Andrews v. City of Omaha Police Department et al

Filing 50

MEMORANDUM OPINION - A separate order will be entered in accordance with this memorandum opinion. Ordered by Senior Judge Lyle E. Strom. (MKR)

IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEBRASKA
MICHAEL ANDREWS,

)
)
Plaintiff,
)
)
v.
)
)
LUCIANO RIZZO and MICHAEL
)
BELCASTRO,
)
)
Defendants.
)
______________________________)

8:14CV285

MEMORANDUM OPINION

This matter is before the Court on the motion of
defendants, Luciano Rizzo and Michael Belcastro (“defendants” or
the “officers”), for summary judgment (Filing No. 46), and
plaintiff, Michael Andrews’ (“plaintiff”), motion to deny summary
judgment (Filing No. 49).

Plaintiff’s motion will be construed

as a brief in opposition to defendants’ motion.

As of the date

of this memorandum and order, no reply brief has been filed.
After review of the motion, the parties’ briefs, and the relevant
law, the Court finds as follows.
BACKGROUND
Plaintiff filed his original complaint on September 19,
2014 (Filing No. 1).

After two amendments to the complaint and a

liberal construction of one of the plaintiff’s briefs by the
Court, only one claim against the officers remained.
Nos. 8 and 20.

See Filing

Brief discovery consisting of requests for

admissions and interrogatories was conducted.

See Filing Nos.

23-25, 33-34, 40-43.
Defendants now request the Court grant summary judgment
on plaintiff’s procedural due process claim against the officers
in their individual capacities (Filing No. 46).

The officers

argue summary judgment is appropriate because no genuine issue as
to any material fact exists indicating that defendants “banned
and barred [the plaintiff] from the Omaha Housing Authority
property” in violation of his procedural due process
constitutional rights (Filing No. 47 at 1).

Defendants contend

it was the Omaha Housing Authority that banned and barred
plaintiff from the premises, not the officers.

(Id. at 9-13).

Finally, defendants argue that “even if an actionable violation
of [plaintiff’s] constitutional or federal statutory rights
occurred . . . [defendants] are entitled to qualified immunity
for their actions . . . .”

(Id. at 15).

In response to defendants’ motion, plaintiff asks the
Court to deny defendants’ motion.

Plaintiff requests the Court:

(1) “not to adopt the defendants [sic] unchallenged perception of
the facts for purposes of ruling on a motion for summary
judgment;” (2) to require “defendants to stand trial and face the
burden of answering Interrogatories and Admission which
defendants have not completed;” (3) find plaintiff’s cause of
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action sufficient to withstand summary judgment insofar as
finding “that there is a violation of a clearly established
federal right of due process and federal right to confront
accusers;” (4) determine that “a reasonable official would have
known that defendants [sic] conduct violated the clearly
established federal right of due process and federal right to
confront accusers;” (5) determine the “questions of material fact
of federal right of due process and federal right to confront
accusers are genuine; ” (6) find “plaintiff’s federal right to
due process . . . was clearly established but not met by the
defendants;” and (7) conclude that the plaintiff “raises a
substantial issue of law and the . . . relief sought is within
the Court’s discretion.”

(Filing No. 49 at 1-2).

LAW
I. Summary Judgment Standard
Summary judgment is only proper when the Court
determines the evidence “show[s] that there is no genuine issue
as to any material fact and that the movant is entitled to
judgment as a matter of law.”

Fed. R. Civ. P. 56(a),(c); Semple

v. Federal Exp. Corp., 566 F.3d 788, 791 (8th Cir. 2009) (quoting
Fed. R. Civ. P. 56(c)).

A “material” fact is one that “might

affect the outcome of the suit under the governing law,” and a
genuine issue of material facts exists when “the evidence is such
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that a reasonable jury could return a verdict for the nonmoving
party.”

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106

S. Ct. 2505, 91 L. Ed. 2d 202 (1986).
The evidence must be viewed in the light most favorable
to the nonmoving party, giving the nonmoving party the benefit of
all reasonable inferences.

Kenney v. Swift Transp., Inc., 347

F.3d 1041, 1044 (8th Cir. 2003).

At the summary judgment stage,

it is not the function of the Court to “weigh the evidence and
determine the truth of the matter but to determine whether there
is a genuine issue for trial.”

Anderson, 477 U.S. at 249.

The

moving party bears the burden to show that summary judgment is
appropriate.

Fed. R. Civ. P. 56(a); Adickes v. S.H. Kress & Co.,

398 U.S. 144, 157, 90 S. Ct. 1598, 26 L. Ed. 2d 142 (1970).
After the moving party has met its burden, “the non-moving party
may not rest on the allegations of his pleadings, but must set
forth specific facts, by affidavit or other evidence, showing
that a genuine issue of material fact exists.”

Singletary v.

Missouri Dept. of Corrections, 423 F.3d 886, 890 (8th Cir. 2005).
“Mere allegations, unsupported by specific facts or evidence
beyond the nonmoving party’s own conclusions are insufficient to
withstand a motion for summary judgment.”

Morris v. City of

Chilicothe, 512 F.3d 1013, 1018 (8th Cir. 2008) (internal
quotations omitted).
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II. Constitutional Violations of Procedural Due Process
The Fourteenth Amendment provides that “[n]o State
shall . . . deprive any person of life, liberty, or property
without due process of law.”

U.S. Const. amend. XIV, § 1.

In

order to state a procedural due process claim, a plaintiff must
allege that (1) he suffered a deprivation of a constitutionally
protected interest in life, liberty, or property, and (2) such
deprivation occurred without due process of law.

See Mathews v.

Eldridge, 424 U.S. 319, 332, 96 S. Ct. 893, 47 L. Ed. 2d 18
(1976).

“In procedural due process claims, the deprivation by

state action of a constitutionally protected interest in ‘life,
liberty, or property’ is not in itself unconstitutional; what is
unconstitutional is the deprivation of such an interest without
due process of law.”

Zinermon v. Burch, 494 U.S. 113, 125, 110

S. Ct. 975, 108 L. Ed. 2d 100 (1990).

The principle that an

individual possesses a constitutionally protected liberty
interest in remaining in a public place of his or her choosing is
well established.

See Vincent v. City of Sulphur, No. 2:13-CV-

189, 2014 WL 2003193, at *6 (W.D. La. May 15, 2014) (collecting
cases) (emphasis added).
DISCUSSION
The Court finds that summary judgment is warranted
under the facts of the case as presented by the parties.
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Andrews’ allegations suggest the South Omaha Projects constitute
a public place and he has been banned from the public place
without notice and an opportunity to be heard.1

Plaintiff has

failed to allege facts sufficient to show how the officers, and
not the Omaha Housing Authority, banned him.

Discovery has

demonstrated defendants did not ban and bar the plaintiff from
the property.

See Filing No. 48, Ex. 3 (providing details of the

incident from the Omaha Housing Authority officer who reported:
“Andrews ban[ned] and barred for being disorderly with OPD,
during ban & bar Andrews made hand sign during photo and refused
to sign B&B sheet.”); see also id., Exs. 1-2, 14-15.

Plaintiff

has not demonstrated the first element of his procedural due
process claim because he cannot show how defendants deprived him

1

The Court here notes the questionableness of
characterizing the South Omaha Projects as public property. The
nature of the property and the evidence that publicly displayed
signs limit access “to residents, their invited guests, employees
of the Omaha Housing Authority and authorized personnel” and
indicating that “all other persons are trespassers and subject to
prosecution” call into question this assumption (Filing No. 48,
Exs. 7-13); see also id., Ex. 6 (stating “[a]ll properties of OHA
are for the sole use and benefit of the residents of such
developments, members of their households, their lawfully invited
guests, personnel of OHA and such persons who have legitimate
business on said property . . . other[s] . . . shall be regarded
as trespassers . . . .”). However, the Court need not determine
this issue and will assume, without deciding, that the property
is public.
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of a constitutionally protected interest in life, liberty, or
property.
Furthermore, even if plaintiff could sufficiently
demonstrate that the officers were the source depriving him of
his liberty to be on the property, the Court finds that such
deprivation did not occur without due process of law.

Plaintiff

was provided with notice of the ban and bar by the Omaha Housing
Authority officer in accordance with Omaha Housing Authority
policies and procedures (Filing No. 48, Ex. 3); see also id., Ex.
6).

Plaintiff was aware of the ban and bar both during his

interaction with the Omaha Housing Officer and again when he
sought review of his expulsion from the Ban and Bar Review Board.
See id., Exs. 14 and 15.
denied.
decision.

(Id., Ex. 15).
(Id.).

Plaintiff’s appeal was considered and
Again, plaintiff was notified of this

Accordingly, the Court concludes that even if

plaintiff suffered a deprivation of a recognized constitutional
right, and that deprivation was suffered at the hands of the
officers, the deprivation did not occur without due process of
law.

For the foregoing reasons, the Court finds that defendants’

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motion for summary judgment should be granted.

A separate order

will be entered in accordance with this memorandum opinion.2
DATED this 18th day of December, 2015.
BY THE COURT:
/s/ Lyle E. Strom
______________________________
LYLE E. STROM, Senior Judge
United States District Court

2

The Court notes plaintiff’s request that “defendants . . .
face the burden of answering Interrogatories and Admission which
defendants have not completed.” As of the date of this order,
defendants have not answered plaintiff’s interrogatories or
requests for admissions. However, after reviewing the content of
plaintiff’s discovery requests, the Court finds a response from
defendants would not alter the Court’s decision.
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