Keup v. Phillips et al

Filing 11

MEMORANDUM AND ORDER - Keup is given 30 days in which to file an amended complaint in accordance with this Memorandum and Order. The amended complaint will supersede Keup's Complaint (Filing No. 1 ). Keup is encouraged to use the court approv ed form to draft his amended complaint, which the clerk of the court will provide to him. Keup must clearly designate on the face of the document that it is his "Amended Complaint" in this case. Keup's failure to file an amended co mplaint within the time specified by the court will result in the court dismissing this case without further notice to Keup. Keup's Motion to Appoint Counsel (Filing No. 10 ) is denied without prejudice. The clerk of the court is directed to send to Keup a blank civil complaint form. In addition, the clerk of the court is directed to set a pro se case management deadline in this matter: September 21, 2015: Check for amended complaint. To avoid confusion, any document Keup sends to the clerk of the court for filing in this case must clearly display the case number. Ordered by Chief Judge Laurie Smith Camp. (Copy mailed to pro se party with complaint form)(GJG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
TYLER KEUP,
Plaintiff,
v.
MATT PHILLIPS, ROBERT
LINDEMEIER, JEFF MEYER, JOHN
DOES, and JANE DOES,
Defendants.

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8:15CV113

MEMORANDUM
AND ORDER

Plaintiff Tyler Keup (“Keup”) filed his Complaint (Filing No. 1) in this matter on April
13, 2015. This court has given Keup leave to proceed in forma pauperis. (Filing No. 8.)
The court now conducts an initial review of Keup’s Complaint to determine whether
summary dismissal is appropriate under 28 U.S.C. §§ 1915(e)(2) and 1915A.
I. SUMMARY OF COMPLAINT
Keup is incarcerated at the Federal Correctional Institution in Forrest City, Arkansas.
His claims are based on incidents that occurred during state criminal proceedings in the
District Court of Lincoln County, Nebraska (“state district court”). He asserts Fourth and
Fourteenth Amendment claims and conspiracy claims against Defendants. Defendants
are sued in their individual capacities only (Filing No. 1 at CM/ECF p. 3), and Keup raised
only federal-law claims in his Complaint (Filing No. 1 at CM/ECF p. 10).
Keup alleged government officials arrested and charged him with first-degree
murder, use of a weapon to commit a felony, and felon in possession of a firearm on
August 5, 2000. A jury later found him guilty of second-degree murder, use of a weapon
to commit a felony, and felon in possession of a firearm. A state district court sentenced
Keup to 30 to 60 years’ imprisonment. (Filing No. 1 at CM/ECF p. 3.)

On May 31, 2011, the state district court granted Keup’s motion for postconviction
relief in part by setting aside Keup’s second-degree murder conviction and finding him
guilty of manslaughter. (Filing No. 1 at CM/ECF p. 3.) Specifically, the state district court
determined Keup’s trial counsel had been ineffective during the criminal proceedings
because he failed to call witnesses to testify about Keup’s ability to form the intent
necessary to commit second-degree murder. (Filing No. 1 at CM/ECF pp. 103-105.) On
June 29, 2011, the court re-sentenced Keup to 20 years’ imprisonment, which resulted in
Keup’s release from prison on June 30, 2011. (Filing No. 1 at CM/ECF pp. 3-4.)
Keup named Matt Phillips, Robert Lindemeier, and Jeff Meyer as Defendants. He
also named unknown county court officials as “John and Jane Doe Defendants.” (Filing
No. 1 at CM/ECF pp. 1-2.) Keup alleged Phillips, an investigator with the North Platte
Police Department, violated Keup’s Fourth Amendment rights when he searched and
seized a notebook during a search of Keup’s residence. The notebook contained evidence
used against Keup at his murder trial. Keup alleged the seizure of the notebook was
unlawful because it fell outside the scope of the search warrant authorizing Phillips to
search Keup’s residence. Keup also alleged Phillips testified falsely when he suggested
the notebook was in plain view when he searched the residence. (Filing No. 1 at CM/ECF
p. 5.)
Keup alleged Lindemeier, his public defender, failed to effectively represent his
interests during the criminal proceedings and on appeal. Keup alleged Lindemeier’s
actions and inactions at trial reflect that Lindemeier’s “loyalties” were with the prosecuting
authorities and police investigators, and that Lindemeier conspired with government
officials to violate Keup’s constitutional rights. (Filing No. 1 at CM/ECF pp. 5-7, 9.)
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Keup alleged Meyer, the prosecutor in the criminal proceedings, committed
prosecutorial misconduct when he “capitalize[d]” on Phillips’s “perjured testimony” during
closing arguments.

In addition, Keup alleged Meyer insinuated Keup made false

statements regarding his use of marijuana. (Filing No. 1 at CM/ECF p. 6.)
Finally, Keup alleged the John and Jane Doe Defendants “fraudulently altered
county court records in an effort to cover up the fact that [Keup] never waived his right to
transfer to juvenile court.” (Filing No. 1 at CM/ECF p. 4.)
II. APPLICABLE LEGAL STANDARDS ON INITIAL REVIEW
The court is 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. 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); 28 U.S.C. § 1915A(b).
Pro se plaintiffs must set forth enough factual allegations to “nudge[] their claims
across the line from conceivable to plausible,” or “their complaint must be dismissed.” Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 569-70 (2007); see also Ashcroft v. Iqbal, 556
U.S. 662, 678 (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.”).

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“The essential function of a complaint under the Federal Rules of Civil Procedure
is to give the opposing party ‘fair notice of the nature and basis or grounds for a claim, and
a general indication of the type of litigation involved.’” Topchian v. JPMorgan Chase Bank,
N.A., 760 F.3d 843, 848 (8th Cir. 2014) (quoting Hopkins v. Saunders, 199 F.3d 968, 973
(8th Cir. 1999)). However, “[a] pro se complaint must be liberally construed, and pro se
litigants are held to a lesser pleading standard than other parties.” Topchian, 760 F.3d at
849 (internal quotation marks and citations omitted).
Liberally construed, Keup 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).
III. DISCUSSION
A.

Fourth Amendment
The issue here is whether Keup’s Fourth Amendment claim is barred by the

principle of collateral estoppel. Here, the court takes judicial notice of the Nebraska
Supreme Court’s decision in State v. Keup, 655 N.W.2d 25 (Neb. 2003).
Collateral estoppel, or issue preclusion, applies when a § 1983 plaintiff attempts to
relitigate in federal court issues that were decided against him in a state criminal
proceeding. Allen v. McCurry, 449 U.S. 90, 103-04 (1980); see also Munz v. Parr, 972 F
.2d 971, 973 (8th Cir. 1992) (stating that “collateral estoppel applies to section 1983
actions involving alleged Fourth Amendment violations”); Simmons v. O’Brien, 77 F.3d

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1093, 1096 (8th Cir. 1996) (“When a federal constitutional issue is previously decided in
a state criminal proceeding following a full and fair hearing, issue preclusion will [] bar
relitigation of that issue in a § 1983 action.”).
This court must give a state court judgment the same preclusive effect it would be
given under the law of the state where it was rendered. 28 U.S.C. § 1738; W.F.M., Inc.
v. Cherry Cnty., 279 F.3d 640, 643 (8th Cir. 2002). The following elements are required for
collateral estoppel to apply under Nebraska law: (1) the identical issue was decided in a
prior action, (2) there was a judgment on the merits that was final, (3) the party against
whom the rule is applied was a party or in privity with a party to the prior action, and (4)
there was an opportunity to fully and fairly litigate the issue in the prior action. Cunningham
v. Prime Mover, Inc., 567 N.W.2d 178, 181 (Neb. 1997).
Here, Keup argues Philips violated his constitutional rights when he searched and
seized a notebook during a search of Keup’s residence. Keup argues the seizure of the
notebook was unlawful because it fell outside the scope of the search warrant authorizing
Phillips to search Keup’s residence. (Filing No. 1 at CM/ECF p. 5.) The Nebraska
Supreme Court addressed and rejected this claim. The court determined the notebook at
issue fell within the plain-view exception to the warrant requirement of the state and federal
Constitutions. Keup, 655 N.W.2d at 33.
All four elements required for collateral estoppel are met here. That is, Keup raised
an identical argument in his state criminal proceedings, the Nebraska Supreme Court
entered judgment against him on the issue, and he had an opportunity to fully and fairly
litigate the issue in the state criminal proceedings. The Nebraska Supreme Court’s
adjudication of the Fourth Amendment issue was not called into question by the state
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district court’s order setting aside Keup’s second-degree murder conviction. Thus, Keup’s
Fourth Amendment claim is barred by principles of collateral estoppel.
To the extent Keup argues Phillips committed perjury when he testified concerning
the search and seizure of the notebook, Phillips is entitled to absolute witness immunity.
See Briscoe v. LaHue, 460 U.S. 325, 331-32 (1983) (holding testifying witnesses are
entitled to absolute immunity); Snelling v. Westhoff, 972 F.2d 199, 200 (8th Cir. 1992)
(allegations that prosecutor conspired with witness to give false testimony do not defeat
immunity).
B.

Remaining Defendants
1.

Robert Lindemeier

The crux of Keup’s argument with respect to Lindemeier is that he was ineffective
in his representation of him and conspired with other Defendants to violate Keup’s
constitutional rights.
Section 1983 specifically provides a cause of action against a person who, under
color of state law, violates another’s federal rights. West, 487 U.S. at 48. “[A] public
defender does not act under color of state law when performing a lawyer’s traditional
functions as counsel to a defendant in a criminal proceeding.” Polk Cnty. v. Dodson, 454
U.S. 312, 325 (1981). Indeed, when a public defender represents an indigent defendant
in a state criminal proceeding, he is “not acting on behalf of the State; he is the State’s
adversary.” Id. at 322, n. 13. However, a § 1983 claim may be brought against a public
defender, or any other private individual, if he or she conspires with a state actor to deprive

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an individual of a federally-protected right. Manis v. Sterling, 862 F.2d 679, 681 (8th Cir.
1988) (citing Tower v. Glover, 437 U.S. 914, 923 (1984)).
Keup offered only general and conclusory allegations that Lindemeier and others
were involved in some type of conspiracy against him. Bare and conclusory allegations of
conspiracy fail to state a plausible claim for relief. See Twombly, 550 U.S. at 556-57 (“[A]
bare assertion of conspiracy will not suffice. Without more, . . . a conclusory allegation of
agreement at some unidentified point does not supply facts adequate to show illegality.”);
Gometz v. Culwell, 850 F.2d 461, 464 (8th Cir. 1988) (“The principal elements of
conspiracy are an agreement between the parties to inflict a wrong against or injury upon
another, and an overt act that results in damage . . . A plaintiff must allege with sufficient
particularity and demonstrate with specific material facts that the parties reached some
agreement and conspired together to deprive plaintiff of a federal right.”) (internal citation
and quotation marks omitted).
On the court’s own motion, the court will allow Keup to file an amended complaint
that sufficiently alleges a conspiracy claim against Lindemeier and any others involved in
the alleged conspiracy.
2.

Jeff Meyer

Keup alleged Jeff Meyer committed prosecutorial misconduct when he “capitalize[d]”
on “perjured testimony” during closing arguments. In addition, Keup alleged Meyer
insinuated Keup made false statements concerning his use of marijuana. (Filing No. 1 at
CM/ECF p. 6.)

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Keup’s claims against Meyer must be dismissed because prosecutors “are entitled
to absolute immunity from civil liability under § 1983 when they are engaged in
prosecutorial functions that are ‘intimately associated with the judicial process.’” Schenk
v. Chavis, 461 F.3d 1043, 1046 (8th Cir. 2006) (internal quotation marks and citation
omitted). Absolute immunity attaches when a prosecutor’s actions are “prosecutorial”
rather than “investigatory or administrative.” Id. Allegations that a prosecutor presented
false testimony or withheld evidence do not defeat prosecutorial immunity. See Myers v.
Morris, 810 F.2d 1437, 1446 (8th Cir. 1987) (overruled on other grounds). See also Jones
v. Shankland, 800 F.2d 77, 80 (6th Cir. 1986) (holding that a prosecutor’s alleged “use of
perjured testimony and the non-disclosure of exculpatory information are certainly entitled
to absolute immunity.”).
3.

Unknown Court Officials (John and Jane Doe Defendants)

Keup argues various court officials “fraudulently altered county court records in an
effort to cover up the fact that [Keup] never waived his right to transfer to juvenile court.”
(Filing No. 1 at CM/ECF p. 4.) Keup claims these actions violated his right to a fair trial
and his right to procedural due process.
Keup’s allegations do not provide factual support sufficient to establish a “plausible”
claim against the John and Jane Doe Defendants. Keup’s conclusory and factually
unsupported allegations do not explain how the John and Jane Doe Defendants prejudiced
Keup’s right to a fair trial or deprived him of procedural due process. On the court’s own
motion, the court will allow Keup to file an amended complaint that sufficiently alleges a
claim for relief against the John and Jane Doe Defendants.

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IV. MOTION TO APPOINT COUNSEL
Keup seeks the appointment of counsel. However, the court cannot routinely
appoint counsel in civil cases. In Davis v. Scott, 94 F.3d 444, 447 (8th Cir. 1996), the
Eighth Circuit Court of Appeals explained that “[i]ndigent civil litigants do not have a
constitutional or statutory right to appointed counsel. The trial court has broad discretion
to decide whether both the plaintiff and the court will benefit from the appointment of
counsel[.]” Id. (internal citation and quotation marks omitted). No such benefit is apparent
here at this time. Thus, the request for the appointment of counsel will be denied without
prejudice to reassertion. Accordingly,

IT IS ORDERED:
1.

Keup is given 30 days in which to file an amended complaint in accordance
with this Memorandum and Order. The amended complaint will supersede
Keup’s Complaint (Filing No. 1). Keup is encouraged to use the courtapproved form to draft his amended complaint, which the clerk of the court
will provide to him. Keup must clearly designate on the face of the document
that it is his “Amended Complaint” in this case. Keup’s failure to file an
amended complaint within the time specified by the court will result in the
court dismissing this case without further notice to Keup.

2.

Keup’s Motion to Appoint Counsel (Filing No. 10) is denied without prejudice.

3.

The clerk of the court is directed to send to Keup a blank civil complaint form.
In addition, the clerk of the court is directed to set a pro se case
management deadline in this matter: September 21, 2015: Check for
amended complaint.

4.

To avoid confusion, any document Keup sends to the clerk of the court for
filing in this case must clearly display the case number.
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DATED this 24th day of August, 2015.
BY THE COURT:
s/Laurie Smith Camp
Chief United States District Judge

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