Brooks v. Thietje et al

Filing 6

MEMORANDUM AND ORDER that 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) (LAC)

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

4:17CV3016

vs.
MARIA THIETJE, and LAW OFFICE
OF DEMARS GORDON OLSON,
ZALEWSKI, WYNNER,

MEMORANDUM
AND ORDER

Defendants.
Plaintiff filed a Complaint on February 3, 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 was seated in a Lancaster County District Court
courtroom as “amicus curiae” when Defendant Maria Thietje asked Plaintiff to
leave the courtroom so that she could speak to her clients in private. (Filing No. 1
at CM/ECF p. 1.) Plaintiff complied. (Id.) Plaintiff alleges that, ten to fifteen
minutes later, he told a woman in the courtroom to google Neb. Rev. Stat. 42 and
look for child support. (Id.) He told her, “[I]t will tell you what is going on and
how to appeal.” (Id.)
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
second attorney had been in a courtroom where Plaintiff advised people on the
amount of child support a court could order someone to pay. 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 Thietje informed the sentencing judge, prior to
sentencing, that Plaintiff gave legal advice. (Filing No. 1 at CM/ECF pp. 1-2.) He
alleges that Thietje “intentionally provoked Judge Otte to sentence Clinton Brooks
Jr. to a harsher sentence, causing Clinton Brooks Jr. emotional distress and mental
anguish, therefore violating the constitutional rights of freedom of speech in The
First Amendment.” (Id. at CM/ECF p. 2.) He seeks 1 million dollars. (Id.)
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). None of the
defendants interfered with Plaintiff’s First Amendment freedom of speech.
Nevertheless, based upon the decision of the Nebraska Court of Appeals, the
evidence was sufficient to find that Plaintiff committed the offense of unauthorized
2

practice of law. His conviction was reversed because of an improper jury
instruction, not because he did not do it. 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). Prior to filing in
federal court, Plaintiff filed suit against Defendants in Lancaster County District
Court on the same grounds.1 The state district court denied Plaintiff in forma
pauperis status because Plaintiff’s Complaint asserted “legal positions, which are
frivolous or malicious,” and failed to state a claim upon which relief could be
granted.2 The court agrees and 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

1

PDF of JUSTICE document for Clinton Brooks Jr v. Maria Thietje
and Law Offices of DeMars Gordon Olson and Zalewksi, Lancaster County
District Court Case No. CI 16-3094, at https://www.nebraska.gov/justice//case.cgi;
Stutzka v. McCarville, 420 F.3d 757, 760 n.2 (8th Cir. 2005) (court may take
judicial notice of judicial opinions and public records).
2

Id.
3