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 this Memorandum and Order. Ordered by Chief Judge Laurie Smith Camp. (Copy mailed to pro se party) (AOA)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
MIKE HEAVICAN, and NEBRASKKK
SUPREME KKKOURT, NEBRAKKK,
CASE NO. 8:12CV277
Plaintiff filed his Complaint in this matter on August 3, 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 August 3, 2012, against the Nebraska Supreme Court
and Nebraska Supreme Court Justice Mike Heavican. (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 against Plaintiff in the
Nebraska Supreme Court for the unauthorized practice of law. (Id.) Plaintiff states he was
convicted “‘sans’ due process” and makes several vague references to race and “slavery.”
(Id. at CM/ECF pp. 1-2.)
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. § 1915(e)(2)(B).
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, 104344 (8th Cir. 2002), (citations omitted).
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.
DISCUSSION OF CLAIMS
Claims relating to the validity of an individual’s conviction or incarceration may not
be brought in a civil rights case, regardless of the relief sought. As set forth by the
Supreme Court in Preiser v. Rodriquez, 411 U.S. 475 (1973), and Heck v. Humphrey, 512
U.S. 477 (1994), if success on the merits of a civil rights claim would necessarily implicate
the validity of a prisoner’s conviction or continued confinement, the civil rights claim must
be preceded by a favorable outcome in a habeas corpus or similar proceeding in a state
or federal forum. Absent such a favorable disposition of the charges or conviction, a
plaintiff may not use 42 U.S.C. § 1983 to cast doubt on the legality of his conviction or
confinement. See Heck, 512 U.S. at 486-87; see also Smith v. Holtz, 87 F.3d 108, 113 (3d
Cir. 1996) (applying Heck to a claim that would implicate the validity of a future conviction
on a pending criminal charge).
As discussed above, Plaintiff’s allegations are nearly impossible to decipher. To the
extent that Plaintiff seeks to challenge a state court conviction, he must do so in a habeas
corpus or similar proceeding. To the extent that Plaintiff’s state court proceeding is still
ongoing, this court will abstain from exercising jurisdiction over his claims. 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.
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); and
A separate judgment will be entered in accordance with this Memorandum
DATED this 19th day of September, 2012.
BY THE COURT:
s/Laurie Smith Camp
Chief United States District Judge
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