Hasley v. Schuster

• Decision Date: 16 October 2014
• Docket Number: 4:13CV3221
• Parties: RONALD HASLEY, Plaintiff, v. DENNIS M. SCHUSTER, In his official and Individual Capacity, and the CITY OF BEATRICE, NEBRASKA, Defendants.
• Court: U.S. District Court — District of Nebraska

RONALD HASLEY, Plaintiff, v. DENNIS M. SCHUSTER, In his official and Individual Capacity,and the CITY OF BEATRICE, NEBRASKA, Defendants.

4:13CV3221

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA

October 16, 2014

MEMORANDUM AND ORDER

Plaintiff Ronald Hasley brings this action under 42 U.S.C. § 1983, 42 U.S.C. § 1985, and Neb. Rev. Stat. § 20-148 for alleged violations of his First, Fourth, Fifth, and Fourteenth Amendment rights. (Filing 3, Amended Complaint.) The defendants have filed a motion to dismiss for failure to state a claim under Fed. R. Civ. P. 12(b)(6). (Filing 22.) I shall grant the motion in part and deny it in part.

STANDARD OF REVIEW

To survive a motion to dismiss based on Fed. R. Civ. P. 12(b)(6), "a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. 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." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks and citations omitted). This "plausibility standard" is not one of probability, "but it asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the linebetween possibility and plausibility of entitlement to relief." Id. (internal quotation marks and citations omitted).

The court need not accept as true "legal conclusions or 'formulaic recitation of the elements of a cause of action'; such allegations may properly be set aside." Braden v. Wal-Mart Stores, Inc., 588 F.3d 585, 594 (8^th Cir. 2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). "In addition, some factual allegations may be so indeterminate that they require further factual enhancement in order to state a claim." Braden, 588 F.3d at 594 (internal quotation marks and citations omitted).

Rule 8 does not, however, require a plaintiff to plead "specific facts" explaining precisely how the defendant's conduct was unlawful. Erickson v. Pardus, 551 U.S. 89, 93, 127 S. Ct. 2197, 167 L. Ed. 2d 1081 (2007) (per curiam). Rather, it is sufficient for a plaintiff to plead facts indirectly showing unlawful behavior, so long as the facts pled "'give the defendant fair notice of what the claim is and the grounds upon which it rests,'" id. (quoting Twombly, 550 U.S. at 555, 127 S. Ct. 1955) (alteration omitted), and "allow [ ] the court to draw the reasonable inference" that the plaintiff is entitled to relief.

Braden, 588 F.3d at 595.

FACTUAL ALLEGATIONS AND CLAIMS

Ronald Hasley alleges that on February 19, 2010, he filed to run as a candidate for mayor of the City of Beatrice, Nebraska, against defendant Dennis Schuster, the incumbent mayor. During the course of the campaign, Hasley claims he exercised his First Amendment right to free speech by publicly campaigning for the position of mayor by setting forth the reasons voters should elect him, including his criticisms of Schuster as the incumbent mayor. Ultimately Hasley was defeated, and Schuster was reelected as mayor on November 2, 2010. In this lawsuit, Hasley alleges that Schuster retaliated against him for running against him and publicly criticizing Schuster's performance as mayor. Specifically, Hasley asserts that the defendants "use[d] the power of government of the City of Beatrice to retaliate against the Plaintiff by causing an inspector to visit real[]estateowned by the Plaintiff . . . and to . . . condemn said property on or about January 7, 2011." (Filing 3 ¶ 13.)

Hasley claims that the condemnation of his property was done "at the direction of the Defendant," and the "City of Beatrice through its legal department knew or should have known that the purported [i]nspection was a sham and was conducted only for the purpose of creating a pretext for the . . . condemnation." (Filing 3 ¶ 14.) Hasley also asserts that City of Beatrice employees confronted him concerning his property, trespassed on his property, and took "actions designed to intimidate and . . . harass the Plaintiff so to [sic] cause him economic damage." (Filing 3 ¶ 15.)

Hasley's amended complaint states that before 2010 through January 7, 2011, Hasley "g[a]ve advice to other citizens concerning interactions with the City of Beatrice," including advice to Beatrice motel owner Ray Scott concerning the City of Beatrice's "actions and threatened actions" against Scott's motel. (Filing 3 ¶¶ 16, 17.) On February 16, 2011, Hasley obtained a temporary injunction against the City of Beatrice from harassing, intimidating, and making derogatory remarks about Hasley.

Plaintiff Hasley's amended complaint contains four separate causes of action: (1) Mayor Schuster "single[d] out" Hasley by having the City's building inspector "focus on" his properties, which allegedly deprived Hasley of due process and "the rights guaranteed to the Plaintiff by the First, Fourth, Fifth and Fourteenth Amendments" to the United States Constitution (Filing 3 ¶¶ 19-25); (2) Mayor Schuster violated Neb. Rev. Stat. § 20-148 (Filing 3 ¶¶ 26-27); (3) the City of Beatrice improperly trained and supervised its employees, including its building inspector, by allegedly "failing to train [him] and other[s] that a duty exist[s] to not retaliate against an individual" and by having a "policy, practice and custom in place to retaliate against Ron Hasley even though it knew that such retaliation violated the law," depriving Hasley of his rights under the First, Fourth, Fifth, and Fourteenth Amendments (Filing 3 ¶¶ 28-31); and (4) Mayor Schuster conspired "with other employees of the City of Beatrice" to allegedly violate Hasley's statutory and/or constitutional rights, in violation of 42 U.S.C. § 1985 (Filing 3 ¶¶ 32-35).

ANALYSIS

A. Due Process, Conspiracy, and § 20-148 Claims

The defendants move to dismiss all of plaintiff Hasley's claims pursuant to Fed. R. Civ. P. 12(b)(6). (Filing 22.) In Hasley's brief in response to the defendants' motion to dismiss, Hasley concedes that not all of his claims are cognizable—rather, he wishes to proceed only on his 42 U.S.C. § 1983 First Amendment (retaliation for exercise of right to freedom of speech) and Fourth Amendment (illegal search and seizure) claims against both Mayor Schuster and the City of Beatrice. Therefore, I shall dismiss Plaintiff's Fifth and Fourteenth Amendment (due process) claim and his conspiracy claim under 42 U.S.C. § 1985.

In addition, any claims the plaintiff purports to bring through Neb. Rev. Stat. § 20-148¹ shall be dismissed because this statute—which does not create a cause of action, but is merely a civil avenue of recovery for violations of constitutional or statutory civil rights provisions—"has been narrowly construed as being limited to private acts of discrimination, presumably of constitutional dimension, by private employers." Buzek v. Pawnee County, 207 F. Supp. 2d 961, 965 & n.3 (D. Neb. 2002) (internal quotation marks and citation omitted). Further, section 20-148 cannot be used to assert claims against political subdivisions or individuals acting in their capacities as public officials. Id. Here, the conduct that forms the basis for plaintiff Hasley's claims—the inspection and condemnation of his property—are actions taken by the City of Beatrice or its employees in their official capacity. (See Filing 3, Amended Complaint ¶¶ 11, 13, 15, 21, 24 (Mayor Schuster used the "power of the City of Beatrice's government" to retaliate against Plaintiff; all acts and conduct "were done while the Defendant Schuster was acting in the scope andcourse of his employment with the Defendant, City of Beatrice"; employees of the City of Beatrice trespassed on Plaintiff's property and took action designed to harass and intimidate him).) Therefore, plaintiff Hasley's claims are not actionable under section 20-148, and the defendants' motion to dismiss claims brought through this statute shall be granted.

B. First Amendment Retaliation Claim

1. Defendant Schuster

"In order to establish the elements of a retaliation claim under 42 U.S.C. § 1983, [the plaintiff] must show that []he was engaged in constitutionally protected activity, that [the defendant's] adverse action caused [him] to suffer an injury which would chill a person of ordinary firmness from continuing . . . in that activity, and that the adverse action was motivated in part by [the plaintiff's] exercise of [his] constitutional rights." Carroll v. Pfeffer, 262 F.3d 847, 850 (8^th Cir. 2001) (internal quotation marks and citation omitted).

As to defendant Schuster, the incumbent mayor, Hasley clearly alleges engagement in constitutionally protected activity—running for the office of mayor against Schuster and criticizing Schuster's performance during that political process. "The criticism of public officials lies at the heart of speech protected by the First Amendment, New York Times Co. v. Sullivan, 376 U.S. 254, 269-70, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964), and we have recognized that '[r]etaliation by a government actor in response to such an exercise of First Amendment rights forms a basis for § 1983 liability.'" Williams v. City of Carl Junction, 480 F.3d 871, 874-75 (8^th Cir. 2007) (quoting Naucke v. City of Park Hills, 284 F.3d 923, 927 (8th Cir. 2002)). See also League of United Latin American Citizens v. Perry, 548 U.S. 399, 462 (2006) ("[T]he freedom of political belief and association guaranteed by the First Amendment prevents the State, absent a compelling interest, from penalizing citizens because of their participation in the electoral process, . . . or their expression of political views." (internal quotation marks and citation omitted)); Naucke, 284 F.3d at 928 (plaintiff's "criticism of the City Council and City Administrator is the type of speech intended to be protected by the First Amendment").

Hasley has...