Marsh v. Noakes et al

Filing 8

MEMORANDUM OPINION - Ordered by Senior Judge Lyle E. Strom. (Copy mailed/e-mailed to pro se party)(KBJ)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
ANGELINE M. MARSH,

)
)
Plaintiff,
)
)
v.
)
)
KARIN L. NOAKES, Custer
)
County District Court, JACK W.)
BESSE, VINCE DOWDING, GARY G. )
PETERSON, DAVE DAVIS, WINDY
)
THOME, GREGORY G. JENSEN,
)
JIM EBERLY, FARMER NATIONAL
)
COMPANY, and EVANGELICAL
)
LUTHERAN GOOD SAMARITAN
)
SOCIETY,
)
)
Defendants.
)
______________________________)

8:11CV157

MEMORANDUM OPINION

Plaintiff filed her complaint in this matter on May 5,
2011 (Filing No. 1).

Plaintiff has previously been given leave

to proceed in forma pauperis (Filing No. 6).

The Court now

conducts an initial review of the complaint to determine whether
summary dismissal is appropriate under 28 U.S.C. § 1915(e)(2).
SUMMARY OF COMPLAINT
Plaintiff filed her complaint in this matter on May 5,
2011, against ten defendants, Karin L. Noakes, Jack W. Besse,
Vince Dowding, Gary G. Peterson, Dale Davis, Windy Thome, Gregory
G. Jensen, Jim Eberle, Farmer National Company and Evangelical
Lutheran Good Samaritan Society (Filing No. 1-1 at CM/ECF pp. 12).

Plaintiff is a non-prisoner who currently resides in

Comstock, Nebraska.

(Id.; see Docket Sheet.)

Liberally construed, plaintiff alleges that on October
10, 2010, defendants seized and sold her property to pay another
person’s debt pursuant to a judgment and order for sale issued by
the District Court of Custer County, Nebraska (Filing No. 1-1 at
CM/ECF pp. 3, 4, 13).

Plaintiff claims to possess a “[w]arrenty

[sic] deed, the UCC 1 [sic], and a land patent” which establish
her interest in the property.

(Id. at CM/ECF p. 3.)

Following

the sale, plaintiff sent “legal papers” to defendants and they
did not respond.

(Id.)

Plaintiff asks the Court to bring

criminal charges against defendants for “commercial trespassing”
because they “defaulted and ignored the Land Patent, Warrenty
[sic] deed, and UCC1 [sic].”

(Id. at CM/ECF pp. 4, 6.)

seeks the return of the property.

She also

(Id. at CM/ECF pp. 6,

8.)

Plaintiff asserts that this is not a “judicial case,” but rather
a “Criminal Commercial Complaint.”

(Id. at CM/ECF pp. 4, 7.)

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 thereof 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).

A pro se plaintiff must set forth enough factual
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allegations to “nudge[] their claims across the line from
conceivable to plausible,” or “their complaint must be dismissed”
for failing to state a claim upon which relief can be granted.
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 569-70 (2007); see
also Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950 (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.”).

Regardless of

whether a plaintiff is represented or is appearing pro se, the
plaintiff’s complaint must allege specific facts sufficient to
state a claim.
Cir. 1985).

See Martin v. Sargent, 780 F.2d 1334, 1337 (8th

However, a pro se plaintiff’s allegations must be

construed liberally.

Burke v. North Dakota Dep’t of Corr. &

Rehab., 294 F.3d 1043, 1043-44 (8th Cir. 2002) (citations
omitted).
DISCUSSION OF CLAIMS
A private plaintiff cannot force a criminal prosecution
because the “authority to initiate a criminal complaint rests
exclusively with state and federal prosecutors.”

See Mercer v.

Lexington Fayette Urban Cnty. Gov’t., No. 94-6645, 1995 WL
222178, at *1 (6th Cir. Apr. 13, 1995) (unpublished order); see
also Parkhurst v. Tabor, 569 F.3d 861, 867 (8th Cir. 2009)
(quoting United States v. Batchelder, 442 U.S. 114, 124 (1979)
(“Whether to prosecute and what charge to file or bring before a
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grand jury are decisions that generally rest in the prosecutor’s
discretion.”)).
Here, plaintiff asks the Court to initiate criminal
charges against defendants for commercial trespassing (Filing No.
1-1 at CM/ECF pp. 3-4).

Plaintiff insists that the dispute is a

criminal matter rather than “judicial.”
7.)

(Id. at CM/ECF pp. 4,

Because the Court does not have the authority to force a

criminal prosecution, plaintiff’s request to initiate criminal
charges against defendants fails to state a claim upon which
relief may be granted.
To the extent that plaintiff seeks to challenge a state
court judgment regarding the land in question, that challenge is
barred under the Rooker-Feldman doctrine.

The Rooker-Feldman

doctrine prohibits lower federal courts from exercising appellate
review of state court judgments.

Rooker v. Fidelity Trust Co.,

263 U.S. 413, 416 (1923); District of Columbia Court of Appeals
v. Feldman, 460 U.S. 462, 482 (1983).

In fact, federal district

courts do not have jurisdiction “over challenges to state-court
decisions . . . even if those challenges allege that the state
court’s action was unconstitutional.”

Feldman, 460 U.S. at 486;

see also Ballinger v. Culotta, 322 F.3d 546, 548-49 (8th Cir.
2003) (dismissing claims under Rooker-Feldman doctrine where the
relief requested in the complaint would effectively reverse or
undermine the state court decision or void its ruling and noting
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that “[f]ederal district courts thus may not ‘exercis[e]
jurisdiction over general constitutional claims that are
‘inextricably intertwined’ with specific claims already
adjudicated in state court”) (citation omitted).

Indeed,

challenges to state foreclosure and eviction proceedings are
barred under the Rooker-Feldman doctrine.

See, e.g., Vuaai El v.

Mortgage Elec. Registry Sys., No. 08-14190, 2009 WL 2705819, at
*9 (E.D. Mich. Aug. 24, 2009) (concluding the court lacked
subject matter jurisdiction over plaintiff’s challenge to state
foreclosure and eviction proceedings where plaintiff alleged
possession of a U.C.C. financing statement, possessory lien, land
patent and homestead levy exemption).

A separate order will be

entered in accordance with this memorandum opinion.
DATED this 12th day of July, 2011.
BY THE COURT:
/s/ Lyle E. Strom
____________________________
LYLE E. STROM, Senior Judge
United States District Court

*This opinion may contain hyperlinks to other documents or
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of the Court.
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