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Robinson v. Eatherton

United States District Court, D. Nebraska

August 6, 2019

KIRK D. ROBINSON, Plaintiff,
SHAWN EATHERTON, Buffalo County Attorney; PATRICK LEE, Buffalo County Attorney; KARI FISK, Buffalo County Attorney; MIKE MEFFOR, Buffalo County Attorney; NIEL MILLER, Buffalo County Sheriff's Office; CHAD HUNT, Buffalo County Jail Lt.; BRANDON BRUEGGEMANN, Buffalo County Sheriff Investigator; GERALD JORGENSEN, Judge; RYAN CARSON, Judge; STEPHEN POTTER, Attorney; and NANCY S. FREBERG, Attorney; Defendants.


          Richard G. Kopf Senior United States District Judge

         Plaintiff filed a Complaint on June 27, 2019. (Filing No. 1.) He has been given leave to proceed in forma pauperis. (Filing No. 6.) 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. In conducting this review, the court will also consider Plaintiff's supplemental filings and motions to amend filed after his Complaint. (Filing Nos. 7, 13, 14, 16, 17, 18, 23, & 24.)


         Plaintiff is an inmate currently incarcerated at the Diagnostic and Evaluation Center (“DEC”) in Lincoln, Nebraska. (See Filing No. 19.) He filed the present action while he was confined in the Buffalo County Jail and named eleven Defendants in his Complaint: Buffalo County Attorneys Shawn Eatherton, Patrick Lee, Kari Fisk, and Mike Mefford[1]; Buffalo County Sheriff Niel Miller and Investigator Brandon Brueggemann; Buffalo County Jail Lieutenant Chad Hunt; Judge Gerald Jorgensen; Judge Ryan Carson; and attorneys Stephen Potter and Nancy S. Freberg. (Filing No. 1 at CM/ECF pp. 1-2.) Broadly stated, Plaintiff asserts claims related to his pending state criminal proceedings in the District Court of Buffalo County, Nebraska, and related to the conditions of his confinement in the Buffalo County Jail.

         Plaintiff alleges he was arrested on November 20, 2018, for several charges, including firearms charges. Investigator Brueggemann searched Plaintiff's property following his arrest and found no weapons, but Brueggemann then proceeded to recover Plaintiff's firearms from another individual to whom Plaintiff had given his firearms for safekeeping. Plaintiff alleges Brueggemann violated his Fourth Amendment rights by illegally seizing items that were not on Plaintiff's property at the time of the search. (Id. at CM/ECF pp. 6, 10-11.)

         Following his arrest, Plaintiff was incarcerated in the Buffalo County Jail and alleges the Buffalo County Attorneys and Judge Jorgensen violated his Eighth Amendment “right to not be subject to excessive bail and cruel and unusual punishment by setting then keeping a prohibitively high bond and additionally enforcing civil contempt” for Plaintiff's refusal to provide the prosecution his iPhone passcode to access his mobile phone. (Id. at CM/ECF pp. 6-7, 11.) Plaintiff further asserts that “compelling access to his cell phone” violates his Fifth Amendment right against self-incrimination and the prosecution is violating his Second Amendment rights “by trying to force a felony on his record.” (Id. at CM/ECF pp. 10-11.)

         With respect to Plaintiff's claims regarding his conditions of confinement, he alleges Buffalo County is violating his First Amendment right to free speech by recording all his conversations. (Id. at CM/ECF pp. 6, 10.) Plaintiff also complains of excessive noise and extremely loud door slamming within the Buffalo County Jail contrary to the “acoustics policy in Ch. 15, Section 006, Subsection 006.03” of the Nebraska Jail Standards. (Id. at CM/ECF pp. 8-9; Filing No. 7.) As a result of the noise, Plaintiff alleges his hearing has been damaged and he has developed tinnitus. (Filing No. 1 at CM/ECF p. 9; Filing No. 7.) Plaintiff further complains about the complete lack of outdoor exercise and no outdoor recreation area at the jail. (Filing No. 7.)

         As relief, Plaintiff seeks monetary damages[2] for pain and suffering, severe stress, mental anguish, physical harm, inadequate medical care, inadequate representation, and unethical behavior. (Filing No. 1 at CM/ECF p. 10.) Plaintiff also asks the court

to remove my bond and stipulations and remove the civil contempt. I would also like the court to dismiss all charges against me. I would like the court to award me the damages I am claiming. I would like the court to authorize any exams or evaluations I require at the defendant's expense.



         After filing his Complaint, Plaintiff filed several motions seeking to amend his Complaint to include additional civil rights violations and defendants. (Filing Nos. 13, 14, 16, 18, & 23.) Liberally construed, condensed, and summarized, Plaintiff seeks to add the following claims:

1. Deliberate indifference to Plaintiff's medical needs against Dr. Bradley Rogers, the Buffalo County Nurses, and any nurse practitioner or physician's assistant employed or used by the Buffalo County Jail (filing no. 13);
2. Complaints about conditions at the Buffalo County Jail including inadequate library and periodical materials, in addition to the excessive noise and lack of outdoor recreation time (filing no. 13);
3. A First Amendment claim against the Buffalo County Jail for denying Plaintiff the opportunity to attend bible study on July 10, 2019, at its scheduled time and, instead, offering Plaintiff time to see the pastor after Plaintiff filed a grievance (filing no. 16);
4. A legal access claim against the Buffalo County Jail for impeding Plaintiff's efforts to represent himself pro se (filing no. 16);
5. A Sixth Amendment claim against attorneys Chavez Shaw and Stephen Potter for poor legal representation and for lying to Plaintiff regarding the meaning of certain motions filed in Plaintiff's state criminal case (filing no. 16);
6. A due process claim against attorney Lorilea Frank, the plaintiff's estranged wife's divorce attorney (filing no. 14);
7. A due process claim against the State of Nebraska, Governor Pete Ricketts, and the Nebraska Attorney General because the “Buffalo County Judicial system is trying to keep District Judges from recusing themselves by claiming judicial immunity” in Plaintiff's divorce case and “is moving his cases around in an attempt to keep him from having a fair hearing” (filing no. 18); and
8. What is construed as a due process claim against Buffalo County District Court Judge John Marsh for not remaining recused from Plaintiff's divorce case (filing no. 23).


         The 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. § 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.” Topchian, 760 F.3d at 849 (internal quotation marks and citations omitted).

         Liberally 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 Cir. 1993).

         IV. ...

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