Dunn v. Leuck et al

Filing 9

MEMORANDUM AND ORDER - The clerk's office is directed to modify the names of the last three Defendants listed in CM/ECF as follows: "Douglas County District Courts Employees"; "Douglas County Attorney Office"; "Omaha Pol ice Officer John Doe of the Omaha Police Department." The clerk's office is further directed to modify the listing of all four Defendants in the caption to indicate that each Defendant is named in their official capacity. Plaintiffs claims against the Douglas County Attorney's Office are dismissed with prejudice. Plaintiff shall file an amended complaint by March 12, 2018, that states a claim upon which relief may be granted against Brenda Leuck, Officer John Doe, and specific ind ividual Douglas County District Court employees. Failure to file an amended complaint within the time specified by the court will result in the court dismissing this case without further notice to Plaintiff. The clerk of the court is directed to set a pro se case management deadline using the following text: March 12, 2018: check for amended complaint. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party)(LKO)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
BRYAN DUNN,
Plaintiff,

8:17CV351

vs.
BRENDA LEUCK, Atty, Douglas
County Public Defenders office;
DOUGLAS COUNTY COURTS,
DOUGLAS COUNTY ATTORNEYS
OFFICE EMPLOYEES, and OMAHA
POLICE DEPARTMENT, OFFICERS,

MEMORANDUM
AND ORDER

Defendants.
Plaintiff filed a Complaint on September 22, 2017. (Filing No. 1.) He has
been given leave to proceed in forma pauperis. (Filing No. 7.) 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) and 1915A.
I. SUMMARY OF COMPLAINT
Plaintiff is incarcerated at the Douglas County Department of Corrections on
a charge of robbery pending in the Douglas County District Court of Nebraska.
Plaintiff seeks damages under 42 U.S.C. § 1983 for alleged violations of his rights
under the 4th, 5th, 6th, and 14th Amendments against the following Defendants in
their official capacities: his attorney Brenda Leuck of the Douglas County Public
Defenders’ Office; the Douglas County Attorney’s Office; an unknown Omaha
Police Department Officer, referred to as John Doe; and unspecified Douglas
County District Court Employees.1
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The identification of Defendants differs slightly between the caption and the body of the
Complaint. (See Filing No. 1 at CM/ECF pp.1–2.) Plaintiff’s listing of Defendants within the

Plaintiff alleges that on or about April 11, 2017, he was arrested in Council
Bluffs, Iowa, and placed in custody in Douglas County, Nebraska, based on an
illegal warrant. Plaintiff claims Officer John Doe caused the warrant to issue based
on false information received from a man named Stephen Pedigo who claimed that
Plaintiff had robbed him after Pedigo sold Plaintiff drugs. As a result, Plaintiff
claims he is being held in jail in violation of his 4th, 5th, and 14th Amendment
rights for a crime he denies he committed.
Plaintiff further claims that his attorney, Brenda Leuck, is ineffective and
verbally abusive to him. Plaintiff alleges Leuck does not follow Plaintiff’s
instructions regarding the handling of his criminal case and refuses to let him see
any of the statements against him because she made a contract with the Douglas
County Attorney’s Office to withhold such information from Plaintiff. Plaintiff
claims Leuck threatens him that if he refuses to take a plea deal, he will remain in
jail longer. Plaintiff alleges he has attempted to convey his desire to remove Leuck
from his case to the district court judge assigned to his case, but has been unable to
do so because Douglas County District Court employees reroute his mail for the
court to Leuck.
II. APPLICABLE LEGAL STANDARDS ON INITIAL 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

body of the Complaint clearly identifies the parties Plaintiff intends to sue and further specifies
that all Defendants are sued in their official capacities. Accordingly, the court concludes the
Defendants in this case are the parties identified in the body of the Complaint.

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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
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 OF CLAIMS
A. Brenda Leuck
Plaintiff makes claims against the attorney representing him in his state court
proceedings, Brenda Leuck of the Douglas County Public Defenders’ Office. The
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crux of Plaintiff’s argument with respect to Leuck is that she has been ineffective
in her representation of him and has conspired with other Defendants to violate
Plaintiff’s constitutional rights.
Section 1983 specifically provides a cause of action against a person who,
under color of state law, violates another’s federal rights. West, 487 U.S. at 48.
“[A] public defender does not act under color of state law when performing a
lawyer’s traditional functions as counsel to a defendant in a criminal proceeding.”
Polk Cnty. v. Dodson, 454 U.S. 312, 325 (1981). Indeed, when a public defender
represents an indigent defendant in a state criminal proceeding, he is “not acting on
behalf of the State; he is the State’s adversary.” Id. at 322 n.13. However, a § 1983
claim may be brought against a public defender, or any other private individual, if
he or she conspires with a state actor to deprive an individual of a federallyprotected right. Manis v. Sterling, 862 F.2d 679, 681 (8th Cir. 1988) (“Allegations
that a public defender has conspired with judges or other state officials to deprive a
prisoner of federally protected rights may state a claim under § 1983.” (citing
Tower v. Glover, 437 U.S. 914, 923 (1984)).
Plaintiff alleges that Leuck has entered into an agreement with the Douglas
County Attorney’s Office to withhold information about Plaintiff’s criminal case
from him. However, Plaintiff has sued Leuck in her official capacity only.
Liberally construed, Plaintiff’s claims against Leuck are claims against Douglas
County. “A suit against a public employee in his or her official capacity is merely a
suit against the public employer.” Johnson v. Outboard Marine Corp., 172 F.3d
531, 535 (8th Cir. 1999) In order to state a plausible claim against Douglas
County, Plaintiff must allege that a “policy” or “custom” caused a violation of his
constitutional rights. Doe By and Through Doe v. Washington County, 150 F.3d
920, 922 (8th Cir. 1998) (citing Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694
(1978)). An “official policy” involves a deliberate choice to follow a course of
action made from among various alternatives by an official who has the final
authority to establish governmental policy. Jane Doe A By & Through Jane Doe B

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v. Special School Dist. of St. Louis County, 901 F.2d 642, 645 (8th Cir.1990)
(citing Pembaur v. City of Cincinnati, 475 U.S. 469, 483 (1986)).
To establish the existence of a governmental custom, a plaintiff must prove:
1) The existence of a continuing, widespread, persistent pattern of
unconstitutional misconduct by the governmental entity’s employees;
2) Deliberate indifference to or tacit authorization of such conduct by
the governmental entity’s policymaking officials after notice to the
officials of that misconduct; and
3) That plaintiff was injured by acts pursuant to the governmental
entity’s custom, i.e., that the custom was the moving force behind the
constitutional violation.
Jane Doe, 901 F.2d at 646.
Here, Plaintiff does not allege that Douglas County practices any
unconstitutional misconduct, that any Douglas County policymaking officials
authorized any unconstitutional misconduct, or that any unconstitutional custom
was the moving force behind his injuries. Even with the most liberal construction,
Plaintiff has failed to allege sufficient facts to state a claim upon which relief may
be granted against Douglas County. In light of this, Plaintiff's claims against Leuck
in her official capacity are dismissed. See Herzog v. O’Neil, No. 8:10CV313, 2011
WL 1398475, at *3 (D. Neb. Apr. 13, 2011) (concluding official capacity claim
against public defender was actually claim against county who employed the
public defender); see also Jackson v. Grand Forks Cty. Corr. Ctr. Med. Dep’t, No.
2:14-CV-103, 2015 WL 4210875, at *2 (D.N.D. July 10, 2015) (same).
On the court’s own motion, the court will allow Plaintiff to file an amended
complaint that sufficiently alleges a claim for relief against Leuck in her individual
capacity.

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B. Douglas County Attorney’s Office
Plaintiff also fails to state a plausible claim for relief against the Douglas
County Attorney’s Office. First, a county attorney’s office is not a “person” subject
to suit under 42 U.S.C. § 1983. Hancock v. Washtenaw Cty. Prosecutor’s Office,
548 F. Supp. 1255, 1256 (E.D. Mich. 1982). Second, even if the court liberally
construes Plaintiff’s claims against the Douglas County Attorney’s Office as
claims against Douglas County, municipal liability cannot be imposed absent
factual allegations that unlawful actions were taken pursuant to a municipality’s
unconstitutional policy or custom. Monell, 436 U.S. at 694. Plaintiff has not
alleged any policy or custom caused a violation of Plaintiff’s constitutional rights.
The court concludes that it would be futile to allow Plaintiff an opportunity
to amend his Complaint to name an individual defendant in place of the Douglas
County Attorney’s Office. “Prosecutors are entitled to absolute immunity from
civil liability under § 1983 when they are engaged in prosecutorial functions that
are ‘intimately associated with the judicial process.’” Schenk v. Chavis, 461 F.3d
1043, 1046 (8th Cir. 2006) (quoting Anderson v. Larson, 327 F.3d 762, 768 (8th
Cir. 2003)). Thus, absolute immunity attaches when a prosecutor’s actions are
“prosecutorial” rather than “investigatory or administrative.” Id. “Absolute
immunity covers prosecutorial functions such as the initiation and pursuit of a
criminal prosecution, the presentation of the state’s case at trial, and other conduct
that is intimately associated with the judicial process.” Brodnicki v. City of Omaha,
75 F.3d 1261, 1266 (8th Cir.1996).
Here, Plaintiff alleges only that his public defender entered into an
agreement with the Douglas County Attorney’s Office to withhold information
from him related to his criminal case. Plaintiff does not allege any facts against the
Douglas County Attorney’s Office that would fall outside the scope of its
prosecutorial functions during Plaintiff’s criminal proceedings. See Myers v.
Morris, 810 F.2d 1437, 1446 (8th Cir. 1987), abrogated on other grounds by Burns
v. Reed, 500 U.S. 478 (1991) (“[T]he decision to file charges is protected, even in
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the face of accusations of . . . conspiracy to prosecute for a crime that never
occurred.”); Rachuy v. Murphy Motor Freight Lines, Inc., 663 F.2d 57, 58 (8th
Cir.1981) (holding prosecutor immune from suit where plaintiff alleged prosecutor
conspired with other defendants to deprive him of his rights by charging him with
a crime that had not occurred, failing to disclose evidence favorable to him, and
fabricating evidence against him)). Accordingly, the court will dismiss Plaintiff’s
claims against the Douglas County Attorney’s Office with prejudice.
C. Omaha Police Officer John Doe
Plaintiff asserts Fourth Amendment and equal protection claims against an
unknown officer with the Omaha Police Department, referred to as John Doe, in
the officer’s official capacity. A claim against an individual in his official capacity
is, in reality, a claim against the entity that employs the official—in this case, the
City of Omaha. See Parrish v. Luckie, 963 F.2d 201, 203 n.1 (8th Cir. 1992). As a
municipality, the City of Omaha can only be liable under § 1983 if a municipal
policy or custom caused Plaintiff to be deprived of a federal right or if the
municipality failed to adequately train its employees. Snider v. City of Cape
Girardeau, 752 F.3d 1149, 1160 (8th Cir. 2014) (citing City of Canton v. Harris,
489 U.S. 378, 385 (1989); Monell, 436 U.S. at 694). Plaintiff has not made any
allegations supporting a policy, custom, or failure-to-train claim.
On the court’s own motion, the court will allow Plaintiff to file an amended
complaint that sufficiently alleges a claim for relief against the officer in his
individual capacity.
D. Douglas County District Court Employees
Liberally construed, Plaintiff alleges unidentified Douglas County District
Court employees violated his constitutional right to access the courts when they
rerouted his mail intended for the court to his attorney, Leuck. Plaintiff’s bare,
conclusory allegation lacks sufficient factual support to state a plausible claim for
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relief and fails to identify any specific individual responsible for the alleged
violations. Additionally, Plaintiff has sued the court employees in their official
capacity and, liberally construed, his claim is against their employer, Douglas
County. As explained above, liability cannot be imposed upon Douglas County
absent factual allegations that unlawful actions were taken pursuant to the county’s
unconstitutional policy or custom. Monell, 436 U.S. at 694. Plaintiff has not
alleged any Douglas County policy or custom caused a violation of his
constitutional rights.
As with Plaintiff’s claims against Leuck and Officer John Doe, the court will
give Plaintiff the opportunity to amend his Complaint to state a plausible claim for
relief against specific individual Douglas County District Court employees.
IV. REQUEST FOR APPOINTMENT OF COUNSEL
In his Complaint, Plaintiff included a request for the appointment of counsel.
(Filing No. 1 at CM/ECF p.5.) The court cannot routinely appoint counsel in civil
cases. In Davis v. Scott, 94 F.3d 444, 447 (8th Cir. 1996), the Eighth Circuit Court
of Appeals explained that “[i]ndigent civil litigants do not have a constitutional or
statutory right to appointed counsel.” Trial courts have “broad discretion to decide
whether both the plaintiff and the court will benefit from the appointment of
counsel, taking into account the factual and legal complexity of the case, the
presence or absence of conflicting testimony, and the plaintiff’s ability to
investigate the facts and present his claim.” Id. Having considered these factors,
the request for the appointment of counsel will be denied without prejudice to
reassertion.

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IT IS THEREFORE ORDERED that:
1.
The clerk’s office is directed to modify the names of the last three
Defendants listed in CM/ECF as follows: “Douglas County District Courts
Employees”; “Douglas County Attorney Office”; “Omaha Police Officer John Doe
of the Omaha Police Department.” The clerk’s office is further directed to modify
the listing of all four Defendants in the caption to indicate that each Defendant is
named in their official capacity.
2.
Plaintiff’s claims against the Douglas County Attorney’s Office are
dismissed with prejudice.
3.
Plaintiff shall file an amended complaint by March 12, 2018, that
states a claim upon which relief may be granted against Brenda Leuck, Officer
John Doe, and specific individual Douglas County District Court employees.
Failure to file an amended complaint within the time specified by the court will
result in the court dismissing this case without further notice to Plaintiff.
4.
The clerk of the court is directed to set a pro se case management
deadline using the following text: March 12, 2018: check for amended complaint.
Dated this 9th day of February, 2018.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

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