Covarrubias v. The United States Distric Court for the Distric of Nebraska

Filing 18

MEMORANDUM AND ORDER - that this matter is dismissed without prejudice. The court will enter judgment by a 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
MODESTO A. COVARRUBIAS,
Plaintiff,
vs.
THE UNITED STATES DISTRIC
COURT FOR THE DISTRIC OF
NEBRASKA,

8:18CV283
MEMORANDUM
AND ORDER

Defendant.
Plaintiff filed a Complaint on June 21, 2018. (Filing No. 1.) He has been
given leave to proceed in forma pauperis.1 (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 an inmate currently confined at the Omaha Correctional Center in
Omaha, Nebraska. Plaintiff sues the United States District2 Court for the District of
Nebraska (hereinafter “the Court”) seeking damages for an allegedly excessive
sentence Plaintiff received in August 2013. Plaintiff alleges he received a sentence
of 3 to 5 years for defacing a firearm when “the g[u]ide line Section 708 Swiss
Confederation Coat of arm states that for deface Chapter 33-Emblems, Insignia
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The court previously dismissed this matter on September 20, 2018, because Plaintiff
failed to show cause why his case should not be dismissed for failure to pay the initial partial
filing fee. (Filing Nos. 13 & 14.) Shortly thereafter, Plaintiff paid his initial partial filing fee and
the court vacated the order and judgment dismissing this matter and directed that the case be
reinstated on the court’s pro se docket. (Filing No. 15.)
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The Complaint misspells “District” as “Distric.” The court will utilize the correct
spelling throughout this order.

and Names the maximum [is] 1 year or $1000 fine.” (Filing No. 1 at CM/ECF pp.
2–3.)
A search of Nebraska state court records, available to this court through the
Nebraska Judicial Branch’s JUSTICE website, reveals that Plaintiff is referring to
a case in the Lancaster County District Court of Nebraska in which he was
sentenced to 3 to 5 years’ imprisonment after he pleaded no contest to the sole
charge of possession of a defaced firearm arising out an offense on August 17,
2013. The court takes judicial notice of the state court records related to this case
in State v. Modesto A. Covarrubias, Case No. CR13-1293, District Court of
Lancaster County, Nebraska. 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).
For relief, Plaintiff seeks $8,000,000.00 in damages.
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.”).
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“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
Plaintiff’s Complaint seeking damages based on his allegedly excessive
criminal sentence must be dismissed because (1) this action cannot proceed against
the Court and (2) Plaintiff’s claims are barred by Heck v. Humphrey, 512 U.S. 477
(1994).
First, the Court is a federal governmental entity. “‘[S]overeign immunity
shields the Federal Government and its agencies from suit.’” Mader v. U.S., 654
F.3d 794, 797 (8th Cir. 2011) (quoting Fed. Deposit Ins. Corp. v. Meyer, 510 U.S.
471, 475 (1994)).
Second, Plaintiff’s request for damages for the excessive time he had to
spend in prison, (filing no. 1 at CM/ECF p. 2), is clearly barred by Heck v.
Humphrey. In Heck, the Supreme Court held a prisoner may not recover damages
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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. Heck, 512 U.S. at 486–87; 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 and Plaintiff’s state court records
demonstrate that the Heck bar is properly invoked. If successful, Plaintiff’s claims
that his sentence was excessive and violated his constitutional rights necessarily
implicate the validity of his conviction and sentence. Plaintiff has not alleged, nor
do his state court records indicate, that his conviction or sentence has been
overturned or called into question. Therefore, Plaintiff’s claims for relief are barred
by Heck v. Humphrey.
IT IS THEREFORE ORDERED that this matter is dismissed without
prejudice. The court will enter judgment by a separate document.
Dated this 10th day of June, 2019.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

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