Tyler v. City of Omaha

• Citation: 780 F. Supp. 1266
• Decision Date: 29 July 1991
• Docket Number: No. 4:CV91-3045.,4:CV91-3045.
• Parties: Billy Roy TYLER, Plaintiff, v. The CITY OF OMAHA; Omaha Police Department; Deputy Police Chief Parker, and several and sundry officers of the Omaha Police Department, Defendants.
• Court: U.S. District Court — District of Nebraska

780 F. Supp. 1266

Billy Roy TYLER, Plaintiff, v. The CITY OF OMAHA; Omaha Police Department; Deputy Police Chief Parker, and several and sundry officers of the Omaha Police Department, Defendants.

No. 4:CV91-3045.

United States District Court, D. Nebraska.

July 29, 1991.

Billy Roy Tyler, pro se.

REPORT AND RECOMMENDATION

DAVID L. PIESTER, United States Magistrate Judge.

Plaintiff has filed an amended complaint, filing 4, pursuant to an order of this court. Because plaintiff is proceeding without the assistance of counsel, the amended complaint is before the court for initial review pursuant to Local Rule 52.¹ Liberally construing the allegations of the original and amended complaints, Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 595-96, 30 L.Ed.2d 652 (1972), I conclude that plaintiff has failed to state a claim upon which relief may be granted. I shall, therefore, recommend that this action be dismissed.

According to the allegations of the original complaint, plaintiff's car was towed on December 21, 1990 while on private property. On January 28, 1991 plaintiff was informed that his car had been sold and that the car was taken because it was allegedly involved in an accident. Plaintiff claimed that the car was seized in violation of the Fourth Amendment and permanently taken from him in violation of the Due Process Clause of the Fourteenth Amendment.

I. FOURTH AMENDMENT CLAIM

In respect to the Fourth Amendment claim, I noted in filing 3 that the original complaint provided no substantive factual allegations that would support his claim that his car was seized unreasonably and/or without probable cause in violation of the Fourth Amendment. I further explained to plaintiff that the allegation or claim that his car was taken while on private property following an accident in violation of the Fourth Amendment amounted to nothing more than a legal conclusion. Factually unsupported legal conclusions do not state claims upon which relief may be granted. Martin v. Aubuchon, 623 F.2d 1282, 1285-86 (8th Cir.1980). Plaintiff was given leave to file an amended complaint in order to provide factual allegations in support of his legal conclusions.

The amended complaint, however, does not provide the required factual allegations, nor does plaintiff provide a justification for this failure. For example, one allegation is that police officers offered no explanation as to why the car was taken and that plaintiff had no independent knowledge of the basis for the seizure. The court cannot presume acts to be in violation of some of law; plaintiff must allege facts which show that to be the case. This, plaintiff has failed to do. I conclude, therefore, that no claim is stated, and that plaintiff has failed to adequately respond to the deficiencies noted in filing 3. I shall recommend dismissal of this claim pursuant to Fed.R.Civ.P. 12(b)(6).

II. DUE PROCESS CLAIM

Plaintiff presents within the original and amended complaint a disquieting claim that his car was sold at a public auction without notice of the pendency of the sale or any opportunity to be heard in protest prior to this deprivation. This allegation sufficiently pleads a procedural due process violation. However, a sufficient showing that one's constitutional rights have been violated is not enough to state a claim upon which relief may be granted — plaintiff must also name an appropriate defendant. The original complaint failed to do this.

Four sets of defendants were named in the original complaint: (1) City of Omaha, (2) Omaha Police Department, (3) Deputy Police Chief Parker, and (4) "several and sundry officers of the Omaha Police Department," which I have referred to in filing 3 as "unidentified officers." In filing 3 I explained that the claims against (2) and (4) were frivolous. Plaintiff was not granted leave to file an amended complaint as to these defendants and they are not discussed in the amended complaint.² I shall recommend that all claims be dismissed against these two sets of defendants. Plaintiff was, however, granted leave to file an amended complaint as against (1) and (3).

The allegations of the original complaint in respect to the city were insufficient because plaintiff had failed to present specific factual allegations which identified the particular policy or custom which was alleged to be the moving force behind plaintiff's claimed deprivations. See Williams-El v. Johnson, 872 F.2d 224, 230 (8th Cir.), cert. denied 493 U.S. 824, 110 S.Ct. 85, 107 L.Ed.2d 51 (1989); Lindsey v. City of St. Paul, 732 F.Supp. 1000, 1003 (D.Minn. 1990). This was explained to plaintiff in filing 3, wherein I further noted that it is not enough to merely allege that a policy or custom exists which violates plaintiff's rights. See Munz v. Parr, 758 F.2d 1254, 1259 (8th Cir.1985). The amended complaint does not address, and certainly does not remedy, the failings which were fully set out in filing 3 in respect to this defendant. I shall, therefore, recommend that this action be dismissed as against the City of Omaha pursuant to Rule 12(b)(6).

In filing 3 I also explained that plaintiff's allegations as against defendant Parker were insufficient because there were no allegations that showed this defendant was directly involved in the sale of plaintiff's car. In naming an appropriate defendant, a plaintiff is required to present specific allegations of fact as to either direct involvement, direction of others, or a knowing failure to train, supervise, or act, which resulted in plaintiff's injury. Liability under § 1983 may not be grounded upon a respondeat superior theory. Wilson v. City of North Little Rock, 801 F.2d 316, 322-23 (8th Cir.1986); Hahn v. McLey, 737 F.2d 771 (8th Cir.1984). That is, a person cannot be held liable simply because he or she supervises one who deprived plaintiff of a constitutional right. The amended complaint does not sufficiently allege a required level of personal involvement. As such, I shall also recommend that this action be dismissed against Parker pursuant to Rule 12(b)(6).

As there are no appropriate defendants named as to this procedural due process claim, I shall recommend that this claim be dismissed, likewise pursuant to Rule 12(b)(6).

III.

RULE 12(b)(6)

A bit needs to be said regarding the procedure of recommending dismissal of this claim, sua sponte, pursuant to Rule 12(b)(6). Recent pronouncements among the courts of appeals appear to present divergent views as to a trial court's authority to so dismiss claims. However, insofar as this court's practices are concerned, I conclude that such dismissals can be made in appropriate circumstances.

In Martin-Trigona v. Stewart, 691 F.2d 856, 858 (8th Cir.1982) (per curiam) the Eighth Circuit held that sua sponte dismissals under Rule 12(b)(6) for failure to state a claim are permitted. Although the actual reference in Martin-Trigona is somewhat oblique, this case has subsequently been cited for exactly this proposition. See Midfelt v. Circuit Court of Jackson County, Mo., 827 F.2d 343, 345 (8th Cir.1987) (per curiam); Tatum v. Iowa, 822 F.2d 808, 810 (8th Cir.1987) (per curiam) (affirming sua sponte dismissal by the district court of a complaint filed pro se after plaintiff failed to correct deficiencies which the district court gave plaintiff leave to respond to through an amended complaint); K/O Ranch, Inc. v. Norwest Bank of Black Hills, 748 F.2d 1246, 1248, n. 3 (8th Cir. 1984). See also Fredyma v. AT & T Network Systems, Inc., 935 F.2d 368, (1st Cir. 1991) (per curiam) (allowing sua sponte dismissal but requiring the court to first extend to the plaintiff notice and the procedural safeguards discussed in Neitzke v. Williams, 490 U.S. 319, 329-30, 109 S.Ct. 1827, 1833-34, 104 L.Ed.2d 338 (1989);³Street v. Fair, 918 F.2d 269, 272 (1st Cir. 1990) (per curiam) (allowing sua sponte dismissal under Rule 12(b)(6) but requiring notice and an opportunity to respond); Baker v. Director, U.S. Parole Com'n, 916 F.2d 725, 726-27 (D.C.Cir.1990) (per curiam); (affirming sua sponte dismissal under Rule 12(b)(6) prior to service and without notice and opportunity to respond where it was apparent that claimant had not "advanced a shred of a valid claim" and the observance of strict procedural protections would only "lead to a waste of judicial resources")⁴; Sparling v. Hoffman Const. Co., Inc., 864 F.2d 635, 638 (9th Cir.1988) (quoting Wong v. Bell, 642 F.2d 359, 362 and holding notice and opportunity to respond is required before a sua sponte dismissal under Rule 12(b)(6), except where the plaintiff "`cannot possibly win relief'"); Perez v. Ortiz, 849 F.2d 793, 797-80 (2nd Cir.1988) (although cautioning against the use of sua sponte dismissals under Rule 12(b)(6), held that such is permissible if preceded by notice and an opportunity to be heard); Huxall v. First State Bank, 842 F.2d 249, 250, n. 2 (recognizing sua sponte dismissal of claim under Rule 12(b)(6)); Shockley v. Jones, 823 F.2d 1068, 1072-73, n. 3 (7th Cir.1987) (quoting Doe on Behalf of Doe v. St. Joseph's Hosp., 788 F.2d 411, 414 (7th Cir.1986) for the proposition that sua sponte dismissals under Rule 12(b)(6) are permitted "`so long as a sufficient basis for the court's action is apparent from the plaintiff's pleading,'" but requiring that notice and an opportunity to be heard be extended before such a dismissal, and noting that at least five circuits require such process); Tate v. Burke, 131 F.R.D. 363 (D.D.C.1990) (authorizing sua sponte dismissals under Rule (12(b)(6) without providing non-pauper litigant notice and opportunity to be heard where complaint is patently frivolous pursuant to the inherent authority of the court); Migliori v. Calise, 750 F.Supp. 57, 58 (D.R.I.1990) (a court may note the insufficiency of a complaint and dismiss sua sponte under Rule 12(b)(6); Bettis v. Montgomery, 701 F.Supp. 256, 259 (D.D.C.1989) (also quoting Doe on Behalf of Doe, supra).

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