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Dunn v. Leuck

United States District Court, D. Nebraska

February 9, 2018

BRYAN DUNN, Plaintiff,
v.
BRENDA LEUCK, Atty, Douglas County Public Defenders office; DOUGLAS COUNTY COURTS, DOUGLAS COUNTY ATTORNEYS OFFICE EMPLOYEES, and OMAHA POLICE DEPARTMENT, OFFICERS, Defendants.

          MEMORANDUM AND ORDER

          RICHARD G. KOPF, SENIOR UNITED STATES DISTRICT JUDGE

         Plaintiff 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.

         I. SUMMARY OF COMPLAINT

         Plaintiff 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 Employees.[1]

         Plaintiff 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.

         Plaintiff 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.

         II. APPLICABLE LEGAL STANDARDS ON INITIAL 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 law. West v. Atkins, 487 U.S. 42, 48 (1988); Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993).

         III. DISCUSSION OF CLAIMS

         A. Brenda Leuck

         Plaintiff 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 ...


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