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Goodwin v. Dunning

United States District Court, D. Nebraska

December 2, 2016

VIOLET GOODWIN, Plaintiff,
v.
TIMOTHY DUNNING, Defendant.

          MEMORANDUM AND ORDER

          Richard G. Kopf Senior United States District Judge.

         Plaintiff 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).

         I. SUMMARY OF COMPLAINT

         Liberally 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.

         II. APPLICABLE STANDARDS ON INITIAL REVIEW

         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).

         III. DISCUSSION OF CLAIMS

         Nebraska 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.

         “The 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., § 009.02.

         “Upon 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.

         “Any 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).

         A. ...


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