Chief United States District Judge

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District Court for the District of Nebraska does not endorse, recommend, approve, or
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