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Gardner v. State

United States District Court, D. Nebraska

May 14, 2018

JUSTIN GARDNER, Plaintiff,
v.
STATE OF NEBRASKA, KIMBERLY MILLER PANKONIN, [1] DOUGLAS A. JOHNSON, MARLON A. POLK, and MATTHEW J. MILLER, Defendants.

          MEMORANDUM AND ORDER

          Richard G. Kopf, Senior United States District Judge

         Plaintiff filed a Complaint on October 16, 2017. (Filing No. 1.) He has been given leave to proceed in forma pauperis. (Filing No. 8.) 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 a prisoner in the custody of the Nebraska Department of Corrections. He brings this action pursuant to 42 U.S.C. § 1983 against the State of Nebraska; Douglas County District Court Judge Kimberly Miller Pankonin (“Judge Miller Pankonin”); Douglas County Public Defender Douglas A. Johnson (“Johnson”); Marlon A. Polk (“Polk”); Matthew J. Miller (“Miller”); and Omaha Police Department Officers Josha J. Downs (“Downs”) and Anthony Barnes (“Barnes”).[2] Plaintiff broadly challenges several state court criminal proceedings[3]brought against him in Douglas County, Nebraska, alleging that he was maliciously prosecuted, falsely imprisoned, and suffered violations of his rights under the 4th, 5th, 6th, 8th, and 14th Amendments.

         In 2015, Plaintiff alleges that he “falsely” served 198 days jail for CR15-694. (Filing No. 1 at CM/ECF p.5.) Plaintiff claims Judge Miller Pankonin and Johnson lied to him and tricked him into withdrawing his not guilty plea to both CR15-694 and CR15-2366 and entering a no contest plea in CR15-694 in exchange for which CR15-2366 would be dismissed “and not brought back up.” (Id.) On September 7, 2016, Plaintiff alleges he was charged in CR16-3314 with the same charges that were dismissed in CR15-2366 “which is double jeopardy.” (Id.)

         As a result of his false imprisonment, Plaintiff alleges he has suffered a number of harms including “fights in jail, sleeping in unclean cells, lack of food, lack of law library, . . . deformation [sic] of character, slander, los[s] of wages, . . . physical and emotional distress, illegal search and seizure, undue process, police brutally [sic], . . . false advisement, racial profiling, [and] stereotying [sic].” (Id.) For relief, Plaintiff seeks monetary damages from “anybody/everybody” that was involved in cases CR15-694, CR15-2366, CR16-3314, CR16-20720, and CR16-20732. (Id. at CM/ECF p.6.)

         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

         Liberally construed, Plaintiff has alleged claims of violations of his rights under the 4th, 5th, 6th, 8th, and 14th Amendments to the Federal Constitution, as well as various state law claims. The Complaint, however, does not satisfy the general rules of pleading and is defective in several respects as discussed below.

         A. ...


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