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Tyler v. Gilbride

United States District Court, D. Nebraska

June 8, 2017

BILLY TYLER, Plaintiff,
v.
JUDGE GILBRIDE, DOUGLAS PETERSON, RYAN POST, and DAVID LOPEZ, Defendants.

          MEMORANDUM AND ORDER

          Richard G. Kopf Senior United States District Judge.

         Plaintiff Billy Tyler filed this case on May 8, 2017, and was granted leave to proceed in forma pauperis on May 31, 2017. The court now conducts an initial review of Plaintiff's Complaint (Filing No. 1) to determine whether summary dismissal is appropriate under 28 U.S.C. § 1915(e)(2).

         I. SUMMARY OF COMPLAINT

         While not entirely clear, Plaintiff's Complaint and incomplete attachment (Filing No. 1) appear to allege that defendants Nebraska Attorney General Douglas Peterson and Assistant Attorneys General Ryan Post and David Lopez violated Plaintiff's First Amendment rights by “pursu[ing]” him for engaging in the unauthorized practice of law by giving legal advice to, and drafting or filing legal documents on behalf of, other persons. Plaintiff alleges that he has a First Amendment right to “freely talk[] . . . [and] walk[] through the Douglas County Courthouse . . . with whomever we please whilst discoursing on any subject we please . . . .”

         Plaintiff also names as a defendant Judge Gilbride, but his Complaint does not contain any allegations as to the judge. However, Plaintiff's later-filed Motion for Temporary Restraining Order and Preliminary Injunctive Relief (Filing No. 6) alleges that Plaintiff appeared before Judge Gilbride, a state district court judge, in a show-cause hearing regarding Plaintiff's “walking thru Douglas County Courthouse helping other persons complete legal documents, giving verbal instructions to other persons regarding legal documents . . . .”

         A search of Nebraska state-court electronic records confirms that state district court judge Mary C. Gilbride issued an injunction against Plaintiff on November 5, 2015, prohibiting him from engaging in the unauthorized practice of law; defendants Peterson, Post, and Lopez filed a Motion for Order to Show Cause against Plaintiff in the District Court of Douglas County, Nebraska, on February 9, 2017, seeking to hold Plaintiff in contempt for the “willful disobedience of the injunction issued November 5, 2015”; Plaintiff filed a notice of appeal with the Nebraska Court of Appeals before a hearing on the Motion for Order to Show Cause was held; and Tyler's appeal is still pending. See State of Nebraska v. Billy R. Tyler, Case No. CI 15-6725 (Neb. Dist. Ct. of Douglas County); State v. Billy Roy Tyler, A-17-524 (Neb. Ct. App.).

         Plaintiff only requests injunctive relief. (Filing No. 6.)

         II. 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 of it 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.” 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.”).

         “The essential function of a complaint under the Federal Rules of Civil Procedure is to give the opposing party ‘fair notice of the nature and basis or grounds for a claim, and a general indication of the type of litigation involved.'” Topchian v. JPMorgan Chase Bank, N.A., 760 F.3d 843, 848 (8th Cir. 2014) (quoting Hopkins v. Saunders, 199 F.3d 968, 973 (8th Cir. 1999)). However, “[a] pro se complaint must be liberally construed, and pro se litigants are held to a lesser pleading standard than other parties.” Topchian, 760 F.3d at 849 (internal quotation marks and citations omitted).

         III. DISCUSSION

         Summary dismissal of Plaintiff's Complaint is appropriate for at least two reasons.

         A. Rooker-Fe ...


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