United States District Court, D. Nebraska
MEMORANDUM AND ORDER
RICHARD G. KOPF SENIOR UNITED STATES DISTRICT JUDGE
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).
SUMMARY OF COMPLAINT
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.)
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).
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.
(Id. at CM/ECF pp. 27-28.)
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.
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.)
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.)
APPLICABLE LEGAL STANDARDS ON INITIAL REVIEW
court is required to review in forma pauperis complaints to
determine whether summary dismissal is appropriate.
See 28 U.S.C. § 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 ...