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Yah v. Fontenelle Reality, Inc.

United States District Court, D. Nebraska

December 3, 2018

M, A, YAH, Plaintiff,
v.
FONTENELLE REALITY, INC, Defendant.

          MEMORANDUM AND ORDER

          Richard G. Kopf Senior United States District Judge.

         Plaintiff M, A, Yah filed his Complaint on August 28, 2018. (Filing No. 1.) He has been given 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, a resident of Douglas County, Nebraska, brings this action against Defendant Fontenelle Realty, Inc. seeking damages for retaliatory conduct/harassment, defamation, and negligence arising out of Defendant's alleged failure to repair the premises leased by Plaintiff at 5511 N. 30th Street, Omaha, Nebraska. Plaintiff alleges he and Defendant entered into a lease agreement[1] for the premises on September 15, 2015, which expired on December 31, 2015, and became a month-to-month lease. On March 13, 2017, an unknown vehicle slid into the front of the premises, severely damaging the building and forcing Plaintiff to cease his business activities conducted on the premises. Plaintiff alleges Defendant failed to make repairs to the building despite promptly receiving insurance proceeds to do so and despite assuring Plaintiff that the repairs would be made. Instead, Plaintiff alleges Defendant “retaliated and harassed Plaintiff for Plaintiff complaining about Defendant not making the repairs, and served Plaintiff an eviction notice claiming arrears and late fees due and owing in the amount of $3, 389.00 for April, 2017 and prior months.” (Filing No. 1 at CM/ECF p. 3, ¶ 27.) As a result of Defendant's actions, Plaintiff alleges he suffered a financial loss due to his inability to conduct his business.

         Plaintiff refers to several state court actions[2] and asks the court to take judicial notice of various records in those cases. In particular, Plaintiff alleges that he filed a complaint against Defendant in Douglas County District Court No. CI17-3892 which the state court judge dismissed and “awarded $300 in sanctions against Plaintiff for attorney fees.” (Id. at CM/ECF pp. 3-4, ¶¶ 30-31.) Plaintiff states he appealed to the Nebraska Court of Appeals which dismissed his appeal for failure to file a brief, that his petition for further review was dismissed for lack of jurisdiction, and that “now Plaintiff has filed this Petition in Federal Court, seeking justice and due process of the law.” (Id. at CM/ECF p. 4, ¶¶ 32-36.) Plaintiff alleges that “Judge Ashford, the judge in case (CI 17-3892) . . . denied Plaintiff due process of the law when he refused to acknowledge” Nebraska law offered by Plaintiff in support of his Motion to Reconsider “stating that no lease or agreement can be drafted that would relinquish Defendant of his duties as landlord and property owner . . . simply because Plaintiff did not have an affidavit attached to his Motion to Reconsider.” (Id. at CM/ECF p. 6, ¶¶ 50-52.)

         Plaintiff's state court records, available to this court online, confirm Plaintiff filed an action against Defendant in No. CI17-3982 alleging nearly identical claims of retaliatory conduct/harassment, negligence, and defamation to those alleged in the present case; that the action was dismissed by Judge Ashford; that Judge Ashford awarded $3000 in attorney fees to Defendant as monetary sanctions against Plaintiff for filing a frivolous action and denied Plaintiff's motion for reconsideration; and that Plaintiff prosecuted an unsuccessful appeal to the Nebraska appellate courts. The court takes judicial notice of the state court records related to this case in M A Yah v. Fontenelle Realty, Inc., No. CI17-3892, District Court of Douglas County, Nebraska; the Nebraska Court of Appeals appellate case records in A-17-1200; and the records in the other state court actions referenced in the Complaint. See Stutzka v. McCarville, 420 F.3d 757, 760 n.2 (8th Cir. 2005) (court may take judicial notice of judicial opinions and public records).

         As relief, Plaintiff asks for over $200, 000.00 in damages from Defendant and that “Defendant [be] found guilty of all allegations.” (Filing No. 1 at CM/ECF p. 7.)

         II. APPLICABLE LEGAL 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 OF CLAIMS

         A. Rooker-Feldman Doctrine

         In filing this action, Plaintiff plainly seeks relief from and reconsideration of the state court judgment which dismissed his claims for retaliatory conduct/harassment, negligence, and defamation related to Defendant's alleged failure to repair the premises leased by Plaintiff. However, the Rooker-Feldman doctrine ...


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