Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Harris v. Roloff Construction Co.

United States District Court, D. Nebraska

September 15, 2014

WILLIE EARL HARRIS, Plaintiff,
v.
ROLOFF CONSTRUCTION, Co., ENVIRONMENTAL PROTECTION AGENCY, CITY OF OMAHA, OSHA, and PRIVATE CONTRACTED WORKERS, Defendants.

MEMORANDUM AND ORDER

JOHN M. GERRARD, District Judge.

Plaintiff Willie Earl Harris ("Harris" or "Plaintiff") filed his Complaint (Filing No. 1) in this matter on July 3, 2014. Harris filed a motion seeking leave to amend his Complaint on August 21, 2014 (Filing No. 6). The court has given Harris leave to proceed in forma pauperis in this matter (Filing No. 5). The court must now conduct an initial review of the Complaint to determine whether summary dismissal is appropriate under 28 U.S.C. § 1915(e)(2). However, the court will first address Plaintiff's request for leave to amend his Complaint.

I. MOTION TO AMEND

Harris seeks leave to amend his Complaint to add the City of Omaha Planning Department and its planners as additional defendants in this matter. (Filing No. 6 at CM/ECF p. 1.) In accordance with NECivR 15.1(b), the court will consider Plaintiff's Motion to Amend as supplemental to his original Complaint, and direct the clerk's office to update the court's records to reflect that the City of Omaha Planning Department and its planners are also defendants in this matter. See NECivR 15.1(b) (stating that in pro se cases, the court may consider an amended pleading as supplemental to the original pleading, rather than as superseding).

II. SUMMARY OF COMPLAINT

Harris has sued the Roloff Construction Company, the Environmental Protection Agency ("EPA"), the City of Omaha Planning Department and its "planners, " the City of Omaha, OSHA, [1] and "private contracted workers." Harris alleges the City of Omaha, Roloff Construction Company, the EPA, OSHA, and private contracted workers placed sandbags in front of the sewers near his residence during a thunderstorm. This action "blocked the drains, " which resulted in Plaintiff's home being flooded. (Filing No. 1 at CM/ECF pp. 1-2.) As relief, Harris asks that his home be repaired, that he be reimbursed for the cost of his "lost belongings, " and that he be awarded "clean up costs." (Filing No. 1 at CM/ECF p. 5.)

III. 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 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).

IV. DISCUSSION OF CLAIMS

A. Claims Against OSHA and EPA

"[S]overeign immunity shields the Federal Government and its agencies from suit.'" Mader v. U.S., 654 F.3d 794, 797 (8th Cir. 2011) (quoting Fed. Deposit Ins. Corp. v. Meyer, 510 U.S. 471, 475 (1994)). "If Congress so chooses, however, it may waive the United States's sovereign immunity and prescribe the terms and conditions on which [the United States] consents to be sued, and the manner in which the suit shall be conducted.'" Id. (quoting Beers v. State, 61 U.S. (20 How.) 527, 529 (1857)).

The Federal Tort Claims Act ("FTCA") is a limited waiver of the United States's sovereign immunity that "permit[s] persons injured by federal-employee tortfeasors to sue the United States for damages in federal district court." Id. Section 2675(a) of the FTCA provides that:

"[a]n [FTCA] action shall not be instituted upon a claim against the United States... unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency." The Supreme Court has recognized that "[t]he most natural reading of [§ 2675(a)] indicates that Congress intended to ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.