Mitchell v. Wagner et al

Filing 8

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 Laurie Smith Camp. (Copy mailed/e-mailed to pro se party)(GJG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
CAMERON MITCHELL,
Plaintiff,
v.
TERRY WAGNER, et al.,
Defendants.

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CASE NO. 4:11CV3213

MEMORANDUM
AND ORDER

Plaintiff filed his Complaint in this matter on November 25, 2011. (Filing No. 1.)
Plaintiff has previously been given leave to proceed in forma pauperis. (Filing No. 7.) The
court now conducts an initial review of the Complaint to determine whether summary
dismissal is appropriate under 28 U.S.C. §§ 1915(e) and 1915A.
I.

SUMMARY OF COMPLAINT
Plaintiff filed his Complaint in this matter on November 25, 2011, against three

Lancaster County Sheriff’s office employees and Lynn R. Beideak “Beideak.” (Filing No.
1 at CM/ECF pp. 1, 4.) Beideak operates a counseling service in Lincoln, Nebraska. (Id.)
Plaintiff is currently confined in the Lancaster County Jail in Lincoln, Nebraska. (Id.)
Condensed and summarized, Plaintiff alleges that he was arrested without probable
cause. (Id. at CM/ECF pp. 1-10.) Plaintiff’s arrest occurred after Beideak called the
Lancaster County Sheriff’s office alleging that he “assaulted her, threatened to kill her, [ ]
operated a motor vehicle to avoid arrest and drove on a suspended drivers licence.” (Id.
at CM/ECF p. 5.) Plaintiff asserts that the Sheriff’s decision to arrest him was motivated
by illegal discrimination because he is black and Beideak is white. (Id. at CM/ECF p. 8.)
Plaintiff is currently in jail pending the resolution of “trumped-up criminal charges.” (Id. at
CM/ECF pp. 4-5, 7-8.)

Separately, Plaintiff states that “[t]his lawsuit will also incorporate an action pursuant
to the False Claims Act” because Beideak is “defrauding the government by submitting
claims for services to Medicaid and Medicare, that had not been rendered at the time of
such claims.” (Id. at CM/ECF p. 9.) Plaintiff seeks monetary damages in the amount of
$800,000. (Id. at CM/ECF p. 6.)
II.

APPLICABLE LEGAL STANDARDS ON INITIAL REVIEW
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 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); 28 U.S.C. § 1915A.
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, 104344 (8th Cir. 2002), (citations omitted).
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III.

DISCUSSION OF CLAIMS
A.

Claims Relating to Plaintiff’s Arrest

Claims relating to the validity of an individual’s incarceration may not be brought in
a civil rights case, regardless of the relief sought. As set forth by the Supreme Court in
Preiser v. Rodriquez, 411 U.S. 475 (1973), and Heck v. Humphrey, 512 U.S. 477 (1994),
if success on the merits of a civil rights claim would necessarily implicate the validity of a
prisoner’s conviction or continued confinement, the civil rights claim must be preceded by
a favorable outcome in habeas corpus or similar proceeding in a state or federal forum.
Absent such a favorable disposition of the charges or conviction, a plaintiff may not use 42
U.S.C. § 1983 to cast doubt on the legality of his conviction or confinement. See Heck,
512 U.S. at 486-87; see also Smith v. Holtz, 87 F.3d 108, 113 (3d Cir. 1996), (applying
Heck to a claim that would implicate the validity of a future conviction on a pending criminal
charge).
Here, Plaintiff alleges that he was arrested without probable cause. (Filing No. 1 at
CM/ECF p. 5-10.) As a result of his arrest, Plaintiff is currently in jail pending resolution of
“trumped-up criminal charges.” (Id. at CM/ECF pp. 5, 8.) As set forth above, the court
cannot address Plaintiff’s claim that he was arrested without probable cause in an action
brought pursuant to 42 U.S.C. § 1983. See Smith, 87 F.3d at 113 (applying Heck to a
claim that would implicate the validity of a future conviction on a pending criminal charge);
see also Gautreaux v. Sanders, 395 Fed. App’x 311, 312 (8th Cir. 2010), (citing Smithart
v. Towery, 79 F.3d 951, 952 (9th Cir. 1996), (per curiam) (concluding Heck barred claims
that police officers lacked probable cause for arrest and brought unfounded criminal
charges)). However, the court will dismiss Plaintiff’s claims related to his arrest without
prejudice to reassertion in a habeas corpus or similar proceeding.
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B.

False Claims Act

Liberally construed, Plaintiff also alleges a claim against Beideak pursuant to the
False Claims Act (“FCA”). (Filing No. 1 at CM/ECF p. 9.) However, a pro se plaintiff may
not file a qui tam action pursuant to the FCA. See United States v. Onan, 190 F.2d 1, 6
(8th Cir. 1951), (holding a pro se litigant may not represent the United States in a qui tam
action despite the FCA’s specific wording permitting a suit to “be brought and carried on
by any person”); see also Vt. Agency of Natural Res. v. U.S. ex rel. Stevens, 529 U.S. 765,
769 (2000), (stating an FCA action may be commenced by the federal government against
the alleged false claimant, or by a private person (the relator) who brings it “for the person
and for the United States Government” against the alleged false claimant, “in the name of
the Government”). Thus, Plaintiff’s FCA claim must also be dismissed.
IT IS THEREFORE ORDERED that:
1.

Plaintiff’s Complaint (Filing No. 1) is dismissed without prejudice; and

2.

A separate judgment will be entered in accordance with this Memorandum
and Order.

DATED this 12th day of January, 2012.
BY THE COURT:

s/Laurie Smith Camp
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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