Higgins v. District Court for Douglas County et al
ORDER that the claims against Judge Richard G. Kopf are dismissed. Higgins's redundant motion for an immediate order of release is DENIED. The Clerk of Court shall mail a copy of the official habeas form to Higgins at his address of record. Hig gins shall have until February 3, 2017, to file amended petitions in the above-captioned cases. If Higgins fails to file amended petitions or fails to remedy the significant pleading deficiencies identified in this Order, these cases may be dismissed without further notice. Ordered by Judge Robert F. Rossiter, Jr. (Copy mailed to pro se party including form) (JSF)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
JOSEPH W. HIGGINS,
DISTRICT COURT FOR DOUGLAS
COUNTY; MARK FOXELL; DOUGLAS
COUNTY JAIL; NEBRASKA BOARD OF
MENTAL HEALTH; VETERAN
HOSPITAL MENTAL HEALTH
DEPARTMENT; and GOVERNOR PETE
JOSEPH W. HIGGINS,
RICHARD G. KOPF;
FEDERAL VETERAN HOSPITAL
POLICE; VETERAN HOSPITAL
MENTAL HEALTH; DISTRICT COURT
OF DOUGLAS COUNTY; LINCOLN
REGIONAL CENTER; DOUGLAS
COUNTY DISTRICT COURT JUDGE
BURN; PUBLIC DEFENDER MARY
DOVORAK; PROSECUTOR MILLER;
MARK FOXALL; and DOUGLAS
Before the Court are two separate but similar petitions submitted pro se by Joseph
W. Higgins (“Higgins”), who has a rather extensive litigation history in this and other
courts. 1 See, e.g., Higgins v. Clinton, 89 F.3d 850 (10th Cir. 1996) (unpublished table
decision); Higgins v. Fed. Veteran Hosp. Police, No. 8:16CV408 (D. Neb. 2016) (listing
cases). Higgins has also filed a redundant Motion for Court to Make Immediate Order
for Release Concerning the Two Duplicate Petition[s] for Writ of Habeas Corpus. The
basis for Higgins’s claims is not entirely clear, but the record seems to indicate Higgins is
currently a patient at the Lincoln Regional Center in Nebraska pending criminal charges
in Douglas County Court. Upon Higgins’s requests, this Court provisionally granted
Higgins leave to proceed in forma pauperis in both cases.
In the first case, Higgins expressly petitions for a writ of habeas corpus, seeking
“release from custody under the mental health hold and $225,000 excessive bail based on
no probable cause for detention.” Higgins alleges violations of the Fourth and Fourteenth
Amendments to the U.S. Constitution and 18 U.S.C. § 241 (conspiracy against rights) and
asserts Nebraska Governor Pete Ricketts is, among other things, “depriving [him] of life
threatening [sic] medication.”
In the second case, Higgins calls his submission a “Petition for Supervisory Writ
to Seek Criminal Presentment Complaint 18 U.S.C. Section 241 Complaint.” Higgins
“moves this court to convene the grand jury for presentment against criminal hate crimes
and to release [Higgins] from custody of Lincoln Regional Center upon the return of a
true bill.” Dubiously naming as a respondent the United States District Judge who
dismissed Higgins’s prior request for that exact relief, Higgins alleges “[t]he United
States Attorney and [Judge] Richard G. Kopf failed to act in violation of 42 U.S.C.
Section 1986 to convene the grand jury or prosecute a criminal complaint.”
It appears Higgins seeks a criminal indictment against those respondents he holds
responsible for charging him with making terroristic threats and sending him to the
The second petition names as a petitioner what the Court understands to be
Higgins’s reference to “The Almighty God Jahova Jirea.” That impertinent reference is
hereby stricken, see Fed. R. Civ. P. 12(f)(1), leaving Higgins as the sole petitioner.
Lincoln Regional Center where he has been told he is “being evaluated to stand trial.”
According to Higgins, the charges were legally defective and have been dismissed, so
Higgins should not be in custody. Though the timing is not exactly clear, Higgins states
he was denied food and medicine. Higgins also asserts Douglas County District Judge
Burn (1) “showed bias and hate by construing [Higgins’s] Petition for Supervisory Writ
to be a Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254 knowing [Higgins is]
not a federal convicted inmate concerning a federal crime” and (2) erroneously “relied on
[a] fabricated letter to hold hearing without [Higgins’s] knowledge nor consent and
committed [him] to Lincoln Regional Center.” Higgins states he seeks “a release from
custody and restoration fees plus $20,000 Dollars [sic] a day for wrongfully being in
custody through bad faith arrest and detention” and “criminal prosecution through
While he adds a few new twists in his latest petitions, Higgins’s present
allegations largely mirror those this Court has previously found insufficient.
October 18, 2016, Judge Kopf entered an order in Case No. 8:16CV408 advising Higgins
that his prior petition—which primarily raised the same issues he raises here—failed to
comply with Rule 2(c) and (d) of the Rules Governing Habeas Corpus Cases. 2 Although
the Court found Higgins’s allegations largely “incomprehensible” and “frequently
fanciful” and thus subject to dismissal, the Court gave Higgins an opportunity to amend
his petition. When he failed to do so, the Court dismissed Higgins’s petition without
prejudice. See McFarland v. Scott, 512 U.S. 849, 856 (1994) (citing 28 U.S.C. § 2254
Rule 4) (“Federal courts are authorized to dismiss summarily any habeas petition that
appears legally insufficient on its face.”).
In dismissing similar claims in 2015, the Court advised Higgins that “‘private
citizens cannot prosecute criminal actions’” because “[t]he prosecution of criminal
“Rule 2(c) explicitly requires that a petitioner summarize the facts supporting
each of the alleged grounds for relief.” Adams v. Armontrout, 897 F.2d 332, 333 (8th Cir.
1990). Rule 2(d) requires a petition to “substantially follow” the prescribed form.
actions in the federal courts is a matter solely within the discretion of the Attorney
General of the United States and duly authorized United States Attorneys.”
Higgins, No. 8:15-CV-103, 2015 WL 1651424, at *1 (D. Neb. Mar. 23, 2015) (quoting
Higgins v. Neal, 52 F.3d 337 n. 3 (10th Cir. 1995)). The Court further advised that any
civil action based on an alleged failure to prosecute or to convene a grand jury generally
does not state a cognizable claim because such matters fall within the prosecutor’s
discretion and often involve questions of standing, jurisdiction, abstention, and immunity.
Id. at *2, and n.4.
After a careful review of Higgins’s current petitions, the Court again finds that
Higgins’s allegations, even “liberally construed,” Adams, 897 F.2d at 333, do not
adequately set forth the factual and legal bases for the relief he seeks and fail to state a
cognizable claim. In reviewing a habeas petition, the Court “must decide, based on the
face of the petition, whether the claims asserted merit further federal habeas corpus
review.” Id. Under 28 U.S.C. § 1915A(b)(1), the Court must “dismiss [a] complaint, or
any portion of the complaint [by a prisoner against a government entity, officer or
employee], if the complaint–(1) is frivolous, malicious, or fails to state a claim upon
which relief may be granted; or (2) seeks monetary relief from a defendant who is
immune from such relief.” See also 28 U.S.C. § 1915(e)(2)(B) (requiring dismissal under
such circumstances in any case in which the Court has granted leave to proceed in forma
A claim “is frivolous where it lacks an arguable basis either in law or fact.”
Neitzke v. Williams, 490 U.S. 319, 325 (1989). A claim fails to state a claim upon which
relief may be granted if it does not allege “enough facts to state a claim to relief that is
plausible on its face.”
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).
Higgins’s allegations do not meet these standards.
To begin, Higgins’s claims against Judge Kopf must be dismissed. Judge Kopf is
not a proper respondent with respect to Higgins’s habeas claims and is entitled to
absolute judicial immunity on any claim arising from the denial of Higgins’s request to
convene a grand jury or prosecute a criminal complaint. Mireles v. Waco, 502 U.S. 9, 11
(1991) (“Judicial immunity is an immunity from suit, not just from ultimate assessment
With just two narrow exceptions that do not apply here, “[j]udges
performing judicial functions enjoy absolute immunity from” liability for alleged civilrights violations.
Robinson v. Freeze, 15 F.3d 107, 108 (8th Cir. 1994).
immunity is very broad. It applies not only when the judge is alleged to have made an
error, but also “applies even when the judge is accused of acting maliciously and
corruptly.” Pierson v. Ray, 386 U.S. 547, 554 (1967). Higgins has no basis for any claim
against Judge Kopf. 3
To the extent the Court is able to decipher Higgins’s allegations, Higgins’s
remaining claims—at this point at least—are likewise insufficient to withstand dismissal.
Higgins appears to be a pretrial detainee primarily attacking the legality of his
confinement at the Lincoln Regional Center pending criminal charges in state court. See,
e.g., Preiser v. Rodriguez, 411 U.S. 475, 484 (1973) (“It is clear, not only from the
language of [28 U.S.C.] ss 2241(c)(3) and 2254(a), but also from the common-law
history of the writ, that the essence of habeas corpus is an attack by a person in custody
upon the legality of that custody, and that the traditional function of the writ is to secure
release from illegal custody.”). But even those basic facts are not entirely clear from the
scattered factual allegations in Higgins’s current submissions. See, e.g., Adams, 897 F.2d
at 333 (“We join the numerous federal courts which have repeatedly expressed their
unwillingness to sift through voluminous documents filed by habeas corpus petitioners in
order to divine the grounds or facts which allegedly warrant relief.”). “[T]o substantially
comply with the Section 2254 Rule 2(c), a petitioner must state specific, particularized
Other respondents may also be immune or have other claims or defenses, but,
given the lack of clarity in Higgins’s allegations, the Court cannot be sure at this point.
facts which [on their face] entitle him or her to habeas corpus relief for each ground
specified.” Id. at 334. Higgins has not done that.
In addition to requesting release from custody, Higgins seems to challenge some
of the conditions of his confinement, attempts to raise other civil-rights claims, and asks
for monetary damages. He also again moves the Court to convene a grand jury, even
though the Court has explained that convening a grand jury and prosecuting criminal
complaints are not judicial functions. Despite thorough explanations from the Court and
the dismissal of his prior submissions for failing to adequately state and support his
claims, Higgins again fails to adequately indicate the statutory or other legal basis for his
claims. Higgins’s rather nebulous “Petition for Supervisory Writ,” which he—without
explanation—sharply distinguishes from a habeas petition under 28 U.S.C. § 2254, is
perhaps the best example.
Before the “drastic and extraordinary” remedy of a writ may issue, the
petitioner must show that he has no other adequate means to obtain relief,
that his right to issuance of the writ is clear and indisputable, and that the
writ is appropriate under the circumstances. “[O]nly exceptional
circumstances amounting to a judicial usurpation of power or a clear abuse
of discretion will justify the invocation of this extraordinary remedy.”
In re Grand Jury Process, Doe, 814 F.3d 906, 907 (8th Cir. 2015) (alteration in original)
(quoting Cheney v. U.S. Dist. Court for D.C., 542 U.S. 367, 380-81 (2004)).
In short, Higgins’s unsupported factual and legal allegations do not present a
cognizable claim for relief and are subject to dismissal. See In re Higgins, No. 8:15-CV103, 2015 WL 1651424, at *1-2; 28 U.S.C. §§ 1915A(b)(1), 1915(e)(2)(B). Nonetheless,
the Court will again give Higgins an opportunity to amend his petitions to comply with
Rule 2 and otherwise address the factual and legal deficiencies identified in this Order.
IT IS ORDERED:
The claims against Judge Richard G. Kopf are dismissed.
Higgins’s redundant motion for an immediate order of release is DENIED.
The Clerk of Court shall mail a copy of the official habeas form to Higgins
at his address of record.
Higgins shall have until February 3, 2017, to file amended petitions in the
above-captioned cases. If Higgins fails to file amended petitions or fails to
remedy the significant pleading deficiencies identified in this Order, these
cases may be dismissed without further notice.
Dated this 6th day of January, 2017.
BY THE COURT:
s/ Robert F. Rossiter, Jr.
United States District Judge
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