United States District Court, D. Nebraska
WILLIAM L. DEUERLEIN, Plaintiff,
NEBRASKA CPS, DANA D. SEARS, NATALIE G. NELSEN, KIRK KAPPERMAN, ANNE PAINE, DANA DEVRIES GELLERMAN, KEVIN URBOM, BOB ROGERS, and DAELENE ROGERS, Defendants.
MEMORANDUM AND ORDER
RICHARD G. KOPF SENIOR UNITED STATES DISTRICT JUDGE
filed his Complaint on November 1, 2018. (Filing No.
1.) He has been given leave to proceed in forma
pauperis. (Filing No. 5.) The court now conducts an
initial review of Plaintiff's Complaint to determine
whether summary dismissal is appropriate under 28 U.S.C.
SUMMARY OF COMPLAINT
sues the State of Nebraska Child Protective Services
(“CPS”), state and county officials, his
attorney, and others involved in the judicial proceedings
leading to the termination of Plaintiff's parental
rights. Plaintiff alleges he was accused of abuse and his
three children were seized from him on July 12, 2008,
“when there was no course to do so.” (Filing
No. 1 at CM/ECF pp. 4, 9.) On December 15,
2009, Plaintiff alleges Defendant Natalie G. Nelsen
(“Nelsen”), the guardian ad litem, filed a
petition for the termination of Plaintiff's parental
rights, and his rights were ultimately terminated on June 21,
2010, by Defendant Judge Anne Paine (“Judge
Paine”). (Id. at CM/ECF p. 9.)
alleges that on September 15, 2018, he learned that his
ex-wife (the mother of his children) and her family were
friends with Defendants Bob and Daelene Rogers (“the
Rogers”), the foster parents for Plaintiff's
children, and that Defendants Dana D. Sears
(“Sears”), Nelsen, Judge Paine, and
Plaintiff's attorney, Kevin Urbom (“Urbom”),
were all somehow personally tied to the Rogers. (Id. at
CM/ECF pp. 9-10.) Plaintiff alleges the Defendants
conspired to remove Plaintiff's children from him and
award custody to the Rogers. (Id.) For relief,
Plaintiff asks the court “to reinstate parental right
and custody to my minor children as well as damages allowed
to the max.” (Id. at CM/ECF p. 4.)
attached various documents to his Complaint in support of his
allegations including court documents, treatment records, and
other records related to the proceedings involving the care
and custody of his children. (See Id. at CM/ECF pp.
16-76.) Within those documents are two records-a partial
copy of the state court order terminating Plaintiff's
parental rights and a letter from Urbom to the Nebraska
Counsel of Discipline-that bear a CM/ECF header from a prior
case filed by Plaintiff in this court. (Id. at CM/ECF pp.
55-56, 59-61.) Taking judicial notice of its
own files,  the court notes that Plaintiff has filed
two previous actions challenging the state court proceedings
related to the termination of his parental rights. See
Deuerlein v. Nebraska DHHS, No. 4:11CV3065 (D. Neb.)
(Filing No. 20, August 17, 2011 Memorandum and Order
granting Defendant's motion to dismiss and dismissing
action without prejudice pursuant to the Younger
abstention doctrine); Deuerlein v. State of Nebraska et
al., No. 8:15CV14 (D. Neb.) (Filing No. 8,
April 10, 2015 Memorandum and Order dismissing
Plaintiff's 42 U.S.C. § 1983 action with prejudice).
APPLICABLE LEGAL STANDARDS ON INITIAL REVIEW
court is required to review in forma pauperis complaints to
determine whether summary dismissal is appropriate.
See 28 U.S.C. § 1915(e). 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 are held to a
lesser pleading standard than other parties.”
Topchian, 760 F.3d at 849 (internal quotation marks
and citations omitted).
construed, Plaintiff alleges Defendants conspired to
wrongfully deprive him of his children in violation of his
Fourteenth Amendment due process rights and 18 U.S.C. §
371. For the reasons discussed below, the court concludes
Plaintiff's Complaint must be dismissed.
No. Private Right of Action under 18 U.S.C.
initial matter, Plaintiff's reliance on 18 U.S.C. §
371 as a basis for this court's federal question
jurisdiction is misplaced. (SeeFiling No. 1 at CM/ECF p.
3.) Section 371 makes it a crime for two or more persons
to conspire to commit an offense against or to defraud the
United States. 18 U.S.C. § 371. There is no private
right of action under this section. Navarro v.
Emery, No. CV 16-5033-JLV, 2017 WL 3738534, at *5
(D.S.D. Aug. 30, 2017) (citing Lamont v. Haig, 539
F.Supp. 552, 558 (D.S.D. 1982)). To the extent Plaintiff
purports to assert claims based on 18 U.S.C. § 371,
those claims are dismissed.
Issue Preclusion and Jurisdiction
court finds that Plaintiff's action is precluded because
the issue of the court's subject matter jurisdiction over
Plaintiff's claims related to the judicial proceedings
terminating his parental rights has been finally determined.
“The preclusive effect of a judgment is defined by
claim preclusion and issue preclusion, which are collectively
referred to as ‘res judicata.'” Taylor v.
Sturgell, 553 U.S. 880, 892 (2008). “The
principles of res judicata apply to questions of
jurisdiction as well as to other issues.” Sandy
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