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O'Neal v. Retelsdorf

United States District Court, D. Nebraska

April 13, 2017

KEEVA T. O'NEAL, Plaintiff,
v.
LEIGH ANN RETELSDORF, Douglas County District Judge; and JOHN FRIEND, Douglas County District Court Clerk; Defendants.

          MEMORANDUM AND ORDER

          RICHARD G. KOPF SENIOR UNITED STATES DISTRICT JUDGE.

         Plaintiff filed a Complaint on February 2, 2017. (Filing No. 1.) He has been granted leave to proceed in forma pauperis. (Filing No. 6.) 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).

         I. SUMMARY OF COMPLAINT

         Plaintiff is a prisoner in custody at the Nebraska State Penitentiary in Lincoln, Nebraska. (Filing No. 1 at CM/ECF p. 4.) He seeks declaratory and injunctive relief against Defendants Leigh Ann Retelsdorf (“Retelsdorf”), a Douglas County District Court judge, and John Friend (“Friend”), the Douglas County District Court Clerk. (Id.) Specifically, he seeks his right to access the courts and “to the requested written deposition responses of Respondent Retelsdorf upon the refiling of the Petitioner's State court petition and other pleadings made therein for the redress sought.” (Id.)

         Plaintiff alleges that Retelsdorf, as a prosecutor, mistakenly used false information in police reports to charge him with felony offenses of which he was subsequently wrongfully convicted. (Id. at CM/ECF p. 2.) Specifically, he alleges that someone other than “Edward Duncan, ” who Retelsdorf alleged as the victim in the Information, claimed that Plaintiff shot him. (Id. at CM/ECF pp. 7, 12.) He claims that Retelsdorf admitted to Plaintiff's allegations at a hearing in 1999 before a now deceased judge. (Id.) Plaintiff asserts that Retelsdorf has thwarted his efforts to depose her because, in violation of Neb. Rev. Stat. § 25-2301.02, she “secretly” overruled his in forma pauperis applications that accompanied his petitions for writ of error coram nobis and thereafter concealed her orders from him. (Id. at CM/ECF pp. 6-9, 11-13.) Retelsdorf's actions, according to Plaintiff, are to conceal her prosecutorial mistake and his wrongful convictions. (Id.)

         Plaintiff alleges that Friend conspired with Retelsdorf and neglected to prevent her actions. (Id. at CM/ECF pp. 12, 15.) He states that he informed Friend in March of 2016 of Retelsdorf's actions. (Id. at CM/ECF p. 13.) He requested from Friend the case numbers and copies of Retelsdorf's orders, but Friend failed to respond to his requests and violated Neb. Rev. Stat. § 25-1301.01 in doing so. (Id. at CM/ECF pp. 13, 18.) Plaintiff alleges that, as a result, he could not appeal from Retelsdorf's March 2016 order denying his in forma pauperis application. (Id. at CM/ECF pp. 14, 15-16.) Plaintiff filed another petition in June of 2016 with the filing fee. (Id. at CM/ECF p. 19.) He states that the Douglas County Clerk's Office repeatedly informed his sister that it was not filed. (Id. at CM/ECF pp. 19-20.) Plaintiff alleges that he did file the petition but Friend acted “in concert” with Retelsdorf and intentionally withheld the case number from him for five months, which prevented him from timely serving the defendants and caused the case to be dismissed. (Id. at CM/ECF pp. 14, 19-20.)[1] Plaintiff claims that Defendants' actions violated his rights to Due Process and Equal Protection under the Fourteenth Amendment. (See Filing No. 1.)

         II. APPLICABLE STANDARDS OF REVIEW

         The court is required to review prisoner and in forma pauperis complaints seeking relief against a governmental entity or an officer or employee of a governmental entity to determine whether summary dismissal is appropriate. See 28 U.S.C. §§ 1915(e) and 1915A. 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); 28 U.S.C. § 1915A(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).

         Liberally construed, Plaintiff here alleges federal constitutional claims. To state a claim under 42 U.S.C. § 1983, a plaintiff must allege a violation of rights protected by the United States Constitution or created by federal statute and also must show that the alleged deprivation was caused by conduct of a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993).

         III. DISCUSSION

         As an initial matter, it appears to the court that Plaintiff attempts review of state court decisions through this federal action. At the core of Plaintiff's allegations is that he did not shoot the victim alleged in the Information. However, the Nebraska Court of Appeals rejected this argument in Plaintiff's direct appeal when it found without merit Plaintiff's argument that the information was defective because it charged him with an offense against “Edward Duncan, ” who was actually “Allan Duncan” impersonating “Edward Duncan.” See State v. O'Neal, 2005 WL 1022027, *4-5 (Neb. 2005). The Rooker-Feldman doctrine prevents this court from sitting in review of matters which have been considered by the state court. See Dist. of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983); Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923). It also appears to the court that Plaintiff attempts review of Defendants' compliance with state procedures. But, a federal court will not inquire into whether “state officers follow state law.” Kennedy v. Blankenship, 100 F.3d 640, 643 (8th Cir. 1996) (“[The plaintiff's] only argument is that the state failed to follow its own procedural rules and thus failed to afford him the due process of law mandated by the Constitution. But, as we have stated above, the Due Process Clause does not federalize state-law procedural requirements.”).

         Nonetheless, Plaintiff fails to set forth factual allegations that “nudge” his claims of access to the courts “from conceivable to plausible.”[2] “[P]risoners have a constitutional right of access to the courts.” Bounds v. Smith,430 U.S. 817, 821 (1977). However, this right is only violated if the prisoner has suffered an “actual injury, ” Lewis v. Casey,518 U.S. 343, 351 (1996), by way of an official action that hindered his or her pursuit of a “nonfrivolous” or “arguable” underlying legal claim. Id. at 353 & 353 n. 3. “To prove actual injury, [Plaintiff] must ...


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