Simmons v. Connealy et al
MEMORANDUM AND ORDER - Simmons shall have on or before December 26, 2012, to amend her Complaint and clearly state a claim upon which relief may be granted against the defendants in accordance with this memorandum and order. If Simmons fails to file an amended complaint, Simmons claims against the defendants will be dismissed without further notice for failure to state a claim upon which relief may be granted. In the event that Simmons files an amended complaint, Simmons shall restat e the allegations of the current Complaint (filing no. 1 ) and any new allegations. Failure to consolidate all claims into one document may result in the abandonment of claims. Simmons shall keep the court informed of her current address at all t imes while this case is pending. Failure to do so may result in dismissal without further notice. ***Pro Se Case Management Deadlines: ( Pro Se Case Management Deadline set for 12/26/2012: Check for amended complaint on December 26, 2012.) Ordered by Senior Judge Warren K. Urbom. (Copy mailed to pro se party)(MKR)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
MATTHEW J. CONNEALY, LAW )
OFFICE OF CRARY & HUFF, IDA )
HINGST, KEITH KOEPKE, PETOY )
DOHRMAN, and WILLIAM
AND ORDER ON INITIAL
The plaintiff, Robin Simmons (“Simmons”), filed a Pro Se Civil Complaint on
October 12, 2012 (filing No. 1.) and was given leave to proceed in forma pauperis.
(Filing No. 5.) An initial review of the Pro Se Civil Complaint has been conducted
to determine whether summary dismissal is appropriate under 28 U.S.C. § 1915(e)(2).
SUMMARY OF COMPLAINT
Simmons, a nonprisoner currently residing in Elkader, Iowa, (Id.; see Docket
Sheet.) filed her Complaint on October 12, 2012, against the Law Office of Crary &
Huff and five individuals. (Filing No. 1 at CM/ECF p. 1.)
Condensed and summarized, Simmons alleges she was renting property located
at 607 Main Street in Pender, Nebraska. (Filing No. 1 at CM/ECF p. 2.) On March
27, 2011, she entered into a contract to purchase the property. (Id.) However, a
dispute arose regarding the condition of the property and the parties’ agreement. (Id.
at CM/ECF p. 3.) On October 13, 2011, a judgment was entered against Simmons.
(Id.) The details and reasons for the judgment are unclear. However, Simmons
alleges the judgment violated her rights under the Fair Debt Collection Practices Act
(“FDCPA”)(Id. at CM/ECF pp. 3-4.), seeks monetary damages in the amount of
$200,000 and any other relief the court deems just. (Id. at CM/ECF p. 5.)
APPLICABLE LEGAL STANDARDS ON INITIAL REVIEW
I am required to review prisoner and in forma pauperis complaints seeking
relief against a governmental entity or an officer or employee of a governmental
entity to determine whether summary dismissal is appropriate. See 28 U.S.C. §§
1915(e) and 1915A. I 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); 28 U.S.C. § 1915A.
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
DISCUSSION OF CLAIMS
Liberally construed, Simmons asks this court to review a previously entered
judgment because it violates her rights under the FDCPA. (Filing No. 1 at CM/ECF
pp. 3-5.) Simmons has neither filed a copy of the judgment nor clearly described the
circumstances that led to the judgment.1 As a result, Simmons has failed to allege
sufficient facts to state a claim upon which relief may be granted.
However, on the court’s own motion, Simmons shall have until December 26,
2012, to file an amended complaint that sufficiently describes how the October 13,
2011, judgment violated her federal rights and a copy of the October 13, 2011,
judgment and any related documents. If Simmons elects to file an amended
complaint it shall restate the allegations of Simmons’ current Complaint (filing no.
1), and any new allegations. Failure to consolidate all claims into one document will
result in the abandonment of claims. If Simmons fails to file an amended complaint
in accordance with this memorandum and order, Simmons’ claims against the
defendants will be dismissed without prejudice without further notice.
IT IS THEREFORE ORDERED that:
If the judgment is a state court judgment, the Rooker-Feldman doctrine
prohibits this court from exercising appellate review. 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 RookerFeldman doctrine where the relief requested in the complaint would effectively
reverse or undermine the state court decision or void its ruling and noting 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)).
Simmons shall have on or before December 26, 2012, to amend her
Complaint and clearly state a claim upon which relief may be granted against the
defendants in accordance with this memorandum and order. If Simmons fails to file
an amended complaint, Simmons’ claims against the defendants will be dismissed
without further notice for failure to state a claim upon which relief may be granted.
In the event that Simmons files an amended complaint, Simmons shall
restate the allegations of the current Complaint (filing no. 1) and any new allegations.
Failure to consolidate all claims into one document may result in the abandonment
The clerk of the court is directed to set a pro se case management
deadline in this case using the following text: Check for amended complaint on
December 26, 2012.
Simmons shall keep the court informed of her current address at all times
while this case is pending. Failure to do so may result in dismissal without further
Dated December 11, 2012.
BY THE COURT
Warren K. Urbom
United States Senior District Judge
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