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Kelly v. City of Omaha

United States Court of Appeals, Eighth Circuit

February 18, 2016

Arlena Kelly, Plaintiff - Appellant
v.
City of Omaha, Nebraska; Greg Petersen; Kevin Denker; Jane Does; John Does, Defendants - Appellees

Submitted October 20, 2015.

Appeal from United States District Court for the District of Nebraska - Omaha.

For Arlena Kelly, Plaintiff - Appellant: Jason M. Bruno, SHERRETS & BRUNO, Omaha, NE.

For City of Omaha, Nebraska, Greg Petersen, Kevin Denker, Defendants - Appellees: William Acosta-Trejo, Alan M. Thelen, CITY OF OMAHA, Legal Department, Omaha, NE.

Before WOLLMAN, BEAM, and GRUENDER, Circuit Judges.

OPINION

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 court[1] 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 ...


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