Rosberg v. State of Nebraska et al

Filing 7

MEMORANDUM AND ORDER that this action is dismissed with prejudice because Plaintiff's Complaint is frivolous and fails to state a claim upon which relief may be granted. The court will enter judgment by separate order. Plaintiff's motion for hearing and stay of divorce proceedings (Filing No. 6 ) is denied as moot. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party) (LAC)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
PAUL A. ROSBERG,
Plaintiff,

8:17CV80

vs.
STATE OF NEBRASKA, and PAUL J.
VAUGHAN,

MEMORANDUM
AND ORDER

Defendants.
Plaintiff filed his Complaint on March 14, 2017. (Filing No. 1.) He has been
given leave to proceed in forma pauperis. (Filing No. 5.) The court now conducts
an initial review of Plaintiff’s Complaint to determine whether summary dismissal
is appropriate under 28 U.S.C. § 1915(e)(2).
I. SUMMARY OF COMPLAINT
Plaintiff sues the State of Nebraska and Paul Vaughn, a district court judge
in Knox County, Nebraska, in his official and individual capacities. (Filing No. 1 at
CM/ECF p. 2.) Plaintiff believes that Vaughn “is unlawfully ruling” without
subject matter jurisdiction. (Id.) Vaughn currently presides over Plaintiff’s divorce
case. (Id. at CM/ECF p. 3.) Plaintiff alleges that he transferred his divorce case to
the “common law jurisdictional side,” so that he is entitled to a trial by jury under
the Seventh Amendment of the U.S. Constitution. (Id.) Plaintiff claims that
Vaughn, a chancery judge, prevented him from exercising his right to a jury trial
under the common law. (Id. at CM/ECF pp. 3-4.) Plaintiff seeks an order that
compels Defendants to allow him to exercise his right to a jury trial “in each and
every case that he has filed” and in his current divorce case. (Id. at CM/ECF p. 5.)

Plaintiff also requests an order that compels Vaughn to recuse himself from
Plaintiff’s cases. (Id. at CM/ECF p. 8.) He claims that he filed three motions in
state district court for Vaughn to recuse himself from his cases and four different
lawsuits against Vaughn that are still being litigated. (Id. at CM/ECF pp. 5-6.)
Plaintiff believes that Vaughn has consistently shown bias and impartiality against
him by dismissing his civil cases, sentencing him to jail without a trial in his
divorce case, ruling against most of his motions in his divorce case, and because
Plaintiff filed a “Lis Pendens” on Vaughan’s real estate. (Id. at CM/ECF pp. 5-6.)
In addition to the orders to compel, Plaintiff seeks punitive damages and
costs and fees. (Id. at CM/ECF p. 9.)
II. APPLICABLE STANDARDS 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)
2

(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).
III. DISCUSSION
A. Rooker-Feldman Doctrine
To the extent Plaintiff’s Complaint can be construed to challenge judgments
of the state district court1, this court lacks jurisdiction. Only the Supreme Court has
the authority to entertain a proceeding to reverse or modify a state court judgment.
Rooker v. Fidelity Trust Co., 263 U.S. 413, 416 (1923); see also 28 U.S.C. §
1257(a) (granting the United States Supreme Court the power to review final
judgments rendered by high courts of a state). In addition, federal courts do not
have jurisdiction to review final state court judgments in judicial proceedings.
District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 482-86 (1983).
Together, these two principles have merged to become the Rooker-Feldman
doctrine. It appears to the court that Plaintiff litigated his complaints against
Vaughn in the state district court, before a different presiding judge, and failed.
Under the Rooker-Feldman doctrine, the court has no jurisdiction to reverse or
modify those state court judgments.

1

PDF of JUSTICE document for Rosberg v. Vaughan, John/Jane Does,
Knox County District Court Case No. CI 16-09,
PDF of JUSTICE document
for Rosberg, et al., v. Vaughan, et al., Knox County District Court Case No. CI 1683,
PDF of JUSTICE document for Rosberg v. Vaughn, et al., Knox County
District Court Case No. CI 16-94, at https://www.nebraska.gov/justice//case.cgi;
Stutzka v. McCarville, 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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B. Younger Abstention
The court, nevertheless, would abstain from exercising jurisdiction over
Plaintiff’s claims for injunctive relief under the abstention doctrine set out by the
Supreme Court in Younger v. Harris, 401 U.S. 37, 43-45 (1971). Under Younger,
abstention is mandatory where: (1) there is an ongoing state proceeding; (2) an
important state interest is implicated; and (3) the plaintiff has an avenue open for
review of constitutional claims in the state court. See Aaron v. Target Corp., 357
F.3d 768, 774 (8th Cir. 2004) (“Under Younger v. Harris, federal courts should
abstain from exercising jurisdiction in cases where equitable relief would interfere
with pending state proceedings in a way that offends principles of comity and
federalism.”) Here, each of the three Younger conditions is satisfied. First, Plaintiff
admits that his cases are still being litigated. Second, the underlying proceedings
involve domestic relations – divorce and child support - that implicate important
state interests.2 Third, there is no indication that the state courts cannot afford
Plaintiff the opportunity for judicial review.
C. Frivolous/Failure to State a Claim
Pursuant to Neb. Rev. Stat. § 42-351 (West), state district courts have
jurisdiction over divorce proceedings. Accordingly, there is no merit to Plaintiff’s
claim that Vaughn lacked subject matter jurisdiction over Plaintiff’s divorce case.

2

This, however, does not appear to be a case in which the domestic relations
exception would prevent the court from exercising jurisdiction. See Alexander v.
Rosen, 804 F.3d 1203, 1205–06 (6th Cir. 2015), cert. denied, 136 S. Ct. 2392, 195
L. Ed. 2d 767 (2016) (domestic relations exception did not apply where plaintiff
claimed that various state actors violated federal law; “[t]he fact that they did so in
the course of deciding his child support obligations is immaterial”).

4

Underlying Plaintiff’s claims is his belief that Vaughn should have granted
his common law right to a jury trial, specifically in his current divorce case,
pursuant to the Seventh Amendment of the U.S. Constitution. The Seventh
Amendment provides, in relevant part: “In suits at common law, where the value in
controversy shall exceed twenty dollars, the right of trial by jury shall be preserved
. . . .” U.S. Const., Amend. 7. The Seventh Amendment applies only in federal
courts. Olesen v. Trust Company of Chicago, 245 F.2d 522, 524 (7th Cir. 1957),
cert. denied, 355 U.S. 896 (1957). Nevertheless, in Nebraska, divorce proceedings
are equitable in nature, and therefore there is no right to a jury trial in such
proceedings. See Rauch v. Rauch, 590 N.W.2d 170, 174 (Neb. 1999); Else v. Else,
367 N.W.2d 701, 703 (Neb. 1985). Much to Plaintiff’s chagrin, this is the reason
that Vaughn denied his request for a jury trial.3
Plaintiff cannot “transfer” his case out of its requisite legal category. And, it
appears to the court that Plaintiff continues to harass Vaughn with lawsuits because
Plaintiff does not agree with Vaughn’s rulings and in an effort to provide grounds
for Vaughn to recuse himself from Plaintiff’s divorce case. A litigant cannot
unilaterally create the grounds for recusal. See In re Mann, 229 F.3d 657, 658-59
(7th Cir. 2000) (filing of judicial misconduct charge in reaction to court’s decision
insufficient ground for disqualification). Accordingly, the court finds that
Plaintiff’s Complaint is frivolous and fails to state a claim upon which relief may
be granted.4 The court also finds that Plaintiff may not use this lawsuit to interfere

3

PDF of JUSTICE document for Rosberg v. Rosberg, Knox County
District Court Case No. CI14-52 at https://www.nebraska.gov/justice//case.cgi.
4

The court notes that Plaintiff’s request for monetary relief is denied for
additional reasons, namely that the State and Vaughn enjoy immunity from
Plaintiff’s claim for damages. The Eleventh Amendment bars claims for damages
by private parties against a state. See, e.g., Egerdahl v. Hibbing Cmty. Coll., 72
F.3d 615, 619 (8th Cir. 1995); Dover Elevator Co. v. Arkansas State Univ., 64 F.3d
442, 446-47 (8th Cir. 1995). Judges are absolutely immune from suit for money
damages when they act in their judicial capacity, unless their actions are “taken in
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with actions that have been decided or are pending in state court proceedings. The
court will not give Plaintiff an opportunity to amend his Complaint because it is
obvious that amendment would be futile.
IT IS THEREFORE ORDERED that:
1.
This action is dismissed with prejudice because Plaintiff’s Complaint
is frivolous and fails to state a claim upon which relief may be granted.
2.

The court will enter judgment by separate order.

3.
Plaintiff’s motion for hearing and stay of divorce proceedings (Filing
No. 6) is denied as moot.
Dated this 26th day of April, 2017.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

the complete absence of all jurisdiction.” Martin v. Hendren, 127 F.3d 720, 721
(8th Cir. 1997). Vaughn acted in his judicial capacity and with jurisdiction.

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