Hulsebus v. Kleine et al

Filing 7

MEMORANDUM AND ORDER -Plaintiff must show cause within 30 days why this case should not be dismissed as untimely under the applicable statute of limitations. Absent a showing of good cause, this case will be subject to dismissal with prejudice and without further notice. ***Pro Se Case Management Deadlines: ( Pro Se Case Management Deadline set for 3/19/2015: Plaintiff's response due) Ordered by Judge John M. Gerrard. (Copy mailed to pro se party)(MKR)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
KENNETH L. HULSEBUS,

)
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Plaintiff,
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v.
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DONALD W. KLEINE, Douglas
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county attorney, ROGER
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MORRISSEY, Douglas county tax
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assessor, JOHN W. EWING JR.,
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Douglas county treasurer, DIANE
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BATTIATO, Register of Deeds, TIM )
DUNNING, Douglas Sheriff, JON
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BRUNING, Nebraska Attorney
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General, GERALD MORAN,
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Douglas county judge, and BEL
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FURY INVESTMENTS, LLC,
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Defendants.
)

8:14CV366

MEMORANDUM
AND ORDER

Plaintiff filed his Complaint in this matter on November 25, 2014. (Filing No.
1.) The court has given Plaintiff leave to proceed in forma pauperis. (Filing No. 6.)
The court now conducts an initial review of Plaintiff’s Complaint to determine
whether summary dismissal is appropriate under 28 U.S.C. § 1915(e)(2).
I.

SUMMARY OF COMPLAINT

Plaintiff’s Complaint is difficult to decipher and, at times, nonsensical. As best
as the court can tell, Plaintiff alleges he purchased real property1 in 1984. He lost full

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Plaintiff describes the property as “land real estate property [] Lots one (1) and
two (2) block fifteen (15) Carter Lake View also known as 5224 N. 8th St. East
Omaha, Nebraska.” (Filing No. 1 at CM/ECF p. 8.)

“use” of the property when he registered it with the municipal authorities in Douglas
County, Nebraska. Defendants taxed his property and used it “as collateral [f]or the
issuance of bonds, the proceeds of which run the corporation’s operations.” (Filing
No. 1 at CM/ECF p. 4.) In addition, Defendants required Plaintiff to register his
property and “then required Plaintiff to pay for [t]he privilege of the registration or
recordation.” (Id.)
Plaintiff also alleges Defendants took his property in 2009 without first holding
a hearing on the issue of “delinquent property taxes.” Plaintiff alleges the property
was sold at a sheriff’s sale in October of 2009. (Id. at CM/ECF pp. 4-5.)
Finally, Plaintiff alleges that in 2011, a deputy with the Douglas County
Sheriff’s Department “stole Plaintiff’s keys, at gun point, to the aforementioned
private property, then did kidnap Plaintiff and locked Plaintiff in the Douglas county
corrections.” Plaintiff alleges this was another violation of his “property rights.” (Id.
at CM/ECF p. 5.)
For relief, Plaintiff seeks “Declaratory Judgment, imposition of a constructive
trust, . . . Disgorgement, Quo-Warranto, and Revocation of Corporate Charter.” (Id.
at CM/ECF pp. 6-7.)
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 of it 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).

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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.” 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 liable for the misconduct alleged.”).
“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)). However, “[a] pro se complaint must
be liberally construed, and pro se litigants are held to a lesser pleading standard than
other parties.” Topchian, 760 F.3d at 849 (internal quotation marks and citations
omitted).
III.

DISCUSSION OF CLAIMS

In this matter, Plaintiff alleged two unconstitutional actions by Defendants.
First, they took his property for public use in 1984 without providing him just
compensation. Second, they sold his property at a sheriff’s sale in 2009 without first
holding a hearing on the issue of delinquent property taxes.
“Section 1983 does not supply its own statute of limitations; instead, [the court]
borrow[s] the statute of limitations from state law.” Mountain Home Flight Serv. Inc.
v. Baxter Cnty., Arkansas, 758 F.3d 1038, 1044 (8th Cir. 2014). Under Nebraska law,
the applicable statute of limitations for this action is four years. See Neb. Rev. Stat.
§ 25-207; Bridgeman v. Nebraska State Penitentiary, 849 F.2d 1076, 1077 (8th Cir.
1988). A court “may . . . sua sponte dismiss a complaint, before service, when an
affirmative defense, such as the statute of limitations, is obvious from the complaint.”
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Anderson v. United Transp. Union, No. 4:09-CV-00136-WRW, 2009 WL 529920, at
* 1 (E.D.Ark. Mar. 2, 2009) (collecting cases).
The alleged constitutional violations in this case occurred in 1984 and 2009.
Absent equitable tolling of the limitations period, Plaintiff filed this action more than
four years after the statute of limitations expired. Nebraska’s tolling statute, Neb.
Rev. Stat. § 25-213, provides that the limitations period may be tolled under certain
circumstances, including for periods of mental disorder or imprisonment. However,
Plaintiff has not alleged that he is entitled to equitable tolling of the limitations period.
Accordingly, the court will direct Plaintiff to show cause why this action should not
be dismissed as untimely based on the applicable statute of limitations.
IT IS THEREFORE ORDERED that:
1.
Plaintiff must show cause within 30 days why this case should not be
dismissed as untimely under the applicable statute of limitations. Absent a showing
of good cause, this case will be subject to dismissal with prejudice and without further
notice.
2.
The clerk’s office is directed to set the following pro se case management
deadline in this matter: March 19, 2015: Plaintiff’s response due.
DATED this 17th day of February, 2015.
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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