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Fraction v. Rookstool

United States District Court, D. Nebraska

August 28, 2017

BERNARD FRACTION, Plaintiff,
v.
DENNIS ROOKSTOOL, Douglas County Treasure; Defendant.

          MEMORANDUM AND ORDER

          RICHARD G. KOPF SENIOR UNITED STATES DISTRICT JUDGE.

         Plaintiff filed a Complaint on August 10, 2017. (Filing No. 1.) He has been granted leave to proceed in forma pauperis. (Filing No. 5.) The court now conducts an initial review of Plaintiff's Complaint to determine whether summary dismissal is appropriate under 28 U.S.C. § 1915(e)(2).

         I. SUMMARY OF COMPLAINT

         Plaintiff brings this action against Dennis Rookstool (“Rookstool”), the Douglas County Treasurer. Plaintiff alleges that Randy James and Vandelay Investments committed fraud when they obtained a tax deed for Plaintiff's home and later caused him to be evicted from his home, because they did not comply with certain prerequisites required by Nebraska law for issuance of a tax deed. Specifically, Plaintiff alleges in his Complaint that “receiving a tax deed without affidavits on file in the treasure[r's] office is considered fraud” under Neb. Rev. Stat. § 77-1837[1]. He believes that his personal and civil rights were violated. (Filing No. 1 at CM/ECF pp. 1-2.) He requests a hearing “to find out what criteria was used to transfer [his] property . . . to Vandelay Investments legally, ” and unspecified damages. (Id.)

         Plaintiff attached several documents to his Complaint. (Id. at CM/ECF pp. 3-14.) Those documents include an incomplete order from the state district court in Douglas County, Nebraska. (Id. at CM/ECF pp. 13-14.)[2] Plaintiff filed a state district court action against Randy James and Vandelay Investments in Douglas County, Nebraska challenging the tax deed issued on his property. On August 10, 2016, the state district court granted summary judgment for the defendants and dismissed the case, finding the tax deed valid and that Vandelay Investments complied with the notice requirements under Nebraska law because it sent the required notice[3] to Plaintiff via certified mail. It is apparent from Plaintiff's remaining attachments that he disagrees with the state district court judgment, specifically that the notice requirements were met under Nebraska law and because no affidavits are on file with the Douglas County Treasurer's Office. (Id. at CM/ECF pp. 3-14.)

         II. PRIOR STATE COURT JUDGMENT[4]

         Meanwhile, on April 13, 2016, Plaintiff filed a state district court action in Douglas County, Nebraska against Rookstool, alleging that Plaintiff's due process rights were violated when Rookstool illegally issued the tax deed on Plaintiff's home to Randy James and Vandelay Investments. Plaintiff asserted (1) he was not given personal notice of Vandelay Investments' intention to apply for a tax deed and (2) the certified mail receipts were forged with the signatures of Plaintiff and his wife. On July 14, 2016, the state district court denied Plaintiff's motion for judgment on the pleadings and granted Rookstool's motion to dismiss the case. With regard to Plaintiff's first assertion, the state district court found, in relevant part:

The statute did not require that the certified mail receipts be signed by a particular person or by an individual with specific qualifications. Accordingly, the Court finds that Plaintiff cannot state a plausible claim to relief under federal constitutional due process for Vandelay Investment's failure to provide personal service of its notice of intention to apply for a treasurer's tax deed to the property because Vandelay Investments was not statutorily obligated to provide him personal service of its notice. This aspect of Plaintiff's due process claim cannot proceed.

         With regard to Plaintiff's second assertion, the state district court found, in relevant part:

Plaintiff has not expressly and unambiguously stated that he sues Defendant in his (Defendant's) individual capacity, so the Court must review the Complaint as one asserting only an official capacity claim. [case law omitted]
The Complaint reasonably infers that Defendant is an employee of the County of Douglas, Nebraska (“Douglas County”). Pursuant to Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018 (1978), local governments such as Douglas County are responsible only for their own illegal acts, they are not vicariously liable for their employees' actions. Per Monell, in order for Plaintiff to assert a plausible claim to relief from Douglas County under § 1983 he must show that an official policy or custom was the “moving force” behind the violation of his due process interest. The Complaint is silent as to any official policy or custom of Douglas County's. Accordingly, the Court finds that Plaintiff has failed to state a claim to relief from Douglas County under federal constitutional law that is plausible on its face.

         The Nebraska Court of Appeals affirmed the judgment on appeal, and the state district court entered judgment on the mandate on June 28, 2017. A little over a month later, Plaintiff filed this action.

         III. APPLICABLE STANDARDS OF REVIEW

         The court is required to review in forma pauperis complaints to determine whether summary dismissal is appropriate. See 28 U.S.C. ยง 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 ...


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