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Bartunek v. United States

United States District Court, D. Nebraska

August 29, 2018

GREGORY P. BARTUNEK, Plaintiff,
v.
UNITED STATES, et al., Defendants.

          MEMORANDUM AND ORDER

          Richard G. Kopf Senior United States District Judge.

         Plaintiff, Gregory P. Bartunek, a pretrial detainee at the Hall County Jail in Grand Island, Nebraska, filed his Complaint (Filing 1) on July 16, 2018. Plaintiff was granted leave to proceed in forma pauperis on August 1, 2018 (Filing 9), but paid the $350.00 filing fee on August 10, 2018.[1] 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) and 1915A.

         I. SUMMARY OF COMPLAINT

         Plaintiff brings this 42 U.S.C. § 1983 action seeking to recover damages from 29 named Defendants. Six numbered claims are alleged, which may be summarized as follows:

1. Plaintiff alleges in “Claim I” of the Complaint (Filing 1, pp. 21-25) that police searched his residence and seized computer equipment and other property on May 23, 2016, pursuant to a no-knock search warrant that was issued based on unreliable information. Plaintiff alleges that police caused property damage in conducting the search and further complains that he was interrogated by police in his home following the search. Five named Defendants are alleged to have been involved: (1) David Pecha, an Omaha police officer; (2) Sherly Lohaus, a Judge of the Douglas County Court; (3) Michelle Peters, an Omaha Deputy City Attorney; (4) Sarah Lund, a member of the Omaha Police Forensics Investigation Section; and (5) Brandon Stigge, a Papillion police officer.
2. Plaintiff asserts three distinct claims in “Claim II” of the Complaint (Filing 1, pp. 26-31):
First, Plaintiff alleges he tried unsuccessfully for several months to have the seized property returned to him, and on December 30, 2016, filed a civil lawsuit seeking damages and the return of his property.[2] Two named Defendants are alleged to have some involvement in this claim: (1) Officer Pecha and (2) Deputy City Attorney Peters.
Second, Plaintiff alleges he was indicted by a federal grand jury for possession and distribution of child pornography based on false testimony.[3] Plaintiff also alleges his constitutional rights were violated by the filing of charges in federal court rather than state court. Two named defendants are alleged to have some involvement in this claim: (1) Officer Pecha and (2) Mike Norris, an Assistant United States Attorney. Plaintiff states he was arrested by U.S. Marshals on February 16, 2017, and incarcerated in the Douglas County Department of Corrections (“DCDC”).
Third, Plaintiff complains he was denied release on bail by United States District Judge Robert Rossiter, Jr. (a named Defendant).
3. Plaintiff alleges in “Claim III” of the Complaint (Filing 1, pp. 32-39) that his constitutional rights have been violated by several named Defendants, whose actions have caused him to be detained for an extended period of time:
First, Plaintiff alleges a pretrial services report that was prepared by Julie Gust, a U.S. Probation and Pretrial Services Officer, contained incomplete and inaccurate information.
Second, Plaintiff alleges that although Magistrate Judge Susan Bazis (who is not named as a Defendant) denied the government's motion for detention and ordered Plaintiff's release on February 23, 2017, his release was delayed when the court was informed that an electronic monitoring device would not be available for 5 days; that in the interim, AUSA Norris then filed a motion for review of the order setting conditions of release; and that on February 28, 2017, Judge Rossiter revoked Judge Bazis' order despite no new evidence having been presented by AUSA Norris.
Third, Plaintiff alleges he filed a motion to reopen the detention hearing on October 18, 2017, based on significant new evidence, but Judge Rossiter denied the motion on November 8, 2017, without a hearing.
4. Plaintiff alleges in “Claim IV” of the Complaint (Filing 1, pp. 40-53) that the government has been dilatory in producing discovery materials, and that his continued detention has hindered his ability to conduct discovery and otherwise prepare for trial. Plaintiff further claims he has ...

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