Fraction v. Rookstool

Filing 6

MEMORANDUM AND ORDER regarding Complaint 1 filed by Bernard Fraction. Plaintiff cannot relitigate the validity of the tax deed against Rookstool, in either his individual or official capacity. This matter is dismissed with prejudice. A separate judgment will be entered. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party)(JAB)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
BERNARD FRACTION,
Plaintiff,

8:17CV292

vs.
DENNIS ROOKSTOOL, Douglas
County Treasure;

MEMORANDUM
AND ORDER

Defendant.
Plaintiff filed a Complaint on August 10, 2017. (Filing No. 1.) He has been
granted leave to proceed in forma pauperis. (Filing No. 5.) 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 brings this action against Dennis Rookstool (“Rookstool”), the
Douglas County Treasurer. Plaintiff alleges that Randy James and Vandelay
Investments committed fraud when they obtained a tax deed for Plaintiff’s home
and later caused him to be evicted from his home, because they did not comply
with certain prerequisites required by Nebraska law for issuance of a tax deed.
Specifically, Plaintiff alleges in his Complaint that “receiving a tax deed without
affidavits on file in the treasure[r’s] office is considered fraud” under Neb. Rev.
Stat. § 77-18371. He believes that his personal and civil rights were violated.
1

Actually, “[i]n all cases when the owner of real property sold for taxes
resists the validity of a tax title, the owner may prove fraud committed by the
officer selling the same or in the purchaser to defeat the same, and if fraud is so
established, the sale and title shall be void.” Neb. Rev. Stat. § 77-1846 (West).
Neb. Rev. Stat. § 77-1837 (West) provides, in relevant part: “. . . the county
treasurer, on application, on production of the certificate of purchase, and upon

(Filing No. 1 at CM/ECF pp. 1-2.) He requests a hearing “to find out what criteria
was used to transfer [his] property . . . to Vandelay Investments legally,” and
unspecified damages. (Id.)
Plaintiff attached several documents to his Complaint. (Id. at CM/ECF pp. 314.) Those documents include an incomplete order from the state district court in
Douglas County, Nebraska. (Id. at CM/ECF pp. 13-14.) 2 Plaintiff filed a state
district court action against Randy James and Vandelay Investments in Douglas
County, Nebraska challenging the tax deed issued on his property. On August 10,
2016, the state district court granted summary judgment for the defendants and
dismissed the case, finding the tax deed valid and that Vandelay Investments
complied with the notice requirements under Nebraska law because it sent the
required notice 3 to Plaintiff via certified mail. It is apparent from Plaintiff’s
remaining attachments that he disagrees with the state district court judgment,
specifically that the notice requirements were met under Nebraska law and because
no affidavits are on file with the Douglas County Treasurer’s Office. (Id. at
CM/ECF pp. 3-14.)

compliance with sections 77-1801 to 77-1863, shall execute and deliver a deed of
conveyance for the real estate described in such certificate as provided in this
section.”
2

See attached complaint and complete summary judgment order for Bernard
Fraction v. Randy James and Vandelay Investments, Douglas County District Case
No. CI 15-6268, at https://www.nebraska.gov/justice//case.cgi; Stutzka v.
McCarville, 420 F.3d 757, 760 n.2 (8th Cir. 2005) (court may take judicial notice
of judicial opinions and public records).
3

The notice that it intended to apply for a tax deed on the property. See Neb.
Rev. Stat. § 77-1831 (West).

2

II. PRIOR STATE COURT JUDGMENT 4
Meanwhile, on April 13, 2016, Plaintiff filed a state district court action in
Douglas County, Nebraska against Rookstool, alleging that Plaintiff’s due process
rights were violated when Rookstool illegally issued the tax deed on Plaintiff’s
home to Randy James and Vandelay Investments. Plaintiff asserted (1) he was not
given personal notice of Vandelay Investments’ intention to apply for a tax deed
and (2) the certified mail receipts were forged with the signatures of Plaintiff and
his wife. On July 14, 2016, the state district court denied Plaintiff’s motion for
judgment on the pleadings and granted Rookstool’s motion to dismiss the case.
With regard to Plaintiff’s first assertion, the state district court found, in relevant
part:
The statute did not require that the certified mail receipts be signed by
a particular person or by an individual with specific qualifications.
Accordingly, the Court finds that Plaintiff cannot state a plausible
claim to relief under federal constitutional due process for Vandelay
Investment’s failure to provide personal service of its notice of
intention to apply for a treasurer’s tax deed to the property because
Vandelay Investments was not statutorily obligated to provide him
personal service of its notice. This aspect of Plaintiff’s due process
claim cannot proceed.
With regard to Plaintiff’s second assertion, the state district court found, in
relevant part:
Plaintiff has not expressly and unambiguously stated that he sues
Defendant in his (Defendant’s) individual capacity, so the Court must
review the Complaint as one asserting only an official capacity claim.
[case law omitted]

4

See attached complaint, order, and judgment on the mandate for Bernard
Fraction v. Dennis Rookstool, Douglas County District Case No. CI 16-3090, at
https://www.nebraska.gov/justice//case.cgi.
3

The Complaint reasonably infers that Defendant is an employee of the
County of Douglas, Nebraska (“Douglas County”). Pursuant to
Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018
(1978), local governments such as Douglas County are responsible
only for their own illegal acts, they are not vicariously liable for their
employees’ actions. Per Monell, in order for Plaintiff to assert a
plausible claim to relief from Douglas County under § 1983 he must
show that an official policy or custom was the “moving force” behind
the violation of his due process interest. The Complaint is silent as to
any official policy or custom of Douglas County’s. Accordingly, the
Court finds that Plaintiff has failed to state a claim to relief from
Douglas County under federal constitutional law that is plausible on
its face.
The Nebraska Court of Appeals affirmed the judgment on appeal, and the state
district court entered judgment on the mandate on June 28, 2017. A little over a
month later, Plaintiff filed this action.
III. APPLICABLE STANDARDS OF 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.”).

4

“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).
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 law. West v. Atkins, 487 U.S. 42, 48 (1988); Buckley v. Barlow,
997 F.2d 494, 495 (8th Cir. 1993).
IV. DISCUSSION5
A. Claim Preclusion

5

The court notes, at the outset, that it does not appear that Plaintiff has
standing to challenge the tax deed. Standing . . . is a jurisdictional requirement, and
thus “can be raised by the court sua sponte at any time during the litigation.”
Delorme v. United States, 354 F.3d 810, 815 (8th Cir. 2004). Plaintiff must comply
with Neb. Rev. Stat. § 77-1844 before he has standing to challenge the tax deed.
See Hauxwell v. Henning, 863 N.W.2d 798, 802 (Neb. 2015). Section 77-1844
requires Plaintiff to pay taxes due upon the property “ ‘ “before or during the trial,
or before final judgment.” ’ ” Id. (citations omitted). Plaintiff does not allege that
he ever paid the delinquent taxes on the property. If Plaintiff does not have
standing to challenge the tax deed, he cannot rebut the presumption under
Nebraska law that the tax deed is valid. Id. at 803 (citing Neb. Rev. Stat. § 771842). The court finds that any amendment to remedy this defect would be futile
because, as discussed next, preclusion applies here.

5

The state district court judgment in Fraction v. Rookstool, Douglas County
District Court Case No. CI 16-3090, precludes Plaintiff’s claims against Rookstool
in his official capacity. 6 Where a plaintiff fails to “expressly and unambiguously”
state that a public official is sued in his individual capacity, the court “assume[s]
that the defendant is sued only in his or her official capacity.” Johnson v. Outboard
Marine Corp., 172 F.3d 531, 535 (8th Cir. 1999). Plaintiff’s claims against
Rookstool in his official capacity are claims against Douglas County. “A suit
against a public employee in his or her official capacity is merely a suit against the
public employer.” Id.
“[A] federal court must give to a state-court judgment the same preclusive
effect as would be given that judgment under the law of the State in which the
judgment was rendered.” In re Athens/Alpha Gas Corp., 715 F.3d 230, 235 (8th
Cir. 2013) (quoting Migra v. Warren City Sch. Dist. Bd. Of Educ., 465 U.S. 75, 81
(1984)). Claim preclusion bars the relitigation of a claim that has been directly
addressed or necessarily included in a former adjudication if (1) the former
judgment was rendered by a court of competent jurisdiction, (2) the former
judgment was a final judgment, (3) the former judgment was on the merits, and (4)
the same parties or their privies were involved in both actions. The doctrine bars
relitigation not only of those matters actually litigated, but also of those matters
which might have been litigated in the prior action. The doctrine rests on the
necessity to terminate litigation and on the belief that a person should not be vexed
twice for the same cause. Hara v. Reichert, 843 N.W.2d 812, 816 (Neb. 2014).
The state district court adjudicated Plaintiff’s due process claims against
Douglas County with regard to the tax deed, and claim preclusion prohibits
6

“‘In order that parties for or against whom the doctrine of res judicata is
sought to be applied may be regarded the same in both actions, the general rule is
that they must be parties to both actions in the same capacity or quality.’” McGill
v. Lion Place Condo. Ass’n, 864 N.W.2d 642, 655 (Neb. 2015) (citation omitted).
In the state district court action, Plaintiff sued Rookstool in his official capacity
only.

6

Plaintiff from relitigating those claims or pursuing other similar claims against
Douglas County (Rookstool in his official capacity) now. The former judgment
was rendered by the Douglas County District Court, a court of competent
jurisdiction; it was a final judgment on the merits 7; and the same parties were
involved in both actions.
B. Issue Preclusion
Issue preclusion bars the relitigation of a finally determined issue that a
party had a prior opportunity to fully and fairly litigate. Issue preclusion applies
where (1) an identical issue was decided in a prior action, (2) the prior action
resulted in a final judgment on the merits, (3) the party against whom the doctrine
is to be applied was a party or was in privity with a party to the prior action, and
(4) there was an opportunity to fully and fairly litigate the issue in the prior action.
Issue preclusion applies only to issues actually litigated. Issue preclusion protects
litigants from relitigating an identical issue with a party or his privy and promotes
judicial economy by preventing needless litigation. Hara, 843 N.W.2d at 816.
The core issue that Plaintiff seeks to litigate here is the validity of the tax
deed issued to Vandelay Investments on Plaintiff’s home. That issue was finally
determined in Plaintiff’s suit against Randy James and Vandelay Investments in
Douglas County District Court Case No. CI 15-6268. In that prior action, after it
heard argument and received evidence from Plaintiff, the state district court found
the tax deed valid, entered summary judgment for the defendants, and dismissed
the case. Accordingly, because the four elements of issue preclusion are met,
Plaintiff cannot relitigate the validity of the tax deed against Rookstool, in either
7

“A ruling is final when no further action of the court is required to dispose
of the cause pending.” Smith v. Smith, 517 N.W.2d 394, 399 (Neb. 1994); see also
Neb. Rev. Stat. § 25-1902 (West) (final order, defined). “A judgment of dismissal
based on the failure of a claimant to state a cause of action is considered a
judgment on the merits, even where by amendments a good cause of action might
be stated.” Cole v. Clarke, 641 N.W.2d 412, 416 (Neb. App. 2002).

7

his individual or official capacity, now. 8 “[I]ssue preclusion may be used by a
nonparty in a later action, either offensively or defensively.” Id. at 817.
IT IS THEREFORE ORDERED that:
1.

This matter is dismissed with prejudice.

2.

A separate judgment will be entered.

Dated this 28th day of August, 2017.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

8

This includes Plaintiff’s allegation that Vandelay Investments did not file
the required affidavits. This is merely another attack on the validity of the tax deed.
But, as stated, the state district court found the tax deed valid; in other words, in
compliance with Nebraska law.
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I, the undersigned, certify that on August 10, 2016
, I served a copy of the foregoing
document upon the following persons at the addresses given, by mailing by United States Mail,
postage prepaid, or via E-mail:
Robert S Lannin
[e-mail]

Date:

Bernard Fraction
600 S. 27th St. #1005
Omaha, NE 68105-1537

August 10, 2016

BY THE COURT:

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I, the undersigned, certify that on July 15, 2016
, I served a copy of the foregoing
document upon the following persons at the addresses given, by mailing by United States Mail,
postage prepaid, or via E-mail:
Tim Dolan
[e-mail]

Date:

July 15, 2016

Bernard Fraction
3026 Lafayette
Omaha, NE 68131

BY THE COURT:

_____________________________________
CLERK

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I, the undersigned, certify that on June 28, 2017
, I served a copy of the foregoing
document upon the following persons at the addresses given, by mailing by United States Mail,
postage prepaid, or via E-mail:
Tim Dolan
[e-mail]

Douglas County Treasurers
1819 Farnam Street HO-3
Omaha, NE 68183

Bernard Fraction
600 S 27th St. Spte 1005
Omaha, NE 68105

Date:

June 28, 2017

BY THE COURT:

_____________________________________
CLERK

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