United States District Court, D. Nebraska
JOSEPH J. BUTTERCASE, Plaintiff,
RICHARD G. KOPF, United States District Court Judge; and ERIN E. TANGEMAN, Assistant State of Nebraska Attorney General; Defendants.
MEMORANDUM AND ORDER
SMITH CAMP, SENIOR UNITED STATES DISTRICT JUDGE
Joseph J. Buttercase (“Buttercase” or
“Plaintiff”), a pro se prisoner litigant, filed a
Complaint on May 9, 2019, ECF No. 1, which was
originally assigned to the Honorable Richard G. Kopf
(“Judge Kopf”) as the supervising pro se judge.
On May 13, 2019, Judge Kopf recused himself since he is named
as a defendant and the matter was reassigned to the
undersigned. ECF No. 6; ECF No. 7.
Buttercase has been given leave to proceed in forma pauperis.
ECF No. 9. The Court now conducts an initial review
of Buttercase's Complaint to determine whether summary
dismissal is appropriate under 28 U.S.C. §§ 1915(e)
brings this action pursuant to 42 U.S.C. §§ 1983
and 1985 and Bivens v. Six Unknown Named Agents of the
Federal Bureau of Narcotics, 403 U.S. 388 (1971),
against Judge Kopf and Assistant Nebraska Attorney General
Erin E. Tangeman (“Tangeman”) (collectively
“Defendants”) in their individual capacities.
Buttercase alleges Defendants have violated his civil rights
under the First, Fourth, Fifth, Sixth, Eighth, and Fourteenth
Amendments to the United States Constitution. ECF No.
1, Page ID 1-2.
alleges he “was unconstitutionally arrested,
maliciously prosecuted, and wrongfully convicted and
imprisoned for the physical and sexual assault, along with
various other false charges, of his ex-girlfriend . . . on
July 16, 2011, which he did not commit.” ECF No.
1, Page ID 1. Buttercase was convicted in the District
Court of Gage County, Nebraska, and sentenced on December 4,
2012, to 26 years 8 months to 41 years in prison. His
conviction was upheld on direct appeal, and he was later
denied state postconviction relief. On March 26, 2018,
Buttercase filed a Petition for Writ of Habeas Corpus in this
Court-No. 8:18cv131-challenging his conviction. Judge Kopf
presides over the habeas action and Tangeman is counsel of
record for the respondent.
March 29 and April 26, 2018, Buttercase moved for a stay and
abeyance of the federal habeas corpus proceedings due to his
pending state court motions for a new trial and DNA testing
which he filed on July 14, 2017, in the District Court of
Gage County, Nebraska. Buttercase alleges “[Judge] Kopf
and Tangeman, together without jurisdiction, denied
[Buttercase's] motions to stay on September 18, 2018, and
ordered the State to answer the petition even though this
Court is in the clear absence of all jurisdiction due to the
pending and ongoing state court proceedings.” ECF
No. 1, Page ID 5. Due to the denial of his motions for
stay and abeyance, Buttercase moved to dismiss his habeas
petition without prejudice on April 4, 2019. Again,
Buttercase asserts that Judge Kopf and Tangeman
“conspired and colluded” together to deny his
motion to dismiss and that they “are unlawfully
conspiring to force the federal habeas corpus proceedings
forward to deny Plaintiff's habeas corpus claims with
prejudice and collaterally estop his ongoing state court
proceedings and violate his constitutional rights.”
ECF No. 1, Page ID 7.
Buttercase alleges Tangeman “unlawfully solicited,
fabricated, and manufactured evidence, and withheld material
exculpatory evidence without jurisdiction in her Answer and
Respondent's Brief on March 6, 2019, ” and is
“filing . . . false pleadings to deceive this Court for
the purpose of unfair adjudication of the Plaintiff's
federal habeas corpus claims and deprivation of
Plaintiff's federal constitutional rights.” ECF
No. 1, Page ID 6-7.
relief, Buttercase seeks a declaration that Defendants'
conduct violates his constitutional rights, and a preliminary
and permanent injunction enjoining Defendants from subjecting
him to such unconstitutional conduct and from presiding or
participating in his federal habeas corpus or state court
proceedings. Buttercase also requests an award of
compensatory and punitive damages.
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).
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). “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.”
Barton v. Taber, 820 F.3d 958, 964 (8th Cir. 2016)
(quoting Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009)). “Threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do
not suffice.” Iqbal, 556 U.S. at 678. The
complaint's factual allegations must be “sufficient
‘to raise a right to relief above the speculative
level.'” McDonough v. Anoka Cty., 799 F.3d
931, 946 (8th Cir. 2015) (quoting Twombly, 550 U.S.
at 555). The Court must accept factual allegations as true,
but it is not required to accept any “legal conclusion
couched as a factual allegation.” Brown v. Green
Tree Servicing LLC, 820 F.3d 371, 373 (8th Cir. 2016)
(quoting Iqbal, 556 U.S. at 678). Thus, “[a]
pleading that offers ‘labels and conclusions' or
‘a formulaic recitation of the elements of a cause of
action will not do.'” Ash v. Anderson
Merchandisers, LLC, 799 F.3d 957, 960 (8th Cir. 2015)
(quoting Iqbal, 556 U.S. at 678), cert.
denied, 136 S.Ct. 804 (2016).
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 ...