Harper v. Coffy et al

Filing 9

MEMORANDUM AND ORDER that this case is dismissed without prejudice. The court will enter a separate judgment in accordance with this order. Ordered by Judge John M. Gerrard. (Copy mailed/e-mailed to pro se party)(DKM, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
CLYDE ERNEST HARPER,
Plaintiff,
v.
JUDGE COFFEY, and
PROSECUTOR RETELSDORF, of
Douglas County,

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4:15CV3033

MEMORANDUM
AND ORDER

Defendants.
Plaintiff Clyde Ernest Harper (“Harper”) filed his Complaint in this matter on
March 23, 2015. (Filing No. 1.) This court has given him leave to proceed in forma
pauperis. The court now conducts an initial review of Harper’s Complaint to
determine whether summary dismissal is appropriate under 28 U.S.C. §§ 1915(e)(2)
and 1915A.
I. SUMMARY OF COMPLAINT
Harper is incarcerated at the Tecumseh State Prison in Tecumseh, Nebraska.
He seeks relief pursuant to 42 U.S.C. § 1983 against Judge Coffey and Prosecutor
Retelsdorf, the judge and prosecutor involved in his state criminal proceedings.
(Filing No. 1 at CM/ECF p. 2.) The court takes judicial notice of Nebraska
Department of Correctional Services public records, which show that Harper was
convicted of two counts of first degree sexual assault on a child in Douglas County,
Nebraska, and began his sentence on July 22, 2005. See Stutzka v. McCarville, 420
F.3d 757, 761, n.2 (8th Cir. 2005) (court may take judicial notice of public records).
Harper generally alleges in this action that he was wrongfully convicted based
on “false DNA results” (Filing No. 1 at CM/ECF p. 4). For relief, Harper asks: “To

get Judge Coffey to Act within the law; give-up rape kit test and results that prove I’m
innocent. And give me something as is allowed by law for holding me in prison on
tampered with/false evidence; expose the wrong done to me[]/my Liberty.” (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 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); 28 U.S.C. § 1915A(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
omitted).
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Liberally construed, Plaintiff here alleges federal constitutional claims. To state
a claim under 42 U.S.C. § 1983, a plaintiff must allege a violation of rights protected
by the United States Constitution or created by federal statute and also must show that
the alleged deprivation was caused by conduct of a person acting under color of state
law. West v. Atkins, 487 U.S. 42, 48 (1988); Buckley v. Barlow, 997 F.2d 494, 495
(8th Cir. 1993).
III. DISCUSSION OF CLAIMS
Liberally construed, Harper seeks monetary and equitable relief against Judge
Coffey and Prosecutor Retelsdorf for actions they took during his state criminal
proceedings. The court must consider whether Judge Coffey and Prosecutor
Retelsdorf are immune from suit. In addition, the court must consider whether
Harper’s suit is an attack on his conviction, continued imprisonment, or sentence that
is barred by the Supreme Court’s holding in Heck v. Humphrey, 512 U.S. 477 (1994).

A.

Judicial and Prosecutorial Immunity

A judge is immune from suit, including suits brought under section 1983 to
recover for alleged deprivation of civil rights, in all but two narrow sets of
circumstances. Schottel v. Young, 687 F.3d 370, 373 (8th Cir. 2012). “First, a judge
is not immune from liability for nonjudicial actions, i.e., actions not taken in the
judge’s judicial capacity. Second, a judge is not immune for actions, though judicial
in nature, taken in the complete absence of all jurisdiction.” Id. (internal citations
omitted). An act is judicial if “it is one normally performed by a judge and if the
complaining party is dealing with the judge in his judicial capacity.” Id. (internal
citations omitted).

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Prosecutors “are entitled to absolute immunity from civil liability under § 1983
when they are engaged in prosecutorial functions that are ‘intimately associated with
the judicial process.’” Schenk v. Chavis, 461 F.3d 1043, 1046 (8th Cir. 2006) (internal
quotation marks and citation omitted). Thus, absolute immunity attaches when a
prosecutor’s actions are “prosecutorial” rather than “investigatory or administrative.”
Id. Allegations that a prosecutor presented false testimony or withheld evidence do
not defeat prosecutorial immunity. See Myers v. Morris, 810 F.2d 1437, 1446 (8th
Cir. 1987) (overruled on other grounds).
Harper alleged in this action that he was wrongfully convicted based on “false
DNA results,” and the two named defendants took part in the criminal proceedings
that resulted in Harper’s conviction.1 Harper alleged no facts against Judge Coffey
that would fall outside the scope of his duties in presiding over Harper’s criminal
proceedings. In addition, Harper alleged no facts against Prosecutor Retelsdorf that
would fall outside the scope of her duties in initiating and pursuing a criminal
prosecution. Accordingly, the court finds they are immune from suit.
B.

Heck v. Humphrey

In Heck v. Humphrey, the Supreme Court held 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. 512 U.S. 477, 486-87 (1994); Schafer v. Moore, 46 F.3d 43, 45 (8th Cir.
1995).
1

The court takes judicial notice of the state-court records contained in a prior
action filed by Howard in this court that show Judge Coffey presided over Howard’s
state-criminal proceedings, and Leigh Ann Retelsdorf served as a prosecutor during
the proceedings. (See Harper v. Douglas County, et al., Case No. 8:02-cv-00287JFB-PRSE (D. Neb.), Filing No. 37.)
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Here, the facts demonstrate the Heck bar is properly invoked. If successful,
Harper’s claims that he was convicted through the use of “false DNA results”
necessarily implicate the validity of his conviction and confinement. In other words,
if Harper were to prevail on his claims that the prosecutor knowingly presented false
evidence and the trial judge allowed her to do so, then it would call into question
Harper’s conviction. Therefore, to the extent judgment in favor of Harper on any of
his claims would render his criminal conviction invalid, his claims for relief are barred
by Heck v. Humphrey. See Sheldon v. Hundley, 83 F.3d 231, 233 (8th Cir. 1996)
(indicating that, under Heck, court disregards form of relief sought and instead looks
to essence of plaintiff’s claims); Harvey v. Horan, 278 F.3d 370, 375 (4th Cir. 2002)
(Heck applies to claims for damages, as well as to claims for injunctive relief that
necessarily would imply the invalidity of plaintiff’s conviction); Lawson v. Engleman,
67 Fed. Appx. 524, 526 n. 2 (10th Cir. 2003) (Heck applied to plaintiff’s claims for
monetary, declaratory, and injunctive relief; Heck should apply when the concerns
underlying Heck exist).
IT IS THEREFORE ORDERED that: This case is dismissed without prejudice.
The court will enter a separate judgment in accordance with this order.
DATED this 20th day of July, 2015.
BY THE COURT:
s/ John M. Gerrard
United States District Judge

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