Baker v. Retelsdorf et al

Filing 36

MEMORANDUM AND ORDER - Baker will have 30 days in which to file a proposed amended complaint that states a plausible claim for relief. The court will reopen this case if, upon review of the amended complaint, the court concludes that summary dismis sal is not appropriate pursuant to 28 U.S.C. §§ 1915(e) and 1915A. The clerk of the court is directed to send to plaintiff a blank civil complaint form. Baker's Motion for Reconsideration (Filing No. 32 ) will remain pending. If B aker does not file an amended complaint within 30 days, the motion will be denied without further notice. The clerk of the court is directed to set the following pro se case management deadline in this case: August 3, 2015: check for proposed amended complaint. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party with a blank civil complaint form as ordered)(GJG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
REGINALD G. BAKER,
Plaintiff,
v.
LEIGH ANN RETELSDORF, TOM
RILEY, BRENDA LEUCK, and
RYAN LINDBERG,
Defendants.

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4:14CV3103

MEMORANDUM
AND ORDER

This matter is before the court on Plaintiff Reginald Baker’s “Motion for
Reconsideration of Judgement and Motion to Amend Complaint,” which the court
liberally construes as a motion for relief from judgment brought pursuant to Rule
60(b)(6) of the Federal Rules of Civil Procedure (Filing No. 32). Baker seeks
reconsideration of the court’s order and judgment dismissing this case on April 20,
2015. Baker argues the court should reopen this matter and give him an opportunity
to file an amended complaint because he is proceeding pro se and he lacks “legal
knowledge.”
Baker alleged in his Complaint that his court-appointed attorney, Defendant
Brenda Leuck, failed to effectively represent his interests during state criminal
proceedings. (Filing No. 1 at CM/ECF pp. 1-2.) He alleged a state district court
judge, public defender, and assistant county attorney—Defendants Leigh Ann
Retelsdorf, Tom Riley, and Ryan Lindberg—were aware Leuck was providing
ineffective assistance of counsel. (Id. at CM/ECF p. 5.) For relief, Baker sought
$75,000 in monetary damages and for the court to “review” his state criminal case.
(Id. at CM/ECF p. 6.)
On April 20, 2015, the court dismissed Baker’s claims against Leuck because,
as his public defender, she was not a state actor subject to suit under 42 U.S.C. § 1983.

The court also dismissed Baker’s claims against Retelsdorf, Riley, and Lindberg
because Baker alleged only that they were aware of Leuck’s alleged ineffective
assistance, which was not a constitutional violation. Finally, the court held that, to the
extent Baker sought to challenge the validity of his current confinement or conviction,
he could not do so in a civil action brought pursuant to section 1983. (See Filing No.
30 at CM/ECF pp. 3-4.)
Baker asserts the court should have provided him an opportunity to file an
amended complaint. The court need not provide a plaintiff with an opportunity to
amend if it is patently obvious that amendment would be futile. See Williams v. Dep’t
of Corr., 208 F.3d 681, 682 (8th Cir. 2000). Here, the court suspects giving Baker
leave to file an amended complaint would be futile. However, out of an abundance
of caution, the court will give him 30 days in which to file a proposed amended
complaint. The court will reopen this case pursuant to Rule 60(b)(6) of the Federal
Rules of Civil Procedure if, upon review of the proposed amended complaint, the
court concludes that summary dismissal is not appropriate pursuant to 28 U.S.C.
§§ 1915(e) and 1915A.
IT IS THEREFORE ordered:
1.
Baker will have 30 days in which to file a proposed amended complaint
that states a plausible claim for relief. The court will reopen this case if, upon review
of the amended complaint, the court concludes that summary dismissal is not
appropriate pursuant to 28 U.S.C. §§ 1915(e) and 1915A.
2.
The clerk of the court is directed to send to plaintiff a blank civil
complaint form.
3.
Baker’s Motion for Reconsideration (Filing No. 32) will remain pending.
If Baker does not file an amended complaint within 30 days, the motion will be denied
without further notice.
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4.
The clerk of the court is directed to set the following pro se case
management deadline in this case: August 3, 2015: check for proposed amended
complaint.
DATED this 2nd day of July, 2015.
BY THE COURT:
Richard G. Kopf
Senior 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
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