United States District Court, D. Nebraska
MEMORANDUM AND ORDER
Richard G. Kopf Senior United States District Judge
filed his Complaint on January 25, 2018. (Filing No.
1.) He has been given leave to proceed in forma
pauperis. (Filing No. 7.) 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). In conducting this initial review, the
court will consider Plaintiff's Amended Complaint
(filing no. 5) as supplemental to the original
Complaint. See NECivR 15.1.
SUMMARY OF COMPLAINT
sues the City of Omaha (City), Douglas County, the State of
Nebraska, and “Unknown John Doe Omaha Police”
claiming the Defendants stole his vehicle in violation of his
rights under the Fourth, Fifth, Sixth, Eighth, Thirteenth,
and Fourteenth Amendments to the United States Constitution.
Attached to Plaintiff's Complaint is a copy of the
Nebraska Court of Appeals' unpublished memorandum opinion
in Tyler v. City of Omaha, No. A-16-867 (Neb.App.
Jan. 2, 2018). (Filing No. 1 at CM/ECF pp.4-9.)
Plaintiff alleges the opinion “perfectly detail[s]
theft unlawful and unconstitutional theft of our truck
vehicle by defendants acting in concert and under color of
state laws.” (Id. at CM/ECF p.1.)
forth in the Nebraska Court of Appeals opinion, the alleged
theft of Plaintiff's truck occurred when the City of
Omaha towed and impounded Plaintiff's 1993 Chevy pickup
truck on August 1, 2016, “because it was unregistered
on the City street.” (Id. at CM/ECF p.5.)
Plaintiff had left the truck parked legally by a curb at 21st
and Browne Streets in Omaha, Nebraska, while he was in jail
for 9 or 10 days. Just before he got out of jail, the vehicle
was towed. A notice to Plaintiff from the City dated August
2, 2016, informed him that his vehicle “was taken to
the impound facility and if it is not claimed and removed
within 5 days, the vehicle and its contents will be
considered abandoned [and] any person claiming the vehicle
will be required to pay the cost of removal and
storage.” (Id.) A second notice from the City
dated August 10, 2016, informed Plaintiff that “the
vehicle has been unclaimed and considered abandoned [and], if
it remains unclaimed, title to the vehicle will vest in the
City in 30 days” pursuant to “Neb. Rev. Stat.
[§ 60-1901 (Cum. Supp. 2016)].” (Id.)
filed a replevin action against the City in the District
Court of Douglas County, Nebraska seeking the immediate
return of his vehicle. (Id. at CM/ECF p.4.) After
trial was held on August 29, 2016, the state district court
denied Plaintiff's requested relief in an order entered
on September 2, 2016. On appeal, the Nebraska Court of
Appeals affirmed concluding that the vehicle “was
properly deemed abandoned and was subject to being
towed” and the evidence supported the City's
possession of Plaintiff's vehicle under the Nebraska
motor vehicle abandonment laws. (Id. at CM/ECF p.7.)
now points to the opinion in Tyler v. City of Omaha,
supra, as proof of Defendants' practice, policy,
and procedure of stealing vehicles. Plaintiff claims the
practice is “so rabid” that the Defendants had
auctioned off his truck “long before the final decision
rendered in Tyler, supra.” (Id.
at CM/ECF p.2.) Plaintiff seeks a declaration that the
theft of his truck violated his constitutional rights, an
injunction against further violations, and an award of
damages and replacement of Plaintiff's vehicle.
APPLICABLE LEGAL STANDARDS ON IN 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).
DISCUSSION OF CLAIMS
brings this action under 42 U.S.C. § 1983. “To
state a claim under 42 U.S.C. § 1983, a plaintiff must
allege the violation of a right secured by the Constitution
and laws of the United States, and must show that the alleged
deprivation was committed by a person acting under color of
state law.” West v. Atkins, 487 U.S. 42, 48
(1988). As explained below, Plaintiff has failed to state a
plausible claim for relief under section 1983 against any of