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Campbell v. Nebraska Court of Appeals

United States District Court, D. Nebraska

June 4, 2019

HERBERT L. CAMPBELL, Plaintiff,
v.
NEBRASKA COURT OF APPEALS, et al., Defendants.

          MEMORANDUM AND ORDER

          Richard G. Kopf, Senior United States District Judge.

         Plaintiff, Herbert L. Campbell, an inmate at the Tecumseh State Correctional Institute in Tecumseh, Nebraska, filed his Complaint (Filing 1) on March 28, 2019. Plaintiff was granted leave to proceed in forma pauperis on April 22, 2019 (Filing 10), and he paid the required initial partial filing fee on May 13, 2019. 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's Complaint states he brings this action pursuant to 42 U.S.C. § 1983.[1]Plaintiff claims that the sentences he is presently serving, which were imposed by the District Court of Lancaster County, Nebraska, in 2002, are void, and that he was denied due process, because no judgment of conviction was entered in accordance with law. Plaintiff demands a trial by jury and requests an award of damages and unspecified injunctive relief.

         II. LEGAL STANDARDS ON INITIAL REVIEW

         The court is required to “review, before docketing, if feasible or, in any event, as soon as practicable after docketing, a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity.” 28 U.S.C.A. § 1915A(a). On such initial review, the court must dismiss the complaint if it: “(1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant who is immune from such relief.” 28 U.S.C.A. § 1915A(b). See also 28 U.S.C. § 1915(e)(2)(B) (requiring dismissal of in forma pauperis complaints “at any time” on the same grounds as § 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.” Id., at 849 (internal quotation marks and citations omitted).

         III. DISCUSSION OF CLAIM

         The United States Supreme Court has held that a prisoner in state custody cannot use a § 1983 action to challenge “the fact or duration of his confinement.” Preiser v. Rodriguez, 411 U.S. 475, 489 (1973); see also Wolff v. McDonnell, 418 U.S. 539, 554 (1974); Heck v. Humphrey, 512 U.S. 477, 481 (1994); Edwards v. Balisok, 520 U.S. 641, 648 (1997). “He must seek federal habeas corpus relief (or appropriate state relief) instead.[2] Wilkinson v. Dotson, 544 U.S. 74, 78 (2005). This line of cases establishes that “a state prisoner's § 1983 action is barred (absent prior invalidation)-no matter the relief sought (damages or equitable relief), no matter the target of the prisoner's suit (state conduct leading to conviction or internal prison proceedings)-if success in that action would necessarily demonstrate the invalidity of confinement or its duration.” Id. at 81-82 (emphasis in original). A § 1983 action cannot be maintained until “the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such a determination, or called into question by a federal court's issuance of a writ of habeas corpus.” Heck, 512 U.S. at 486-87. Because Plaintiff's convictions have not been set aside or otherwise held invalid, no cognizable claim is stated under § 1983 and this action must be dismissed for failure to state a claim upon which relief may be granted. See Robinson v. Lancaster Cty. Court, No. 8:18CV111, 2019 WL 1208812, at *3 (D. Neb. Mar. 14, 2019).

         IV. THREE STRIKES

         The Prison Litigation Reform Act (“PLRA”) provides that a prisoner cannot “bring a civil action or appeal a judgment in a civil action or proceeding [in forma pauperis] if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.” 28 U.S.C. § 1915(g). Thus, the dismissal of the present action for failure to state a claim upon which relief may be granted will constitute one “strike” for purposes of the PLRA. See Stewart v. Steenbock, No. 8:16CV519, 2017 WL 963182, at *1 n. 2 (D. Neb. Mar. 10, 2017); In re Jones, 652 F.3d 36, 38-39 (D.C. Cir. 2011) (dismissal based on Heck is a failure to state a claim under § 1915(g) and constitutes a strike under PLRA); Smith v. Veterans Admin., 636 F.3d 1306, 1312 (10th Cir. 2011) (dismissal under Heck is for failure to state a claim; the fact that the court provided additional reasons for dismissal of some parties did not prevent the dismissal from being counted as a strike); Schafer v. Moore, 46 F.3d 43, 45 (8th Cir. 1995) (complaint dismissed under Heck properly dismissed for failure to state a claim).

         Taking judicial notice of its own files, the court finds that Plaintiff has at least two prior qualifying dismissals (or “strikes”).[3] In No. 4:02CV3224, Herbert L. Campbell v. Lancaster County Police Department, et al., the defendants' Rule 12(b)(6) motion to dismiss was granted and the action was dismissed without prejudice as Hicks-barred on February 20, 2004; no appeal was taken. In No. 4:12CV3193, Herbert L. Campbell v. State of Nebraska, et al., the action was dismissed without prejudice on initial review, as Hicks-barred, on September 21, 2012; no appeal was taken. This means that ...


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