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Hansen v. City of Superior

United States District Court, D. Nebraska

September 17, 2014



LAURIE SMITH CAMP, District Judge.

Plaintiff Richard Otto Hansen ("Plaintiff" or "Hansen") filed his Complaint (Filing No. 1) in this matter on June 27, 2014. He also filed a Brief (Filing No. 5) in support of his Complaint. Hansen has been given leave to proceed in forma pauperis. (Filing No. 6.) The court now conducts an initial review of the Complaint and Brief to determine whether summary dismissal is appropriate under 28 U.S.C. § 1915(e)(2).


Hansen, a resident of Superior, Nebraska ("Superior"), filed this action against Superior, six members of Superior's city council, and Superior's nuisance abatement officer. Liberally construed, this is a civil action brought pursuant to 42 U.S.C. § 1983.

Condensed and summarized for clarity, Hansen alleges that on May 2, 2014, Superior's nuisance abatement officer sent him a notice informing him that his property could be subject to nuisance abatement proceedings if not cleared by May 26, 2014. (Filing No. 1 at CM/ECF pp. 4-6, 14-15.) On May 27, 2014, the defendant city council members instituted nuisance abatement proceedings against his property. ( Id. at CM/ECF pp. 6-9.) Hansen attached a letter to his Complaint indicating that Superior provided him until June 22, 2014, to clear the nuisance items on his property. The letter informed Hansen he had a right to request a hearing before Superior's city council and, if he disagreed with the result of the hearing, he was entitled to appeal the council's findings to the appropriate court. ( Id. at CM/ECF pp. 17-18.)

Hansen argues Defendants have acted "in excess of statutory authority, " and have deprived him of "procedural due process." Hansen asks this court to issue an order enjoining Defendants from going forward with the nuisance abatement proceedings, and to award an appropriate amount of damages. ( Id. at CM/ECF pp. 11-12.)


The court is required to review prisoner and in forma pauperis complaints seeking relief against a governmental entity or an officer or employee of a governmental entity to determine whether summary dismissal is appropriate. See 28 U.S.C. §§ 1915(e) and 1915A. 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); 28 U.S.C. § 1915A.

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, 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."). 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).


A. Claims for Injunctive and Declaratory Relief

To promote comity between state and federal judicial bodies, federal courts have developed a strong policy against exercising jurisdiction over constitutional claims for injunctive and declaratory relief when a state proceeding has already been commenced. See Aaron v. Target Corp., 357 F.3d 768, 774 (8th Cir. 2004). Courts use the doctrine developed in Younger v. Harris to carry out this policy. 401 U.S. 37 (1971). Under Younger, a federal court should abstain from jurisdiction "when (1) there is an ongoing state judicial proceeding which (2) implicates important state interests, and when (3) that proceeding affords an adequate opportunity to raise the federal questions presented.'" Norwood v. Dickey, 409 F.3d 901, 903 (8th Cir. 2005) (quoting Fuller v. Ulland, 76 F.3d 957, 959 (8th Cir.1996)).

In Nebraska, cities and villages have the "power and authority by ordinance to define, regulate, suppress and prevent nuisances, and to declare what shall constitute a nuisance, and to abate and remove the same." Neb. Rev. Stat. § 18-1720. If an owner of property within a city or village refuses to comply with a city notice to remove a public nuisance, the city may abate the nuisance. See Neb. Rev. Stat. § 18-1722.

Here, Plaintiff's Complaint clearly indicates that a "nuisance abatement proceeding" has been initiated against him. (Filing No. 1 at CM/ECF p. 2.) Plaintiff has not alleged nor demonstrated that he cannot assert his constitutional concerns in this proceeding. ( Id. ) Moreover, zoning and nuisance abatement issues are traditional state law matters that implicate important state interests. See, e.g., Lambeth v. Miller, 363 Fed.App'x 565, 2010 WL 299244, at *2 (10th Cir. Jan. 27, 2010) (affirming district court's decision to abstain from exercising jurisdiction over plaintiff's claims against county officials relating to county abatement proceedings); Harper v. Pub. Serv. Comm'n of West Virginia, 396 F.3d 348, 352 (4th Cir. 2005) ("[P]roperty law concerns, such as land use and zoning questions, ...

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