Costanzo v. City of Omaha

Full title: PAUL COSTANZO, Plaintiff, v. CITY OF OMAHA, a municipal corporation, and…

Court: United States District Court, D. Nebraska

Date published: Oct 19, 2004

8:04CV99 (D. Neb. Oct. 19, 2004)

Opinion

8:04CV99.

October 19, 2004

MEMORANDUM AND ORDER

JOSEPH BATAILLON, District Judge

This case is before the court on defendants' motion to dismiss claims arising under 42 U.S.C. § 1981, 42 U.S.C. § 1985, 18 U.S.C. § 2710, and Neb. Rev. Stat. § 20-148 for failing to state a claim for which relief can be granted pursuant to Fed.R.Civ.P. 12(b)(6). Filing No. 14. I have reviewed the record of the case, including the parties' briefs, Filing Nos. 15 and 19, and the relevant case law, and I conclude that the motion to dismiss should be granted in part and denied in part.

FACTS

Plaintiff brought this action for injunctive and declaratory relief and for damages. On or about October 2001, three citizens filed affidavits with the Omaha City Prosecutor's office, apparently at the suggestion of Bridget Howell who works as a crime specialist for the Omaha Police Department. Thereafter, an arrest warrant issued for the plaintiff for disturbing the peace. This warrant issued pursuant to the policy for "Procedure for Obtaining Misdemeanor Warrant." Under this procedure, no investigation occurs before issuance and execution of the warrant. Again, in March 2003, three citizens used this procedure and Omaha police officers arrested plaintiff for three counts of stalking. Omaha Public Schools terminated defendant from his employment, and plaintiff alleges loss of reputation, humiliation, and financial hardship as a result of execution of the arrests. Plaintiff contends that this private use of the warrant system under color of state law violates his constitutional and statutory rights.

STANDARD OF REVIEW

In considering a motion to dismiss a complaint under Rule 12(b)(6), the court must assume all the facts alleged in the complaint are true and must liberally construe the complaint in the light most favorable to the plaintiff. Schmedding v. Tnemec Co., 187 F.3d 862, 864 (8th Cir. 1999). A Rule 12(b)(6) motion to dismiss a complaint should not be granted unless it appears beyond a doubt that the plaintiff can prove no set of facts which would entitle him to relief. Id. Thus, as a practical matter, a dismissal under Rule 12(b)(6) should be granted only in the unusual case in which a plaintiff includes allegations that show on the face of the complaint that there is some insuperable bar to relief. Id.

DISCUSSION

a. Conspiracy and race-based claims

In order to state a claim under 42 U.S.C. § 1985, based on 42 U.S.C. § 1981, plaintiff must allege a racial or class-based conspiracy among the defendants. See Bray v. Alexandria Women's Health Clinic, 506 U.S. 263, 268 (1993); St. Francis College v. Al-Khazraji, 481 U.S. 604, 613 (1987) (discrimination based on ancestry or ethnic characteristics); Bell v. Fowler, 99 F.3d 262, 270 (8th Cir. 1996). Plaintiff makes no allegations in his complaint that the conspiracy to deprive him of rights under the bypass procedure is based on race or any class-based discrimination. While in his brief, plaintiff comments that as the head of a mixed-ethnicity household he faced animus from his neighbors which caused them to pursue the misdemeanor warrant procedure, the allegation of ethnicity-based discrimination is not present in the complaint. Even if the allegation was included in the complaint, it still fails by itself to impute the discriminatory intent to any of the defendants in this case. The claims under § 1981 and § 1985 are dismissed for failing to allege a racial or ethnic basis for the deprivation of rights as to the defendants in this case.

b. Videotape records

The claim under 18 U.S.C. § 2710 is without merit. Section 2710 protects people from having records of videotape rentals and purchases disclosed. Evidently, plaintiff's daughter videotaped his arrest. Plaintiff alleges that the police copied this videotape and gave the copies to plaintiff's neighbors. This statute applies to private video stores and is designed to prohibit dissemination of information by the store owners about the consumers. See Daniel v. Cantrell, 375 F.3d 377, 383 (6th Cir. 2004). The plaintiff's complaint in this case makes no allegation that would cause his case to fall within the ambit of § 2710. Consequently, this claim is dismissed as well.

THEREFORE, IT IS ORDERED:

1. The defendants' motion to dismiss, Filing No. 14, is granted as to the § 1981 and § 1985 claims of racial or ethnic conspiracy, and as to the claim for violation of § 2710 videotape laws; and

2. This case shall proceed on the § 1983 and § 20-148 claims as they relate to the constitutionality of the bypass process.