D'Ercole v. Harrahs Hotel Resort et al

Filing 6

MEMORANDUM AND ORDER - Plaintiff shall have 30 days from the date of this Memorandum and Order to file an amended complaint. As set forth above, Plaintiff's amended complaint must: a. explain what each defendant did to him, when the defendant d id it, and how the defendant's actions harmed him; and b. sets forth only related claims that stem from the same basic event or occurrence. The clerk's office is directed to set a pro se case management deadline in this case using the following text: January 16, 2015: Check for amended complaint. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party)(GJG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
ERIC J. D’ERCOLE,
Plaintiff,
v.
HARRAHS HOTEL RESORT,
DOUG SEXTON, DCI IRGC,
BRIAN EYBERG, OMAHA
POLICE DEPARTMENT,
DOUGLAS COUNTY
CORRECTIONS DEPARTMENT,
and LAURA PETERSEN,
Defendants.

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8:14CV291

MEMORANDUM
AND ORDER

Plaintiff Eric D’Ercole (“Plaintiff”) filed his Complaint (Filing No. 1) on
September 25, 2014. This court has given Plaintiff leave to proceed in forma
pauperis. (Filing No. 5.) The court now conducts an initial review of the Complaint
to determine whether summary dismissal is appropriate under 28 U.S.C. § 1915(e)(2).
I. SUMMARY OF COMPLAINT
Plaintiff sued Harrah’s Hotel in Council Bluffs, Iowa, the Omaha Police
Department, the Douglas County Corrections Department, and three individuals who
are never mentioned in the Complaint. His allegations are rambling and difficult to
decipher. As best as the undersigned judge can tell, he alleged he contracted food
poisoning after eating undercooked chicken at Harrah’s Hotel. He complained to the
hotel. Thereafter, he “was persecuted as a criminal on court docket proceedings” and
sodomized by a female police officer named Janig. (Filing No. 1 at CM/ECF p. 3.)

Plaintiff alleged his claims arise under the Constitution, laws or treaties of the
United States and that his civil rights have been violated. (Id. at CM/ECF p. 4.) For
relief, he asks for the court to “quash all charges against [him]” because they are
predicated upon a “false arrest.” He also asks the court to award him monetary
damages. (Id. at CM/ECF p. 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)(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, 570 (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, 1043-44 (8th Cir. 2002) (citations omitted).
Liberally construed, Plaintiff here alleges federal constitutional claims. To state
a claim under 42 U.S.C. § 1983, a plaintiff must allege a violation of rights protected
by the United States Constitution or created by federal statute, and also must show that
the alleged deprivation was caused by conduct of a person acting under color of state
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law. West v. Atkins, 487 U.S. 42, 48 (1988); Buckley v. Barlow, 997 F.2d 494, 495
(8th Cir. 1993).
III. DISCUSSION OF CLAIMS
Plaintiff’s Complaint fails to state a claim upon which relief can be granted
against any of the named Defendants. Plaintiff alleged he suffered a “false arrest” but
provided no factual allegations to support such a claim. In addition, it is entirely
unclear to the undersigned judge what relationship Plaintiff’s allegations concerning
food poisoning have to his false arrest claim or to his allegation that he was
sodomized by a police officer.
On the court’s own motion, Plaintiff will be provided with an opportunity to file
an amended complaint. Plaintiff should keep the following discussion in mind when
drafting his amended complaint.
A.

Rules of Pleading

Plaintiff named six individuals as Defendants and has asked for leave to add
numerous others. Most of these individuals are never mentioned within Plaintiff’s
factual allegations.
“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., 760 F.3d 843, 848 (8th Cir. 2014) (quoting Hopkins v.
Saunders, 199 F.3d 968, 973 (8th Cir. 1999)).
Here, Plaintiff’s allegations do not give Defendants fair notice of the claims
against them. In order to ensure a just and fair resolution of this matter, Plaintiff

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should be mindful to explain in his amended complaint what each defendant did to
him, when the defendant did it, and how the defendant’s actions harmed him.
B.

Rules of Joinder

Federal Rule of Civil Procedure 20 states that multiple defendants may be
joined in the same action only if “any right to relief is asserted against them jointly,
severally, or in the alternative with respect to or arising out of the same transaction,
occurrence, or series of transactions or occurrences.” Fed. R. Civ. P. 20(a)(2)(A)
(emphasis added). In addition, there must be a “question of law or fact common to all
defendants” in the action. Fed. R. Civ. P. 20(a)(2)(B). Under Federal Rule of Civil
Procedure 21, the proper remedy for improper joinder of parties is for the court to
“drop a party” or “sever any claim against the party.” Fed. R. Civ. P. 21. The court
may do so “[o]n motion or on its own.” Id.
Here, allowing this case to proceed against all named Defendants and proposed
Defendants—many of which appear to be sued based on unrelated events—would
create a case management problem and unduly prejudice Defendants. Thus, Plaintiff
will be required to file an amended complaint that sets forth only related claims that
stem from the same basic event or occurrence.
IT IS THEREFORE ORDERED that:
1.
Plaintiff shall have 30 days from the date of this Memorandum and Order
to file an amended complaint. As set forth above, Plaintiff’s amended complaint
must:
a.
explain what each defendant did to him, when the defendant did
it, and how the defendant’s actions harmed him; and

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b.
sets forth only related claims that stem from the same basic event
or occurrence.
2.
The clerk’s office is directed to set a pro se case management deadline
in this case using the following text: January 16, 2015: Check for amended complaint.
DATED this 15th day of December, 2014.
BY THE COURT:
Richard G. Kopf
Senior United States District Judge

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of Nebraska does not endorse, recommend, approve, or guarantee any third parties or the services or products they
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