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Ware v. State

United States District Court, D. Nebraska

October 25, 2018

JUSTIN L. WARE, Plaintiff,
v.
STATE OF NEBRASKA, Buffalo County; WILLIAM T. WRIGHT, Judge; KARI FISK, Deputy Attorney; and BUFFALO COUNTY JAIL, Defendants.

          MEMORANDUM AND ORDER

          Richard G. Kopf Senior United States District Judge.

         Plaintiff filed a Complaint on April 2, 2018. (Filing No. 1.) He has been given leave to proceed in forma pauperis. (Filing No. 7.) 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 currently confined at the Buffalo County Jail. He brings this action pursuant to 42 U.S.C. § 1983 against the State of Nebraska, Buffalo County, Judge William T. Wright (“Judge Wright”), Buffalo County Deputy County Attorney Kari Fisk (“Fisk”), Buffalo County Public Defender Jeffrey Ensz (“Ensz”), [1] and the Buffalo County Jail alleging due process, equal protection, and double jeopardy violations.

         Plaintiff alleges he was sentenced on March 9, 2018, in Case Number CR16-182 by Judge Wright to 48 months' incarceration or “4 months each consecutive [for] 12 counts of criminal nonsupport which was originally one charge.” (Filing No. 1 at CM/ECF p. 6.) Plaintiff alleges the original charge was reduced from one felony non-support to a misdemeanor, ” but Plaintiff did not agree to any plea deal since it was his first criminal non-support case. (Id.) Plaintiff's state court records, available to this court online, confirm that Plaintiff was sentenced on March 9, 2018, as he alleges. Plaintiff appealed his conviction and sentence to the Nebraska Court of Appeals which summarily affirmed the judgment on September 6, 2018, and issued its mandate on October 10, 2018. I take judicial notice of the state court records related to this case in State v. Ware, Case No. CR16-182, District Court of Buffalo County, Nebraska, and in Nebraska Court of Appeals Case No. A-18-371. See Stutzka v. McCarville, 420 F.3d 757, 760 n.2 (8th Cir. 2005) (court may take judicial notice of judicial opinions and public records).

         Plaintiff complains that he was not provided “any purge deal or a true chance” to comply with his child support obligations which were imposed on him while he was confined at Buffalo County Jail. (Filing No. 1 at CM/ECF p. 6.) Plaintiff alleges “Judge Wright took the law into his own hands, ” declared Plaintiff a “violent” person who “should go to prison, ” and relied on Plaintiff's past convictions and an open case Plaintiff has in Hall County, Nebraska, in sentencing him. (Id.) In addition, Plaintiff claims Judge Wright, Fisk, and Ensz, had a “wayward kinship” that “appeared very unprofessional, ” and they discriminated against Plaintiff on account of his race. (Id. at CM/ECF pp. 4, 6.)

         For relief, Plaintiff seeks $150, 000.00 in damages and asks the court “to release [him] from Buffalo County [and] [d]ismiss the case [he's] been convicted of.” (Id. at CM/ECF p. 5.)

         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 sues the State of Nebraska, Buffalo County, the Buffalo County Jail, Judge Wright, Fisk, and Ensz for due process, equal protection, and double jeopardy violations. Because Plaintiff does not specify in what capacity Judge Wright, Fisk, and Ensz are being sued, the court must assume they are sued in their official capacities. SeeAlexander v. Hedback, 718 F.3d 762, 766 n.4 (8th Cir. 2013) (“‘This court has held that, in order to sue a public official in his or her individual capacity, a plaintiff must expressly and unambiguously state so in the pleadings, otherwise, it will be assumed that the defendant is sued only in his or her official ...


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