Loding v. Schaefer et al

Filing 15

MEMORANDUM AND ORDER This case is dismissed without prejudice as barred by Heck v. Humphrey, 512 U.S. 477 (1994). Judgment will be entered by separate document. Plaintiff's pending Motions (Filings 7 , 8 , 10 , 12 ) are denied as moot. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party) (LRM)

8:21-cv-00153-RGK-PRSE Doc # 15 Filed: 09/08/21 Page 1 of 5 - Page ID # 63

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
BASHIR V. LODING,
Plaintiff,

8:21CV153

vs.
JAMES E. SCHAEFER, Attorney; and
ROBERT SCHAEFER,

MEMORANDUM
AND ORDER

Defendants.

Plaintiff Bashir Loding is currently incarcerated at the Tecumseh State Prison.
The court has granted Plaintiff permission to proceed in forma pauperis (Filing 6),
and the court now conducts an initial review of the Complaint (Filing 1) to determine
whether summary dismissal is appropriate under 28 U.S.C. §§ 1915(e) and 1915A.
I. SUMMARY OF COMPLAINT
Plaintiff sues two criminal defense attorneys who represented him in a state
criminal case “for their negligence” and “ineffective assistance of counsel” in
preventing Plaintiff from accessing records his counsel obtained from Plaintiff’s
employer. According to Plaintiff, such records would have provided an alibi for
Plaintiff’s alleged criminal conduct; would have corrected the “admission of false
testimony”; and would have caused the jury to disbelieve the state’s witnesses.
(Filing 1 at CM/ECF pp. 1, 3-5.) For relief, Plaintiff requests an investigation of the
court officials, prosecutor, and defense counsel involved in his state criminal
proceedings, as well as the release of the alibi evidence allegedly concealed by his
defense counsel. (Filing 1 at CM/ECF p. 5.)

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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, 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).
III. DISCUSSION
In Heck v. Humphrey, 512 U.S. 477 (1994), the Supreme Court held that a
prisoner may not recover damages in a 42 U.S.C. § 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
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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, Plaintiff has not alleged that his conviction or sentence has been
reversed, expunged, or called into question by a writ of habeas corpus. Plaintiff asks
the court to investigate his state criminal proceedings which would reveal, according
to Plaintiff, an alibi hidden by his own counsel that would demonstrate the
unconstitutional ineffectiveness of his counsel and would have precluded his
criminal conviction. The relief Plaintiff is seeking implicates the validity of his
current confinement and continued imprisonment. Thus, his claims for relief are
barred by Heck v. Humphrey and must be dismissed. See Sheldon v. Hundley, 83
F.3d 231, 233 (8th Cir. 1996) (indicating that, under Heck, court disregards form of
relief sought and instead looks to essence of plaintiff’s claims); Lawson v. Engleman,
67 Fed. Appx. 524, 526 n.2 (10th Cir. 2003) (Heck applied to plaintiff’s claims for
monetary, declaratory, and injunctive relief; Heck should apply when the concerns
underlying Heck exist); see also Longs v. McManaman, No. 4:18CV3161, 2019 WL
2717714, at *5 (D. Neb. June 28, 2019) (“Plaintiff’s claims that he was deprived of
his constitutional rights in the course of state criminal proceedings . . . necessarily
implicate the validity of his conviction and sentence” and are therefore barred by
Heck v. Humphrey).
To the extent Plaintiff challenges his conviction and sentence based on
ineffective assistance of counsel, such a claim “is improper outside of the habeas
context under Rooker-Feldman. See Prince v. Ark. Bd. of Examiners of Psychology,
380 F.3d 337, 340 (8th Cir. 2004) (noting that under Rooker-Feldman federal district
courts cannot review state court judgments except for in the context of habeas corpus
petitions).”1 Liedtke v. Runningen, No. CV 15-3361, 2016 WL 5660455, at *8 n.6
1

See Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923), and District of
Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983).
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(D. Minn. Sept. 29, 2016), aff’d, 697 F. App’x 468 (8th Cir. 2017); see also Sherman
v. Hot Spring Cty., No. 13-6049, 2015 WL 1208618, at *9 (W.D. Ark. Mar. 17,
2015) (“A claim of ineffective assistance of counsel is one that should be brought in
a habeas case. Plaintiff may not use the civil rights statutes as a substitute for habeas
corpus relief.”); Morris-Bey v. 5 Semi-Unknown St. Louis Metro. City Police
Officers, No. 4:07-CV-1814, 2009 WL 724010, at *3 (E.D. Mo. Mar. 13, 2009) (“to
the extent plaintiff challenges the validity of his criminal sentence, whether it be by
prosecutorial misconduct, . . . ineffective assistance of counsel, or other grounds, his
federal-court recourse is to file a habeas corpus action”).
Further, Plaintiff’s criminal defense counsel cannot be characterized as “state
actors” for purposes of 42 U.S.C. § 1983 when they were performing the traditional
role of defense counsel. Myers v. Vogal, 960 F.2d 750, 750 (8th Cir. 1992) (“The
attorneys who represented Myers, whether appointed or retained, did not act under
color of state law and, thus, are not subject to suit under section 1983.”); Bilal v.
Kaplan, 904 F.2d 14, 15 (8th Cir. 1990) (“The conduct of counsel, either retained or
appointed, in representing clients, does not constitute action under color of state law
for purposes of a section 1983 violation.”); see also Polk Cty. v. Dodson, 454 U.S.
312, 325 (1981) (“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”). Therefore, Plaintiff’s Complaint fails to state a claim upon which
relief may be granted under 42 U.S.C. § 1983.2

Because Plaintiff’s Complaint fails to state a federal claim upon which relief
may be granted, the court need not discuss whether a plausible claim for relief is
stated under Nebraska law. Without a viable federal question to decide, the court
will not exercise its supplemental jurisdiction in this case. See 28 U.S.C. §
1367(c)(3) (providing that when a district court has disposed of all federal claims
that conferred original jurisdiction under 28 U.S.C. § 1331, it may decline to exercise
supplemental jurisdiction over remaining state-law claims). Further, the Complaint
contains no allegations suggesting that this court has diversity jurisdiction over this
matter. 28 U.S.C. § 1332.
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2

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Accordingly,
IT IS ORDERED:
1.
This case is dismissed without prejudice as barred by Heck v.
Humphrey, 512 U.S. 477 (1994).
2.

Judgment will be entered by separate document.

3.

Plaintiff’s pending Motions (Filings 7, 8, 10, 12) are denied as moot.

DATED this 8th day of September, 2021.
BY THE COURT:

Richard G. Kopf
Senior United States District Judge

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