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Tyler v. City of Omaha

United States District Court, D. Nebraska

June 20, 2018

BILLY TYLER, Plaintiff,
v.
CITY OF OMAHA, COUNTY OF DOUGLAS, STATE OF NEBRASKA, and UNKNOWN JOHN DOE OMAHA POLICE, Defendants.

          MEMORANDUM AND ORDER

          Richard G. Kopf Senior United States District Judge

         Plaintiff 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.

         I. SUMMARY OF COMPLAINT

         Plaintiff 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 Attached to Plaintiff's Complaint is a copy of the Nebraska Court of Appeals' unpublished memorandum opinion in Tyler v. City of Omaha, No. A-16-867 (Neb.App.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.)

         As set 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.)

         Plaintiff 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.)

         Plaintiff 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.

         II. APPLICABLE LEGAL STANDARDS ON IN 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 OF CLAIMS

         Plaintiff 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 the Defendants.

         A. ...


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