United States District Court, D. Nebraska
MEMORANDUM AND ORDER
Richard G. Kopf Senior United States District Judge
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.
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
SUMMARY OF AMENDED COMPLAINT
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).
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).
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).
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).
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. §
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 ...