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Buttercase v. Kopf

United States District Court, D. Nebraska

November 21, 2019

RICHARD G. KOPF, United States District Court Judge; and ERIN E. TANGEMAN, Assistant State of Nebraska Attorney General; Defendants.



         Plaintiff 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) and 1915A.


         Buttercase 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.

         Buttercase 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[1]-challenging his conviction. Judge Kopf presides over the habeas action and Tangeman is counsel of record for the respondent.

         On 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.

         Additionally, 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.

         As 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.


         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). “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).

         “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 ...

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