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Swift v. Jerabek

United States District Court, D. Nebraska

June 8, 2016

MIKKI JERABEK, JUDGE HUBER, FOXALL, DUNNING SHERIFF, and JUDGE BAZIS, in their individual and official capacities, Defendants.


          Richard G. Kopf Senior United States District Judge

         Plaintiff, a non-prisoner[1], 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. § 1915(e)(2).


         Plaintiff 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. 1.)

         Plaintiff 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.

         Plaintiff 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.)


         The 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. § 1915(e)(2)(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).


         First, 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").

         With 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.

         As to 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 ...

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