United States District Court, D. Nebraska
MODESTO A. COVARRUBIAS, Plaintiff,
THE UNITED STATES DISTRIC COURT FOR THE DISTRIC OF NEBRASKA, Defendant.
MEMORANDUM AND ORDER
Richard G. Kopf, Senior United States District Judge.
filed a Complaint on June 21, 2018. (Filing No. 1.)
He has been given leave to proceed in forma
pauperis. (Filing No. 7.) 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) and 1915A.
SUMMARY OF COMPLAINT
is an inmate currently confined at the Omaha Correctional
Center in Omaha, Nebraska. Plaintiff sues the United States
District Court for the District of Nebraska
(hereinafter “the Court”) seeking damages for an
allegedly excessive sentence Plaintiff received in August
2013. Plaintiff alleges he received a sentence of 3 to 5
years for defacing a firearm when “the g[u]ide line
Section 708 Swiss Confederation Coat of arm states that for
deface Chapter 33-Emblems, Insignia and Names the maximum
[is] 1 year or $1000 fine.” (Filing No. 1 at CM/ECF
search of Nebraska state court records, available to this
court through the Nebraska Judicial Branch's JUSTICE
website, reveals that Plaintiff is referring to a case in the
Lancaster County District Court of Nebraska in which he was
sentenced to 3 to 5 years' imprisonment after he pleaded
no contest to the sole charge of possession of a defaced
firearm arising out an offense on August 17, 2013. The court
takes judicial notice of the state court records related to
this case in State v. Modesto A. Covarrubias, Case
No. CR13-1293, District Court of Lancaster County, Nebraska.
See Stutzka v. McCarville, 420 F.3d 757,
760 n.2 (8th Cir. 2005) (court may take judicial notice of
judicial opinions and public records).
relief, Plaintiff seeks $8, 000, 000.00 in damages.
APPLICABLE 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. § 1915(e)(2)(B); 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 here alleges federal constitutional
claims. To state a claim under 42 U.S.C. §
1983, a plaintiff must allege a violation of rights
protected by the United States Constitution or created by
federal statute and also must show that the alleged
deprivation was caused by conduct of a person acting under
color of state law. West v. Atkins, 487 U.S. 42, 48
(1988); Buckley v. Barlow, 997 F.2d 494, 495 (8th
Complaint seeking damages based on his allegedly excessive
criminal sentence must be dismissed because (1) this action
cannot proceed against the Court and (2) Plaintiff's
claims are barred by Heck v. Humphrey, 512 U.S. 477
the Court is a federal governmental entity.
“‘[S]overeign immunity shields the Federal
Government and its agencies from suit.'” Mader
v. U.S.,654 F.3d 794, 797 (8th Cir. 2011) (quoting