United States District Court, D. Nebraska
MEMORANDUM AND ORDER
Richard G. Kopf Senior United States District Judge
a non-prisoner, has been given leave to proceed in forma
pauperis. (Filing No. 10.) The court now conducts an
initial review of the Complaint to determine whether summary
dismissal is appropriate under 28 U.S.C. §
SUMMARY OF COMPLAINT
alleges that she was "illegally arrested upon [a] bogus
warrant"; she posted a $1, 500 bond "per [J]udge
[M]cdermott, " but is still being held in jail; she told
Judge McDermott that she wanted to proceed pro se, but the
judge appointed a public defender over Plaintiff’s
objection; at a hearing before Judge Bazis, Plaintiff’s
counsel, Mikki Jerabek, erroneously and without evidence told
the judge that Plaintiff was still being held in jail because
she "has a hold"; and that Judge Huber issued an
illegal order in a county district court case. (Filing No.
has identified Mikki Jerabek, Judge Huber, Foxall,
"Dunning Sheriff, " and Judge Bazis as defendants,
from whom she requests $50 million in damages and against
whom Plaintiff seeks an injunction barring her further
detention and allowing Plaintiff to represent herself.
(Filing No. 1.) Defendants have been sued in their
official and individual capacities.
has also filed a Motion for Temporary Restraining Order and
Preliminary Injunction (Filing No. 9) asking for an
order that the defendants stop "fucking with our case or
otherwise misrepresenting our case or attempting to represent
us sans our wish." (Filing No. 9.) The motion
complains about a Judge Coffey continuing to hold Plaintiff
without bail and denying her motion to represent herself.
Plaintiff further requests a hearing on her Motion for
Temporary Restraining Order and Preliminary Injunction.
(Filing No. 14.)
APPLICABLE STANDARDS ON INITIAL REVIEW
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. §
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.").
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).
DISCUSSION OF CLAIMS
Plaintiff does not indicate how defendants Foxall and
"Dunning Sheriff" were personally involved in the
events described in the Complaint. Rather, these
defendants’ names only appear in the caption of the
Complaint. A complaint that only lists a defendant’s
name in the caption without alleging that the defendant was
personally involved in the alleged misconduct fails to state
a claim against that defendant. Krych v. Hvass, 83
F. App’x 854, 855 (8th Cir. 2003). See also Potter
v. Clark, 497 F.2d 1206, 1207 (7th Cir. 1974)
("Where a complaint alleges no specific act or conduct
on the part of the defendant and the complaint is silent as
to the defendant except for his name appearing in the
caption, the complaint is properly dismissed, even under the
liberal construction to be given pro se complaints").
respect to defendant Mikki Jerabek, who was Plaintiff’s
alleged counsel in the proceedings to which Plaintiff
objects, Plaintiff seems to allege that Jerabek provided her
ineffective assistance of counsel. The conduct of lawyers,
simply by virtue of being officers of the court, generally
does not constitute action under color of law as required for
a § 1983 action. See DuBose v. Kelly, 187 F.3d
999, 1003 (8th Cir. 1999). However, a § 1983
claim may be brought against a private individual if the
individual conspires with a state actor to deprive a person
of his constitutional rights. Id. Here, Plaintiff
does not allege that Jerabek is a state actor or that Jerabek
conspired with state actors to deprive Plaintiff of her
constitutional rights. Therefore, Plaintiff has failed to
state a claim against Jerabek.
the judicial defendants, Plaintiff alleges that Judge Huber
issued an illegal order in a county district court case
without "hearing or examination, " and that Judge
Bazis presided over a criminal matter involving Plaintiff at
which defendant-lawyer Jerabek erroneously told Bazis that
Plaintiff was being held in jail because she "has a
hold." Insofar as Plaintiff is asserting "official
capacity" claims against Judges Huber and Bazis, the
claims are precluded by the Rooker-Feldman doctrine.
This doctrine provides that, with the exception of habeas
corpus petitions, lower federal courts lack subject matter
jurisdiction over challenges to state court judgments and
state proceedings. Mosby v. Ligon,418 F.3d 927, 931
(8th Cir. 2005). See D.C. Court of Appeals v.
Feldman,460 U.S. 462, 476 (1983); Rooker v. Fid.
Trust Co.,263 U.S. 413 (1923). Specifically, the
doctrine "bars federal courts from hearing cases brought
by the losing parties in state court proceedings alleging
‘injury caused by the state-court judgment and seeking
review and rejection of that ...