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Epp v. Frakes

United States District Court, D. Nebraska

December 7, 2018

WILLIAM EPP, Plaintiff,


          Richard G. Kopf Senior United States District Judge

         Plaintiff, William Epp (“Epp”), an inmate at the Tecumseh State Correctional Center, filed his Complaint (Filing 1) on September 6, 2018. In a Memorandum and Order (Filing 8) entered on November 5, 2018, the court found on initial review that the claims alleged by Epp in his Complaint were improperly joined because they were asserted against completely different Defendants and concerned unrelated transactions or occurrences. See Fed. R. Civ. P. 20(a)(2). Epp was given 30 days in which to file an Amended Complaint to correct this pleading defect.

         Epp filed an Amended Complaint (Filing 9) on November 19, 2018. The court now conducts an initial review of the Amended Complaint to determine whether summary dismissal is appropriate under 28 U.S.C. §§ 1915(e)(2) and 1915A.


         Epp's Amended Complaint is brought only against Defendant Doug Petersen, the Nebraska Attorney General, who is sued in his individual and official capacities. Epp seeks only declaratory and injunctive relief. He requests the court to declare that “Neb. Rev. Stat. § 25-1233 et seq. is unconstitutional on its face and as-applied, because it violates the Equal Protection Clause of the Fourteenth Amendment, ” and to enjoin Defendant “from continuing to enforce 25-1233” (Filing 9, pp. 4-5).

         The challenged statute, although part of Nebraska's code of civil procedure, also applies to criminal cases. See Rains v. State, 114 N.W.2d 399, 405 (Neb. 1962); see also State v. Stott, 503 N.W.2d 822, 830-33 (Neb. 1993) (holding § 25-1233 does not violate compulsory process clauses of Sixth Amendment to U.S. Constitution and Article I, § 11, of Nebraska Constitution), disapproved on other grounds by State v. Johnson, 589 N.W.2d 108 (Neb. 1999). The statute provides in relevant part:

A person confined in any prison in this state shall, by order of any court of record, be produced for oral examination in the county where he or she is imprisoned. In all other cases his or her examination must be by deposition.

Neb. Rev. Stat. § 25-1233(1).

         Epp claims § 25-1233 “is unconstitutional because it deprives a criminal defendant on trial in a county where a prison under the control of the Nebraska Department of Correctional Services is not located, of an opportunity to have a person subpoenaed to testify in that defendant's trial” (Filing 9, p. 4, ¶ 12). Specifically, Epp contends “[t]he fact that criminal defendants in counties in which prisons are located can obtain an order from the court in that county to produce prisoners to give testimony at trial, but criminal defendants in counties where the prison is not located cannot, violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution and Article 1, sections 3 and 11 of the Nebraska Constitution, of those prisoners charged where the prison is not located” (Filing 9, p. 4, ¶ 14).

         Epp alleges Defendant Peterson “represented the State against Epp when the constitutionality of 25-1233 was presented to the state courts” (Filing 9, p. 3, ¶ 8), and since Epp's criminal conviction “has refused to take corrective measures to have [§ 25-1233] invalidated” (Filing 9, p, 3, ¶ 7) despite having an ethical obligation as a prosecutor “to inform the appropriate authorities of after-acquired or other information that cast doubt on the correctness of the conviction (Filing 9, pp. 3-4, ¶ 10). Epp further alleges he “will seek an injunction requiring the defendant to request that said statute be invalidated, which would prospectively abate the alleged violation” (Filing 9, pp. 1-2, ¶ 4).


         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).

         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 ...

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