Stelly et al v. Peters et al

Filing 10

MEMORANDUM AND ORDER that plaintiffs shall have 30 days from the date of this Memorandum and Order to file an amended complaint. The clerk's office is directed to set a pro se case management deadline for 9/22/14: check for amended complaint. Plaintiffs shall keep the court informed of their current addresses at all times while this case is pending. Ordered by Judge John M. Gerrard. (Copy mailed to pro se parties) (JSF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
MATTHEW STELLY, and CHERYL )
WILLIAMS,
)
)
Plaintiffs,
)
)
v.
)
)
ROBERT PETERS, JAMES THELE, )
MIKE SAKLAR, and MARTIN
)
SHUKERT,
)
)
Defendants.
)

8:14CV170

MEMORANDUM
AND ORDER

Plaintiffs Matthew Stelly and Cheryl Williams filed their Complaint in this
matter on June 6, 2014. (Filing No. 1.) Plaintiffs have been given leave to proceed
in forma pauperis. (Filing No. 9.) The court now conducts an initial review of the
Complaint to determine whether summary dismissal is appropriate under 28 U.S.C.
§1915(e).
I.

SUMMARY OF COMPLAINT

Plaintiffs filed their Complaint against Robert Peters, James Thele, Mike
Saklar, and Martin Shukert. (Filing No. 1 at CM/ECF p. 1.) As best as the court can
tell, Plaintiffs purport to bring this action under the Program Fraud Civil Remedies
Act of 1986, 31 U.S.C. §§ 3801-3812 (“PFCRA”). They also allege various instances
of employment discrimination in their Complaint, though it is not clear from
Plaintiffs’ allegations whether they were the subjects of the discrimination referred
to in the Complaint.
Plaintiffs allege the City of Omaha Planning Department (“planning
department”) is “responsible for the theft of over $200 million” because it has not

used grant money it received from the federal government to redevelop North Omaha.
Instead, the planning department used the money to “hir[e] friends and familiars of
Planning Department leadership” and “develop[] areas of town that were better off
than North Omaha.” (Id. at CM/ECF p. 2.) Plaintiffs also allege the planning
department has not hired black contractors for development projects in North Omaha,
the planning department has discriminatory hiring practices, and the planning
department discriminated against “[a] black woman who worked in the department
for over 25 years [and] was passed over by an incoming white woman who had taken
a remedial class.” (Id. at CM/ECF pp. 2-3.)
As relief, Plaintiffs ask (1) that Defendants be charged with violations of the
PFCRA, (2) for an injunction halting the planning department’s grant allocations
process, (3) for monetary relief in the amount of $210 million, and (4) for the creation
of a “Cultural Consultants Commission” to oversee the restoration of “North Omaha.”
(Id. at CM/ECF pp. 4-5.)
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).
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
2

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.

Standing

If a litigant lacks Article III standing to bring a claim, then the court has no
subject matter jurisdiction over the suit. Iowa League of Cities v. E.P.A., 711 F.3d
844, 869 (8th Cir. 2013). Article III requires “‘an injury [to] be concrete,
particularized, and actual or imminent.’” Wallace v. ConAgra Foods, Inc., 747 F.3d
1025, 1030 (8th Cir. 2014) (quoting Monsanto Co. v. Geertson Seed Farms, 561 U.S.
139, 149 (2010)). In addition, there must be “a causal connection between the injury
and the challenged conduct.” Iowa League of Cities, 711 F.3d at 869 (internal
quotation and citation omitted). Finally, it must be “likely, as opposed to merely
speculative, that the injury will be redressed by a favorable decision.” Id. at 870. To
prove injury in fact, a petitioner must show that he is “himself among the injured.”
Lujan v. Defenders of Wildlife, 504 U.S. 555, 563 (1992).
A plaintiff has prudential standing to bring a claim if “‘the constitutional or
statutory provision on which the claim rests properly can be understood as granting
persons in the plaintiff’s position a right to judicial relief.’” Lucas v. Jerusalem Café,
LLC, 721 F.3d 927, 939 (8th Cir. 2013) (quoting Warth v. Seldin, 422 U.S. 490, 500
(1975)). In addition, as a general rule, to establish standing, a plaintiff “must assert
his own legal rights and interests, and cannot rest his claim to relief on the legal rights
or interests of third parties.” Warth, 422 U.S. at 499.
3

Plaintiffs allege that black contractors have not been considered for
development projects in North Omaha, the planning department has discriminatory
hiring practices, and “[a] black woman who worked in the [planning] department for
over 25 years was constantly harassed and passed over by an incoming white woman
who had taken a remedial class.” (Filing No. 1 at CM/ECF pp. 2-3.) Plaintiffs have
not alleged that they are contractors who have been refused contracts by the planning
department or that planning department officials subjected them to employment
discrimination. In other words, Plaintiffs have not alleged that they are themselves
“among the injured.” See Lujan, 504 U.S. at 563. On the court’s own motion,
Plaintiffs will have 30 days from the date of this Memorandum and Order to file an
amended complaint that asserts their legal rights or interests and not the legal rights
or interests of third parties.
B.

General Pleading Requirements

“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., No. 13-2128, ---F.3d ----, 2014 WL 3703995, at *3 (8th
Cir. July 28, 2014) (quoting Hopkins v. Saunders, 199 F.3d 968, 973 (8th Cir. 1999)).
“‘The well-pleaded facts alleged in the complaint, not the legal theories of recovery
or legal conclusions identified therein, must be viewed to determine whether the
pleading party provided the necessary notice and thereby stated a claim in the manner
contemplated by the federal rules.’” Id. (quoting Parkhill v. Minn. Mut. Life Ins. Co.,
286 F.3d 1051, 1057–58 (8th Cir. 2002)). “‘Accordingly, a complaint should not be
dismissed merely because a plaintiff’s allegations do not support the particular legal
theory he advances, for the court is under a duty to examine the complaint to
determine if the allegations provide for relief on any possible theory.’” Id. (quoting
Bramlet v. Wilson, 495 F.2d 714, 716 (8th Cir. 1974)).

4

Here, Plaintiffs name Robert Peters, James Thele, Mike Saklar, and Martin
Shukert as Defendants. However, aside from alleging that these individuals are
members of the planning department, Plaintiffs’ Complaint is entirely silent as to any
actions taken by these individuals. As such, the Complaint fails to give them fair
notice of the nature and basis or grounds for their claims against them. On the court’s
own motion, Plaintiffs will have 30 days from the date of this Memorandum and
Order to file an amended complaint that sufficiently describes their claims against
Defendants. Plaintiffs should be mindful to clearly explain what each Defendant did
to each Plaintiff, when each Defendant did it, how each Defendant’s actions harmed
each Plaintiff, and what specific legal rights Plaintiffs believe each Defendant
violated.
C.

Program Fraud Civil Remedies Act

In this matter, Plaintiffs “demand that the Office of the Inspector General
charge the City of Omaha” with violations of the PFCRA. (Filing No. 1 at CM/ECF
p. 4.) The PFCRA allows federal departments and agencies “to pursue administrative
actions against individuals for false, fictitious or fraudulent claims for benefits or
payments under a federal agency program.” Orfanos v. Dep’t of Health and Human
Servs., 896 F.Supp. 23, 24-25 (D.D.C. 1995). “The scheme was enacted to ‘provide
federal agencies which are the victims of false, fictitious, and fraudulent claims and
statements with an administrative remedy to recompense such agencies for losses
resulting from such claims and statements . . . .’” Wade v. Donahoe, Nos. 11-3795
and 11-4584, 2012 WL 3844380, at *11 (E.D.Pa. Sept. 4, 2012) (quoting Program
Fraud Civil Remedies Act of 1986, Pub.L. No. 99–509, 100 Stat. 1874 § 6102(b)).
The PFCRA “was not enacted for citizens to utilize as a cause of action against an
administrative agency.” Ellis v. Dep’t of Veterans’ Affairs, No. CV-05-257-RHW,
2006 WL 224041, at *1 (E.D.Wa. Jan 27, 2006)). For these reasons, the court finds
that Plaintiffs cannot rely on the PFCRA to recover against Defendants.

5

IT IS THEREFORE ORDERED that:
1.
Plaintiffs shall have 30 days from the date of this Memorandum and Order
to file an amended complaint that asserts their legal rights or interests and not the legal
rights or interests of third parties, and that sufficiently describes their claims against
Defendants. Plaintiffs should be mindful to clearly explain what each Defendant did
to each Plaintiff, when each Defendant did it, how each Defendant’s actions harmed
each Plaintiff, and what specific legal rights Plaintiffs believe each Defendant
violated. If Plaintiffs fail to file an amended complaint in accordance with this
Memorandum and Order, this matter will be dismissed without notice for want of
prosecution.
2.
The clerk’s office is directed to set a pro se case management deadline
in this case using the following text: September 22, 2014: Check for amended
complaint.
3.
Plaintiffs shall keep the court informed of their current addresses at all
times while this case is pending. Failure to do so may result in dismissal of this
matter without further notice.
DATED this 19th day of August, 2014.
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.

6