Tyler v. Schmader et al
MEMORANDUM AND ORDER that the Plaintiff shall file an amended complaint that states a claim upon which relief may be granted by March 25, 2017. Failure to file an amended complaint within the time specified by the court will result in the court di smissing this case without further notice to Plaintiff. The clerk of the court is directed to set a pro se case management deadline using the following text: March 25, 2017, check for amended complaint. Ordered by Senior Judge Richard G. Kopf. (Copy mailed/e-mailed to pro se party) (LAC)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
TOD SCHMADER, Chief of Police;
CITY OF OMAHA, JOHN DOE
POLICE, UNKNOWN BIRENT, and
Plaintiff filed his Complaint on December 12, 2016. (Filing No. 1.) He has
been given leave to proceed in forma pauperis. (Filing No. 7.) 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 seeks damages for the theft of his, and apparently others, 2003 truck
on or about July 10, 2016. He alleges that the truck was stolen “in [the] same
circumstances and facts as ruled illegal . . .” in Tyler v. Siebert, Case No. A-94659, 1996 WL 169875 (Neb. App. 1996). He claims that Defendants’ refusal to
obey the ruling in Tyler denies him and others due process and equal protection.
Plaintiff also requests a declaration that Judge Randall violated their rights because
he refused to obey Tyler and an injunction to stop their truck from being taken
from them. He alleges that Defendants are white and he and others, whom on
behalf he brings suit, are black. (Filing No. 1.)
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. §
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).
There is a whole host of problems with Plaintiff’s Complaint. To begin, as a
pro se litigant, Plaintiff 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).
Further, the court has reviewed Tyler v. Siebert, supra. In Tyler, the
Nebraska Court of Appeals ordered the district court to return possession of
Plaintiff’s 1975 Pontiac Catalina to him because the officer who towed the vehicle
subsequent to a traffic stop and the City of Omaha did not establish a superior right
of possession of the vehicle, specifically because the municipal ordinances (upon
which the officer relied to tow the vehicle) were not in the appellate record. 1996
WL 169875, at * 3-4. However, the same defendants, other than the City of
Omaha, and vehicle are not involved here. Defendants do not have an obligation in
2016 to “obey” an appellate decision from 1996 that involved different facts and
circumstances. Moreover, the court cannot discern from Plaintiff’s Complaint if he
is challenging a different state court proceeding or if there are state court
proceedings currently pending – either of which raises the issue of federal
Additional possible obstacles to Plaintiff’s claims include, but are not
limited to, sovereign immunity, judicial immunity, and no custom or policy for
municipal liability. In other words, Plaintiff has failed to state a claim upon which
relief may be granted. The court will provide Plaintiff an opportunity to file an
amended complaint that states a claim upon which relief may be granted. Plaintiff
shall file his amended complaint no later than March 25, 2017. Plaintiff is warned
that his amended complaint will supersede, not supplement, his Complaint.
Failure to file an amended complaint within the time specified by the court will
result in the court dismissing this case without further notice to Plaintiff.
IT IS THEREFORE ORDERED that:
Plaintiff shall file an amended complaint that states a claim upon
which relief may be granted by March 25, 2017. Failure to file an amended
complaint within the time specified by the court will result in the court dismissing
this case without further notice to Plaintiff.
The clerk of the court is directed to set a pro se case management
deadline using the following text: March 25, 2017, check for amended complaint.
Dated this 24th day of February, 2017.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge
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