Diamantopoulos v. State of Nebraska
MEMORANDUM AND ORDER - 1. Diamantopoulos's Motion for Leave to Proceed in Forma Pauperis (Filing No. 8 ) is denied. 2. Diamantopoulos's motions seeking habeas corpus relief (Filing Nos. 17 , 19 , and 20 ) are denied without prejudice to reassertion of a subsequent petition upon authorization by the Eighth Circuit Court of Appeals. 3. This case is dismissed without prejudice. 4. A separate judgment will be entered in accordance with this Memorandumand Order. 5. If Diamantopoulos s eeks to appeal this dismissal, the notice of appeal mustbe accompanied by an appellate filing fee in the amount of $505.00. Diamantopoulos will not be permitted to appeal in forma pauperis. Ordered by Chief Judge Laurie Smith Camp. (Copy mailed to pro se party)(JAB)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
STATE OF NEBRASKA, et al.,
This matter is before the Court on its own motion. For the reasons explained below,
the Court will dismiss this action because Plaintiff Georgios Diamantopoulos failed to
comply with this court’s orders.
Diamantopoulos1 filed a Complaint (Filing No. 1) on April 13, 2015, and then a
Motion for Leave to Proceed in Forma Pauperis (Filing No. 5) on April 21, 2015.
Diamantopoulos is a pro se litigant incarcerated at the Tecumseh State Prison in
Tecumseh, Nebraska. Diamantopoulos generally alleged in the Complaint that prison
officials were violating Diamantopoulos’s right of access to the courts by refusing to provide
various word processing services needed in order to comply with Supreme Court Rule
33.1(g)(1). See Sup. Ct. R. 33 (“Document Preparation: Booklet Format; 8 1/2-by 11-Inch
On April 22, 2015, the Court concluded that Diamantopoulos had, on at least three
prior occasions while incarcerated, brought cases that were dismissed on the grounds that
Diamantopoulos’s prisoner identification number is 35084. Diamantopoulos is an experienced pro
se litigant with an extensive history of filings in this Court. A review of the Court’s electronic filing system
reveals Diamantopoulos has filed more than 30 cases under numerous names and aliases including Cary
Nelson Rehbein, Glory Peterson, Gloria Petersen, Gloria Georgia Diamantopoulos/Pettersen, Yourgos
Diamantopoulos, Yerigo Diamantopoulos, Georgos Diamantopoulos, and Georgios Diamantopoulos.
they were frivolous or failed to state a claim upon which relief may be granted. The Court
ordered Diamantopoulos to either pay the Court’s $400.00 filing and administrative fees
or show cause for why this case should not be dismissed pursuant to 28 U.S.C. § 1915(g).
(Filing No. 9 at ECF 2.)
Thereafter, in an order dated May 11, 2015, the Court noted Diamantopoulos’s
repeated filing of supplementary materials frustrated the Court’s ability to effectively
manage and progress this case. Specifically, the Court could not discern which of
Diamantopoulos’s filings pertained to the allegations raised in the Complaint and which
filings pertained to Diamantopoulos’s efforts to proceed in forma pauperis. Accordingly,
the Court ordered Diamantopoulos to file two separate documents (1) an amended
complaint, and (2) a response to the Court’s order dated April 22, 2015. With respect to
the response, the Court ordered Diamantopoulos to “clearly designate on the face of the
document that it [was] the ‘Response to the Court’s Show Cause-Order.’” (Filing No. 15 at
ECF 3.) The Court specifically ordered Diamantopoulos to file no other document aside
from these two. (Id.) In addition, the Court warned Diamantopoulos that failure to file
either document would result in the Court dismissing this action without prejudice and
without further notice.
Diamantopoulos filed an Amended Complaint (Filing No. 16) on May 26, 2015,
which set forth an entirely different theory of relief than that set forth in the original
Complaint. Diamantopoulos later filed an “Application for Time Served Under Habieas [sic]
Corpus Under New Law” (Filing No. 17), a document captioned “Rule 60(b) F.R.C.P.
Extraordinary Circumstance Amended Complaint on 5/13/15 with Evidence of Support!”
(Filing No. 18), and a document captioned “Federal Habas [sic] Corpus Application § 2254”
(Filing No. 19). Also appearing on the docket sheet is a letter from Diamantopoulos to
Michael E. Gans, Clerk of the Eighth Circuit Court of Appeals, seeking “Habeas and
Damages.”2 (Filing No. 20.)
The court may dismiss an action for failure to prosecute pursuant to Federal Rule
of Civil Procedure 41(b) and the court’s inherent authority to manage its docket. Link v.
Wabash Railroad Co., 370 U.S. 626 (1962). In particular, Rule 41(b) allows for the
involuntary dismissal of a plaintiff’s claims where he has failed to prosecute those claims,
comply with the Federal Rules of Civil Procedure or local rules, or follow a court order.
Fed. R. Civ. P. 41(b).
Here, Diamantopoulos did not file a “Response to the Court’s Show-Cause Order,”
despite the Court’s warning that failure to do so would result in the Court dismissing this
case without prejudice and without further notice. In addition, Diamantopoulos filed other
supplementary documents despite the Court’s order that Diamantopoulos file no other
document aside from an amended complaint and a response to the Court’s order dated
April 22, 2015. The Court previously warned Diamantopoulos that the repeated filing of
supplementary materials frustrates the Court’s ability to effectively manage and progress
this case. The Court can no longer discern what relief Diamantopoulos seeks in this
action. Indeed, in Diamantopoulos’s most-recent motion, Diamantopoulos complains this
Gans forwarded the letter to this Court’s Clerk’s Office with the following note: “Enclosed for
processing by your office is a pleading that was forwarded to this Court by Mr. Georgios Diamantopoulos. The
document should be filed in the district court as of the date received by this office, July 16, 2015.” (Filing No.
20.) The Clerk of this Court docketed the letter in this case, which is Diamantopoulos’s only open case in this
district at this time.
action should have been docketed as a habeas corpus action under 28 U.S.C. § 2254,
further frustrating the Court’s ability to progress this case.
For the foregoing reasons, the Court will dismiss this case without prejudice based
on Diamantopoulos’s failure to comply with this Court’s orders and the Court’s inherent
authority to manage its docket. In the alternative, the Court will dismiss this case because
Diamantopoulos is not entitled to habeas corpus relief for the reasons discussed below.
III. PENDING MOTIONS FOR HABEAS CORPUS RELIEF
Diamantopoulos is serving a life sentence for first- degree murder. (See Case No.
4:07CV3191, Filing No. 1.) Diamantopoulos has filed at least eight previous habeas
corpus petitions in this Court. See Diamantopoulos v. Nebaska, 8:11CV406 (dismissing
eighth petition on February 14, 2012, as successive petition); Diamantopolous v. Venditte,
4:10cv3079 (dismissing seventh petition on June 2, 2010, as a successive petition);
Diamantopolous v. Nebraska, 4:07cv3191(dismissing sixth petition on December 7, 2007,
as a successive petition); Diamantopolous v. Clarke, 4:01cv3287 (dismissing fifth petition
on September 3, 2002, as a successive petition); Diamantopolous v. Nebraska Dep’t of
Corr., et al., 4:98cv3262 (dismissing fourth petition on October 14, 1998, as a successive);
Rehbein v. Clarke, 94 F.3d 478 (8th Cir. 1996), aff’g 855 F. Supp. 1066 (D. Neb. 1994)
(affirming dismissal of Diamantopoulos’s third petition for writ of habeas corpus under
principles concerning “abuse of the writ” before enactment of the Antiterrorism and
Effective Death Penalty Act of 1996).
The statutory prohibition against successive petitions by state prisoners is codified
in 28 U.S.C. § 2244, which provides in relevant part:
(b)(1) A claim presented in a second or successive habeas corpus
application under section 2254 that was presented in a prior application shall
(2) A claim presented in a second or successive habeas corpus application
under section 2254 that was not presented in a prior application shall be
dismissed unless-(A) the applicant shows that the claim relies on a new rule of
constitutional law, made retroactive to cases on collateral review by
the Supreme Court, that was previously unavailable; or
(B)(i) the factual predicate for the claim could not have been
discovered previously t 615 F.2d 486 through the exercise of due
(ii) the facts underlying the claim, if proven and viewed in light of the
evidence as a whole, would be sufficient to establish by clear and
convincing evidence that, but for constitutional error, no reasonable
factfinder would have found the applicant guilty of the underlying
(3)(A) Before a second or successive application permitted by this section is
filed in the district court, the applicant shall move in the appropriate court of
appeals for an order authorizing the district court to consider the application.
28 U.S.C. § 2244(b).
In Magwood v. Patterson, 561 U.S. 320, 332-33 (2010), the United States Supreme
Court held that “the phrase ‘second or successive’ must be interpreted with respect to the
judgment challenged.” In other words, the phrase “second or successive” applies to entire
habeas petitions, and not to individual claims in those petitions. Id.
This Court’s records reflect that a habeas corpus petition challenging Petitioner’s
first-degree murder conviction would be successive. As set forth above, Diamantopoulos
unsuccessfully challenged this same judgment of conviction in earlier federal habeas
corpus litigation. The record does not reflect that Diamantopoulos has received permission
from the Eighth Circuit Court of Appeals to again attack this conviction. If Diamantopoulos
wishes to file a habeas corpus action in this Court challenging his conviction,
Diamantopoulos should file a motion with the Eighth Circuit Court of Appeals fully
addressing the legal requirements for successive habeas petitions set forth in 28 U.S.C.
IT IS ORDERED:
Diamantopoulos’s Motion for Leave to Proceed in Forma Pauperis (Filing No.
8) is denied.
Diamantopoulos’s motions seeking habeas corpus relief (Filing Nos. 17, 19,
and 20) are denied without prejudice to reassertion of a subsequent petition upon
authorization by the Eighth Circuit Court of Appeals.
This case is dismissed without prejudice.
A separate judgment will be entered in accordance with this Memorandum
If Diamantopoulos seeks to appeal this dismissal, the notice of appeal must
be accompanied by an appellate filing fee in the amount of $505.00. Diamantopoulos will
not be permitted to appeal in forma pauperis.
DATED this 3rd day of August, 2015.
BY THE COURT:
s/Laurie Smith Camp
Chief United States District Judge
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