United States District Court, D. Nebraska
MEMORANDUM AND ORDER
RICHARD G. KOPF, SENIOR UNITED STATES DISTRICT JUDGE
who appears pro se, filed his Complaint on June 19, 2019.
(Filing 1) He has been given leave to proceed in forma
pauperis. (Filing 5) 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).
SUMMARY OF COMPLAINT
seeks to recover damages for being named as a defendant in a
civil action, State of Nebraska and Comm'n on
Unauthorized Practice of Law, ex rel Peterson v. Tyler,
No. CI 15-6725, District Court of Douglas County, Nebraska,
which was dismissed on March 30, 2018, after the district
court determined that the Nebraska Supreme Court has
exclusive jurisdiction to issue injunctions for the
unauthorized practice of law. Plaintiff claims his
constitutional rights were violated.
STANDARDS ON INITIAL REVIEW
court is required to review in forma pauperis complaints to
determine whether summary dismissal is appropriate. 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).
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).
construing Plaintiff's Complaint, this is an action
brought under 42 U.S.C. § 1983. To state a claim under
§ 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
alleges: “We want $100, 000, 000 for the violation of
our constitutional rights in Ci156725 where state assistant
attorney generals ... charged us with illegal practice of law
which charge [was] thrown out by judge ....” (Filing 1,
p. 1) In essence, Plaintiff is asserting a claim for
malicious prosecution. See, e.g., Prokop v. Hoch,
607 N.W.2d 535, 540 (Neb. 2000) (“In a malicious
prosecution case, the necessary elements for the plaintiff to
establish are (1) the commencement or prosecution of the
proceeding against him or her; (2) its legal causation by the
present defendant; (3) its bona fide termination in favor of
the present plaintiff; (4) the absence of probable cause for
such proceeding; (5) the presence of malice therein; and (6)
damage, conforming to legal standards, resulting to the
is well established in this circuit that ‘[a]n action
for malicious prosecution by itself is not punishable under
§ 1983 because it does not allege a constitutional
injury.'” Pace v. City of Des Moines, 201
F.3d 1050, 1055 (8th Cir. 2000) (quoting Sanders v.
Sears, Roebuck & Co., 984 F.2d 972, 977 (8th
Cir.1993)). “[M]alicious prosecution can form the basis
of a § 1983 suit only if defendant's conduct also
infringes some provision of the Constitution or federal
law.” Sanders, 984 F.2d at 977.
allegation that his constitutional rights were violated is a
legal conclusion, unsupported by any facts. This is
insufficient to state a viable claim for relief under §
1983. See Iqbal, 556 U.S. at 679 (“While legal
conclusions can provide the framework of a complaint, they
must be supported by factual allegations.”).
1983 only provides a cause of action against a
“person” who, acting under the color of state
law, deprives another of his or her federal constitutional or
statutory rights. See Will v. Mich. Dep't of State
Police, 491 U.S. 58, 71 (1989). “[N]either a State
nor its officials acting in their official capacities are
‘persons' under § 1983.” Id. In
addition, the Eleventh Amendment bars claims for damages that
are brought in federal court by private parties against a
state, a state instrumentality, or a state employee who is
sued in his or her official ...