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Jacob v. Cotton

United States District Court, D. Nebraska

July 27, 2017

DAVID H. JACOB, Plaintiff,
v.
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

         Plaintiff 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.

         I. SUMMARY OF COMPLAINT

         In 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 (Reissue 1971).

         Plaintiff 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.)

         In 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.)

         Plaintiff 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.

         On June 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[1] 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 https://www.nebraska.gov/justice//case.cgi. See 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.)

         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 ...


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