Allen v. The County of Douglas et al
MEMORANDUM AND ORDER - Plaintiff's conviction-related claims against Defendants are dismissed without prejudice to reassertion in a habeas corpus or other similar proceeding. Because Plaintiff made no additional allegations in his Amended Complaint, all other claims against Defendants are dismissed for the reasons set forth in this court's order dated September 12, 2016. A separate Judgment will be entered in accordance with this Memorandum and Order. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party)(GJG)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
CORY T. ALLEN,
THE COUNTY OF DOUGLAS, et al.,
Plaintiff filed his Complaint on May 19, 2016. (Filing No. 1.) He was given
leave to proceed in forma pauperis. (Filing No. 6.) On September 12, 2016, the
court ordered Plaintiff to file an amended complaint because his Complaint failed
to state a claim upon which relief may be granted. (Filing No. 11.) Specifically, the
court found some of Plaintiff’s (“conviction-related”) claims barred pursuant to
Heck v. Humphrey, 512 U.S. 477 (1994). (Filing No. 11 at CM/ECF pp. 3-4.) On
November 10, 2016, Plaintiff filed an Amended Complaint. (Filing No. 14.) Now,
the court conducts review of Plaintiff’s Amended Complaint.
In his Amended Complaint, Plaintiff stresses that his claims are not barred
by Heck, because he is not challenging the validity of his conviction or sentence.
(See id. at CM/ECF pp. 9, 11, 17, 18, 21.) Plaintiff alleges that, instead, his
argument is that his sentence was based upon inaccurate information in violation of
his constitutional right to due process. (Id.) As the court understands it, the
“accurate information” is that Officer Swanson accidentally shot Officer Latscher
and Defendants conspired to ensure that Plaintiff was convicted of the shooting.
(Id. at CM/ECF pp. 4-7.)1
Plaintiff was convicted of two counts of attempted second degree murder,
two counts of use of a deadly weapon to commit a felony, and one count of
possession of a deadly weapon by a felon. Nebraska Department of Correction
Services Inmate Locator (Corey T. Allen, DCS ID # 70055); Stutzka v. McCarville,
The court finds, as it did in its order dated September 12, 2016, that it cannot
find in Plaintiff’s favor based on such an argument without calling into question
the legitimacy of his criminal convictions. In fact, Plaintiff admits that the
“conspiracy” “designed to cover-up police corruption [ ] led to a shooting, trial,
and conviction; an injury to Plaintiff through the deprivation of a Constitutionally
fair trial.” (Id. at CM/ECF p. 7.) (emphasis in original) Heck makes clear that
Plaintiff may not use a civil rights action to cast doubt on the legality of his
conviction or confinement. Heck, 512 U.S. at 486-87.
IT IS THEREFORE ORDERED that:
Plaintiff’s conviction-related claims against Defendants are dismissed
without prejudice to reassertion in a habeas corpus or other similar proceeding.
Because Plaintiff made no additional allegations in his Amended
Complaint, all other claims against Defendants are dismissed for the reasons set
forth in this court’s order dated September 12, 2016.
A separate Judgment will be entered in accordance with this
Memorandum and Order.
Dated this 2nd day of February, 2017.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge
420 F.3d 757, 760 n.2 (8th Cir. 2005) (court may take judicial notice of judicial
opinions and public records).
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