United States District Court, D. Nebraska
MEMORANDUM AND ORDER
JOSEPH F. BATAILLON SENIOR UNITED STATES DISTRICT JUDGE
Plaintiff Anthony Purdy (“Plaintiff”) filed his Complaint in this matter on July 22, 2015. (Filing No. 1.) Purdy has been given leave to proceed in forma pauperis. (Filing No. 8.) Accordingly, the court now conducts an initial review of his claims to determine whether summary dismissal is appropriate under 28 U.S.C. §§§ 1915(e)(2) and 1915A.
I. SUMMARY OF COMPLAINT
Plaintiff names the State of Nebraska as the defendant in the caption of his Complaint. However, on closer examination of Plaintiff’s Complaint, he also alleges claims against his criminal-defense lawyer, Noelle Obermeyer, the Douglas County Correctional Center (“DCCC”), and Sergeant McIllen of the DCCC. He claims Obermeyer has refused to look into his Native American history as a method of defense, she has refused to request a deposition of the alleged victim in his criminal case, and she has refused to expedite his release. Plaintiff claims the DCCC and Sergeant McIllen have denied him access to the law library. In addition, he alleges the State of Nebraska has taken away his parental rights.
For relief, Plaintiff requests that this court place Plaintiff on bond or diversion. He also asks this court to grant an injunction against the State of Nebraska to prevent termination of his parental rights. (Filing No. 1.)
II. APPLICABLE LEGAL STANDARDS ON INITIAL REVIEW
The court is required to review prisoner and in forma pauperis complaints seeking relief against a governmental entity or an officer or employee of a governmental entity to determine whether summary dismissal is appropriate. See 28 U.S.C. §§ 1915(e) and 1915A. 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); 28 U.S.C. § 1915A(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) (quoting Hopkins v. Saunders, 199 F.3d 968, 973 (8th Cir. 1999)). 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).
Liberally construed, Plaintiff here alleges federal constitutional claims. To state a claim under 42 U.S.C. § 1983, a plaintiff must allege a violation of rights protected by the United States Constitution or created by federal statute and also must show that the alleged deprivation was caused by conduct of a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993).
III. DISCUSSION OF CLAIMS
A. Noelle Obermeyer
Liberally construing the Complaint, Plaintiff makes claims against the attorney representing him in his state court proceedings, Noelle Obermeyer. (Filing No. 1 at CM/ECF pp. 2, 9.) In order to succeed on a § 1983 claim, a plaintiff must demonstrate that the defendants acted under color of state law. 42 U.S.C. § 1983; West, 487 U.S. 42, 49-50 (1988). The conduct of lawyers, simply by virtue of being officers of the court, generally does not constitute action under color of law. See DuBose v. Kelly, 187 F.3d 999, 1003 (8th Cir. 1999). However, a § 1983 claim may be brought against a private individual if he conspires with a state actor to deprive a person of his constitutional rights. Id. Here, Plaintiff does not allege his lawyer is a state actor or that his lawyer conspired with state actors to deprive Plaintiff of his constitutional rights.
To the extent Plaintiff’s claims about his lawyer’s failure to file Plaintiff’s requested motions and briefs are construed as a civil malpractice claim, Plaintiff’s claims similarly fail. Federal courts are courts of limited jurisdiction. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). The subject-matter jurisdiction of the federal district courts is generally set forth in 28 U.S.C. §§ 1331 & 1332. Under these statutes, federal jurisdiction is available only when a “federal question” is presented or when the parties are of diverse citizenship and the ...