Brooks v. Jenkins et al

Filing 6

MEMORANDUM AND ORDER - This case is dismissed with prejudice. The court will enter judgment in a separate document. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party)(GJG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
CLINTON BROOKS, JR.,
Plaintiff,

4:17CV3013

vs.
MATT JENKINS, in official and
personal Capacities; and LAW
OFFICES OF DEMARS, GORDONOLSON ZALEWSKI,

MEMORANDUM
AND ORDER

Defendants.
Plaintiff filed a Complaint on January 30, 2017. (Filing No. 1.) He was given
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 alleges that he previously accompanied a family member (“Mark”)
to a child support hearing. (Filing No. 1 at CM/ECF p. 1.) Prior to the hearing, they
met with Mark’s attorney, Defendant Matt Jenkins. (Id.) Plaintiff alleges that
Jenkins became upset when Plaintiff disagreed with his advice that Mark should
accept a “purge” plan in the case. (Id. at CM/ECF pp. 1-2.)
Plaintiff was later convicted in Lancaster County District Court of theft by
deception and unauthorized practice of law on facts unrelated to Plaintiff’s
allegations. See State v. Brooks, 873 N.W.2d 460, 469 (Neb. App. 2016). In
imposing Plaintiff’s sentences, the state district court considered letters from two
attorneys about Plaintiff giving legal advice on other occasions. Id. at 480-81. The

first attorney asserted that his client brought Plaintiff to a private meeting between
the attorney and his client, where Plaintiff encouraged his client to go to trial
contrary to the attorney’s advice to his client. Id. The state district court sentenced
Plaintiff to consecutive terms of 15 to 35 months’ imprisonment on the theft
conviction and 3 to 3 months’ imprisonment on the unauthorized practice of law.
Id.
Plaintiff appealed his convictions and sentences to the Nebraska Court of
Appeals. The court found that the trial court committed plain error by erroneously
instructing the jury that it could base its guilty verdict for unauthorized practice of
law on Plaintiff’s conduct that occurred outside the statute of limitations. Id. at
475-77. It, therefore, reversed Plaintiff’s conviction for unauthorized practice of
law and remanded for a new trial on that charge. Id. at 477-78. In doing so, the
court determined that there was sufficient evidence adduced at trial to sustain
Plaintiff’s conviction and, further, his conduct that occurred outside the statute of
limitations would be admissible at a new trial to provide “necessary context” to his
unauthorized practice of law occurring with the limitations period. Id.
Plaintiff alleges that Jenkins, while employed at the law offices of Defendant
Demars, Gordon-Olson Zalewski, violated “his constitutional rights, 1 st, 4th 6th
amendments. Sought to have plaintiff maliciously prosecuted to the fullest extend
of the law by sending emailing to sentencing judge out of anger.” (Filing No. 1 at
CM/ECF p. 2.) He seeks 5 million dollars. (Id. at CM/ECF p. 3.)
II. DISCUSSION
The court is required to review in forma pauperis complaints to determine
whether summary dismissal is appropriate. See 28 U.S.C. § 1915(e). Based upon
the decision of the Nebraska Court of Appeals, the evidence was sufficient to find
that Plaintiff committed the offense of unauthorized practice of law. His conviction
was reversed because of an improper jury instruction, not because he did not do it.
Moreover, Jenkins nor his law firm had anything to do with Plaintiff’s prosecution.
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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). The court finds that Plaintiff’s claim is frivolous and his
Complaint fails to state a claim upon which relief may be granted. The court will
not allow Plaintiff to amend his Complaint because amendment would be futile.
IT IS THEREFORE ORDERED that:
1.

This case is dismissed with prejudice.

2.

The court will enter judgment in a separate document.

Dated this 30th day of March, 2017.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

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