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Harshbarger v. Neon Garden Valley MHP LLC

United States District Court, D. Nebraska

May 6, 2019

RICHARD HARSHBARGER, and TERESA HARSHBARGER, Plaintiffs,
v.
NEON GARDEN VALLEY MHP LLC., Defendant.

          MEMORANDUM AND ORDER

          RICHARD G. KOPF SENIOR UNITED STATES DISTRICT JUDGE.

         Plaintiff Richard Harshbarger (“Plaintiff”) filed his Complaint on September 10, 2018. (Filing No. 1.)[1] He has been given leave to proceed in forma pauperis. (Filing No. 6.) The court now conducts an initial review of Plaintiff's Complaint[2]to determine whether summary dismissal is appropriate under 28 U.S.C. § 1915(e)(2).

         I. SUMMARY OF COMPLAINT

         Plaintiff filed this action on behalf of himself and Teresa Harshbarger (“Teresa”) against Neon Garden Valley MHP LLC (“Defendant”). Liberally construed, Plaintiff alleges his mobile trailer went without power for ten days during which he received an “eviction” in violation of the Fair Housing Act, 42 U.S.C. §§ 3601-3619. (Filing No. 1 at CM/ECF p. 4.)

         In his Complaint, Plaintiff does not specify the relief he seeks but rather refers to an “Amended Answer and Counterclaim - CI1723020.” (Id.) A search of Nebraska state court records, available to this court online through the Nebraska Judicial Branch's JUSTICE website, reveals that Plaintiff is referring to an action between Plaintiff, Teresa, and Defendant in the County Court of Douglas County, Nebraska in which Defendant is seeking restitution of the mobile trailer pad leased to Plaintiff and Teresa and damages for their alleged breach of the lease agreement. The alleged breach is based on Plaintiff and Teresa, or a person within their control, engaging in activity or threatened activity which threatened the health or safety of any person or involved threatened, imminent, or actual damage to the property.

         Plaintiff and Teresa, through counsel, filed an Amended Answer and Counterclaim on December 22, 2017, denying they breached the lease agreement and seeking $230 in monetary damages for Defendant's failure to furnish electricity to their mobile trailer between November 7 and November 17, 2017. On December 22, 2017, an order for restitution of premises was entered by the Douglas County Court in favor of Defendant, and a writ of restitution was issued on or about March 18, 2019, though it is unclear if Plaintiff has been removed from the property. At present, the state court action is set for bench trial on May 29, 2019. The court takes judicial notice of the state court records related to this case in NEOM[3] Garden Valley MHP, LLC, d/b/a Garden Valley Court v. Richard A. Harshbarger and Teresa Harshbarger, No. CI17-23020, County Court of Douglas County, Nebraska. 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).

         Plaintiff's supplement (filing no. 7), as best the court can tell, further alleges that Teresa is cooperating with Defendant to obstruct Plaintiff's lawsuits and efforts to hold Defendant accountable. Plaintiff also alleges: “I lost my home at no fault of mine but what I've already presented to them [Defendant] they knew that I had intermittent explosive disorder they have the paperwork from the doctor and had it in my file they knew that I had the intermittent explosive disorder.” (Id. at CM/ECF p. 2 (punctuation as in original).)

         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

         A. Co-Plaintiff Teresa Harshbarger

         As an initial matter, Plaintiff named Teresa as a plaintiff in the caption of his Complaint, but Teresa did not sign the Complaint. (SeeFiling No. 1-1.) The court can reasonably infer from ...


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