United States District Court, D. Nebraska
MEMORANDUM AND ORDER
Richard G. Kopf Senior United States District Judge.
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).
SUMMARY OF COMPLAINT
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 . . . .”
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 . . . .”
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.).
only requests injunctive relief. (Filing No. 6.)
STANDARDS ON INITIAL REVIEW
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. §
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.”).
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).
dismissal of Plaintiff's Complaint is appropriate for at
least two reasons.