United States District Court, D. Nebraska
HERBERT L. CAMPBELL, Plaintiff,
NEBRASKA COURT OF APPEALS, et al., Defendants.
MEMORANDUM AND ORDER
Richard G. Kopf, Senior United States District Judge.
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.
SUMMARY OF COMPLAINT
Complaint states he brings this action pursuant to 42 U.S.C.
§ 1983.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
LEGAL STANDARDS ON INITIAL REVIEW
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)).
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.”
Id., at 849 (internal quotation marks and citations
DISCUSSION OF CLAIM
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. 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).
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
judicial notice of its own files, the court finds that
Plaintiff has at least two prior qualifying dismissals (or
“strikes”). 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