Whitcomb v. West

Filing 7

MEMORANDUM AND ORDER that this matter is dismissed with prejudice for failure to state a claim. Plaintiff's Motion to Proceed in Forma Pauperis (Filing No. 1 ) is denied as moot. A separate judgment will be entered. 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
ALEXANDER C. WHITCOMB,
Plaintiff,

8:17CV274

vs.
JESSICA C. WEST,

MEMORANDUM
AND ORDER

Defendant.
On July 28, 2017, the court ordered Plaintiff, an out-of-state prisoner, to
provide the court with a certified statement which shows the greater of (1) the
average deposits to his institutional account for the past six months (or such lesser
period as he has been incarcerated), or (2) the average balance in his institutional
account for the past six months (or such lesser period as he has been incarcerated).
(Filing No. 6.) The information is necessary for the court to rule on Plaintiff’s
pending Motion to Proceed in Forma Pauperis (Filing No. 1). To date, Plaintiff has
not filed a certified statement or taken any other action in this matter.
Nevertheless, Plaintiff brings this action under 42 U.S.C. § 1983 against
Jessica C. West, his public defender in his state criminal proceeding.1 Plaintiff
alleges that West forged his signature on the “Written Arraignment and Waiver of
Physical Appearance” form. (Id. at CM/ECF pp. 1-2.) He believes that the state
district court could not have jurisdiction without the waiver. (Id.) Section 1983
requires a plaintiff to show that the person who deprived him of a constitutional
right was “acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988)
1

State v. Alexander C. Whitcomb, Douglas County District Court Case No.
CR 13-149 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).

(citing Parratt v. Taylor, 451 U.S. 527, 535 (1981)) (overruled in part on other
grounds by Daniels v. Williams, 474 U.S. 327, 330-31 (1986)). Public defenders do
not act under color of state law when performing a lawyer’s traditional functions as
counsel to a defendant in criminal proceedings. Polk County v. Dodson, 454 U.S.
312 (1981). In short, Plaintiff fails to state a claim against West because she did
not act under color of state law.2
IT IS THEREFORE ORDERED that:
1.

This matter is dismissed with prejudice for failure to state a claim.

2.
Plaintiff’s Motion to Proceed in Forma Pauperis (Filing No. 1) is
denied as moot.
3.

A separate judgment will be entered.

Dated this 15th day of September, 2017.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

2

Moreover, Plaintiff suffered no injury if West did forge his signature. The
“Written Arraignment and Waiver of Physical Appearance” form asked the state
district court to enter a not guilty plea for Plaintiff, and such forms do not establish
state district court jurisdiction over criminal proceedings. Pursuant to Neb. Rev.
Stat. § 24-302 (Reissue 2008), district courts are vested with general, original, and
appellate jurisdiction over civil and criminal matters. Peterson v. Houston, 824
N.W.2d 26, 33 (Neb. 2012).
2