United States District Court, D. Nebraska
MEMORANDUM AND ORDER
F. Bataillon Senior United States District Judge
matter is before the court on plaintiff Joseph
Applegarth's motion to dismiss his case, Filing No. 6,
the defendants' motion to dismiss the case against
plaintiff, Rudy Stanko, Filing No. 7. Plaintiff Rudy Butch
Stanko has not responded to either motion. This case arises
out of the pro se allegations that defendants violated
plaintiffs' First Amendment rights and 42 U.S.C. §
1983. On March 2, 2016, the Plaintiffs filed a Complaint in
the District Court of Dawes County, Nebraska, alleging that
the action taken by Defendants violated Plaintiffs'
constitutional rights under both the Federal and State
constitutions. (Filing No. 1, Complaint). On March 14, 2016,
the Defendants removed the case from the Nebraska State
District Court to this court. (Filing No. 1).
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); Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 556 n.3.
(2007). "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.
whether a complaint states a plausible claim for relief is
"a context-specific task" that requires the court
"to draw on its judicial experience and common
sense." Ashcroft v. Iqbal, 556 U.S. 662, 679
(2009). Under Twombly, a court considering a motion to
dismiss may begin by identifying pleadings that, because they
are no more than conclusions, are not entitled to the
assumption of truth. Id. Although legal conclusions
"can provide the framework of a complaint, they must be
supported by factual allegations." Id. Courts
follow a "two-pronged approach" to evaluate Rule
12(b)(6) challenges. Id. First, a court divides the
allegations between factual and legal allegations; factual
allegations should be accepted as true, but legal allegations
should be disregarded. Id. Second, the factual
allegations must be parsed for facial plausibility.
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." Id. at 678 (stating that the
plausibility standard does not require a probability, but
asks for more than a sheer possibility that a defendant has
acted unlawfully.). The court must find enough factual matter
(taken as true) to suggest that discovery will reveal
evidence of the elements of the claim. Twombly, 550 U.S. at
558, 556. When the allegations in a complaint, however true,
could not raise a claim of entitlement to relief, the
complaint should be dismissed for failure to set a claim
under Fed.R.Civ.P. 12(b)(6). Twombly, 550 U.S. at 558; Iqbal,
556 U.S. at 679.
allege the following facts: "On January 27, 2016, an
article appeared in ‘The Stampede' newspaper titled
"What Freedom Has the Veteran Preserved?"' Rudy
Stanko authored the article. "On February 17, 2016,
‘The Stampede' newspaper published a letter from
Plaintiff Applegarth." "On February 19, 2016, the
Defendant Darrell Marshall wrote a letter to Plaintiff
Applegarth. Defendant Marshall informed Applegarth that the
Legion would no longer use his services and that Applegarth
was banned from coming onto Legion property and if he chose
to do so, the local police department would be
notified." Filing No. 8, at 1, ¶¶ 1-3; Filing
No. 4, Exs. 1-3.
Stanko, argues defendants, is not a real party in interest.
See Fed.R.Civ.P. 17(a) ("An action must be prosecuted in
the name of the real party in interest."); Neb. Rev.
Stat. § 25-301 ("[e]very action shall be prosecuted
in the name of the real party in interest...."). The
complaint indicates that Mr. Stanko authored an article on
January 27, 2016, in The Stampede entitled "What Freedom
Has the Veteran Preserved?". Mr. Stanko contends that
the letter written to Applegarth implied that Stanko is also
banned from the American Legion because of his political
beliefs. Last, the complaint makes mention that
"Plaintiff Rudy Butch Stanko is also considered a
trespasser because of his speech." (Filing No. 1,
Complaint, ¶ 8, 17, and 20).
elements of a § 1983 action include:
The first element required for a § 1983 claim is a
determination of "whether the plaintiff has been
deprived of a right ‘secured by the Constitution and
laws' of the United States." Doe v. Wright,
82 F.3d 265, 268 (8th Cir.1996) (quoting Martinez v.
California, 444 U.S. 277, 284 (1980)). The second
element for a § 1983 claim is that "‘the
alleged deprivation was committed by a person acting under
color of state law.'" Shrum ex rel. Kelly v.
Kluck, 249 F.3d 773, 778 (8th Cir.2001) (quoting
West v. Atkins, 487 U.S. 42, 48 (1988)).
"Private misuse of a statute by a private actor is not
sufficient to state a claim under section 1983."
Hassett v. Lemay Bank & Trust Co., 851 F.2d 1127,
1129 (8th Cir.1988) (citation omitted). While a private party
may be found liable on a § 1983 claim, the private party
must be a "‘willful participant in joint action
with the State or its agents.'" Mershon v.
Beasley, 994 F.2d 449, 451 (8th Cir.) (quoting
Dennis v. Sparks, 449 U.S. 24, 27 (1980)), cert.
denied, 114 S.Ct. 1055 (1994). However, where a claim under
§ 1983 does not allege state action, the claim fails to
state claim for relief.
McDonald v. Overnite Exp., 2009 WL 2017715 (D. Minn.
defendants point out that nowhere is Mr. Stanko's name
mentioned in the letter written by Darrell Marshall. Nor was
a letter mailed to Mr. Stanko, only to Mr. Applegarth. Upon
review of the same, the court agrees with the defendants. See
Filing No. 4, Exs. 1-3. Plaintiff is not ...