Kelly v. City of Neb.

• Decision Date: 18 February 2016
• Docket Number: No. 14–3446.,14–3446.
• Citation: 813 F.3d 1070
• Parties: Arlena KELLY, Plaintiff–Appellant v. CITY OF OMAHA, NEBRASKA ; Greg Petersen; Kevin Denker; Jane Does; John Does, Defendants–Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

813 F.3d 1070

Arlena KELLY, Plaintiff–Appellant

v.CITY OF OMAHA, NEBRASKA ; Greg Petersen; Kevin Denker; Jane Does; John Does, Defendants–Appellees.

No. 14–3446.

United States Court of Appeals, Eighth Circuit.

Submitted: Oct. 20, 2015.

Filed: Feb. 18, 2016.

Jason M. Bruno, argued, Omaha, NE, for Plaintiff–Appellant.

William Acosta–Trejo, argued, Alan M. Thelen, on the brief, Omaha, NE, for Defendants–Appellees.

Before WOLLMAN, BEAM, and GRUENDER, Circuit Judges.

GRUENDER

, Circuit Judge.

Arlena Kelly ("Kelly") filed suit under 42 U.S.C. §§ 1983

and 1985 against the City of Omaha ("City"), former Omaha code inspector Greg Petersen ("Petersen"), chief Omaha code inspector Kevin Denker ("Denker"), and various unidentified Jane and John Does. Kelly claims that these parties violated her rights under the Fourth, Fifth, and Fourteenth Amendments to the federal Constitution, as well as under various sections of the Nebraska constitution. Kelly also claims that the defendants conspired to deter her from seeking judicial relief from their conduct and to deprive her of equal protection of the law and equal privileges and immunities under the law. The district court¹ dismissed Kelly's suit pursuant to Federal Rule of Civil Procedure ("FRCP") 12(b)(6)

. We affirm.

I.

"In this appeal from the grant of a motion to dismiss, we accept as true the well-pleaded allegations in the amended complaint." Varga v. U.S. Bank Nat. Ass'n, 764 F.3d 833, 836 (8th Cir.2014)

.

Kelly is an African–American woman who resides in Omaha, Nebraska, where she also owns various rental properties. At a time unspecified but presumably prior to 2003, Petersen called Kelly and demanded that she meet with him at one of her properties to discuss concerns about property-code violations.² At this meeting, Petersen offered to give Kelly favorable treatment with respect to these violations in exchange for sexual favors. Petersen further threatened to fine Kelly, initiate criminal proceedings against her, and ensure that she would be unable to rent her properties in the future if she did not submit to these advances. After Kelly repeatedly rejected Petersen's advances, he caused unspecified "criminal citations" to be issued against her. Kelly claims that she had not committed any criminal conduct, but her fear of further retaliation led her to plead guilty to one of these charges.

Petersen's retaliation persisted after this guilty plea. Petersen continually entered Kelly's property without a warrant or Kelly's consent, and he frequently demanded that she meet him either on her property or at the City offices. When she met him at the offices, police officers accompanying Petersen threatened to arrest her if she did not sign citations. During this period, the City denied her an occupancy permit for one of her properties, and Kelly believes that this denial was punishment for her complaints against Petersen and her testimony and actions during the court proceedings that preceded her guilty plea. Kelly heard from another housing inspector that Petersen had directed everyone in the department to deny Kelly permits until she met with Petersen. Petersen also contacted the bank with which Kelly had mortgaged her properties and informed them that the properties were in violation of the City's housing codes.

In 2011 and 2012, the City of Omaha, Denker, and other unidentified individuals took various actions against Kelly, including imposing fines, threatening to criminally prosecute Kelly and foreclose on her properties, and holding her properties in a "violated status" that has prevented her from leasing them to tenants. Kelly claims that she is innocent of any behavior that could have led to these penalties, but she was threatened with further retaliation and penalties if she contested the violations or spoke to anyone, including to a judge or court, about the defendants' conduct. According to Kelly's opening brief, these latest instances of misconduct took place long after Petersen had ceased working in the permits and inspections department. Kelly, however, believes that these acts constituted further retaliation for her rejection of Petersen's advances.

Kelly filed suit against the City, Petersen, Denker, and several Jane and John Does, whose identities and relationships with the City are unknown but who allegedly acted in concert with the named defendants. Kelly claims under 42 U.S.C. § 1983

that all of these defendants violated her rights under the Fourth, Fifth, and Fourteenth Amendments by "depriving her of liberty and property without due process of law, imposing housing standards that are arbitrary and unknown, demanding sexual favors to stop arbitrary enforcement of Omaha's housing laws, and engaging in illegal trespasses and searches of her properties." Kelly also sues these defendants under 42 U.S.C. § 1985

, claiming that the defendants conspired to intimidate her in order to deter her from obtaining a lawyer or appealing her citations and to prevent her from testifying truthfully in the criminal proceedings brought against her. Kelly further claims that the defendants conspired to deprive her of the equal protection of the law and equal privileges and immunities under the law.

The district court granted the defendants' motion to dismiss these claims, finding that Kelly's complaint had presented bare legal conclusions rather than facts allowing the court to draw the reasonable inference that the defendants could be liable under either § 1983

or § 1985. Kelly now appeals.

II.

We review de novo a district court's dismissal for failure to state a claim, taking all facts alleged in the complaint as true. Trooien v. Mansour, 608 F.3d 1020, 1026 (8th Cir.2010)

. Rule 12(b)(6) allows a defendant to move for dismissal based on a plaintiff's "failure to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). To survive a motion to dismiss under Rule 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.’ " Braden v. Wal–Mart Stores, Inc., 588 F.3d 585, 594 (8th Cir.2009) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ). A claim is plausible on its face "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. In making this determination, we must draw all reasonable inferences in favor of plaintiffs. Crooks v. Lynch, 557 F.3d 846, 848 (8th Cir.2009).

A.

Kelly first argues that the district court erred when it dismissed her claims under § 1983

. In order to state such a claim, a plaintiff must allege that an official acting under the color of state law violated rights guaranteed either by the Constitution or by federal statute. Grey v. Wilburn, 270 F.3d 607, 611 (8th Cir.2001). Because Kelly's complaint does not include an "express statement" that she is suing the individual defendants in their individual capacities, we consider her suit to be "against the defendants in their official capacity." See Johnson v. Outboard Marine Corp., 172 F.3d 531, 535 (8th Cir.1999). A plaintiff who sues public employees in their official, rather than individual, capacities sues only the public employer and therefore must establish the municipality's liability for the alleged conduct. Id. In order to state a claim for municipal liability under § 1983, a plaintiff must plead facts demonstrating that the defendants violated a constitutional right either "pursuant to official municipal policy" or as part of "a custom or usage with the force of law." Ware v. Jackson Cty., Mo., 150 F.3d 873, 880 (8th Cir.1998) (quoting Monell v. Dep't of Soc. Serv., 436 U.S. 658, 691, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Misconduct among a municipality's employees must be "continuing, widespread, [and] persistent" to establish such a custom. Mettler v. Whitledge, 165 F.3d 1197, 1204 (8th Cir.1999) ). In addition, the municipality will not be liable unless policymaking officials exhibit "[d]eliberate indifference to or tacit authorization of such conduct ... after notice to the officials of that misconduct." Id. Under this standard, Kelly's complaint failed to state a § 1983

claim with respect to any of the defendants' alleged misconduct.

First, Kelly's sexual harassment allegations against Petersen failed to state a claim because she did not plead facts showing that this harassment represented part of a municipal policy or custom supporting such behavior. We previously have held that "[i]ntentional sexual harassment by persons acting under color of state law violates [the equal protection clause of] the Fourteenth Amendment and is actionable under § 1983

." Moring v. Ark. Dep't of Corr., 243 F.3d 452, 455 (8th Cir.2001). However, even if Kelly's sexual harassment allegations constituted an otherwise valid equal protection claim under § 1983,³ Kelly failed to plead facts that establish municipal liability for Petersen's actions. Kelly nowhere alleges that Petersen's alleged sexual advances resulted from any official municipal policy authorizing his behavior. Kelly also failed to allege any facts relating to other perpetrators or victims of such conduct, which might have indicated that sexual harassment was sufficiently widespread among City officials to constitute a "custom or usage with the force of law." See Ware, 150 F.3d at 880. Finally, Kelly did not allege facts showing that policymaking officials had notice of or authorized Petersen's conduct. See Mettler, 165 F.3d at 1204. Kelly's pleadings refer to "complaints against Petersen," but she does not explain to whom she made these complaints and does not allege that any incident of sexual harassment took place after she made those complaints. Even if other officials knew about the fines and other penalties that Petersen initiated, Kelly alleges no facts showing that other officials knew that...