Tyler v. Coffey et al

Filing 8

ORDER Plaintiff Tyler will have 30 days from the date of this Memorandum and Order in which to file an amended complaint that states a claim upon which relief can be granted. Failure to file an amended complaint or failure to sufficiently amend his c laims will result in dismissal of this action with prejudice for the reasons discussed in the paragraphs above. The clerks office is directed to set the following case management deadline in this matter: January 12, 2015: Check for amended complaint. ( Case Management Deadline set for 1/12/2015.) Ordered by Judge John M. Gerrard. (Copy mailed to pro se party)(MLF, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
BILLY TYLER,

)
)
Plaintiff,
)
)
v.
)
)
COFFEY, Judge Douglas County
)
Nebraska District Court, and JOHN
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FRIEND, Clerk of Nebraskkk District )
Court Douglas County,
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)
Defendants.
)

8:14CV209

MEMORANDUM
AND ORDER

Plaintiff Billy Tyler (“Plaintiff” or “Tyler”) filed an unsigned Complaint (Filing
No. 1) in this matter on July 21, 2014. He filed a signed Complaint (Filing No. 1-1)
on September 2, 2014. The court granted Tyler leave to proceed in forma pauperis on
September 10, 2014. (Filing No. 7.) The court now conducts an initial review of
Tyler’s claims to determine whether summary dismissal is appropriate under 28
U.S.C. § 1915(e)(2).
I. SUMMARY OF COMPLAINT
Tyler filed this action pursuant to 42 U.S.C. § 1983 against Judge Coffey and
John Friend. Tyler alleged Judge Coffey is a state court judge in the Douglas County
District Court (“state district court”), and Friend is clerk of the state district court. He
alleged Defendants have developed a policy or practice of “flagg[ing]” complaints
filed by him or anyone they believe to be “associated with” him1 and directly

1

It appears Tyler may have intended to raise claims on behalf of his associates
as well as himself, but he may not do so. Pro se litigants may not represent the
interests of other parties. Litschewski v. Dooley, No. 11-4105-RAL, 2012 WL
3023249, at *1 n. 1 (D.S.D. July 24, 2012), aff’d, 502 Fed. Appx. 630 (8th Cir. 2013).

assigning those cases to Judge Coffey. (Filing No. 1-1 at CM/ECF p. 2.) Tyler
alleged Defendants’ actions are a result of an order by the Nebraska Supreme Court
directing Tyler “not to help or discuss [or] instruct anyone in law.” (Id. at CM/ECF
pp. 2-3.)
As relief, Tyler seeks an injunction “forcing defendants to accord [him] due
process.” (Id. at CM/ECF p. 2.) He also seeks judgment against Friend in the amount
of $100,000,000.00. (Id. at CM/ECF p. 3.)
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)(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, 679 (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

Moreover, in order for a plaintiff to proceed with his claims, he must have standing.
As a general rule, to establish standing a plaintiff must assert his legal rights or
interests and not “the legal rights or interests of third parties.” Warth v. Seldin, 422
U.S. 490, 499 (1975). Here, the court will consider only those claims that implicate
Tyler’s legal rights or interests.
2

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). 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
Liberally construed, Tyler alleged in the Complaint that Defendants’ practice
of directly assigning all of his cases to Judge Coffey—thereby deviating from the
normal process of “random selection by computer”—violates his right to equal
protection. Tyler’s argument fails as a matter of law and as a matter of fact.2
The Equal Protection Clause of the Fourteenth Amendment provides that no
State shall “deny to any person within its jurisdiction the equal protection of the
laws.” This amendment “keeps governmental decisionmakers from treating
differently persons who are in all relevant respects alike.” Nordlinger v. Hahn, 505
U.S. 1, 10 (1992). “‘State actors may, however, treat dissimilarly situated people
dissimilarly without running afoul of the protections afforded by the clause.’”
Habhab v. Hon, 536 F.3d 963, 967 (8th Cir. 2008) (quoting Bogren v. Minnesota, 236
F.3d 399, 408 (8th Cir. 2000)).

2

The court does not reach the question of whether Judge Coffey is entitled to
judicial immunity because the Complaint otherwise fails to state a claim upon which
relief can be granted. The question of whether Judge Coffey—and, by extension, John
Friend—is entitled to immunity is complicated by Tyler’s allegations that Defendants
have implemented an ongoing allegedly unconstitutional practice, potentially making
declaratory relief unavailable. See 42 U.S.C. § 1983 (in any action brought against
judicial officer for act or omission taken in officer’s judicial capacity, injunctive relief
shall not be granted unless declaratory decree was violated or declaratory relief was
unavailable).
3

The Supreme Court recognized an equal protection claim for discrimination
against a “class of one.” Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000).
The purpose of a class-of-one claim is “to secure every person within the State’s
jurisdiction against intentional and arbitrary discrimination, whether occasioned by
express terms of a statute or by its improper execution through duly constituted
agents.” Id. A class-of-one claimant may prevail by showing “she has been
intentionally treated differently from others similarly situated and that there is no
rational basis for the difference in treatment.” Id.
Here, Tyler did not allege the policy at issue was implemented because of
Tyler’s membership in a protected class. Therefore, he must show that Defendants
intentionally treated him differently from others similarly situated and that there is no
rational basis for the difference in treatment. See id. Here, Tyler cannot plausibly
allege that Defendants’ actions in directly assigning his cases to one judge for
processing and decision is irrational. Such actions are clearly reasonable in light of
Tyler’s repeated abuse of judicial processes in Nebraska’s state courts.
In State ex rel. Tyler v. Douglas Cnty. Dist. Court, 580 N.W.2d 95 (Neb. 1998),
the Nebraska Supreme Court upheld the state district court’s order limiting the number
of pleadings that Tyler could file in the court to one per month as long as he was
proceeding in forma pauperis and representing himself. The court noted the state
district court’s finding that Tyler had filed 99 cases in an eight-year period in Douglas
County, Nebraska. Id. at 97.
In 1999, the Nebraska Supreme Court entered administrative orders limiting
Tyler’s access to the judicial process. See Tyler v. Stennis, 635 N.W.2d 550, 551
(Neb. Ct. App. 2001) (citing administrative orders dated October 28, 1999).
In 2001, the Nebraska Court of Appeals barred Tyler from appealing any cases
in which Tyler had sued LaVon Stennis or Calvin Dunn concerning a 1992 real estate
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transaction. Id. at 552. The court noted that Tyler’s actions against Stennis and Dunn
had spawned at least 19 docketed appeals or original actions between 1997 and 2001.
Id. at 551.
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
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.
Tyler has consistently abused the judicial process in the federal courts as well.
In 1987, the district judges of this court determined Tyler had flagrantly and
repeatedly abused the judicial process by filing a multitude of meritless civil rights
lawsuits and habeas corpus petitions on behalf of himself and others. In re Tyler, 677
F.Supp. 1410 (D. Neb. 1987). The court ordered that Tyler was limited to filing one
lawsuit per month unless the complaint or petition set forth that he had been or was
about to be subjected to immediate, extraordinary, and irreparable physical harm.
Id. at 1414. The Eighth Circuit Court of Appeals upheld the court’s order in In re
Tyler, 839 F.2d 1290 (8th Cir. 1988). The Eighth Circuit wrote of Tyler’s abusive
actions:
Since January 1, 1986 Mr. Tyler has filed 113 cases in this court
in his own name as petitioner or plaintiff. Prior to January 1, 1986 he
had filed 36 such lawsuits. In addition to those in which he is a named
plaintiff, he also has drafted innumerable complaints in behalf of other
inmates at the Nebraska State Penitentiary or in those institutions in
which he has been confined. In all cases he has been granted leave to
file such complaints without the prepayment of costs or filing fees,
pursuant to the provisions of 28 U.S.C. § 1915. According to records in
the office of the clerk, 51 of Mr. Tyler’s cases were dismissed without
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service of summons upon a finding that they were either frivolous or had
at least failed to state a claim upon which relief could be granted under
42 U.S.C. § 1983. Six were dismissed on motions of the defendants
before trial. Thirty-one cases were dismissed on the plaintiff’s motion
before trial. Two were dismissed when the plaintiff refused to appear at
a pretrial conference with the magistrate and defense counsel at the
penitentiary. Mr. Tyler filed no less than 17 petitions for writs of habeas
corpus, almost all of which challenged, on the same grounds, the
conviction for which he is serving a sentence. Of his civil rights cases,
only two have gone so far as to require a trial, one of which was
dismissed at the close of the plaintiff’s case, and the other resulted in a
judgment for plaintiff for nominal damages in the amount of $5.00.
....
Further, Mr. Tyler has in his letters to the court, pleadings filed
with the court, and statements made during court sessions, used foul and
disgusting language, calling court staff, including deputy and assistant
clerks, law clerks, secretaries, magistrates, and judges, racially
derogatory names, hurled epithets, and otherwise utilized abusive
language disrespectful of the court and all in his presence.
In re Tyler, 839 F.2d at 1291-92.
While Tyler’s abuses of the judicial system have been limited by the orders
summarized in the preceding paragraphs, he has continued to file frivolous and
vexatious litigation. Indeed, in 2003, the chief judge of this court amended the order
entered in 1987 because of Tyler’s continued litigation abuses. In re Tyler, 262 F.
Supp. 2d 1021 (D. Neb. 2003). The court noted that between February 1990 and
February of 2003, Tyler was a party to 78 cases in this court. Here, the undersigned
judge notes that, between January 1, 2003, and December 10, 2014, Tyler has
appeared as a plaintiff, petitioner, intervenor, or interested party in nearly 100 cases
in this court.

6

Because of Tyler’s long history of abusing the judicial systems in both the state
and federal courts, he cannot plausibly allege the state district court’s practice of
assigning his cases to one judge for processing and decision is irrational. As such, his
equal protection claim fails as a matter of law.
To the extent Tyler intended to argue that he has been denied access to the
courts, his claim fails to state a claim upon which relief can be granted. In order to
state a claim for denial of access to the courts, a plaintiff must allege that a defendant
hindered his efforts to pursue a non-frivolous legal claim and that the plaintiff suffered
some actual concrete injury as a result. Lewis v. Casey, 518 U.S. 343, 350-54 (1996).
Here, Tyler does not allege that his efforts to pursue non-frivolous legal claims have
been hindered. Indeed, Tyler’s allegations establish that his cases are being filed and
processed by the state district court. To the extent Tyler takes issue with the decisions
rendered in those actions, his avenues for relief are timely appeals to Nebraska’s
appellate courts.
Finally, to the extent Tyler’s Complaint could be construed to challenge the
state district court’s enforcement of the civil injunction entered in the Nebraska
Supreme Court that prevents Tyler from engaging in the unauthorized practice of law,3
the court abstains from exercising jurisdiction over any such claim. 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;
3

(See Filing No. 1-1 at CM/ECF p. 2 (“Policy Supra Practices Procedures
violate our Nigger Amendment Rights to Freedom of Speech Expression and
association.”).)
7

Case No. 8:12CV94, Filing No. 8 ( aff’d Filing No. 16); Case No. 8:12CV277, Filing
No. 7 ( aff’d Filing No. 14).)
Merely out of an abundance of caution, the court will provide Tyler with 30
days in which to file an amended complaint that states a claim upon which relief can
be granted. Failure to file an amended complaint or failure to sufficiently amend his
claims will result in dismissal of this action with prejudice for the reasons discussed
in the paragraphs above.
IT IS THEREFORE ORDERED that:
1.
Tyler will have 30 days from the date of this Memorandum and Order in
which to file an amended complaint that states a claim upon which relief can be
granted. Failure to file an amended complaint or failure to sufficiently amend his
claims will result in dismissal of this action with prejudice for the reasons discussed
in the paragraphs above.
2.
The clerk’s office is directed to set the following case management
deadline in this matter: January 12, 2015: Check for amended complaint.
DATED this 11th day of December, 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.

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