Higgins v. Chief Judge of the Nebraska Supreme Court et al

Filing 13

MEMORANDUM AND ORDER that on the court's own motion, Plaintiff shall have 30 days from the date of this Memorandum and Order to file an amended complaint that sufficiently alleges a claim upon which relief may be granted. Failure to file an a mended complaint in accordance with this Memorandum and Order will result in dismissal of this action without prejudice and without further notice. The Clerk's Office is directed to set a pro se case management deadline in this case using the following text: March 31, 2017: Check for amended complaint. Ordered by Chief Judge Laurie Smith Camp. (Copy mailed to pro se party) (LAC)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA

JOSEPH W. HIGGINS,
Plaintiff,

8:16CV434

vs.
CHIEF JUDGE OF THE NEBRASKA
SUPREME COURT, in their official and
individual capacity; HEAD CLERK OF
THE NEBRASKA SUPREME COURT, in
their official and individual capacity;
THE ARRESTING OMAHA POLICE AND
POLICE DEPARTMENT, in their official
and individual capacity; PETE
RICKETTS, Governor, in their official
and individual capacity; and BRAD
ASHFORD, Senator, in their official and
individual capacity;

MEMORANDUM
AND ORDER

Defendants.

This matter is before the Court on the initial review of Plaintiff Joseph Higgins’s
Complaint, ECF No. 1. Because Higgins is proceeding in forma pauperis, the initial
review is conducted in accordance with 28 U.S.C. § 1915(e) to determine if summary
dismissal is appropriate. For the reasons stated below, Higgins will be granted to leave
to amend.
STANDARD OF REVIEW
The Court is required to review in forma pauperis complaints to determine
whether summary dismissal is appropriate. See 28 U.S.C. § 1915(e). 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).
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.” Id. at 849 (internal quotation marks and citations omitted).
DISCUSSION
The complaint essentially alleges that Higgins is being held on charges for which
there is no supporting evidence. His incarceration1 has been brought about by a civil
conspiracy, in which the Chief Justice of the Nebraska Supreme Court, the Clerk of the
Nebraska Supreme Court, the Omaha Police Department and its officer who
presumably arrested Higgins, Governor Pete Ricketts, and “Senator” Brad Ashford are
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At the time Higgins initially filed his complaint, he was incarcerated at the Douglas County
Correctional Facility in Omaha, Nebraska. Based upon the return address of his filings, Higgins has since
been placed in the Lincoln Regional Center in Lincoln, Nebraska.

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apparently participants. All defendants are sued in both their individual and official
capacities. Higgins seeks immediate release from his confinement, five million dollars
in damages from each defendant, and “the restoration of any property loss.” ECF No. 1,
Page ID 8. The complaint alleges that the defendants have conspired in violation of 42
U.S.C. § 1985(3). The complaint specifically directs the Court “not to construe this 42
U.S.C. Section 1985(3) complaint to be something other than [a] 42 U.S.C. Section
1985(3) complaint.” ECF No. 1, Page ID 8.
In order to succeed under Section 1985(3), a plaintiff must allege:
(1) that the defendants conspired, (2) with the intent to deprive [him] of
equal protection of the laws, or equal privileges and immunities under the
laws, (3) that one or more of the conspirators did, or caused to be done,
any act in furtherance of the object of the conspiracy, and (4) that [he] was
injured or deprived of having and exercising any right or privilege of a
citizen of the United States.
Mendoza v. United States Immigration & Customs Enf’t, __F.3d__, No. 16-1807, 2017
WL 676526, at *8 (8th Cir. Feb. 21, 2017) (alteration in original) (quoting Crutcher–
Sanchez v. Cty. of Dakota, 687 F.3d 979, 987 (8th Cir. 2012)).

Meeting the first

element requires that a plaintiff “allege with particularity and specifically demonstrate
with material facts that the defendants reached an agreement.” Id. (quoting Davis v.
Jefferson Hosp. Ass’n, 685 F.3d 675, 685 (8th Cir. 2012)). Higgins’s complaint—even
when construed liberally—is entirely devoid of any such allegations. Therefore, Higgins
will be given leave to amend his complaint.
The Court notes that Higgins seeks both his immediate release and monetary
damages. In order to challenge his confinement at the Lincoln Regional Center on
constitutional grounds, Higgins must file a petition for a writ of habeas corpus under 28

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U.S.C. § 2254 after he has exhausted his state court remedies. See Reddick v. Paine,
No. 8:16CV556, 2017 WL 405614, at *2 (D. Neb. Jan. 30, 2017) (noting that an action
seeking immediate release of a plaintiff from the Norfolk Regional Center “can only be
pursued in federal court through a habeas corpus proceeding and [the plaintiff] must
first exhaust his state court remedies”). Accordingly,
IT IS ORDERED:
1. On the court’s own motion, Plaintiff shall have 30 days from the date of this
Memorandum and Order to file an amended complaint that sufficiently alleges
a claim upon which relief may be granted. Failure to file an amended
complaint in accordance with this Memorandum and Order will result in
dismissal of this action without prejudice and without further notice; and
2. The Clerk’s Office is directed to set a pro se case management deadline in
this case using the following text: March 31, 2017: Check for amended
complaint.

Dated this 1st day of March, 2017.

BY THE COURT:
s/Laurie Smith Camp
Chief United States District Judge

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