Stephenson v. Bruno et al

Filing 14

MEMORANDUM AND ORDER - Plaintiff shall have 30 days from the date of this memorandum and order to amend his complaint to clearly state a claim upon which relief may be granted against defendants. If plaintiff fails to file an amended complaint, pl aintiff's complaint will be dismissed without further notice for want of prosecution. In the event that plaintiff files an amended complaint, plaintiff shall restate the allegations of the current complaint (Filing No. 1 ), and any new alleg ations. Failure to consolidate all claims into one document may result in the abandonment of claims. The Clerk of the Court is directed to set a pro se case management deadline in this case using the following text: Check for amended complaint on S eptember 19, 2014, and dismiss if none filed. Plaintiff shall keep the Court informed of his current address at all times while this case is pending. Failure to do so may result in dismissal without further notice. Plaintiff's motion for appointment of counsel (Filing No. 9 ) is denied without prejudice to reassertion. Ordered by Senior Judge Lyle E. Strom. (Copy mailed to pro se party)(GJG, )

IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEBRASKA
ERIC D. STEPHENSON,

)
)
Plaintiff,
)
)
v.
)
)
DAVID BRUNO, et al.,
)
)
Defendants.
)
______________________________)

4:14CV3097

MEMORANDUM AND ORDER

Plaintiff Eric Stephenson (“plaintiff”) filed his
complaint in this matter on May 12, 2014 (Filing No. 1).
Plaintiff was given leave to proceed in forma pauperis (Filing
No. 8).

The Court now conducts an initial review of plaintiff’s

complaint to determine whether summary dismissal is appropriate
under 28 U.S.C. §§ 1915(e)(2) and 1915A.

Also pending is

plaintiff’s motion to appoint counsel (Filing No. 9).
I.

SUMMARY OF COMPLAINT

Plaintiff brings this action pursuant to 28 U.S.C. §
1983 alleging violations of his constitutional rights.

Plaintiff

also raises various state law claims, including claims for
negligence, libel, and defamation.
Plaintiff is incarcerated at the Omaha Correctional
Center in Omaha, Nebraska.

The Court takes judicial notice of

Nebraska Department of Correctional Services public records,
which show that plaintiff was convicted of intentional child
abuse in Lancaster County, Nebraska, and began his sentence on
November 5, 2013.

See Stutzka v. McCarville, 420 F.3d 757, 761,

n.2 (8th Cir. 2005) (court may take judicial notice of public
records).
Plaintiff names the following individuals as defendants
in this action:

David Bruno, C.J. Roberts, Lincoln Police

Department (“LPD”) Officer D. Lind, and Deputy County Attorney
Holly Parsley.1

(Filing No. 1 at CM/ECF p. 1.)

Plaintiff

alleges that in early 2012, the Department of Health and Human
Services (“DHHS”) appointed Bruno to investigate allegations that
plaintiff and his girlfriend were exposing his girlfriend’s minor
children to domestic violence and drug use, allegations that
plaintiff claims were unfounded.

(Id. at CM/ECF pp. 2-3.)

Following the birth of plaintiff’s and his girlfriend’s infant
son in September of 2012, Bruno took steps to remove the infant
from plaintiff’s care.

On October 2, 2012, Bruno visited

plaintiff’s residence and later “alleged that he smelled a strong
odor of marijuana coming from the window of the residence.”
at CM/ECF p. 3.)

(Id.

Plaintiff claims he and his girlfriend were not

inside the residence at the time.

(Id.)

Later the same day,

Bruno and several LPD officers visited plaintiff’s home.
Plaintiff informed them they did not have permission to enter the
residence.

For the next three weeks, Bruno and law enforcement

1

Plaintiff lists Jon Bruning as the sole defendant in the caption
of his motion to appoint counsel. (See Filing No. 9.) However,
Jon Bruning is never mentioned anywhere in plaintiff’s complaint
and is not named as a defendant. Therefore, the Court will
disregard plaintiff’s reference to Jon Bruning and assume
plaintiff inadvertently listed Jon Bruning in the caption of his
motion to appoint counsel.
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officers “secretly conducted surveillance on [plaintiff and his
girlfriend’s] residence, as they planned to remove the [infant
from the home].”

(Id. at CM/ECF pp. 3-4.)

On October 30, 2012, the Juvenile Court of Lancaster
County, Nebraska, placed plaintiff’s infant son and his
girlfriend’s minor children in the custody of DHHS.
CM/ECF p. 4.)

(Id. at

Bruno and LPD officers went to plaintiff’s

residence to take physical custody of the children, but plaintiff
and his girlfriend were not home.

Plaintiff alleges he and his

girlfriend had taken the infant and “relocate[d] to a local motel
in Lincoln to avoid the lack of privacy at their home.”

(Id.)

Plaintiff claims he was unaware of the custody order that had
been entered in the juvenile court.

(Id. at CM/ECF p. 5.)

Thereafter, LPD officers learned that plaintiff, his girlfriend,
and the infant were staying in the motel.

(Id.)

On November 2, 2012, LPD officers secured a warrant and
then forced their way into plaintiff’s motel room.

As the

officers were forcing their way into the room, “Plaintiff froze,
holding his [infant son] near him by the door” and then “ran into
the bathroom trying to protect his [son] from being harmed.”
(Id. at CM/ECF p. 5.)

A “physical struggle” ensued, which

plaintiff’s girlfriend captured on a cellular phone camera.
at CM/ECF p. 6.)

(Id.

During this struggle, “Sergeant Price grabbed

the plaintiff’s shoulder and told Officer Wilkinson to twist the
plaintiff’s arm to get him down.

During this, Sergeant Price

told another officer to put the plaintiff in a chokehold.”
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(Id.)

Plaintiff alleges he was later diagnosed with a sprained neck.
(Id.)
On November 2, 2012, plaintiff was charged with child
abuse, and an attorney was appointed to represent him.

Plaintiff

alleges his attorney refused to file a motion to retrieve
evidence that was in prosecutor Holly Parsley’s possession, and
was generally ineffective in representing him.
pp. 6-7.)

(Id. at CM/ECF

Plaintiff pled no contest to child abuse, was

sentenced to 30 to 48 months imprisonment, and his parental
rights were terminated.

(Id. at CM/ECF p. 7.)

Liberally construed, plaintiff alleges Bruno and NDHHS
falsely accused him of exposing minor children to domestic
violence and drug abuse, their investigation into the allegations
of abuse was negligent, and they violated his right to
substantive due process.

Plaintiff also alleges LPD officers

violated his right to substantive due process by “induc[ing]” him
to commit child abuse.

(Id. at CM/ECF pp. 8-9).

In addition,

LPD officers failed to read plaintiff his Miranda2 rights
following his arrest.

(Id.)

As relief, plaintiff seeks monetary

damages in the amount of $2,001,000.00.

(Id. at CM/ECF p. 10.)

Plaintiff also asks the Court to “consider [] Plaintiff’s case
since [Miranda] safeguards were not used.”

2

(Id. at CM/ECF p. 9.)

See Miranda v. Arizona, 384 U.S. 436 (1966).
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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)(2).

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, 70 (2007); see also
Ashcroft v. Iqbal, 556 U.S. 662, 676 (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.
Cir. 1985).

See Martin v. Sargent, 780 F.2d 1334, 1337 (8th

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).

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III.
A.

DISCUSSION OF CLAIMS

David Bruno
Plaintiff alleges Bruno and LPD officers violated his

right to substantive due process (Filing No. 1 at CM/ECF p. 8).
Plaintiff fails to specifically identify which LPD officers
violated his rights; thus, the Court will analyze this claim only
as it relates to Bruno.
To establish a substantive due process violation,
plaintiff must demonstrate that a fundamental right was violated
and that Bruno’s conduct shocks the conscience.

See Folkerts v.

City of Waverly, Iowa, 707 F.3d 975, 980 (8th Cir. 2013).

“‘[I]n

a due process challenge to executive action, the threshold
question is whether the behavior of the governmental officer is
so egregious, so outrageous, that it may fairly be said to shock
the contemporary conscience.’”

Id. (quoting Cnty. of Sacramento

v. Lewis, 523 U.S. 833, 847 n.8 (1998)).

“[O]nly a purpose to

cause harm unrelated to the legitimate object of [the government
action in question] will satisfy the element of arbitrary conduct
shocking to the conscience, necessary for a due process
violation.”

Id. (quoting Lewis, 523 U.S. at 836).

Plaintiff offers no factual content that would allow
the Court to draw the reasonable inference that Bruno acted in an
egregious, outrageous, or shocking manner, or that he had an
intention to cause harm unrelated to his investigation into
allegations of child abuse.

Accordingly, plaintiff’s due process

claim fails to state a claim upon which relief may be granted.
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On the Court’s own motion, plaintiff will be given an
opportunity to file an amended complaint that states a plausible
claim for relief against Bruno.
B.

C.J. Roberts and D. Lind
Plaintiff lists Roberts and Lind in the caption of the

complaint, but does not allege any specific acts committed by
these individuals.

A complaint that only lists a defendant’s

name in the caption without alleging that the defendant was
personally involved in the alleged misconduct fails to state a
claim against that defendant.

See Krych v. Hvass, 83 F. App’x

854, 855 (8th Cir. 2003) (citing Potter v. Clark, 497 F.2d 1206,
1207 (7th Cir. 1974) (holding that court properly dismissed a pro
se complaint where the complaint did not allege that defendant
committed a specific act and the complaint was silent as to
defendant except for his name appearing in caption)).

Because

plaintiff failed to allege that Roberts and Lind were personally
involved in violating his constitutional rights, his complaint
fails to state a claim upon which relief may be granted against
them.

See Topchian v. JPMorgan Chase Bank, N.A., No. 13-2128, --

-F.3d ----, 2014 WL 3703995, at *4 (8th Cir. July 28, 2014) (“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.”)

Plaintiff will be given an

opportunity to file an amended complaint that states a plausible
claim for relief against Roberts and Lind.
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C.

Holly Parsley
Plaintiff alleges Parsley withheld exculpatory

evidence, which resulted in plaintiff’s conviction for child
abuse.

Plaintiff also alleges Parsley had a “secret ex parte

communication with [Plaintiff’s] Defense Attorney,” which
resulted in plaintiff’s imprisonment and the termination of his
parental rights.

This communication consisted of Parsley and

plaintiff’s defense attorney discussing use of cell phone
evidence in plaintiff’s criminal prosecution (Filing No. 1 at
CM/ECF p. 7).
Plaintiff’s claims against Parsley fail for two
reasons.

First, the claims necessarily call into question the

validity of plaintiff’s conviction and are barred under Heck v.
Humphrey, 512 U.S. 477 (1994).

A prisoner may not recover

damages in a § 1983 suit where the judgment would necessarily
imply the invalidity of his conviction, continued imprisonment,
or sentence unless the conviction or sentence is reversed,
expunged, or called into question by issuance of a writ of habeas
corpus.

Heck, 512 U.S. 477, 486-87 (1994); Schafer v. Moore, 46

F.3d 43, 45 (8th Cir. 1995); Anderson v. Franklin Cnty., Mo., 192
F.3d 1125, 1131 (8th Cir. 1999).

Second, Parsley is entitled to

prosecutorial immunity because plaintiff alleges no facts against
her that would fall outside of her duties in initiating and
pursuing a criminal prosecution.

See Brodnicki v. City of Omaha,

75 F.3d 1261, 1266 (8th Cir. 1996) (“Absolute immunity covers
prosecutorial functions such as the initiation and pursuit of a
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criminal prosecution, the presentation of the state’s case at
trial, and other conduct that is intimately associated with the
judicial process.”).

Accordingly, plaintiff’s claims against

Parsley will be dismissed.
D.

Requests for Relief Relating to State Court Judgments
To the extent plaintiff is, in effect, seeking federal

review of the Court’s orders convicting him of child abuse and
terminating his parental rights, this Court lacks subject matter
jurisdiction to do so.

See, e.g., Luh v. Luh, No. 4:05-CV-621-

DDN, 2005 WL 1860265, at *1 (E.D.Mo. Aug. 4, 2005) (citing Ernst
v. Child and Youth Servs. of Chester Cnty., 108 F.3d 486, 491 (3d
Cir. 1997) (no federal jurisdiction over “functional equivalent”
of appeal from state court judgment)).

In addition, pursuant to

the Rooker-Feldman doctrine, “[f]ederal district courts are
prohibited from exercising jurisdiction over appeals from state
court decisions and general constitutional claims that are
‘inextricably intertwined’ with specific claims already
adjudicated in state court.”

Id. (quoting Ace Constr. v. City of

St. Louis, 263 F.3d 831, 833 (8th Cir. 2001)).

Moreover,

plaintiff may not use the civil rights statutes as a substitute
for habeas corpus relief.

In other words, he cannot seek

declaratory or injunctive relief relating to his confinement or
conviction.

See, e.g., Edwards v. Balisok, 520 U.S. 641, 648

(1997); Preiser v. Rodriguez, 411 U.S. 475, 500 (1973) (holding
habeas corpus is the exclusive remedy for prisoners attacking the
validity of their conviction or confinement).
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E.

State Law Claims
Plaintiff also alleges state law claims for negligence,

libel, and defamation.

Pending amendment of the complaint, as

set forth in this memorandum and order, the Court makes no
finding regarding its jurisdiction over any potential state law
claims.
IV.

MOTION FOR APPOINTMENT OF COUNSEL

Plaintiff requests the appointment of counsel (Filing
No. 9).
cases.

The Court cannot routinely appoint counsel in civil
In Davis v. Scott, 94 F.3d 444, 447 (8th Cir. 1996), the

Eighth Circuit Court of Appeals explained that “[i]ndigent civil
litigants do not have a constitutional or statutory right to
appointed counsel. . . .

The trial court has broad discretion to

decide whether both the plaintiff and the court will benefit from
the appointment of counsel . . . .”
omitted).

Id. (quotation and citation

No such benefit is apparent here.

Plaintiff’s request

for the appointment of counsel will be denied without prejudice
to reassertion.
IT IS ORDERED:
1.

Plaintiff shall have 30 days from the date of this

memorandum and order to amend his complaint to clearly state a
claim upon which relief may be granted against defendants.

If

plaintiff fails to file an amended complaint, plaintiff’s
complaint will be dismissed without further notice for want of
prosecution.

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2.

In the event that plaintiff files an amended

complaint, plaintiff shall restate the allegations of the current
complaint (Filing No. 1), and any new allegations.

Failure to

consolidate all claims into one document may result in the
abandonment of claims.
3.

The Clerk of the Court is directed to set a pro se

case management deadline in this case using the following text:
Check for amended complaint on September 19, 2014, and dismiss if
none filed.
4.

Plaintiff shall keep the Court informed of his

current address at all times while this case is pending.

Failure

to do so may result in dismissal without further notice.
5.

Plaintiff’s motion for appointment of counsel

(Filing No. 9) is denied without prejudice to reassertion.
DATED this 18th day of August, 2014.
BY THE COURT:
/s/ Lyle E. Strom
____________________________
LYLE E. STROM, Senior Judge
United States District Court

* 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
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