United States District Court, D. Nebraska
MEMORANDUM AND ORDER
Richard G. Kopf Senior United States District Judge.
filed her Complaint on October 7, 2016 (Filing No.
1), and was granted leave to proceed in forma
pauperis on October 12, 2016 (Filing No. 5). 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).
SUMMARY OF COMPLAINT
construing the Complaint, Plaintiff alleges that on September
15, 2016, she applied for a certificate to purchase a handgun
under Neb. Rev. Stat. § 69-2404, and that her
application was denied on September 20, 2016, by Defendant,
the Douglas County Sheriff, for the following stated reasons:
You have a Protection Order Violation, Domestic Violence
related, on file with the Omaha Police Department dated
September 18, 2013 . You were ticketed by the Nebraska Humane
Society for Animal Care on June 9, 2005. On January 20, 2006
this charge was amended to Animal Cruelty, receiving a $75.00
fine. Also, based on outside information obtained that can
not be released in this manner, you will be denied a handgun
purchase certificate at this time.
(Filing No. 1 at CM/ECF p. 7 (“Notice of
Denial”)). Plaintiff claims Defendant violated her
Second Amendment right to bear arms and deprived her of due
process and equal protection of the laws.
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. § 1915(e)(2)(B).
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
law provides that “[a]ny person desiring to purchase
... a handgun shall apply with the chief of police or sheriff
of the applicant's place of residence for a
certificate.... An applicant shall receive a certificate if
he or she is twenty-one years of age or older and is not
prohibited from purchasing or possessing a handgun by 18
U.S.C. § 922.” Neb. Rev. Stat. §
69-2404. Persons who are prohibited from purchasing a handgun
by the federal statute include convicted felons, fugitives
from justice, drug users and addicts, “mental
defectives” and persons committed to mental
institutions, illegal aliens and holders of non-immigrant
visas, former members of the Armed Forces who were
dishonorably discharged, persons who have renounced their
U.S. citizenship, individuals who are subject to certain
restraining orders, and persons who have been convicted of
crimes of domestic violence. See 18 U.S.C. §
922(g); see also Neb. Admin. R. & Regs. Tit.
272, Ch. 22, § 010.
Chief of Police or Sheriff to whom the application was
submitted, or his or her designee, shall conduct an
investigation of the applicant which shall include at a
minimum an inquiry of the Nebraska criminal history record,
National Instant Criminal Background Check System (NICS) and
the records of the agency to which application is
made.” Neb. Admin. R. & Regs. Tit. 272,
Ch. 22, § 009.01. “The investigation may include,
but is not limited to, public records of all courts and
government offices including notations or warrants and
commitment orders issued by courts and mental health boards;
interviews of individuals with reliable and pertinent
information about the applicant.” Id., §
the receipt of an application for a certificate, the chief of
police or sheriff shall issue a certificate or deny a
certificate and furnish the applicant the specific reasons
for the denial in writing. The chief of police or sheriff
shall be permitted up to three [business] days in which to
conduct an investigation to determine whether the applicant
is prohibited by law from purchasing or possessing a
handgun.... No later than the end of the three-day period the
chief of police or sheriff shall issue or deny such
certificate and, if the certificate is denied, furnish the
applicant the specific reasons for denial in writing.”
Neb. Rev. Stat. § 69-2405; see also Neb.
Admin. R. & Regs. Tit. 272, Ch. 22, § 006.
person who is denied a certificate ... or who has not been
issued a certificate upon expiration of the three-day period
may appeal within ten days of receipt of the denial ... to
the county court of the county of the applicant's place
of residence. The applicant shall file with the court the
specific reasons for the denial .... The court shall issue
its decision within thirty days of the filing of the
appeal.” Neb. Rev. Stat. § 69-2406;
see also Neb. Admin. R. & Regs. Tit. 272, Ch.
22, § 008. If the county court issues an adverse
decision, further appeals may be taken. See Miller v.
Brunswick, 571 N.W.2d 245, 247 (Neb. 1997).