Akins v. The State of Nebraska et al
MEMORANDUM AND ORDER - IT IS THEREFORE ORDERED that: Plaintiff's Complaint (Filing No. 1 ) is dismissed without prejudice. A separate judgment will be entered in accordance with this order. Ordered by Senior Judge Joseph F. Bataillon. (Copy mailed to pro se party)(TCL )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
THE STATE OF NEBRASKA, and
Plaintiff filed his Complaint in this matter on December 4, 2014. (Filing No. 1.)
The court has given Plaintiff leave to proceed in forma pauperis. (Filing No. 5.) 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).
I. SUMMARY OF COMPLAINT
Plaintiff brought this action under 42 U.S.C. § 1983 against the State of
Nebraska and the State of Nebraska’s Unicameral. He argues the Unicameral is
unconstitutional because, among other reasons, it is “adverse and contradictory to the
system of democracy in America.” (Filing No. 1 at CM/ECF p. 1.) As relief, Plaintiff
asks that the Unicameral be replaced with a bicameral legislative system.
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 of it 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.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 569-70 (2007); see also
Ashcroft v. Iqbal, 556 U.S. 662, 678 (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.”).
“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.’” Topchian v.
JPMorgan Chase Bank, N.A., 760 F.3d 843, 848 (8th Cir. 2014) (quoting Hopkins v.
Saunders, 199 F.3d 968, 973 (8th Cir. 1999)). However, “[a] pro se complaint must
be liberally construed, and pro se litigants are held to a lesser pleading standard than
other parties.” Topchian, 760 F.3d at 849 (internal quotation marks and citations
III. DISCUSSION OF CLAIMS
The Eleventh Amendment provides: “The Judicial power of the United States
shall not be construed to extend to any suit in law or equity, commenced or prosecuted
against one of the United States by Citizens of another State, or by Citizens or Subjects
of any Foreign State.” U.S. Const. amend. XI. The Eleventh Amendment provides
states, and state agencies, see Hadley v. North Arkansas Cmty. Technical Coll., 76 F.3d
1437, 1438 (8th Cir. 1996), cert. denied, 519 U.S. 1148 (1997), with immunity from
suits brought by citizens of other states and from suits brought by a state’s own
citizens. Hans v. Louisiana, 134 U.S. 1, 15 (1890). Sovereign immunity deprives
federal courts of jurisdiction over lawsuits brought by private citizens against states
unless the state has waived its immunity or Congress has abrogated the state’s
immunity under a valid exercise of Congressional power. See Pennhurst State Sch. &
Hosp. v. Halderman, 465 U.S. 89, 99-100 (1984) (Eleventh Amendment proscribes
suit against State absent unequivocal waiver); Edelman v. Jordan, 415 U.S. 651
(1974); see also Doe v. Nebraska, 345 F.3d 593, 597 (8th Cir. 2003).
Nothing here suggests the State of Nebraska has waived its sovereign immunity.
Moreover, Congress did not abrogate the states’ sovereign immunity when it enacted
42 U.S.C. § 1983. Smith v. Beebe, 123 Fed. Appx. 261, 262 (8th Cir. 2005). Thus, the
court finds the State of Nebraska is entitled to sovereign immunity in this matter.
Likewise, the Unicameral, as an arm of the State, is also entitled to sovereign
immunity. See Ernst v. Rising, 427 F.3d 351, 374 (6th Cir. 2005) (“The Eleventh
Amendment would clearly bar any action to compel the State legislature to act,
inasmuch as the legislature is an arm of the State.”). The court will dismiss this action
without leave to amend because it finds amendment would be futile in this matter.
IT IS THEREFORE ORDERED that:
Plaintiff’s Complaint (Filing No. 1) is dismissed without prejudice.
A separate judgment will be entered in accordance with this order.
DATED this 2nd day of March, 2015.
BY THE COURT:
s/ Joseph F. Bataillon
Senior United States District Judge
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