Jones v. Russell
Filing
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MEMORANDUM AND ORDER - Plaintiff's Complaint (filing no. 1 ) is dismissed without prejudice. A separate Judgment will be entered in accordance with this Memorandum and Order. Ordered by Chief Judge Joseph F. Bataillon. (Copy mailed to pro se party) (AOA)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
WAYA TSALAGI JONES,
Plaintiff,
v.
STEVE RUSSELL, Court Pros. Att.,
Lincoln-Ne.,
Defendant.
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4:11CV3120
MEMORANDUM
AND ORDER
Plaintiff filed her Complaint on July 25, 2011. (Filing No. 1.) Plaintiff has
previously been given leave to proceed in forma pauperis. (Filing No. 6.) The court
now conducts an initial review of the Complaint to determine whether summary
dismissal is appropriate under 28 U.S.C. § 1915(e)(2).
I.
SUMMARY OF COMPLAINT
Plaintiff filed her Complaint against Steve Russell. (Filing No. 1.) Plaintiff
is a non-prisoner who currently resides in Hot Springs, South Dakota. (Id.; see also
Docket Sheet.)
Condensed and summarized, Plaintiff alleges that Defendant served as a
prosecutor in a jury trial in federal court in which her husband, Bret Tschacher, was
the defendant.1 (Filing No. 1 at CM/ECF p. 3.) During this trial, the judge allowed
Defendant to point a rifle around the courtroom, and also allowed him to “do or say
whatever he pleased.” (Id.) On the other hand, her husband was not allowed say
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The court takes judicial notice that Bret Tschacher was recently found
guilty of being a felon in possession of a firearm and sentenced to 21 months in
prison. (See United States v. Tschacher, Case No. 09CR3025, Filing No. 108.)
anything in his own defense. (Id.) Plaintiff also alleges that the jury refused to “see
or hear” what was taking place in the courtroom. (Id. at CM/ECF p. 4.) Finally,
Plaintiff alleges there was no justice for her husband at the trial. As relief, Plaintiff
asks the court to (1) restore her husband’s rights, (2) order restitution for eleven years,
(3) “retract all false lies and speak truth,” and (4) seal all records. (Id. at CM/ECF p.
7.)
II.
APPLICABLE LEGAL STANDARDS ON INITIAL REVIEW
The court is required to review in forma pauperis complaints to determine
whether summary dismissal is appropriate. See 28 U.S.C. § 1915(e). The court must
dismiss a complaint or any portion thereof 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).
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” for failing to state a claim upon which relief can be granted. Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 569-70 (2007); see also Ashcroft v. Iqbal, 129 S. Ct.
1937, 1950 (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.”). Regardless of whether a plaintiff is represented
or is appearing pro se, the plaintiff’s complaint must allege specific facts sufficient
to state a claim. See Martin v. Sargent, 780 F.2d 1334, 1337 (8th Cir. 1985).
However, a pro se plaintiff’s allegations must be construed liberally. Burke v. North
Dakota Dep’t of Corr. & Rehab., 294 F.3d 1043, 1043-44 (8th Cir. 2002) (citations
omitted).
III.
DISCUSSION OF CLAIMS
In order for Plaintiff to proceed with her claims, she must have standing.
Standing is a jurisdictional requirement that “can be raised by the court sua sponte at
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any time during the litigation.” Delorme v. United States, 354 F.3d 810, 815 (8th Cir.
2004). As a general rule, to establish standing a plaintiff must assert her legal rights
or interests and not “the legal rights or interests of third parties.” Warth v. Seldin, 422
U.S. 490, 499 (1975). Moreover, a non-attorney pro se litigant may not represent
someone else in federal court. See 28 U.S.C. § 1654; Iannacone v. Law, 142 F.3d
553, 558 (2d Cir. 1998) (concluding a non-attorney pro se party may not represent
another’s interests).
Here, Plaintiff is attempting to challenge her husband’s conviction. However,
as discussed above, Plaintiff may not assert the legal rights of her husband without
standing to do so. Moreover, even if Plaintiff could establish standing to litigate her
husband’s claims, she is a non-attorney pro se litigant and may not represent her
husband in this court without an attorney. Accordingly, Plaintiff’s Complaint must
be dismissed.
IT IS THEREFORE ORDERED that:
1.
Plaintiff’s Complaint (filing no. 1) is dismissed without prejudice.
2.
A separate Judgment will be entered in accordance with this
Memorandum and Order.
DATED this 6th day of October, 2011.
BY THE COURT:
s/ Joseph F. Bataillon
Chief United States District Judge
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of Nebraska does not endorse, recommend, approve, or guarantee any third parties or the services or products they
provide on their Web sites. Likewise, the court has no agreements with any of these third parties or their W eb sites. The
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