Jacob v. Cotton et al

Filing 4

MEMORANDUM AND ORDER - IT IS THEREFORE ORDERED that: The action is dismissed with prejudice. A separate judgment will be entered. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party)(TCL)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
DAVID H. JACOB,
Plaintiff,

8:17CV215

vs.
ROSALYN COTTON, Chairperson of
the Nebraska Board of Parole; REX
RICHARD, Member of the Nebr. Board
of Parole; RANDALL L. REHMEIER,
Member of the Nebraska Board of
Parole; TERESA L. BITTINGER,
Member of the Nebraska Board of
Parole; and VIRGIL J. PATLAN,
Member of the Nebraska Board of
Parole;

MEMORANDUM
AND ORDER

Defendants.
Plaintiff filed a Complaint on June 21, 2017. (Filing No. 1.) He has paid the
filing fee. (See Docket Sheet.) The court now conducts an initial review of
Plaintiff’s Complaint to determine whether summary dismissal is appropriate under
28 U.S.C. § 1915A.
I. SUMMARY OF COMPLAINT
In 1986, Plaintiff was convicted of three counts of second degree murder and
two counts of use of a weapon to commit a felony. (Filing No. 1 at CM/ECF p. 4.)
The state district court sentenced Plaintiff to consecutive sentences of life
imprisonment for each second degree murder conviction and to 6 to 20 years’
imprisonment for each use conviction. (Id.) The minimum sentence for second
degree murder, at the time Plaintiff committed the offenses, was 10 years’

imprisonment. See Neb. Rev. Stat. § 28-105 (Reissue 1971); Neb. Rev. Stat. § 28304 (Reissue 1971).
Plaintiff became parole eligible on January 17, 2015. (Filing No. 1 at
CM/ECF p. 4.) On August 7, 2014, Plaintiff met with members of the Board of
Parole for a review of his case. (Id. at CM/ECF pp. 6-7.) As a result of the review,
the Board of Parole deferred Plaintiff’s case for review until August 8, 2015. (Id. at
CM/ECF p. 7.) The reasons for the deferment were that the nature and
circumstances of Plaintiff’s offenses indicated “that any early release would
depreciate from the seriousness of [his] crime and promote disrespect for the law,”
and Plaintiff’s “continued correctional treatment, medical care, vocational training,
or other training in the facility [would] substantially enhance [his] capacity to lead
a law-abiding life when released at a later date.” (Id.) On July 28, 2016, Plaintiff
successfully completed substance abuse treatment. (Id.) On August 22, 2016, the
Board of Parole reviewed Plaintiff’s case again. (Id.) As a result of the review, the
Board of Parole deferred Plaintiff’s case for review until August of 2017, because
the nature and circumstances of Plaintiff’s offenses indicated “that any early
release would depreciate from the seriousness of [his] crime and promote
disrespect for the law.” (Id. at CM/ECF pp. 7-8.)
In January 2015, Plaintiff filed a petition for declaratory judgment in the
Lancaster County District Court, seeking to “vindicate[] his rights (1) not to be
subjected to an ex post facto law, (2) to not have his liberty interests denied
without the due process of law, and (3) to prevent unconstitutional action by the
Legislative or Executive branches of State government by enforcing the
Constitutional separation of powers.” See Jacob v. Cotton and the Nebraska Board
of Parole, Case No. A-15-1037, 2017 WL 773661 at *1 (Neb. App. Feb. 28, 2017),
review denied (Apr. 6, 2017). Plaintiff filed the petition against Rosalyn Cotton, in
her official capacity as chairman of the Board of Parole, and the Board of Parole.
(Id.) The state district court granted the defendants’ motion to dismiss for failure to
state a claim. (Id.)

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Plaintiff appealed the order of the state district court to the Nebraska Court
of Appeals. (Id.) Plaintiff assigned as error that the state district court erred in
dismissing his petition because “(1) the parole suitability standards in Neb. Rev.
Stat. § 83–1,114 (Reissue 2014) are ex post facto violations; (2) the district court
failed to find that the Parole Board’s determination violated the separation of
powers doctrine; (3) the district court failed to conclude that the Parole Board
violated his due process rights by denying him a parole hearing and inappropriately
relied on Greenholtz v. Inmates of Nebraska Penal & Corr. Complex, 442 U.S. 1,
99 S. Ct. 2100, 60 L.Ed. 2d 668 (1979), to determine that current parole procedures
did not violate due process.” (Id.) On February 28, 2017, the Court of Appeals
affirmed the decision of the state district court, finding that “the parole suitability
standards are not ex post facto violations, that the Parole Board did not violate the
separation of powers doctrine, and that the Parole Board did not violate Jacob’s
due process rights . . . .” (Id. at *4.) The Nebraska Supreme Court denied review
on April 6, 2017.
On June 21, 2017, Plaintiff filed the current action pursuant to 42 U.S.C. §
1983 and 28 U.S.C. § 2201 et seq. (Filing No. 1.) He names in his Complaint
Rosalyn Cotton, chairman of the Board of Parole, along with three members of the
Board of Parole, and he sues them in their official and individual capacities for
declaratory, injunctive, and monetary relief. (Id. at CM/ECF pp. 2, 14.) His
allegations are substantially similar to those presented to the lower state courts and
he raises the same issues1 of ex post facto, separation of powers, and due process
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Those issues are whether: (1) Plaintiff was subjected to an ex post facto
increase in punishment when Defendants allegedly applied the statutory 20-year
minimum sentence based on the 1995 statutes, as opposed to the 10-year minimum
sentence applicable at the time of the offenses, in their decision to defer Plaintiff’s
case for review; (2) Defendants’ use of the language in Neb. Rev. Stat. § 831,114(1)(b) that Plaintiff’s “release would depreciate the seriousness of his or her
crime or promote disrespect for law” violated the constitutional separation of
powers because it is the “power” of the “judicial branch” to make such a
determination; and (3) Defendants violated Plaintiff’s right to due process when
they determined his suitability for parole with a “review” and not a “hearing”
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decided in the state courts. See Jacob v. Cotton and Nebraska Board of Parole,
Lancaster County District Court Case No. CI 15-179 and Nebraska Court of
Appeals Case No. A-15-1037, at https://www.nebraska.gov/justice//case.cgi. See
Stutzka v. McCarville, 420 F.3d 757, 760 n.2 (8th Cir. 2005) (court may take
judicial notice of judicial opinions and public records). Plaintiff claims the “state
court rulings were subterfuges to evade the federal constitutional claims involving
the current Nebraska parole procedures and decisions made in the Plaintiff’s case.”
(Filing No. 1 at CM/ECF p. 3.)
II. APPLICABLE STANDARDS OF 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

(citing Greenholtz v. Inmates of Nebraska Penal & Corr. Complex, 442 U.S. 1
(1979)). (See Filing No. 1 at CM/ECF pp. 12-13.)
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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).
III. DISCUSSION
Plaintiff attempts to relitigate in federal court the issues decided against him
in the state courts. Collateral estoppel, or issue preclusion, applies when a § 1983
plaintiff attempts to relitigate in federal court issues that were decided against him
in a state criminal proceeding. Allen v. McCurry, 449 U.S. 90, 103-04 (1980); see
also Munz v. Parr, 972 F .2d 971, 973 (8th Cir. 1992) (stating that “collateral
estoppel applies to section 1983 actions involving alleged Fourth Amendment
violations”); Simmons v. O’Brien, 77 F.3d 1093, 1096 (8th Cir. 1996) (“When a
federal constitutional issue is previously decided in a state criminal proceeding
following a full and fair hearing, issue preclusion will [] bar relitigation of that
issue in a § 1983 action.”).
This court must give a state court judgment the same preclusive effect it
would be given under the law of the state where it was rendered. 28 U.S.C. §
1738; W.F.M., Inc. v. Cherry Cnty., 279 F.3d 640, 643 (8th Cir. 2002). The
following elements are required for collateral estoppel to apply under Nebraska
law: (1) the identical issue was decided in a prior action, (2) there was a judgment
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on the merits that was final, (3) the party against whom the rule is applied was a
party or in privity with a party to the prior action, and (4) there was an opportunity
to fully and fairly litigate the issue in the prior action. Cunningham v. Prime
Mover, Inc., 567 N.W.2d 178, 181 (Neb. 1997).2
The court finds all four elements of collateral estoppel clearly present here:
identical issues of ex post facto, separation of powers, and due process were
decided in the state court action; the Court of Appeals judgment was a final
judgment against Plaintiff on the merits; and Plaintiff had an opportunity to fully
and fairly litigate the issues in the state district and appellate courts. Alternatively,
should collateral estoppel not apply, the court agrees with the analysis of the
Nebraska Court of Appeals3, and in short, Plaintiff fails to state a claim on which
relief may be granted.

2

The court recognizes that Plaintiff sued Rosalyn Cotton only in her official
capacity in the state district court and now also sues her in her individual capacity.
The court also recognizes that Plaintiff did not sue the three additional Board of
Parole members in the state district court but now sues them in their official and
individual capacities. However, “[m]utuality of estoppel is no longer considered to
be a requirement for the application of collateral estoppel.” JED Constr. Co., Inc.
v. Lilly, 305 N.W.2d 1, 3 (Neb. 1981) (citation omitted); see also Hara v. Reichert,
843 N.W.2d 812, 817 (Neb. 2014) (“. . . while issue preclusion may be used by a
nonparty in a later action, either offensively or defensively.”).
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Condensed and summarized, the Nebraska Court of Appeals found: (1) the
reasoning of the Board of Parole did not show that it considered the change to the
minimum sentence of second degree murder in deferring review of Plaintiff’s case;
(2) the Board of Parole has the authority under the Nebraska Constitution to defer
parole subject to the conditions established by the Legislature in § 83-1,114(1)(b);
and (3) because Plaintiff was informed why his review was deferred after review of
his case while in his presence, Plaintiff was provided due process, which remains
in accordance with Greenholtz, supra. See Jacob v. Cotton and the Nebraska
Board of Parole, Case No. A-15-1037, 2017 WL 773661 at *2-3 (Neb. App. Feb.
28, 2017), review denied (Apr. 6, 2017).
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IT IS THEREFORE ORDERED that:
1.

The action is dismissed with prejudice.

2.

A separate judgment will be entered.

Dated this 27th day of July, 2017.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

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