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Oliveira-Coutinho v. Frakes

United States District Court, D. Nebraska

May 10, 2017

JOSE OLIVEIRA-COUTINHO, Plaintiff,
v.
SCOTT FRAKES, Director of Nebraska Dept of Correctional Services, sued in individual & official capacities, BRIAN GAGE, Warden of Tecumseh State Correctional Institution, sued in individual & official capacities, PATTI HUGHES, Legal Coordinator TSCI Librarian for Tecumseh State Correctional Institution, sued in individual & official capacities, BRAD HANSEN, Warden of Tecumseh State Correctional Institution, in his individual and official capacities, SCOTT BUSBOOM, Deputy Warden of Tecumseh State Correctional Institution, in his individual and official capacities, and APRIL BULLING-JUNE, Associate Warden of Tecumseh State Correctional Institution, in her individual and official capacities, Defendants.

          MEMORANDUM AND ORDER

          Richard G. Kopf Senior United States District Judge

         After consideration of Plaintiff's complaint and amended complaint (Filings 1 & 17-1) as part of the court's initial review of Plaintiff's 42 U.S.C. § 1983 claims under 28 U.S.C. §§ 1915(e) and 1915A, the court determined that Plaintiff's “allegations, liberally construed, plausibly suggest that the defendants' library policies impeded his constitutional right to access the courts in order to timely file a direct appeal from his three first-degree murder convictions and to file a postconviction motion based on actual innocence.” (Filing 14 at CM/ECF p. 5.) Accordingly, this matter proceeded to service of process as to Plaintiff's access-to-the-courts claim for money damages against the defendants in their individual capacities, and against the same defendants in their official capacities for prospective injunctive relief only. (Filing 24 at CM/ECF p. 6.) The defendants have now filed a motion to dismiss. (Filing 29.)

         I. PLAINTIFF'S COMPLAINTS

         Plaintiff alleges that he is serving consecutive life sentences for three first-degree murders, of which he claims to be innocent. (Filing 1 at CM/ECF p. 4.) Plaintiff-a native of Brazil who speaks Portuguese and does not understand Spanish or English well-claims that the defendants are, and have been, violating his First Amendment rights to access the courts because:

■ The Tecumseh State Correctional Institution (“TSCI”), where Plaintiff is an inmate, does not have Portuguese legal materials.
■ Plaintiff's prison legal aide does not have legal training; the aide speaks Spanish, but not Portuguese; and prison policy prohibits both the aide and other prisoners from doing Plaintiff's legal research and writing for him.
■ Plaintiff was only allowed one hour of law-library time per week from June 1 to November 1, 2015, and is now receiving three hours per week.

         Plaintiff asserts that these deficiencies caused him to miss the December 7, 2015, deadline for filing a writ of certiorari (his “appeal claim”). While Plaintiff's complaints also state that he feared he would be unable to timely file a postconviction motion raising actual innocence unless he was afforded help from qualified and trained legal aides and other prisoners, access to sufficient legal materials, and more time in the law library, Plaintiff now represents that he has succeeded in filing a timely motion for postconviction relief in state court (his “postconviction claim”). (Filing 1 at CM/ECF p. 5; Filing 33 at CM/ECF p. 12.)

         Plaintiff requests $5 million in damages, as well as a preliminary injunction to provide “adequate law library access and/or legal counsel for postconviction.” (Filing 1 at CM/ECF p. 6.)

         II. DEFENDANTS' MOTION TO DISMISS

         The defendants, in their individual capacities only, move to dismiss Plaintiff's claims against them pursuant to Fed.R.Civ.P. 12(b)(6) because Plaintiff has failed to allege “actual injury”-that is, an arguable, nonfrivolous legal claim that has been frustrated or impeded by the defendants. (Filing 29; Filing 30 at CM/ECF pp. 5-6.)

         As to Plaintiff's “appeal claim, ” Defendants argue that Plaintiff “fails to identify what arguments he would have raised in that petition for writ of certiorari, fails to assert that any of the claims he would have asserted in his petition for writ of certiorari were claims for which the U.S. Supreme Court would arguably have granted certiorari, and fails to describe whether those were claims for which the U.S. Supreme Court would have or could have granted relief.” (Filing 30 at CM/ECF pp. 8-9.) Defendants also assert that Plaintiff's “postconviction claim” “cannot meet the nonfrivolous test for an access to the courts claim.” (Filing 30 at CM/ECF p. 9.)

         In response to the defendants' motion to dismiss, Plaintiff additionally alleges that his writ of certiorari (had he been allowed to file one in a timely fashion) would have raised “violations of Batson v. Kentucky and Sixth Amendment and Fourteenth Amendment, ” as well as violations of the Fourth and Fifth Amendments relevant to a motion to suppress and deportation of witnesses. Plaintiff also would have raised a “violation” of “Daubert v. Merrell Dow Pharmaceuticals and Schafersmas v. Agland Coop.” (Filing 33 at CM/ECF pp. 6-7.) Plaintiff further argues that he “should not be required to demonstrate injury” because such injury may be presumed when an inmate is deprived of access to all legal materials. (Filing 33 at CM/ECF p. 8.)

         Contrary to his complaints, Plaintiff's brief in opposition to the defendants' motion to dismiss states that he actually “did timely file[] a State postconviction motion, ” but he believes it to be “frivolous and incomplete” with a “probability of being unsuccessful” as a result of ...


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