Purdy v. State of Nebraska

Filing 10

MEMORANDUM AND ORDER - IT IS THEREFORE ORDERED that: Plaintiff's claims against the State of Nebraska are dismissed with prejudice. Plaintiff will have 30 days in which to file an amended complaint in this matter. Failure to file an amended co mplaint will result in the court dismissing this case without further notice to Plaintiff. The clerk of the court is directed to set a pro se case management deadline in this case using the following text: February 17, 2016: Check for amended comp laint. The court will conduct further review of Plaintiff's amended complaint, should he file one, to determine whether summary dismissal of the amended complaint is appropriate under 28 U.S.C. §§ 1915(e) and 1915A. Ordered by Senior Judge Joseph F. Bataillon. (Copy mailed to pro se party)(TCL)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
ANTHONY PAUL PURDY,
Plaintiff,
v.
STATE OF NEBRASKA,
Defendant.

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8:15CV279

MEMORANDUM
AND ORDER

Plaintiff Anthony Purdy (“Plaintiff”) filed his Complaint in this matter on July 22,
2015. (Filing No. 1.) Purdy has been given leave to proceed in forma pauperis. (Filing
No. 8.) Accordingly, the court now conducts an initial review of his claims to determine
whether summary dismissal is appropriate under 28 U.S.C. §§§ 1915(e)(2) and 1915A.
I. SUMMARY OF COMPLAINT
Plaintiff names the State of Nebraska as the defendant in the caption of his
Complaint. However, on closer examination of Plaintiff’s Complaint, he also alleges
claims against his criminal-defense lawyer, Noelle Obermeyer, the Douglas County
Correctional Center (“DCCC”), and Sergeant McIllen of the DCCC. He claims
Obermeyer has refused to look into his Native American history as a method of defense,
she has refused to request a deposition of the alleged victim in his criminal case, and she
has refused to expedite his release. Plaintiff claims the DCCC and Sergeant McIllen
have denied him access to the law library. In addition, he alleges the State of Nebraska
has taken away his parental rights.
For relief, Plaintiff requests that this court place Plaintiff on bond or diversion.
He also asks this court to grant an injunction against the State of Nebraska to prevent
termination of his parental rights. (Filing No. 1.)
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.”).
“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, 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).

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III. DISCUSSION OF CLAIMS
A.

Noelle Obermeyer

Liberally construing the Complaint, Plaintiff makes claims against the attorney
representing him in his state court proceedings, Noelle Obermeyer. (Filing No. 1 at
CM/ECF pp. 2, 9.) In order to succeed on a § 1983 claim, a plaintiff must demonstrate
that the defendants acted under color of state law. 42 U.S.C. § 1983; West, 487 U.S. 42,
49-50 (1988). The conduct of lawyers, simply by virtue of being officers of the court,
generally does not constitute action under color of law. See DuBose v. Kelly, 187 F.3d
999, 1003 (8th Cir. 1999). However, a § 1983 claim may be brought against a private
individual if he conspires with a state actor to deprive a person of his constitutional
rights. Id. Here, Plaintiff does not allege his lawyer is a state actor or that his lawyer
conspired with state actors to deprive Plaintiff of his constitutional rights.
To the extent Plaintiff’s claims about his lawyer’s failure to file Plaintiff’s
requested motions and briefs are construed as a civil malpractice claim, Plaintiff’s claims
similarly fail. Federal courts are courts of limited jurisdiction. Kokkonen v. Guardian
Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). The subject-matter jurisdiction of the
federal district courts is generally set forth in 28 U.S.C. §§ 1331 & 1332. Under these
statutes, federal jurisdiction is available only when a “federal question” is presented or
when the parties are of diverse citizenship and the amount in controversy exceeds
$75,000. Attorney malpractice does not present a federal question, and Plaintiff does not
allege that the parties are diverse.
On the court’s own motion, the court will give Plaintiff 30 days in which to file
an amended complaint that shows this court has subject-matter jurisdiction over his
claims against Noelle Obermeyer.
B.

DCCC and Sergeant McIllen

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Plaintiff claims the DCCC and Sergeant McIllen denied his request for access to
the law library and told him he needed to file another request to gain access. (Filing No.
1 at CM/ECF p. 9.)
“[P]risoners have a constitutional right of access to the courts.” Bounds v. Smith,
430 U.S. 817, 821 (1977). However, this right is only violated if the prisoner has
suffered an “actual injury,” Lewis v. Casey, 518 U.S. 343, 351 (1996), by way of an
official action that hindered his or her pursuit of a “nonfrivolous” or “arguable”
underlying legal claim. Id. at 353 & 353 n. 3. “To prove actual injury, [Plaintiff] must
‘demonstrate that a nonfrivolous legal claim had been frustrated or was being impeded.’”
Hartsfield v. Nichols, 511 F.3d 826, 832 (8th Cir. 2008) (citation omitted).
Here, Plaintiff has not alleged any facts suggesting that either the DCCC or
McIllen impeded his ability to bring a nonfrivolous legal claim. In other words, he does
not allege he was injured or prejudiced by his refused admittance to the law library.
Accordingly, Plaintiff has failed to allege a plausible denial-of-access-to-courts claim.
However, as indicated above, Plaintiff will have an opportunity to file an amended
complaint.
C.

State of Nebraska

Finally, Plaintiff names the State of Nebraska as a defendant and requests an
injunction to stop the state from “taking [his] parental rights.” (Filing No. 1 at CM/ECF
p. 2.)
The Eleventh Amendment provides states, and state agencies with immunity from
suits brought by citizens of other states and from suits brought by a state’s own citizens.
Hans v. Louisiana, 134 U.S. 1, 15 (1890). Sovereign immunity deprives federal courts
of jurisdiction over lawsuits brought by private citizens against states unless the state has
waived its immunity or Congress has abrogated the state’s immunity under a valid
exercise of Congressional power. See Pennhurst State Sch. & Hosp. v. Halderman, 465
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U.S. 89, 99-100 (1984) (Eleventh Amendment proscribes suit against state absent
unequivocal waiver); Edelman v. Jordan, 415 U.S. 651 (1974); see also Doe v.
Nebraska, 345 F.3d 593, 597 (8th Cir. 2003).
Here, there is nothing in the record before the court showing that the State of
Nebraska waived, or that Congress overrode, sovereign immunity in this matter.
Moreover, a suit may be brought under § 1983 only against a “person” who acted under
color of state law. A state “is not a ‘person’ as that term is used in § 1983, and is not
suable under the statute, regardless of the forum where the suit is maintained.” Hilton v.
South Carolina Pub. Railways Comm’n, 502 U.S. 197, 200-01 (1991). Thus, § 1983
does not create a cause of action against the State of Nebraska and Plaintiff’s claims
against the State must be dismissed.
D.

Requests for Injunctive Relief

Plaintiff asks this court to place him on bond or diversion. (Filing No. 1 at
CM/ECF p. 4.) Plaintiff is currently incarcerated for a pending criminal case. The court
does not have the proper jurisdiction to grant the relief sought. The abstention doctrine
set forth in Younger v. Harris, 401 U.S. 37 (1971), directs that federal courts must not
interfere with, or intervene in, ongoing criminal proceedings in state court. Absent
extraordinary circumstances, this court must abstain from exercising jurisdiction over
any civil action that challenges Plaintiff’s ongoing criminal proceedings. See Hudson v.
Campbell, 663 F.3d 985, 987 (8th Cir. 2011) (“The Younger abstention doctrine derives
from notions of federalism and comity. Younger itself held that, absent extraordinary
circumstances, federal courts should not enjoin pending state criminal prosecutions.”).
Plaintiff has alleged no such extraordinary circumstances in his Complaint or
supplemental pleading. Thus, Plaintiff is advised that the court will not interfere with,
or intervene in, his ongoing criminal proceedings.
IT IS THEREFORE ORDERED that:

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1.
prejudice.

Plaintiff’s claims against the State of Nebraska are dismissed with

2.
Plaintiff will have 30 days in which to file an amended complaint in this
matter. Failure to file an amended complaint will result in the court dismissing this case
without further notice to Plaintiff.
3.
The clerk of the court is directed to set a pro se case management deadline
in this case using the following text: February 17, 2016: Check for amended complaint.
4.
The court will conduct further review of Plaintiff’s amended complaint,
should he file one, to determine whether summary dismissal of the amended complaint
is appropriate under 28 U.S.C. §§ 1915(e) and 1915A.
DATED this 20th day of January, 2016.
BY THE COURT:
s/ Joseph F. Bataillon
Senior United States District Judge

*This opinion may contain hyperlinks to other documents or Web sites. The U.S.
District Court for the District of Nebraska does not endorse, recommend, approve, or
guarantee any third parties or the services or products they provide on their Web sites.
Likewise, the court has no agreements with any of these third parties or their Web sites.
The court accepts no responsibility for the availability or functionality of any hyperlink.
Thus, the fact that a hyperlink ceases to work or directs the user to some other site does
not affect the opinion of the court.
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