Jones v. Dobrovolny

Filing 7

MEMORANDUM AND ORDER - After initial review, 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/e-mailed to pro se party)(JAB)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
WAYA TSALAGI JONES,
Plaintiff,
v.
LEO DOBROVOLNY,
Defendant.

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4:11CV3123

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 on July 25, 2011, against Leo Dobrovolny, an
attorney who currently resides in Alliance, Nebraska. (Filing No. 1 at CM/ECF p. 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 represented Bret
Tschacher in 1981 and then prosecuted Tschacher in 2000.1 (Id. at CM/ECF p. 3.)
Plaintiff, who is Tschacher’s wife, argues that it is unlawful for a prosecuting attorney
to prosecute a former client. (Id.) Plaintiff asks the court to “restore” Bret

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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.)

Tschacher’s rights and to order restitution for “11 years of . . . lies.” (Id. at CM/ECF
p. 6.)
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).
A pro se plaintiff 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
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
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or interests and not “the legal rights or interests of third parties.” Warth v. Seldin, 422
U.S. 490, 498-99 (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).
Although it is unclear, Plaintiff appears to assert an attorney malpractice claim
against Defendant on her husband’s behalf. Alternatively, she may be 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 nonattorney 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

*This opinion may contain hyperlinks to other documents or Web sites. The U.S. District Court for
the District 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 Web sites. The court accepts no responsibility for the availability or functionality of any
hyperlink. Thus, the fact that a hyperlink ceases to work or directs the user to some other site does not affect
the opinion of the court.

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