United States District Court, D. Nebraska
JORGE E. ALEMAN TSUHAKO, Plaintiff,
CARLOS MONZÓN, Defendant.
MEMORANDUM AND ORDER
Richard G. Kopf Senior United States District Judge
filed his Complaint on August 1, 2016. (Filing No.
1.) He has been given leave to proceed in forma
pauperis. (Filing No. 9.) The court now conducts an
initial review of Plaintiff's Complaint to determine
whether summary dismissal is appropriate under 28 U.S.C.
SUMMARY OF COMPLAINT
is a prisoner at the Great Plains Correctional Facility in
Oklahoma. (Filing No. 1 at CM/ECF pp. 27,
29.) Plaintiff alleges that he is also a citizen of
Oklahoma. (Id. at CM/ECF p. 4.) He alleges that
Defendant Carlos Monzón (“Monzón”)
is a citizen of Nebraska. (Id.) Monzón
represented Plaintiff in a state criminal case in Lincoln,
Nebraska. (Id. at CM/ECF p. 5.) Plaintiff's
state case was dismissed after federal authorities filed an
indictment against him. (Id. at CM/ECF p. 12.)
Monzón did not represent Plaintiff in his federal
case. (Id.) Plaintiff alleges that Monzón
represented his co-defendant Angel Oramas
(“Oramas”) in Oramas' state case at the same
time that Monzón represented Plaintiff in his state
case. (Id. at CM/ECF pp. 5-6.) He asserts that the
simultaneous representation was a conflict of interest.
authorities also indicted Oramas. (Id. at CM/ECF p.
12.) Monzón represented Oramas in his federal case.
(Id.) Oramas proffered information about Plaintiff
to the U.S. Attorney's Office and ultimately entered a
plea pursuant to a plea agreement. (Id.) Plaintiff
alleges that Monzón breached attorney-client
privilege. (Id. at CM/ECF p. 6.) He claims that
Monzón “had access to all the information and
evidence available on my case, and also my confession”
“to instruct Angel Oramas in a perfect statement
against me.” (Id. at CM/ECF p. 6, 14.)
Plaintiff pleaded guilty in his federal case to one count of
conspiracy to use unauthorized access devices. U.S.A. v.
Oramas, et al. Case No. 4:15CR3027-2 (D. Neb.);
(See Filing No. 1 at CM/ECF p. 26.)
seeks one million dollars for mental and psychological
damage, deprivation of freedom, loss of job, loss of credit
rating, loss of vehicle, loss of contact with family, and
complete ruin of personal and financial situation. (Filing
No. 1 at CM/ECF p. 5.)
APPLICABLE LEGAL 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).
brings claims of legal malpractice against Monzón. He,
however, misses one crucial element: his actual innocence. A
person convicted of a criminal offense who files a legal
malpractice claim against the attorney who defended him in
the criminal proceedings must plead and prove actual
innocence of the offense of conviction. Trackwell v.
Domina, 2005 WL 1377867 at *3 (D. Neb) (quoting
Rodriguez v. Nielsen, 259 Neb. 264, 609 N.W.2d 368,
We believe that it is the illegal conduct of a convicted
criminal who files a malpractice claim, rather than any
subsequent negligence of counsel, that is the cause in fact
of any injuries flowing from the conviction. We therefore
hold that a convicted criminal who files a legal malpractice
claim against his or her defense counsel must allege and
prove that he or she is innocent of the underlying crime.
This requirement is in addition to the ordinary causation
element for legal malpractice. Thus, such person must plead
and prove the following: (1) the attorney's employment,
(2) the attorney's neglect of a reasonable duty, (3) that