Tyler v. Himes

Filing 6

MEMORANDUM AND ORDER - This action is dismissed with prejudice for failure to state a claim. Judgment shall be entered by separate document. 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
BILLY TYLER,
Plaintiff,
v.
TIMOTHY HIMES,
Defendant.

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8:16CV358

MEMORANDUM
AND ORDER

Plaintiff filed his Complaint in this matter on July 21, 2016 (Filing No. 1).
Plaintiff has been given leave to proceed in forma pauperis (Filing No. 5). The court
now conducts and 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 alleges his constitutional rights were violated when Defendant Timothy
Himes, an Omaha Assistant City Attorney, asked Judge “Stratman” to eject Plaintiff
from the courtroom in a state court proceeding where he was a spectator, but the Judge
refused (Filing No. 1 at CM/ECF p. 1). Plaintiff also alleges Defendant harassed him
by “getting in our line of sight on north side of civic center ... and approach us ... t o
reach elevator wielding large knife he held high by his breast throat ... to conceal”
(Filing No. 1 at CM/ECF p. 2). He states that “no knives of any kind [are] allowed in
center and Hines clearly used his ‘perch’ to bring butcher knife into center” (Id.).
Defendant is sued in both his official and individual capacity.
Plaintiff made substantially similar allegations against Defendant in Case No.
8:16CV71, which was dismissed without prejudice for lack of prosecution on June 6,
2016, after Plaintiff failed to file an amended complaint within the time specified by

the court. The court had found on initial review that the complaint failed to state a
claim upon which relief can be granted.
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). 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).
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
Defendant’s alleged attempt to have Plaintiff removed as a spectator from a
courtroom is not a constitutional violation. Defendant’s alleged “wielding” of a knife
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near Plaintiff is not a constitutional violation. Because Plaintiff was advised in the
previously filed action that his allegations were insufficient to state a claim for relief
under 42 U.S.C. § 1983, Plaintiff will not be given further leave to amend.1 See
Jackson v. Riebold, 815 F.3d 1114, 1122 (8th Cir. 2016) (“Futility is a valid basis for
denying leave to amend.”).
IT IS THEREFORE ORDERED:
1.

This action is dismissed with prejudice for failure to state a claim.

2.

Judgment shall be entered by separate document.

DATED this 25th day of July, 2016.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

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Mr. Tyler has “a long history of abusing the judicial systems in both the state
and federal courts.” Tyler v. Coffey, No. 8:14CV209, 2014 WL 7014051, at *4 (D.
Neb. Dec. 11, 2014). In order to curb the litigation abuses of Mr. Tyler, this court
since 1987 has limited him to filing one lawsuit per month unless a showing is made
that he has been or is about to be subjected to immediate, extraordinary, and
irreparable physical harm. See In Re Billy Roy Tyler, 677 F.Supp. 1410 (D.Neb. 1987),
aff’d, 839 F.2d 1290 (8th Cir. 1988); In re Tyler, 262 F. Supp. 2d 1021 (D. Neb. 2003)
(amending order).
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