Tyler v. Heavican et al
MEMORANDUM AND ORDER - Plaintiff's Complaint fails to state a claim upon which relief may be granted and is dismissed without prejudice pursuant to 28 U.S.C. § 1915(e)(2.). A separate judgment will be entered in accordance with thisMemorandum and Order. Ordered by Judge Joseph F. Bataillon. (Copy mailed to pro se party)(GJG)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
MICHAEL HEAVICAN, WRIGHT,
MCCORMACK, STEPHENS, and
Plaintiff filed his Complaint in this matter on March 7, 2012. (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 his Complaint on March 7, 2012, against members of the
Nebraska Supreme Court. (Filing No. 1 at CM/ECF p. 1.) Plaintiff’s allegations are
nearly indecipherable. The Complaint consists of, at best, nonsensical and illegible
statements regarding a separate case pending against Plaintiff in the Nebraska
Supreme Court for the unauthorized practice of law. (Id.) Plaintiff alleges that
Defendants are “the 7 dwarves,” refers to the Nebraska Supreme Court as the
“KKKourt,” and makes several vague references to race and “slavery.” (Id.) As best
as the court can tell, Plaintiff seeks an order “estopping” Defendants from proceeding
against Plaintiff in the case pending against him in the Nebraska Supreme Court.
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)(2). 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. §
A pro se plaintiff must set forth enough factual 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. See Martin v. Sargent, 780 F.2d 1334, 1337 (8th Cir. 1985).
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
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).
DISCUSSION OF CLAIMS
The court has carefully reviewed the Complaint. As set forth above, Plaintiff’s
allegations are nearly impossible to decipher. The allegations which the court can
decipher do not nudge any claim across the line from conceivable to plausible.
Plaintiff does not set forth any specific actions taken by Defendants which violate any
constitutional right or support a claim under 42 U.S.C. § 1983. Keeper v. King, 130
F.3d 1309, 1314 (8th Cir. 1997). In short, Plaintiff does not allege that Defendants
deprived him of a right secured by the Constitution or laws of the United States or
that the alleged deprivation was committed under “color of state law.” West, 487 U.S.
at 48; Buckley, 997 F.2d at 495. Even with the most liberal construction, Plaintiff’s
Complaint does not include “sufficient facts to support the claims advanced,” and is,
at best, frivolous. Stringer v. St. James R-1 School Dist., 446 F.3d 799, 802 (8th Cir.
Further, to the extent Plaintiff requests injunctive relief in the form of an order
“estopping” Defendants from proceeding in the pending case against Plaintiff for the
unauthorized practice of law, this court will not grant such relief. Indeed, this court
is mindful of its obligation to promote comity between state and federal judicial
bodies and will “abstain from exercising jurisdiction in cases where equitable relief
would interfere with pending state proceedings.” Aaron v. Target Corp., 357 F.3d
768, 774 (8th Cir. 2004). Courts use the doctrine developed in Younger v. Harris to
carry out this policy. 401 U.S. 37 (1971). Under Younger, a federal court should
abstain from jurisdiction “‘when (1) there is an ongoing state judicial proceeding
which (2) implicates important state interests, and when (3) that proceeding affords
an adequate opportunity to raise the federal questions presented.’” Norwood v.
Dickey, 409 F.3d 901, 903 (8th Cir. 2005) (quoting Fuller v. Ulland, 76 F.3d 957, 959
(8th Cir.1996)). Here, Plaintiff has not alleged, nor demonstrated, that the Nebraska
Supreme Court proceedings will not provide him with the opportunity to raise any
potential constitutional claim. Thus, even if Plaintiff stated a claim for relief, which
he does not, the court would abstain from exercising jurisdiction over Plaintiff’s
IT IS THEREFORE ORDERED that:
Plaintiff’s Complaint fails to state a claim upon which relief may be
granted and is dismissed without prejudice pursuant to 28 U.S.C. § 1915(e)(2).
A separate judgment will be entered in accordance with this
Memorandum and Order.
DATED this 1st day of May, 2012.
BY THE COURT:
s/ Joseph F. Bataillon
United States District Judge
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