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Gardner v. Law

United States District Court, D. Nebraska

August 10, 2018

BRYANT GARDNER, Plaintiff,
v.
RENSCH & RENSCH LAW, and JAMES R. COE, Worker's Compensation Judge; Defendants.

          MEMORANDUM AND ORDER

          RICHARD G. KOPF SENIOR UNITED STATES DISTRICT JUDGE

         Plaintiff Bryant Gardner (“Plaintiff” or “Gardner”) filed his Complaint on February 16, 2018. (Filing No. 1.) He has been given leave to proceed in forma pauperis. (Filing No. 5.) 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)(2).

         I. SUMMARY OF COMPLAINT

         Gardner brings this action against Rensch & Rensch Law (hereinafter “Rensch”), a law firm in Omaha, Nebraska, and James R. Coe, a judge on the Nebraska Worker's Compensation Court, seeking redress pursuant to 18 U.S.C. § 1346 and 42 U.S.C. §§ 1983 and 1985. (Filing No. 1 at CM/ECF pp. 2-3.) Gardner alleges violations of his due process rights arising out of Rensch's representation of Gardner in an action for workers' compensation benefits in Nebraska state court. Because Gardner's “Statement of Claim” (id. at CM/ECF pp. 6-24) is difficult to decipher, much of the following background is taken from the Nebraska Court of Appeals' opinion in Gardner v. International Paper, Destruction & Recycling, No. A-17-184 (Neb. Ct. App. Feb. 6, 2018), which Plaintiff attached to his Complaint. (Filing No. 1 at CM/ECF p. 26-32.)

         On April 16, 2009, while employed by International Paper Destruction & Recycling (“International Paper”) as a truck driver, Plaintiff was injured in an accident. Plaintiff entered into a contingent fee contract with Rensch whereby Rensch agreed to pursue Plaintiff's claim against International Paper. Through the course of that representation, Plaintiff obtained an award of workers' compensation benefits which was upheld on appeal. See Gardner v. International Paper Destr. & Recycl., 865 N.W.2d 371 (Neb. 2015).

         At some point, however, Plaintiff became unhappy with the representation. Gardner filed a motion in the workers' compensation court challenging the fee agreement, and on August 19, 2015, “the workers' compensation court entered an order in favor of Gardner, excluding an additional charge for appellate work and reforming the contract to calculate Rensch's one-third attorney fee after deduction of costs (net method) rather than before deduction of costs (gross method) as provided for in the contract.” (Filing No. 1 at CM/ECF p. 27.) Gardner also filed a professional malpractice action against Rensch in the Douglas County District Court, alleging

(1) a breach of the attorney fee contract, (2) a claim regarding Rensch's failure to file a lawsuit against a third party on behalf of Gardner, and (3) that Rensch failed to appeal the workers' compensation award.” The district court entered summary judgment in favor of Rensch, finding that the workers' compensation court had jurisdiction over the fee contract, the claim relating to Rensch's failure to file a third-party lawsuit was time-barred, and that Rensch did not breach the standard of care in not appealing the workers' compensation award. [The Nebraska Court of Appeals] summarily affirmed that decision on appeal. See Gardner v. Rensch, No. A-16-1140.

(Id. at CM/ECF pp. 27-28.)

         Gardner then filed an unsuccessful motion in the workers' compensation court to terminate Rensch as his counsel, claiming that Rensch had appropriated funds inconsistent with the fee agreement. The workers' compensation court denied the motion. On appeal, the Nebraska Court of Appeals found that the workers' compensation court did not err in refusing to find that Rensch acted in bad faith or misappropriated funds and affirmed the order of the workers' compensation court. (Id. at CM/ECF pp. 28-32.)

         Gardner now seeks relief in this court. He claims Rensch capitalized upon knowledge of Gardner's “handicap of his psychological/cognitive disorder” to construct a bad faith fee agreement and receive attorney fees from Gardner's indemnity payments, though such payments were not obtained through any service Rensch provided since Rensch failed to appeal the worker's compensation award. (Id. at CM/ECF pp. 16-22.) Gardner further claims that Rensch conspired to gain wealth from Gardner illegally and that the workers' compensation court failed to supervise Rensch or do anything to stop the violation of Gardner's civil rights. (Id. at CM/ECF p. 22.) Further, Gardner “contend[s] [Rensch] has ‘failed to provide' my person with 18 U.S code section 1346 definition of “scheme or artifice to defraud” and asserts claims of “intentional infliction of emotional distress [and] harassment, sometimes called the tort of outrage” due to Rensch subjecting Gardner “to a ‘systematic campaign' to deprive.” (Id. at CM/ECF p. 23.)

         For relief, Gardner seeks to:

(1) Have Rensch remove from all courts ligation, in other words remove for any & everything concerning Gardner. (2) Repay Gardner for cost & expense with court allowed interest, that Rensch don't have billing for. (3) Pay Rensch hourly for the submitting brief to the Supreme Court with tangible evidence to prove his worth. (4) Appoint a Court guardian to proceed with Gardner legal litigation to protect his interest. (5) Remove unlawful lien. (6) Repay out of pocket expense with court allowed interest.

(Id. at CM/ECF p. 24 (capitalization and punctuation as in original).) Gardner also asks “this higher Court [to] over-turn the decision of the district court & Workers' Comp court [f]or its abuse of discretion by allowing this error to continue.” (Id.)

         II. APPLICABLE LEGAL STANDARDS ON INITIAL REVIEW

         The court is required to review in forma pauperis complaints to determine whether summary dismissal is appropriate. See 28 U.S.C. ยง 1915(e). 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 ...


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