Kelly v. City of Omaha Nebraska et al

Filing 10

MEMORANDUM AND ORDER - The Defendants' Motion to Dismiss (Filing No. 6 ) is granted. The Plaintiff's Complaint (Filing No. 1 ) is dismissed. The Plaintiff is given leave to file an Amended Complaint on or before August 7, 2014. In the absence of the filing of an Amended Complaint on or before August 7, 2014, this action will be dismissed, with prejudice. Ordered by Chief Judge Laurie Smith Camp. (GJG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
ARLENA KELLY,
Plaintiff,
vs.
CITY OF OMAHA NEBRASKA, and
GREG PETERSEN,
Defendants.

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CASE NO. 8:14CV141

MEMORANDUM
AND ORDER

This matter is before the Court on the Defendants’ Motion to Dismiss (Filing No. 6).
For the reasons discussed below, the Motion will be granted, and the Plaintiff will be given
leave to file an amended Complaint.
FACTS
For purposes of the pending motion, the factual allegations in the Plaintiff’s Complaint
(Filing No. 1) are accepted as true, although the Court need not accept her conclusions of law.
The following is a summary of her factual allegations:
Plaintiff Arlena Kelly (“Kelly”) is an African-American woman residing in Omaha,
Nebraska. Kelly owns or has owned multiple rental properties. Defendant Greg Petersen1
(“Petersen”) was a Code Inspector for the Defendant City of Omaha (“City”). At times
unspecified2, Petersen offered to give Kelly favorable treatment with respect to certain
property code violations in exchange for sexual favors, and threatened to cause Kelly to be

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Petersen’s name is also spelled “Peterson” within the pleadings.

The only reference to a time frame within which any conduct occurred appears in
paragraph 24 of the Complaint, in which Kelly alleges “[t]he retaliatory and harassing
conduct by the City of Omaha against Kelly has continued into this year.”

subjected to fines or criminal proceedings if she did not submit to his advances. When Kelly
refused Petersen’s advances, he caused her to be subjected to criminal citations, leading to
criminal penalties; and he contacted her bank, informing the bankers that she was in violation
of housing codes. When Kelly sought certain permits for her properties, the City denied her
permit applications, in retaliation for Kelly’s complaints against Petersen.
Kelly’s Complaint asserts three causes of action against both Defendants: (1) a claim
that the Defendants deprived her of unspecified rights under the Fourth, Fifth, and Fourteenth
Amendments to the United States Constitution, as well as Article I, sections 3, 7, 13, and 21
of the Nebraska Constitution, giving rise to liability under 42 U.S.C. § 1983; (2) a claim that
the Defendants’ conduct was motivated by their desire to punish her for assisting others in
the exercise of their rights under the Federal Fair Housing Act, in violation of 42 U.S.C. §
3617, and (3) a claim that the Defendants obstructed justice in violation of 42 U.S.C. §
1985(2) by intimidating Kelly or threatening her, thereby causing her not to challenge the
Defendants’ decisions regarding code enforcement.
STANDARD OF REVIEW
A complaint must contain “a short and plain statement of the claim showing that the
pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “[A]lthough a complaint need not include
detailed factual allegations, ‘a plaintiff's obligation to provide the grounds of his entitlement
to relief requires more than labels and conclusions, and a formulaic recitation of the elements
of a cause of action will not do.’” C.N. v. Willmar Pub. Sch., Indep. Sch. Dist. No. 347, 591
F.3d 624, 629-30 (8th Cir. 2010) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007)). “Instead, the complaint must set forth ‘enough facts to state a claim to relief that is
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plausible on its face.’” Id. at 630 (citing Twombly, 550 U.S. at 570). “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.” Ritchie v. St. Louis Jewish
Light, 630 F.3d 713, 716 (8th Cir. 2011) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(internal quotation marks omitted). “Courts must accept . . . specific factual allegations as true
but are not required to accept . . . legal conclusions.” Outdoor Cent., Inc. v. GreatLodge.com,
Inc., 643 F.3d 1115, 1120 (8th Cir. 2011) (quoting Brown v. Medtronic, Inc., 628 F.3d 451,
459 (8th Cir. 2010) (internal quotation marks omitted). “A pleading that merely pleads ‘labels
and conclusions,’ or a ‘formulaic recitation’ of the elements of a cause of action, or ‘naked
assertions’ devoid of factual enhancement will not suffice.” Hamilton v. Palm, 621 F.3d 816,
817-18 (8th Cir. 2010) (quoting Iqbal, 556 U.S. at 678). The complaint’s factual allegations
must be “sufficient ‘to raise a right to relief above the speculative level.’” Williams v. Hobbs,
658 F.3d 842, 848 (8th Cir. 2011) (quoting Parkhurst v. Tabor, 569 F.3d 861, 865 (8th Cir.
2009)).
When ruling on a defendant's motion to dismiss, a judge must rule “on the assumption
that all the allegations in the complaint are true,” and “a well-pleaded complaint may proceed
even if it strikes a savvy judge that actual proof of those facts is improbable, and ‘that a
recovery is very remote and unlikely.’” Twombly, 550 U.S. at 555 & 556 (quoting Scheuer v.
Rhodes, 416 U.S. 232, 236 (1974)). The complaint, however, must still “include sufficient
factual allegations to provide the grounds on which the claim rests.” Drobnak v. Andersen
Corp., 561 F.3d 778, 783 (8th Cir. 2009).

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“Two working principles underlie . . . Twombly. First, the tenet that a court must accept
as true all of the allegations contained in a complaint is inapplicable to legal conclusions.
Threadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555).
“Second, only a complaint that states a plausible claim for relief survives a motion to dismiss.”
Id. at 679 (citing Twombly, 550 U.S. at 556). “Determining whether a complaint states a
plausible claim for relief will . . . be a context-specific task that requires the reviewing court
to draw on its judicial experience and common sense.” Id.
DISCUSSION
Kelly’s Complaint does not set forth “enough facts to state a claim to relief that is
plausible on its face.” Willmar Pub. Sch., Indep. Sch. Dist. No. 347, 591 F.3d at 630 (quoting
Twombly, 550 U.S. at 570) (internal quotation marks omitted). She has not pled “factual
content that allows the court to draw the reasonable inference that the [Defendants are] liable
for the misconduct alleged.” Ritchie, 630 F.3d at 716 (quoting Iqbal, 556 U.S. at 678)
(internal quotation marks omitted). Instead, she presents legal conclusions, which the Court
is not required to accept.
I. 42 U.S.C. § 1983
“Section 1983 provides a federal cause of action for plaintiffs to sue officials acting
under color of state law for alleged deprivations of ‘rights, privileges, or immunities secured
by the Constitution and the laws’ of the United States.” Grey v. Wilburn, 270 F.3d 607, 611
(8th Cir. 2001) (quoting 42 U.S.C. § 1983).

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The Complaint leaves the Court to speculate about what right or rights arising under
the United States Constitution or federal laws Kelly was denied by the Defendants’ actions.
She makes a general reference to “due process,” but does not appear to contend she was
innocent of the code violations for which she was penalized, nor that she was denied
procedural due process in the prosecution of those violations. She also makes a reference
to her race, her sex, and her status as “a member of multiple protected classes.” (Filing No.
1 at ¶ 8.) Yet, she does not allege that similarly situated persons who were not members of
the “protected classes” were treated differently.
As Defendants note, Kelly’s Complaint also is devoid of any factual allegations
regarding a municipal policy or custom underlying the conduct giving rise to the alleged
injury—a necessary element for the City’s liability under § 1983. See Snider v. City of Cape
Girardeau, 752 F.3d 1149, 1160 (8th Cir. 2014) (citing City of Canton v. Harris, 489 U.S.
378, 385 (1989); Monell v. N.Y.C. Dep’t of Soc. Servs., 436 U.S. 658 (1978)) (“A municipality
can be liable under § 1983 only if a municipal policy or custom caused a plaintiff to be
deprived of a federal right or if the municipality failed to adequately train its employees.”).
Even if Kelly’s Complaint presents a state-law claim against Petersen for oppression
under color of office, see Neb. Rev. Stat. § 28-926 (Reissue 2008), based on Petersen’s
alleged stalking and harassment, see Neb. Rev. Stat. § 28-311.03 (Reissue 2008), Kelly has
not alleged a deprivation of any right, privilege, or immunity secured by the United States
Constitution or the laws of the United States.

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II. Fair Housing Act
Kelly alleges that the Defendants “coerced, intimidated, threatened, punished, and
interfered with [her] on account of her having aided or encouraged persons and tenants in the
exercise of enjoyment of rights granted and provided by the Federal Fair Housing Act,” 42
U.S.C. § 3601, et seq. (Filing No. 1, ¶ 35.)
It shall be unlawful to coerce, intimidate, threaten, or interfere with any person
in the exercise or enjoyment of, or on account of his having exercised or
enjoyed, or on account of his having aided or encouraged any other person in
the exercise or enjoyment of, any right granted or protected by section 3603,
3604, 3605, 3606 of this title.
42 U.S.C. § 3617.
Kelly alleges the Defendants targeted her properties “for code violations and excessive
fines,” but she alleges such targeting occurred “on account of [her] resisting the sexual
advances of Petersen.” (Filing No. 1, ¶ 9.) She also alleges the City denied her a permit for
a specific property, but alleges the denial was due to her complaints against Petersen and her
refusal to meet with Petersen. (Id. at ¶¶ 19, 20.)
Kelly’s allegations related to her Fair Housing Act claim are conclusory. The facts
alleged do not demonstrate any right to relief under the Fair Housing Act, beyond mere
speculation.
III. 42 U.S.C. § 1985
Finally, Kelly contends that the Defendants conspired to deter her from consulting a
lawyer, appealing decisions of the City’s Building Board of Review, raising challenges to the
Defendants’ decisions regarding code enforcement, and attending or testifying at criminal
proceedings brought against her. (Filing No. 1, ¶ 39.) She alleges the Defendants conspired
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to punish her by denying her the due course of justice, equal protection of the laws, privileges
and immunities of the laws, and her rights and privileges as a citizen. (Id. at ¶¶ 40, 41, 43, 44,
45.)
Under 42 U.S.C. § 1985, persons who conspire to deprive other persons of their civil
rights are liable for damages incurred by the injured party. A conspiracy, by definition,
requires action by more than one person.
By its terms, [42 U.S.C. § 1985] requires a conspiracy, but “[t]his court has held
that a corporation and its agents are a single person in the eyes of the law, and
a corporation cannot conspire with itself” to violate 42 U.S.C. § 1985. Cross
v. Gen. Motors Corp., 721 F.2d 1152, 1156 (8th Cir.1983). Under this
intracorporate conspiracy doctrine, a local government entity cannot conspire
with itself through its agents acting within the scope of their employment. Id.;
Richmond v. Bd. of Regents of Univ. of Minn., 957 F.2d 595, 598 (8th
Cir.1992)[.]
L. L. Nelson Enters., Inc. v. Cnty. of St. Louis, Mo., 673 F.3d 799, 812 (8th Cir. 2012); see
also Sitzes v. City of W. Memphis, Ark., 606 F.3d 461, 465 (8th Cir. 2010) (quoting Meyers
v. Starke, 420 F.3d 738, 742 (8th Cir. 2005) (“‘[T]he intracorporate conspiracy
doctrine . . . allows corporate agents acting within the scope of their employment to be
shielded from constituting a conspiracy under [42 U.S.C. § 1985]’ and that the doctrine has
been ‘extended to . . . governmental entities.’”).
Kelly’s claim presented under 42 U.S.C. § 1985 is not pled with sufficient specificity
to raise her right to relief above a speculative level, nor to overcome the intracorporate
conspiracy doctrine, barring actions under 42 U.S.C. § 1985 that allege conspiracies between
a corporate entity, including a government entity, and one of its agents.

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Accordingly,
IT IS ORDERED:
1. The Defendants’ Motion to Dismiss (Filing No. 6) is granted;
2. The Plaintiff’s Complaint (Filing No. 1) is dismissed;
3. The Plaintiff is given leave to file an Amended Complaint on or before August 7,
2014; and
4. In the absence of the filing of an Amended Complaint on or before August 7, 2014,
this action will be dismissed, with prejudice.

DATED this 24th day of July, 2014.
BY THE COURT:

s/Laurie Smith Camp
Chief United States District Judge

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