Knight v. City of Omaha

1

PHYLLIS M. KNIGHT, Plaintiff, v. CITY OF OMAHA; KENNETH PORTER, Omaha Police Officer, in his official and individual capacities; VINCENT TYLER, Omaha Police Officer, in his official and individual capacities; TODD SCHMADERER, Omaha Police Chief, in his official and individual capacities; KEN KANGER, Deputy Chief Omaha Police, in his official and individual capacities; CHRISTOPHER OVERTON, Omaha Police Officer, in his official and individual capacities; JAMELLE ROSS, Omaha Police Officer, in his official and individual capacities; ERIC EATON, Omaha Police Officer, in his official and individual capacities; JEAN STOTHERT, Mayor of City of Omaha, in her official and individual capacities; and UNKNOWN OMAHA POLICE OFFICERS, in their official and individual capacities, Defendants.

No. 8:22CV153

United States District Court, D. Nebraska

August 15, 2022

MEMORANDUM AND ORDER

Richard G. Kopf, Senior United States District Judge.

Plaintiff is a non-prisoner who has been given leave to proceed in forma pauperis. (Filing 5.) The court now conducts an initial review of Plaintiff's claims to determine whether summary dismissal is appropriate under 28 U.S.C. § 1915(e)(2).

I. SUMMARY OF COMPLAINT

Plaintiff a resident of Wichita, Kansas, has filed a Complaint^[1] suing the City of Omaha, the Omaha mayor, and several named and unnamed Omaha police officers in their official and individual capacities for involving themselves in Plaintiff's eviction from 5403 Grand Avenue in Omaha, Nebraska, on August 26, 2019-something Plaintiff alleges would normally be handled by “the Sheriff or Constable.” (Filing 1 at CM/ECF pp. 3, 4, 6-7.) In a previous case litigating this same matter, Plaintiff alleged that the eviction was carried out by the Douglas County constable with the assistance of Omaha police officers. The court takes judicial notice of this alleged fact, and Plaintiff will not be permitted to allege otherwise here.^[2] Knight v. City of Omaha, No. 8:21CV339, 2022 WL 704064, at *2 (summarizing complaint) & Filing 1, at CM/ECF p. 12 (complaint alleging that Douglas County constable executed the court order and writ and “held the order until the gang of . . . cops arrive[d] upon his calling”) (D. Neb. Mar. 9, 2022). Plaintiff has litigated this same eviction at least seven times in this court. See id. at *2 & n.1 (describing Knight's six prior cases in this court involving the same eviction).

Attached to Plaintiff's Complaint is an August 23, 2019, Writ of Restitution issued by the Douglas County Court, Case No. CI 19 11289, directing the Constable of Douglas County to “restore” 5403 Grand Avenue, Omaha, NE 68104 to La Chelle Phillips “with no further notice to” Plaintiff Phyllis Knight by removing Knight from the premises and levying Knight's “goods and chattels.” (Filing 1 at CM/ECF p. 38.) The request for service of the Writ of Restitution contained “special instructions” as follows: “PLEASE SERVE THE WRIT ASAP AND ARRANGE FOR BACKUP. PER ATTNY.”^[3] Preceding the Writ of Restitution in the electronic court records for the Douglas County case is a Judgment entered after court proceedings declaring “there is unpaid rent due and owing the plaintiff. Judgment awarded to: LaChelle Phillips Against: Dr. Phyllis Marie Knight.” Phillips, Case No. CI 19 11289, Image ID D05067459C01 (Aug. 23, 2019).

Plaintiff generally claims that the Defendants operated as an “organized domestic terrorist Police Gang” assigned by the City of Omaha to “conspire[] in a racial hate crime of sexual harassment through premeditated pattern behavior of espionage and malicious prosecution against the plaintiff to intentionally violate[] her Constitutional right to housing.... [and] right to contract.” Plaintiff claims that the Defendants-led by Defendant Porter-entered her home and “religious study site of an indigenous woman” on August 26, 2019, without a warrant and “t[ook] over plaintiff[']s intellectual & private property”; that Defendant Porter engaged in “premeditated terroristic behavior of sexual harassment” by threatening to “evict me from everywhere I go”; and that a Black male named Earl Biggs (not a Defendant) who was dressed like a “Blood” gang member defaced her home by removing her Moorish flag, written materials, and pictures from the walls and windows. (Filing 1 at CM/ECF pp. 4, 12.) Plaintiff alleges that the Defendants blocked all the rooms, surrounded Plaintiff, and demanded that she leave the premises or be arrested. (Filing 1 at CM/ECF p. 4.) Plaintiff complains that Defendant Omaha Mayor Stothert failed to return Plaintiff's phone calls on August 26, 2019. (Filing 1 at CM/ECF p. 11.)

This court's opinion in a previous Knight case indicates that Plaintiff was evicted that day, but then returned to the premises and was cited for trespassing before finally being removed on September 16, 2019. See Knight, No. 8:21CV339, 2022 WL 704064, at *2 n.1 Plaintiff complains that Defendants Tyler, Overton, Ross, and Eaton breached their duty of care when they entered the residence on September 15 or 16, 2019, with Biggs (who unlocked the door), when they allowed Biggs to “take over” her residence and videotape Plaintiff rummaging through her possessions, and when Tyler wrote Plaintiff two trespassing citations. (Filing 1 at CM/ECF pp. 8-10.)

Plaintiff also alleges that Defendants Omaha Chief of Police Schmaderer and Deputy Chief Kanger “twice put plaintiff in jeopardy” on October 18, 2019, when Kanger called Plaintiff on Schmaderer's behalf to “admit[] my issue was a civil matter” and when he failed to “uphold his public oath and standard and duty of care.” Plaintiff also claims that Schmaderer failed to train his officers. (Filing 1 at CM/ECF p. 9.)

Plaintiff seems to be asserting claims under 42 U.S.C. § 1983, federal statutes, state law, and broad legal concepts. Plaintiff claims the Defendants “committed a hate crime against a woman”; engaged in “terroristic behavior of sexual harassment” and malicious prosecution; and violated her constitutional rights to housing and to contract. In addition, Plaintiff alleges in string-cite fashion several of the following claims against each Defendant:

Breach of Duty, Oath, Policy and Customs, Espionage Act, Fourth Amendment Right “each man's home is his castle,” secured from unreasonable searches and seizures of property by the government, Fifth and Fourteenth Amendment protects due process rights, Takings Clause; “nor shall private property be taken for public use without compensation,” Hate Crime of Domestic Terrorism, Terrorist Threats, Violation of Right, Religious Rights under RLUIPA §§ 2000cc, et seq., protect individuals, houses of worship, and other religious institutions from discrimination in zoning and landmarking laws pursuant to Indian Treaties Rights, RICO ACT, Human Rights Crime Against a Women, Failure to Train, conspiring in organized crime, Criminal Trespassing, The Espionage Act (Filing 1 at CM/ECF pp. 8-11 (combined list of Plaintiff's claims, as written in Complaint, against all Defendants).)

Claiming actual damages of $500,500,000^[4] and punitive damages of $899,500,000 (Filing 1 at CM/ECF pp. 4, 12), Plaintiff alleges that the Defendants caused a “lifetime” of depression and “life-threatening pain and punishment of severe intentional infliction of emotional distress and severe mental anguish,” as well as the loss of 30 years of trade secrets and copyrights and “all her assets.”^[5] (Filing 1 at CM/ECF pp. 4, 12.)

II. 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) (internal quotation marks and citations omitted). 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

Few of the statutes, constitutional provisions, codes, and legal concepts/phrases string-cited by Plaintiff give rise to a plausible claim on the facts alleged. The court will only briefly discuss those claims that are conceivable.^[6] See Knight v. Biggs, No. 8:22CV110, 2022 WL 1016475, at *1 (D. Neb. Apr. 5, 2022) (given that case was nearly identical to previous case challenging same eviction and plaintiff's numerous other non-meritorious cases regarding such eviction, “the court will not repeat its discussion of the various reasons why Plaintiff's Complaint fails to state a claim upon which relief may be granted, or why amendment would be futile. Plaintiff is cautioned . . . that while she has a right to access the courts, this right of access cannot be unlimited in the face of abuse.”).

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