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Jennings v. State

United States District Court, D. Nebraska

July 6, 2018

ALLEN JENNINGS SR., Plaintiff,
v.
STATE OF NEBRASKA; THOMAS C. RILEY, Douglas County Public Defender REBECCA A. McCLUNG, Douglas County Public Defender DOUGLAS J. PETERSON, Attorney General; NATHAN A. LISS, Attorney General, and SCOTT R. FRAKES, Director of N.D.C.S., Defendants.

          MEMORANDUM AND ORDER

          RICHARD G. KOPF SENIOR UNITED STATES DISTRICT JUDGE

         Plaintiff, Allen Jennings, Sr., who is incarcerated in the Community Corrections Center in Lincoln, Nebraska, filed his Complaint (Filing 1) on April 18, 2018, and was granted leave to proceed in forma pauperis on April 20, 2018 (Filing 6). The initial partial filing fee was paid on June 14, 2018. The court now conducts an initial review of Plaintiff s Complaint to determine whether summary dismissal is appropriate under 28U.S.C.§§ 1915(e)(2) and 1915A.

         I. SUMMARY OF COMPLAINT

         Plaintiff brings this 42 U.S.C. § 1983 action seeking to recover damages from Defendants for alleged statutory and constitutional violations in connection with his criminal case in the District Court of Douglas County, Nebraska. Seven claims are listed in the Complaint:

         1. A due process claim against the Nebraska Attorney General, Douglas J. Peterson ("Peterson"), and Assistant Attorney General, Nathan A. Liss ("Liss"), for failure to comply with Neb. Rev. Stat. § 29-2317(3), which provides in part:

The prosecuting attorney [who has filed a notice of intent to take an appeal from county court to district court] shall then file the notice in the district court within thirty days from the date of final order and within thirty days from the date of filing the notice shall file a bill of exceptions covering the part of the record referred to in the notice.

         Plaintiff alleges that a bill of exceptions was not filed until 46 days from the date of filing of the notice. (Filing 1, p. 4)[1]

         2. A due process claim against the Director of the Nebraska Department of Correctional Services ("NDCS"), Scott R. Frakes ("Frakes"), Peterson, and Liss because they "did not have Plaintiff released on original O.R. bond from plea-based convictions or detained in county jail," and "Plaintiff was detained in prison after sentences, was 'vacated.'" (Filing 1, p. 5) Plaintiff cites Neb. Rev. Stat. § 28-105, which provides:

All sentences for maximum terms of imprisonment for one year or more for felonies shall be served in institutions under the jurisdiction of the Department of Correctional Services. All sentences for maximum terms of imprisonment of less than one year shall be served in the county jail.

         3. A due process claim based the fact that although a mandate from the Court of Appeals vacating Plaintiffs sentence and remanding for resentencing was issued on September 27, 2017, Plaintiff s resentencing was not scheduled to take place in the District Court until April 24, 2018. (Filing 1, p. 6)

         4. A claimed violation of 18 U.S.C. § 4109 (right to counsel, appointment of counsel)[2] by the Douglas County Public Defender, Thomas C. Riley ("Riley"), and Assistant Public Defender, Rebecca A. McClung ("McClung"), because Plaintiffs "case [was] closed at public defender office [as of] September 27, 2017," and also against Peterson and Liss because they did not contact the District Court Judge immediately after the mandate was issued to schedule resentencing. (Filing 1, p. 7) Plaintiff alleges he personally contacted the Judge in order to obtain a hearing date.

         5. A due process claim against Frakes because "[t]he last seven months Plaintiff has been incarcerated without legal representation and without a sentence in NDCS." (Filing 1, p. 8)

         6. A claimed violation of 18 U.S.C. § 3006A (adequate representation of defendants)[3] by Riley and McClung because the "Public Defenders Office closed [Plaintiffs] case [on] September 27, 2017," before resentencing. (Filing 1, p. 9)

         7. A due process claim based on the fact that "Plaintiff [has been] held without bond or sentence since September 29, 2017 [when the mandate vacating Plaintiffs sentence was received by the District Court]." (Filing 1, p. 10)

         II. 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).

         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. JPMorsan 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 ...


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