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Kelly v. City of Omaha

United States District Court, D. Nebraska

September 30, 2014

ARLENA KELLY, Plaintiff,
v.
CITY OF OMAHA, NEBRASKA, GREG PETERSEN, KEVIN DENKER, JANE DOES, and JOHN DOES, Defendants.

MEMORANDUM AND ORDER

LAURIE SMITH CAMP, Chief District Judge.

This matter is before the Court on the Defendants' Motion to Dismiss (Filing No. 12), seeking dismissal of Plaintiff's Amended Complaint (Filing No. 11). In an earlier Memorandum and Order (Filing No. 10) this Court granted the Defendants' Motion to Dismiss the Plaintiff's original Complaint, and gave her leave to amend. The Court concludes that the Plaintiff has not cured the defects present in the original Complaint. The Defendant's pending Motion will be granted, and the Plaintiff's Amended Complaint will be dismissed.

FACTS

For purposes of the pending motion, the factual allegations in the Plaintiff's Amended Complaint (Filing No. 11) are accepted as true, though the Court need not accept her conclusions of law. The following is a summary of her factual allegations:

Plaintiff Arlena Kelly ("Kelly") is an African-American woman residing in Omaha, Nebraska. Kelly owns or has owned multiple rental properties. Defendant Greg Petersen ("Petersen") was a Code Inspector for the Defendant City of Omaha ("City"). Defendant Kevin Denker is the Chief Code Inspector for the City. At times unspecified[1], Petersen offered to give Kelly favorable treatment with respect to certain property code violations in exchange for sexual favors, and threatened to cause Kelly to be subjected to fines or criminal proceedings if she did not submit to his advances. When Kelly refused Petersen's advances, he caused her to be subjected to criminal citations, leading to criminal penalties; and he contacted her bank, informing the bankers that she was in violation of housing codes. When Kelly sought certain permits for her properties, the City denied her permit applications, in retaliation for Kelly's complaints against Petersen.

Kelly's Amended Complaint asserts two causes of action against all Defendants: (1) a claim that the Defendants deprived her of unspecified rights under the Fourth, Fifth, and Fourteenth Amendments to the United States Constitution, as well as Article I, sections 3, 7, 13, and 21 of the Nebraska Constitution, giving rise to liability under 42 U.S.C. § 1983; and (2) a claim that the Defendants obstructed justice in violation of 42 U.S.C. § 1985(2) by intimidating Kelly or threatening her, thereby causing her not to challenge the Defendants' decisions regarding code enforcement.

STANDARD OF REVIEW

A complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). "[A]lthough a complaint need not include detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.'" C.N. v. Willmar Pub. Sch., Indep. Sch. Dist. No. 347, 591 F.3d 624, 629-30 (8th Cir. 2010) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). "Instead, the complaint must set forth enough facts to state a claim to relief that is plausible on its face.'" Id. at 630 (citing Twombly, 550 U.S. at 570).

"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." Ritchie v. St. Louis Jewish Light, 630 F.3d 713, 716 (8th Cir. 2011) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted). "Courts must accept... specific factual allegations as true but are not required to accept... legal conclusions." Outdoor Cent., Inc. v. GreatLodge.com, Inc., 643 F.3d 1115, 1120 (8th Cir. 2011) (quoting Brown v. Medtronic, Inc., 628 F.3d 451, 459 (8th Cir. 2010) (internal quotation marks omitted). "A pleading that merely pleads labels and conclusions, ' or a formulaic recitation' of the elements of a cause of action, or naked assertions' devoid of factual enhancement will not suffice." Hamilton v. Palm, 621 F.3d 816, 817-18 (8th Cir. 2010) (quoting Iqbal, 556 U.S. at 678). The complaint's factual allegations must be "sufficient to raise a right to relief above the speculative level.'" Williams v. Hobbs, 658 F.3d 842, 848 (8th Cir. 2011) (quoting Parkhurst v. Tabor, 569 F.3d 861, 865 (8th Cir. 2009)).

When ruling on a defendant's motion to dismiss, a judge must rule "on the assumption that all the allegations in the complaint are true, " and "a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and that a recovery is very remote and unlikely.'" Twombly, 550 U.S. at 555 & 556 (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)). The complaint, however, must still "include sufficient factual allegations to provide the grounds on which the claim rests." Drobnak v. Andersen Corp., 561 F.3d 778, 783 (8th Cir. 2009).

"Two working principles underlie... Twombly. First, the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555). "Second, only a complaint that states a plausible claim for relief survives a motion to dismiss." Id. at 679 (citing Twombly, 550 U.S. at 556). "Determining whether a complaint states a plausible claim for relief will... be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id.

DISCUSSION

Kelly's Amended Complaint does not set forth "enough facts to state a claim to relief that is plausible on its face." Willmar Pub. Sch., Indep. Sch. Dist. No. 347, 591 F.3d at 630 (quoting Twombly, 550 U.S. at 570) (internal quotation marks omitted). She has not pled "factual content that allows the court to draw the reasonable inference that the [Defendants are] liable for the misconduct alleged." Ritchie, 630 F.3d at 716 (quoting Iqbal, 556 U.S. at 678) ...


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