IN THE UNITED STATES DISTRICT COURT FOR THE 

 DISTRICT OF NEBRASKA 

BILLY TYLER, ) 

) 

Plaintiff, ) 8:06CV523 

)

v. ) 

) 

AT&T, VERIZON and BELLSOUTH, ) MEMORANDUM OPINION 

) 

Defendants. ) 

______________________________)

This matter is before the Court on defendant, AT&T

Corp.’s (“AT&T”) motion to dismiss the amended complaint (Filing

No. 4) and its renewal of its motion to dismiss (Filing No. 14),

as well as its motion to stay discovery (Filing No. 12);

plaintiff Billy Tyler’s (“Tyler”) recusal motion (Filing No. 6),

his summary judgment motion (Filing No. 7), his motion for leave

to file an amended complaint (Filing No. 9), his second summary

judgment motion (Filing No. 10); and a motion to intervene filed

by Jerome Davis (Filing No. 8). The Court has reviewed the

motions, the briefs, the pleadings and the applicable law and

makes the following findings. 

I. MOTION TO DISMISS STANDARD

When considering a motion to dismiss under Fed. R. Civ.

P. 12(b)(6), well-pled allegations are considered to be true and

are viewed in the light most favorable to the plaintiff. Riley

v. St. Louis County, 153 F.3d 627, 629 (8th Cir. 1998); Carney v.

Houston, 33 F.3d 893, 894 (8th Cir. 1994). The issue in

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resolving a motion to dismiss is whether the plaintiffs are

entitled to offer evidence in support of their claim, not whether

they will ultimately prevail. United States v. Aceto Chems.

Corp., 872 F.2d 1373, 1376 (8th Cir. 1989). In viewing the facts

in the light most favorable to the plaintiff, the Court must

determine whether the complaint states any valid claim for

relief. Jackson Sawmill Co. v. United States, 580 F.2d 302, 306

(8th Cir. 1978), cert. denied, 439 U.S. 1070 (1979). “A

complaint should not be dismissed for failure to state a claim

unless it is clear that the plaintiff can prove no set of facts

in support of [her] claim which would entitle [her] to relief." 

Jenkins v. McKeithen, 395 U.S. 411, 422 (1969); Conley v. Gibson,

355 U.S. 41, 45-46 (1957) (citations omitted); Bramlet v. Wilson,

495 F.2d 714, 716 (8th Cir. 1974) (citing Jenkins, 395 U.S. at

421-22). Thus, a dismissal under Rule 12(b)(6) is likely to be

granted "only in the unusual case in which a plaintiff includes

allegations which show on the face of the complaint that there is

some insuperable bar to relief." Jackson Sawmill Co. v. United

States, 580 F.2d 302, 306 (8th Cir. 1978), cert. denied, 439 U.S.

1070 (1979); see also Frey, 44 F.3d at 671. The Court considers

the defendants' motion in light of the foregoing standard.

II. Discussion

Tyler filed his complaint complaining that the

defendants handed his telephone records over to the National

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Security Agency (“NSA”). Tyler asserts that this alleged action

by the defendants violated his right to privacy and possibly

violated other rights.

A complaint is properly dismissed for failure to state

a claim under Rule 12(b)(6) when “it is clear that no relief

could be granted under any set of facts that could be proved

consistent with the allegations.” Neitzke v. Williams, 490 U.S.

319, 327, (1989) (citations omitted). Here it is clear that no

relief could be granted under any set of facts because there are

no factual allegations in the Amended Complaint; nor is there any

specific claim for relief. Indeed, Fed. Rule Civ. Pro. 8(a)(2),

requires a short and plain statement that provides “fair notice

of the plaintiff’s claims and the grounds for relief.” Smith v.

St. Bernards Reg. Med. Center, 19 F.3d 1254, 1255 (8th Cir.

1994). Where this requirement is not satisfied, a dismissal

pursuant to Rule 12(b)(6) is appropriate. See Meints v. Waldron,

1997 WL 1048336 (D. Neb.) *2 n. 1 (citing 5 Charles A Wright and

Arthur R. Miller, Federal Practice and Procedure § 1203 (2d. ed.

1990). Thus, while a pro se complaint is to be liberally

construed, “[i]n light of plainttiff[’s] plain failure to plead

supporting facts, it is axiomatic that the complaint does not

state a claim upon which relief may be granted, even under the

most liberal standards.” Id.

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While plaintiff invokes several amendments to the

United States Constitution, the Nebraska Constitution, and

several statutes, he does not specify a cause of action except to

allege the “violation[] of our Rights.” Moreover, Tyler does not

allege a single fact that would support any claims arising under

any constitutional or statutory provision. Tyler does not even

allege that he was a subscriber to any telecommunications

services offered by any of the defendants. Thus, under any

standard, the Amended Complaint in this case cannot be read to

state a cause of action and will be dismissed. All other pending

motions will be denied as moot. An order will be entered this

day in accordance with this memorandum opinion.

DATED this 30th day of August, 2006.

BY THE COURT:

/s/ Lyle E. Strom

____________________________

LYLE E. STROM, Senior Judge 

United States District Court

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