United States District Court, D. Nebraska
DAVID H. JACOB, Plaintiff,
ROSALYN COTTON, Chairperson of the Nebraska Board of Parole; REX RICHARD, Member of the Nebr. Board of Parole; RANDALL L. REHMEIER, Member of the Nebraska Board of Parole; TERESA L. BITTINGER, Member of the Nebraska Board of Parole; and VIRGIL J. PATLAN, Member of the Nebraska Board of Parole; Defendants.
MEMORANDUM AND ORDER
RICHARD G. KOPF, SENIOR UNITED STATES DISTRICT JUDGE
filed a Complaint on June 21, 2017. (Filing No. 1.)
He has paid the filing fee. (See Docket Sheet.) The
court now conducts an initial review of Plaintiff's
Complaint to determine whether summary dismissal is
appropriate under 28 U.S.C. § 1915A.
SUMMARY OF COMPLAINT
1986, Plaintiff was convicted of three counts of second
degree murder and two counts of use of a weapon to commit a
felony. (Filing No. 1 at CM/ECF p. 4.) The state
district court sentenced Plaintiff to consecutive sentences
of life imprisonment for each second degree murder conviction
and to 6 to 20 years' imprisonment for each use
conviction. (Id.) The minimum sentence for second
degree murder, at the time Plaintiff committed the offenses,
was 10 years' imprisonment. See Neb. Rev. Stat.
§ 28-105 (Reissue 1971); Neb. Rev. Stat. § 28-304
became parole eligible on January 17, 2015. (Filing No. 1
at CM/ECF p. 4.) On August 7, 2014, Plaintiff met with
members of the Board of Parole for a review of his case.
(Id. at CM/ECF pp. 6-7.) As a result of the review,
the Board of Parole deferred Plaintiff's case for review
until August 8, 2015. (Id. at CM/ECF p. 7.) The
reasons for the deferment were that the nature and
circumstances of Plaintiff's offenses indicated
“that any early release would depreciate from the
seriousness of [his] crime and promote disrespect for the
law, ” and Plaintiff's “continued
correctional treatment, medical care, vocational training, or
other training in the facility [would] substantially enhance
[his] capacity to lead a law-abiding life when released at a
later date.” (Id.) On July 28, 2016, Plaintiff
successfully completed substance abuse treatment.
(Id.) On August 22, 2016, the Board of Parole
reviewed Plaintiff's case again. (Id.) As a
result of the review, the Board of Parole deferred
Plaintiff's case for review until August of 2017, because
the nature and circumstances of Plaintiff's offenses
indicated “that any early release would depreciate from
the seriousness of [his] crime and promote disrespect for the
law.” (Id. at CM/ECF pp. 7-8.)
January 2015, Plaintiff filed a petition for declaratory
judgment in the Lancaster County District Court, seeking to
“vindicate his rights (1) not to be subjected to an
ex post facto law, (2) to not have his liberty interests
denied without the due process of law, and (3) to prevent
unconstitutional action by the Legislative or Executive
branches of State government by enforcing the Constitutional
separation of powers.” See Jacob v. Cotton
and the Nebraska Board of Parole, Case No. A-15-1037,
2017 WL 773661 at *1 (Neb.App. Feb. 28, 2017), review denied
(Apr. 6, 2017). Plaintiff filed the petition against Rosalyn
Cotton, in her official capacity as chairman of the Board of
Parole, and the Board of Parole. (Id.) The state
district court granted the defendants' motion to dismiss
for failure to state a claim. (Id.)
appealed the order of the state district court to the
Nebraska Court of Appeals. (Id.) Plaintiff assigned
as error that the state district court erred in dismissing
his petition because “(1) the parole suitability
standards in Neb. Rev. Stat. § 83-1, 114 (Reissue 2014)
are ex post facto violations; (2) the district court failed
to find that the Parole Board's determination violated
the separation of powers doctrine; (3) the district court
failed to conclude that the Parole Board violated his due
process rights by denying him a parole hearing and
inappropriately relied on Greenholtz v. Inmates of
Nebraska Penal & Corr. Complex, 442 U.S. 1, 99 S.Ct.
2100, 60 L.Ed.2d 668 (1979), to determine that current parole
procedures did not violate due process.” (Id.)
On February 28, 2017, the Court of Appeals affirmed the
decision of the state district court, finding that “the
parole suitability standards are not ex post facto
violations, that the Parole Board did not violate the
separation of powers doctrine, and that the Parole Board did
not violate Jacob's due process rights . . . .”
(Id. at *4.) The Nebraska Supreme Court denied
review on April 6, 2017.
21, 2017, Plaintiff filed the current action pursuant to 42
U.S.C. § 1983 and 28 U.S.C. § 2201 et seq.
(Filing No. 1.) He names in his Complaint Rosalyn
Cotton, chairman of the Board of Parole, along with three
members of the Board of Parole, and he sues them in their
official and individual capacities for declaratory,
injunctive, and monetary relief. (Id. at CM/ECF pp.
2, 14.) His allegations are substantially similar to those
presented to the lower state courts and he raises the same
issues of ex post facto, separation of powers,
and due process decided in the state courts. See Jacob v.
Cotton and Nebraska Board of Parole, Lancaster County
District Court Case No. CI 15-179 and Nebraska Court of
Appeals Case No. A-15-1037, at
Stutzka v. McCarville, 420 F.3d 757, 760 n.2 (8th Cir.
2005) (court may take judicial notice of judicial opinions
and public records). Plaintiff claims the “state court
rulings were subterfuges to evade the federal constitutional
claims involving the current Nebraska parole procedures and
decisions made in the Plaintiff's case.”
(Filing No. 1 at CM/ECF p. 3.)
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 ...