United States District Court, D. Nebraska
MEMORANDUM AND ORDER
Richard G Kopf, Senior United States District Judge.
filed a Complaint on February 3, 2017. (Filing No. 1.) He was
given leave to proceed in forma pauperis. (Filing No. 5.) The
court now conducts an initial review of Plaintiff's
Complaint to determine whether summary dismissal is
appropriate under 28 U.S.C. § 1915(e)(2).
SUMMARY OF COMPLAINT
alleges that he was seated in a Lancaster County District
Court courtroom as “amicus curiae” when Defendant
Maria Thietje asked Plaintiff to leave the courtroom so that
she could speak to her clients in private. (Filing No. 1 at
CM/ECF p. 1.) Plaintiff complied. (Id.) Plaintiff
alleges that, ten to fifteen minutes later, he told a woman
in the courtroom to google Neb. Rev. Stat. 42 and look for
child support. (Id.) He told her, “[I]t will
tell you what is going on and how to appeal.”
was later convicted in Lancaster County District Court of
theft by deception and unauthorized practice of law on facts
unrelated to Plaintiff's allegations. See State v.
Brooks, 873 N.W.2d 460, 469 (Neb.App. 2016). In imposing
Plaintiff's sentences, the state district court
considered letters from two attorneys about Plaintiff giving
legal advice on other occasions. Id. at 480-81. The
second attorney had been in a courtroom where Plaintiff
advised people on the amount of child support a court could
order someone to pay. Id. The state district court
sentenced Plaintiff to consecutive terms of 15 to 35
months' imprisonment on the theft conviction and 3 to 3
months' imprisonment on the unauthorized practice of law.
appealed his convictions and sentences to the Nebraska Court
of Appeals. The court found that the trial court committed
plain error by erroneously instructing the jury that it could
base its guilty verdict for unauthorized practice of law on
Plaintiff's conduct that occurred outside the statute of
limitations. Id. at 475-77. It, therefore, reversed
Plaintiff's conviction for unauthorized practice of law
and remanded for a new trial on that charge. Id. at
477-78. In doing so, the court determined that there was
sufficient evidence adduced at trial to sustain
Plaintiff's conviction and, further, his conduct that
occurred outside the statute of limitations would be
admissible at a new trial to provide “necessary
context” to his unauthorized practice of law occurring
with the limitations period. Id.
alleges that Thietje informed the sentencing judge, prior to
sentencing, that Plaintiff gave legal advice. (Filing No. 1
at CM/ECF pp. 1-2.) He alleges that Thietje
“intentionally provoked Judge Otte to sentence Clinton
Brooks Jr. to a harsher sentence, causing Clinton Brooks Jr.
emotional distress and mental anguish, therefore violating
the constitutional rights of freedom of speech in The First
Amendment.” (Id. at CM/ECF p. 2.) He seeks 1
million dollars. (Id.)
court is required to review in forma pauperis complaints to
determine whether summary dismissal is appropriate.
See 28 U.S.C. § 1915(e). None of the defendants
interfered with Plaintiff's First Amendment freedom of
speech. Nevertheless, based upon the decision of the Nebraska
Court of Appeals, the evidence was sufficient to find that
Plaintiff committed the offense of unauthorized practice of
law. His conviction was reversed because of an improper jury
instruction, not because he did not do it. 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). Prior to filing in federal
court, Plaintiff filed suit against Defendants in Lancaster
County District Court on the same grounds. The state
district court denied Plaintiff in forma pauperis status
because Plaintiffs Complaint asserted “legal positions,
which are frivolous or malicious, ” and failed to state
a claim upon which relief could be granted. The court agrees
and finds that Plaintiffs claim is frivolous and his
Complaint fails to state a claim upon which relief may be
granted. The court will not allow Plaintiff to amend his
Complaint because amendment would be futile.
THEREFORE ORDERED that:
case is dismissed with prejudice.
court will enter judgment in a separate document.