United States District Court, D. Nebraska
KEEVA T. O'NEAL, Plaintiff,
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.
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.
SUMMARY OF COMPLAINT
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.”
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.)
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.) Plaintiff claims that Defendants'
actions violated his rights to Due Process and Equal
Protection under the Fourteenth Amendment. (See
Filing No. 1.)
APPLICABLE STANDARDS OF REVIEW
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).
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).
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).
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.”).
Plaintiff fails to set forth factual allegations that
“nudge” his claims of access to the courts
“from conceivable to plausible.”
“[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