United States District Court, D. Nebraska
MEMORANDUM AND ORDER
RICHARD G. KOPF, SENIOR UNITED STATES DISTRICT JUDGE
filed a Complaint on September 22, 2017. (Filing No.
1.) He has been given leave to proceed in forma
pauperis. (Filing No. 7.) 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) and 1915A.
SUMMARY OF COMPLAINT
is incarcerated at the Douglas County Department of
Corrections on a charge of robbery pending in the Douglas
County District Court of Nebraska. Plaintiff seeks damages
under 42 U.S.C. § 1983 for alleged violations of his
rights under the 4th, 5th, 6th, and 14th Amendments against
the following Defendants in their official capacities: his
attorney Brenda Leuck of the Douglas County Public
Defenders' Office; the Douglas County Attorney's
Office; an unknown Omaha Police Department Officer, referred
to as John Doe; and unspecified Douglas County District Court
alleges that on or about April 11, 2017, he was arrested in
Council Bluffs, Iowa, and placed in custody in Douglas
County, Nebraska, based on an illegal warrant. Plaintiff
claims Officer John Doe caused the warrant to issue based on
false information received from a man named Stephen Pedigo
who claimed that Plaintiff had robbed him after Pedigo sold
Plaintiff drugs. As a result, Plaintiff claims he is being
held in jail in violation of his 4th, 5th, and 14th Amendment
rights for a crime he denies he committed.
further claims that his attorney, Brenda Leuck, is
ineffective and verbally abusive to him. Plaintiff alleges
Leuck does not follow Plaintiff's instructions regarding
the handling of his criminal case and refuses to let him see
any of the statements against him because she made a contract
with the Douglas County Attorney's Office to withhold
such information from Plaintiff. Plaintiff claims Leuck
threatens him that if he refuses to take a plea deal, he will
remain in jail longer. Plaintiff alleges he has attempted to
convey his desire to remove Leuck from his case to the
district court judge assigned to his case, but has been
unable to do so because Douglas County District Court
employees reroute his mail for the court to Leuck.
APPLICABLE LEGAL STANDARDS ON INITIAL 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).
DISCUSSION OF CLAIMS
makes claims against the attorney representing him in his
state court proceedings, Brenda Leuck of the Douglas County
Public Defenders' Office. The crux of Plaintiff's
argument with respect to Leuck is that she has been
ineffective in her representation of him and has ...