Seifert v. Kleine

Filing 9

MEMORANDUM AND ORDER that this action is dismissed without prejudice. Judgment shall be entered by separate document. 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
TIMOTHY SEIFERT,
Petitioner,
v.
DONALD W. KLEINE, as Douglas
County, Nebraska Prosecutor,
Respondent.

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8:18CV166

MEMORANDUM
AND ORDER

Plaintiff, Timothy Seifert, is a federal prisoner who is currently confined at
Terre Haute FCI in Indiana. He has been granted leave to proceed in forma pauperis
and has paid his initial partial filing fee. The court now conducts an initial review of
Petitioner’s pleading to determine whether summary dismissal is appropriate under
28 U.S.C. §§ 1915(e)(2) and 1915A.
I. SUMMARY OF PETITION
Seifert seeks the issuance of a writ of mandamus, pursuant to 28 U.S.C. § 1651,
to compel the Douglas County Attorney to dismiss a criminal complaint that was filed
in the County Court of Douglas County, Nebraska, on December 19, 2011, alleging
that Seifert made terroristic threats in violation of Neb. Rev. Stat. § 28-311.01(1)(a),
a Class IV felony. Seifert alleges that an arrest warrant was posted to the National
Crime Information Center database by the County Attorney,1 and, as a result, that
Seifert is ineligible for early release from prison, placement in a low security facility,
and participation in various rehabilitation programs. Seifert further claims the County
Attorney has acted to prevented the Clerk of the Douglas County Court from filing
Seifert’s demands for speedy trial and motions to dismiss in the criminal case.

1

Seifert alleges the Bureau of Prisons notified him of the warrant on February 1, 2013.

II. 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,2 or that seeks monetary relief from a defendant who is immune from
such relief. 28 U.S.C. § 1915(e)(2)(B).
III. DISCUSSION OF CLAIMS
Rule 81(b) of the Federal Rules of Civil Procedure has abolished the writ of
mandamus in civil actions in federal district courts. Booker v. State of Arkansas, 380
F.2d 240, 242 (8th Cir. 1967), abrogated on other grounds by Braden v. 30th Judicial
Circuit Court of Kentucky, 410 U.S. 484 (1973). Relief in the nature of mandamus is
confined to situations where it is in necessary aid of the court’s jurisdiction. Id. Such
relief may be granted only in instances where, before adoption of Rule 81(b), the
remedy of mandamus would have been available. Haggard v. State of Tennessee, 421
F.2d 1384, 1385 (6th Cir. 1970). In the absence of special statutory authority, a federal
court can issue writs of mandamus only as ancillary to and in aid of jurisdiction
otherwise vested in it. Id. at 1386.
2

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).

-2-

A federal court cannot issue a writ of mandamus that compels state officials to
comply with state law. State ex rel. Skaggs v. Brunner, 588 F. Supp. 2d 828, 833 (S.D.
Ohio 2008) (citing Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 106
(1984)). A federal court may issue a writ of mandamus ordering a state official to
enforce rights protected by federal law. Id. However, “[i]t is settled that a federal court
has no general jurisdiction to issue writs of mandamus where that is the only relief
sought.” Id. (quoting Haggard, 421 F.2d at 1386).
Because Seifert seeks only the issuance of a writ of mandamus, his Petition
must be dismissed for lack of subject matter jurisdiction and failure to state a claim
upon which relief may be granted. See, e.g., Cook v. Hinrichs, 500 F. Supp. 2d 1225,
1227 (D.S.D. 2007) (dismissing application for writ of mandamus on initial review
where petitioner only sought to stop his criminal prosecution in state court); Craigo
v. Hey, 624 F.Supp. 414, 416 (S.D. W.Va. 1985) (sua sponte dismissal of petition for
writ of mandamus).
Even if Seifert’s Petition for Writ of Mandamus might be liberally construed
as a complaint for injunctive relief filed under 42 U.S.C. § 1983, to redress alleged
deprivations of rights guaranteed by the United States Constitution,3 it appears from
the face of the pleading that there is a bar to relief because all claims and issues raised
in this action have been adjudicated by the Nebraska Supreme Court. Seifert alleges:
20. On December 30, 2015, Petitioner filed a Petition for Writ
of Mandamus with the Nebraska Supreme Court, under Docket #
S-17-000165, seeking mandamus to compel the Douglas County Court
and Kleine to take action on Petitioner’s repeated requests for Final
Disposition and Speedy Trial, as well as all other motions, pleadings, and
filings submitted to the Court and Kleine.

3

Seifert claims the County Attorney violated his “rights to due process and speedy trial, ...
directly contrary to the United States Constitution, Fifth, Sixth, and Fourteenth Amendments,” and
has denied him “due access to the Courts of the State of Nebraska, by [o]rdering and requiring the
Douglas County Clerk to not file [Siefertt’s motions].” (Filing 1, ¶¶ 28, 29).

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21. On February 9, 2017, the Nebraska Supreme Court denied
the Petition for Mandamus.
22. As such, as of February 9, 2017, Petitioner has fully
exhausted all available State remedies, and has pursued relief, and
presented all issues hereinafter presented, to all levels of the Nebraska
State Courts.
(Filing 1, p. 5).
“[A] federal court must give to a state-court judgment the same preclusive
effect as would be given that judgment under the law of the State in which the
judgment was rendered.” In re Athens/Alpha Gas Corp., 715 F.3d 230, 235 (8th Cir.
2013) (quoting Migra v. Warren City Sch. Dist. Bd. Of Educ., 465 U.S. 75, 81 (1984)).
Claim preclusion bars the relitigation of a claim that has been directly addressed or
necessarily included in a former adjudication if (1) the former judgment was rendered
by a court of competent jurisdiction, (2) the former judgment was a final judgment,
(3) the former judgment was on the merits, and (4) the same parties or their privies
were involved in both actions. The doctrine bars relitigation not only of those matters
actually litigated, but also of those matters which might have been litigated in the prior
action. The doctrine rests on the necessity to terminate litigation and on the belief that
a person should not be vexed twice for the same cause. Hara v. Reichert, 843 N.W.2d
812, 816 (Neb. 2014). Issue preclusion bars the relitigation of a finally determined
issue that a party had a prior opportunity to fully and fairly litigate. Issue preclusion
applies where (1) an identical issue was decided in a prior action, (2) the prior action
resulted in a final judgment on the merits, (3) the party against whom the doctrine is
to be applied was a party or was 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. Issue
preclusion applies only to issues actually litigated. Issue preclusion protects litigants
from relitigating an identical issue with a party or his privy and promotes judicial
economy by preventing needless litigation. Id.

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Because Seifert’s allegations indicate all requirements for claim preclusion and
issue preclusion (collectively, “res judicata”) are satisfied, a § 1983 action cannot be
maintained. See C.H. Robinson Worldwide, Inc. v. Lobrano, 695 F.3d 758, 763-64
(8th Cir. 2012) (claim preclusion can provide basis for dismissal for failure to state
a claim upon which relief can be granted if the defense is apparent from the face of
the complaint, which includes public records, materials embraced by the complaint,
and materials attached to the complaint); Fraction v. Rookstool, No. 8:17CV292, 2017
WL 3726746, at *4 (D. Neb. Aug. 28, 2017) (dismissing action on initial review based
on prior state court litigation); see also 52 Am. Jur. 2d Mandamus § 469 (“As to issues
actually determined by a judgment in a mandamus proceeding, the judgment is
conclusive, thus precluding the parties from relitigating the same issues, and the same
is true as to issues necessarily determined in the judgment. It has been held that a
judgment in mandamus also precludes the litigation of issues which could have been
raised and resolved in the prior proceeding, but were not in fact resolved, at least
where the cause of action in the prior mandamus action is identical to that in the later
action in which the res judicata effect of the judgment in the mandamus suit is
invoked.”); cf. Hanig v. City of Winner, 527 F.3d 674, 676-77 (8th Cir. 2008) (“Like
the district court, we have no doubt that the Supreme Court of South Dakota would
hold that the differences between mandamus and § 1983 actions are insufficient to
prevent res judicata from barring § 1983 damage claims that could have been raised
in a prior mandamus action.”).
IV. CONCLUSION
Seifert’s Petition for Writ of Mandamus is subject to dismissal on initial review
for lack of subject matter jurisdiction and failure to state a claim upon which relief
may be granted. The court finds it would be futile to grant Seifert leave to amend
because the allegations of the Petition show that even a § 1983 action would be barred
by the doctrine of res judicata.
Accordingly,
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IT IS ORDERED:
1.

This action is dismissed without prejudice.

2.

Judgment shall be entered by separate document.

DATED this 29th day of June, 2018.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

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