Gardner v. State of Nebraska et al

Filing 19

MEMORANDUM AND ORDER - Plaintiff's motion to amend (filing no. 15 ) is granted. The clerk's office is directed to change the name of Defendant "Kimberly Pankonin Miller" in the caption to "Kimberly Miller Pankonin." Pla intiff's remaining motions (filing nos. 13 , 14 , 16 , 17 , and 18 ) are denied. Plaintiff's Complaint (filing no. 1 ) is dismissed without prejudice. The court will enter judgment by separate document. 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
JUSTIN GARDNER,
Plaintiff,

8:17CV391

vs.
STATE OF NEBRASKA, KIMBERLY
MILLER PANKONIN,1 DOUGLAS A.
JOHNSON, MARLON A. POLK, and
MATTHEW J. MILLER,

MEMORANDUM
AND ORDER

Defendants.
Plaintiff filed a Complaint on October 16, 2017. (Filing No. 1.) He has been
given leave to proceed in forma pauperis. (Filing No. 8.) 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 a prisoner in the custody of the Nebraska Department of
Corrections. He brings this action pursuant to 42 U.S.C. § 1983 against the State of
Nebraska; Douglas County District Court Judge Kimberly Miller Pankonin (“Judge
Miller Pankonin”); Douglas County Public Defender Douglas A. Johnson
(“Johnson”); Marlon A. Polk (“Polk”); Matthew J. Miller (“Miller”); and Omaha
Police Department Officers Josha J. Downs (“Downs”) and Anthony Barnes

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In correspondence (filing no. 15) to the court, Plaintiff indicated that “Kimberly Miller
Pankonin” is the proper name for this Defendant, not “Kimberly Pankonin Miller” as it appears
in the caption. The court will, therefore, use the name indicated by Plaintiff in his letter and will
direct the clerk’s office to update the case caption to reflect the correct name for Defendant
Miller Pankonin.

(“Barnes”).2 Plaintiff broadly challenges several state court criminal proceedings3
brought against him in Douglas County, Nebraska, alleging that he was
maliciously prosecuted, falsely imprisoned, and suffered violations of his rights
under the 4th, 5th, 6th, 8th, and 14th Amendments.
In 2015, Plaintiff alleges that he “falsely” served 198 days jail for CR15694. (Filing No. 1 at CM/ECF p.5.) Plaintiff claims Judge Miller Pankonin and
Johnson lied to him and tricked him into withdrawing his not guilty plea to both
CR15-694 and CR15-2366 and entering a no contest plea in CR15-694 in
exchange for which CR15-2366 would be dismissed “and not brought back up.”
(Id.) On September 7, 2016, Plaintiff alleges he was charged in CR16-3314 with
the same charges that were dismissed in CR15-2366 “which is double jeopardy.”
(Id.)
As a result of his false imprisonment, Plaintiff alleges he has suffered a
number of harms including “fights in jail, sleeping in unclean cells, lack of food,
lack of law library, . . . deformation [sic] of character, slander, los[s] of wages, . . .
physical and emotional distress, illegal search and seizure, undue process, police
brutally [sic], . . . false advisement, racial profiling, [and] stereotying [sic].” (Id.)
For relief, Plaintiff seeks monetary damages from “anybody/everybody” that was
involved in cases CR15-694, CR15-2366, CR16-3314, CR16-20720, and CR1620732. (Id. at CM/ECF p.6.)

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Plaintiff did not list Officers Downs and Barnes in the caption of the Complaint, but the
allegations in the body of the pleading indicate Plaintiff intended to include the officers as
defendants. See Miller v. Hedrick, 140 Fed. App’x 640, 641 (8th Cir. 2005) (citing Rice v.
Hamilton Air Force Base Commissary, 720 F.2d 1082, 1085 (9th Cir. 1983) (“[A] party may be
properly in a case if the allegations in the body of the complaint make it plain that the party is
intended as a defendant.”)).
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The state criminal proceedings referenced by Plaintiff are Douglas County District
Court cases CR15-694, CR15-2366, and CR16-3314, and Douglas County Court cases CR1620720 and CR16-20732. The court will refer to each case by the case number.

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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
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

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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
Liberally construed, Plaintiff has alleged claims of violations of his rights
under the 4th, 5th, 6th, 8th, and 14th Amendments to the Federal Constitution, as
well as various state law claims. The Complaint, however, does not satisfy the
general rules of pleading and is defective in several respects as discussed below.
A. Sovereign Immunity
Plaintiff seeks monetary damages from the State of Nebraska. 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, 618–19 (8th Cir. 1995); Dover
Elevator Co. v. Arkansas State Univ., 64 F.3d 442, 446–47 (8th Cir. 1995). Any
award of retroactive monetary relief payable by the state, including for back pay or
damages, is proscribed by the Eleventh Amendment absent a waiver of immunity
by the state or an override of immunity by Congress. See, e.g., Dover Elevator Co.,
64 F.3d at 444; Nevels v. Hanlon, 656 F.2d 372, 377–78 (8th Cir. 1981). Here,
there is nothing in the record before the court showing that the State of Nebraska
waived, or that Congress overrode, sovereign immunity in this matter.
In addition, a suit may be brought under § 1983 only against a “person” who
acted under color of state law. A state “is not a ‘person’ as that term is used in §
1983, and is not suable under the statute, regardless of the forum where the suit is
maintained.” Hilton v. South Carolina Pub. Railways Comm’n, 502 U.S. 197, 201
(1991). Thus, § 1983 does not create a cause of action against the State of
Nebraska. Accordingly, Plaintiff’s claims against the State of Nebraska will be
dismissed.

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B. Rules of Pleading
Federal Rule of Civil Procedure 8 requires that every complaint contain “a
short and plain statement of the claim showing that the pleader is entitled to relief”
and that “[e]ach allegation . . . be simple, concise, and direct.” Fed. R. Civ. P.
8(a)(2), (d)(1). A complaint must state enough to “‘give the defendant fair notice
of what the . . . claim is and the grounds upon which it rests.’” Erickson v. Pardus,
551 U.S. 89, 93 (2007) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
(2007)). Here, Plaintiff’s Complaint fails to comply with the general rules of
pleading in at least two respects.
First, while Plaintiff names Polk, Miller, and Officers Downs and Barnes as
Defendants in this matter, he makes no allegations against any of them in the body
of his Complaint. For example, he does not allege that any of them are personally
involved in the alleged constitutional violations or that any of them had any
personal involvement whatsoever in any of the criminal cases referenced in the
Complaint. As a result, Plaintiff has failed to state a claim upon which relief can be
granted against any of these Defendants. See Krych v. Hvass, 83 Fed.Appx. 854,
855 (8th Cir. 2003) (holding court properly dismissed claims against defendants
where pro se complaint was silent as to the defendants except for their names
appearing in the caption).
Secondly, to the extent Plaintiff seeks to raise claims challenging the
conditions of his confinement in prison, Plaintiff has failed to allege any facts to
support such claims. Accordingly, any conditions-of-confinement claims will be
dismissed for failure to state a plausible claim for relief.
C. Claims against Johnson
Plaintiff has sued Johnson, his court-appointed public defender, for
violations of his civil rights. However, 42 U.S.C. § 1983 specifically provides a
cause of action against a person who, under color of state law, violates another’s
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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. Thus, Plaintiff has failed to state a claim upon which
relief may be granted against Johnson.
D. Claims against Judge Miller Pankonin
Plaintiff’s claims against Judge Miller Pankonin are barred by judicial
immunity. A judge is immune from suit, including suits brought under section
1983 to recover for alleged deprivation of civil rights, in all but two narrow sets of
circumstances. Schottel v. Young, 687 F.3d 370, 373 (8th Cir. 2012). “First, a
judge is not immune from liability for nonjudicial actions, i.e., actions not taken in
the judge’s judicial capacity. Second, a judge is not immune for actions, though
judicial in nature, taken in the complete absence of all jurisdiction.” Id. (internal
citations omitted). An act is judicial if “it is one normally performed by a judge
and if the complaining party is dealing with the judge in his judicial capacity.” Id.
(internal citations omitted).
Here, Plaintiff’s Complaint contains only conclusory allegations that Judge
Miller Pankonin improperly handled his criminal proceedings and deprived him of
his rights in presiding over his plea proceedings in CR15-694 and CR15-2366.
Although Plaintiff alleges she acted in violation of his constitutional rights,
Plaintiff alleges no facts against Judge Miller Pankonin that would fall outside the
scope of her duties in presiding over Plaintiff’s criminal proceedings.
Accordingly, Judge Miller Pankonin is immune from suit.

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E. Claims Barred by Heck v. Humphrey
In Heck v. Humphrey, the Supreme Court held a prisoner may not recover
damages in a § 1983 suit where the judgment would necessarily imply the
invalidity of his conviction, continued imprisonment, or sentence unless the
conviction or sentence is reversed, expunged, or called into question by issuance of
a writ of habeas corpus. 512 U.S. 477, 486–87 (1994); see also Schafer v. Moore,
46 F.3d 43, 45 (8th Cir. 1995). Absent such a favorable disposition of the charges
or conviction, a plaintiff may not use 42 U.S.C. § 1983 to cast doubt on the legality
of his conviction or confinement. See Heck, 512 U.S. at 486–87.
Here, the Complaint’s allegations demonstrate that the Heck bar is properly
invoked. If successful, Plaintiff’s claims that he was deprived of his constitutional
rights when he entered a plea in CR15-694 and is now being prosecuted for
previously dismissed charges in violation of the Double Jeopardy Clause
necessarily implicate the validity of his conviction and current confinement.
Therefore, to the extent judgment in favor of Plaintiff on any of his claims would
call his criminal conviction and present confinement into question, his claims for
relief are barred by Heck v. Humphrey.
F. State Law Claims
Liberally construed, Plaintiff asserts state law claims for malicious
prosecution, false imprisonment, slander, and defamation. The court declines to
exercise supplemental jurisdiction over any remaining state-law claims because it
will dismiss all claims over which it has original jurisdiction. See 28 U.S.C. §
1367(c)(3).
IV. OTHER MOTIONS
Plaintiff has filed various motions in this case requesting the following: (1)
to engage in discovery (filing no. 13), (2) an evidentiary hearing (filing no. 14), (3)
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to amend the pleadings to reflect Judge Miller Pankonin’s correct name (filing no.
15), and (4) “to increase security pending petition for rehearing or certiorari”
pursuant to Fed. R. Civ. P. 62 (filing nos. 16, 17, and 18).
The court will grant Plaintiff’s motion to amend (filing no. 15) to the extent
that the case caption will be updated to reflect the proper form of Defendant Judge
Miller Pankonin’s name. All other motions are denied.
IT IS THEREFORE ORDERED:
1.
Plaintiff’s motion to amend (filing no. 15) is granted. The clerk’s
office is directed to change the name of Defendant “Kimberly Pankonin Miller” in
the caption to “Kimberly Miller Pankonin.”
2.
denied.

Plaintiff’s remaining motions (filing nos. 13, 14, 16, 17, and 18) are

3.

Plaintiff’s Complaint (filing no. 1) is dismissed without prejudice.

4.

The court will enter judgment by separate document.

Dated this 14th day of May, 2018.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

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