United States District Court, D. Nebraska
MEMORANDUM AND ORDER
JOSEPH F. BATAILLON SENIOR UNITED STATES DISTRICT JUDGE
This matter is before the court on several pending motions, a motion to dismiss the original complaint filed by defendants County of Seward (encompassing the Seward County Sheriff's Department) and Jennifer Ladman in her official capacity, Filing No. 10, defendants' motion to dismiss the plaintiff's amended complaint, Filing No. 21, the pro se plaintiff's improperly denominated "final motion for summary judgment, " which the court construes as a motion for an extension of time in which to file a response to the defendants' motion to dismiss, Filing No. 26, the defendants' amended motion to dismiss, Filing No. 31, the pro se plaintiff's "supplemental motion for leave to file a second amended complaint, " Filing No. 35, the defendants' objection thereto, Filing No. 37 and the plaintiff's supplemental motion to amend, Filing No. 38.
This is a pro se 42 U.S.C. § 1983 civil rights action for alleged deprivation of property without due process of law in connection with the seizure of a truck and trailer. The original complaint was filed on June 15, 2015. Filing No. 1. The plaintiff alleges the defendants seized his semi-truck and trailer on March 15, 2009, and later sold the property without the plaintiff’s authority.
A. Procedural history As a threshold matter, the pro se plaintiff's responsive brief was filed on August 28, 2015, and the court will deem it timely filed. See Filing No. 25. Also, the court finds the defendants' motion to dismiss the original complaint has been rendered moot by the filing of the amended complaint. Filing No. 17.
The defendants filed a reasserted and amended motion to dismiss, directed at the plaintiff's amended complaint. Filing No. 31, motion, Filing No. 17, amended complaint. The record reflects that the plaintiff has perfected service of process on several defendants, rendering the defendants’ arguments of insufficiency of process moot. See Filing Nos. 29 and 30. In their reasserted motion, the defendants essentially reassert the statute of limitations and failure-to-state-a-claim arguments raised in their earlier motion to dismiss, concede that service of process on the defendant County has been accomplished, and abandon their insufficiency of process argument. See Filing No. 32, Brief at 2.
In apparent response to the defendants’ reasserted motion to dismiss the amended complaint, plaintiff sought leave to file a second amended complaint, together with a proposed second amended complaint, Filing Nos. 35 and 36. The defendants oppose the motion, contending that amendment is futile because the complaint, as amended, remains barred by the statute of limitations.
In the amended complaint, the plaintiff alleges that he was deprived of property without due process of law. He states that he was arrested in connection with a drug offense on March 15, 2009. Id. at 3. He alleges that at that time he owned and was operating a 2001 Maroon Volvo Semi Truck, and a 2007 Cottrell flatbed car Trailer. Id. In connection with his arrest, the Volvo and Trailer were seized by the Seward County Sheriff's Office and stored by Hymark Towing under a "evidence hold." Id. at 3. He further alleges that attorney Sanford Pollack was retained to represent him in connection with the criminal charges. Id. He also alleges that defendant Ladman was provided with proof of the plaintiff's ownership of the vehicle. Id. at 4. Thereafter, defendant Ladman allegedly released the evidence hold, notified the former owner of the vehicle, Thomas Johnson, of the release, and ultimately authorized Hyman Towing to release the vehicle to Johnson. Id.
The plaintiff alleges he was unaware of these events. Id. He alleges, however, that "[d]efendant Ladman caused a copy of her August 21, 2009 letter authorizing the release of the Volvo to Johnson to be sent to Attorney Pollack; however, Attorney Pollack did not inform the Plaintiff of his receipt of the letter or the content or matters described in the letter." Id. at 5. He also alleges that Seward County later "purported to send notice to the Plaintiff as owner of record for the Trailer; however, the Defendant Sheriff's Office addressed the notice to Plaintiff's former Quantico, Virginia address and the mail was returned by the United States Postal Service with the notation that the building at the address had been torn down, that no such address existed and that the Service was unable to forward the notice." Id. at 6. He also alleges that Seward County later requested a certificate of title for an abandoned vehicle and conveyed that title for monetary gain on or before March 18, 2010. Id. He also alleges that he did not learn that the truck and trailer were sold or disposed of until August of 2011. Id. at 7.
The plaintiff's proposed amended complaint adds details regarding the nature and extent of the plaintiff's notice, but still contains the allegation that the August 21, 2009, letter authorizing release of the Volvo was sent to the plaintiff's attorney. See Filing No. 36, proposed second amended complaint at 5.
Under the Federal Rules, 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). The rules require a “‘showing, ’ rather than a blanket assertion, of entitlement to relief.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556 n.3. (2007) (quoting Fed.R.Civ.P. 8(a)(2)). “Specific facts are not necessary; the statement need only ‘give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (quoting Twombly, 550 U.S. at 555). In order to survive a motion to dismiss under Fed.R.Civ.P. 12(b)(6), the plaintiff's obligation to provide the grounds for his entitlement to relief necessitates that the complaint contain “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555.
“On the assumption that all the allegations in the complaint are true (even if doubtful in fact), ” the allegations in the complaint must “raise a right to relief above the speculative level.” Id. at 555-56. In other words, the complaint must plead “enough facts to state a claim for relief that is plausible on its face.” Id. at 547. “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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 ...