United States District Court, D. Nebraska
JUSTIN L. WARE, Plaintiff,
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.
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.
SUMMARY OF COMPLAINT
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”),
the Buffalo County Jail alleging due process, equal
protection, and double jeopardy violations.
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
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.)
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.)
APPLICABLE LEGAL STANDARDS ON INITIAL REVIEW
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).
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.”).
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).
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).
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