Epp v. Frakes
| Decision Date | 07 December 2018 |
| Docket Number | 8:18CV418 |
| Parties | WILLIAM EPP, Plaintiff, v. SCOTT FRAKES, BRAD HANSEN, DIANE SABATKA-RINE, SCOTT BUSBOOM, DOUG PETERSON, CHUCK GLEN, MICHAEL KENNEY, and BRIAN GAGE, Defendants. |
| Court | U.S. District Court — District of Nebraska |
Plaintiff, William Epp ("Epp"), an inmate at the Tecumseh State Correctional Center, filed his Complaint (Filing 1) on September 6, 2018. In a Memorandum and Order (Filing 8) entered on November 5, 2018, the court found on initial review that the claims alleged by Epp in his Complaint were improperly joined because they were asserted against completely different Defendants and concerned unrelated transactions or occurrences. See Fed. R. Civ. P. 20(a)(2). Epp was given 30 days in which to file an Amended Complaint to correct this pleading defect.
Epp filed an Amended Complaint (Filing 9) on November 19, 2018. The court now conducts an initial review of the Amended Complaint to determine whether summary dismissal is appropriate under 28 U.S.C. §§ 1915(e)(2) and 1915A.
Epp's Amended Complaint is brought only against Defendant Doug Petersen, the Nebraska Attorney General, who is sued in his individual and official capacities. Epp seeks only declaratory and injunctive relief. He requests the court to declare that "Neb. Rev. Stat. § 25-1233 et seq. is unconstitutional on its face and as-applied, because it violates the Equal Protection Clause of the Fourteenth Amendment," and to enjoin Defendant "from continuing to enforce 25-1233" (Filing 9, pp. 4-5).
The challenged statute, although part of Nebraska's code of civil procedure, also applies to criminal cases. See Rains v. State, 114 N.W.2d 399, 405 (Neb. 1962); see also State v. Stott, 503 N.W.2d 822, 830-33 (Neb. 1993) (), disapproved on other grounds by State v. Johnson, 589 N.W.2d 108 (Neb. 1999). The statute provides in relevant part:
A person confined in any prison in this state shall, by order of any court of record, be produced for oral examination in the county where he or she is imprisoned. In all other cases his or her examination must be by deposition.
Epp claims § 25-1233 "is unconstitutional because it deprives a criminal defendant on trial in a county where a prison under the control of the Nebraska Department of Correctional Services is not located, of an opportunity to have a person subpoenaed to testify in that defendant's trial" (Filing 9, p. 4, ¶ 12). Specifically, Epp contends "[t]he fact that criminal defendants in counties in which prisons are located can obtain an order from the court in that county to produce prisoners to give testimony at trial, but criminal defendants in counties where the prison is not located cannot, violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution and Article 1, sections 3 and 11 of the Nebraska Constitution, of those prisoners charged where the prison is not located" (Filing 9, p. 4, ¶ 14).
Epp alleges Defendant Peterson "represented the State against Epp when the constitutionality of 25-1233 was presented to the state courts" (Filing 9, p. 3, ¶ 8), and since Epp's criminal conviction "has refused to take corrective measures to have[§ 25-1233] invalidated" (Filing 9, p, 3, ¶ 7) despite having an ethical obligation as a prosecutor "to inform the appropriate authorities of after-acquired or other information that cast doubt on the correctness of the conviction (Filing 9, pp. 3-4, ¶ 10). Epp further alleges he "will seek an injunction requiring the defendant to request that said statute be invalidated, which would prospectively abate the alleged violation" (Filing 9, pp. 1-2, ¶ 4).
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).
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) ().
"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." Id., at 849 (internal quotation marks and citations omitted).
Liberally construing Epp's Amended Complaint, he asserts both a federal constitutional claim under authority of 42 U.S.C. § 1983, and a state constitutional claim.1 Because a plaintiff may not bring a state claim under the aegis of § 1983, this court's ability to entertain Epp's equal protection challenge to the Nebraska statute based on provisions of the Nebraska Constitution cannot be predicated on 28 U.S.C. § 1331 (original jurisdiction),2 but instead must depend on 28 U.S.C. § 1367(a) (supplemental jurisdiction).3 See Preston v. City of Pleasant Hill, 642 F.3d 646, 650 (8th Cir. 2011); Stamm v. Cty. of Cheyenne, 326 F. Supp. 3d 832, 843 (D. Neb. 2018).Unless this court has original jurisdiction over the § 1983 claim, it cannot exercise supplemental jurisdiction over the state claim. See City of Kansas City v. Yarco Co., 625 F.3d 1038, 1041 (8th Cir. 2010) ().
"Federal courts have authority under the Constitution to decide legal questions only in the course of resolving 'Cases' or 'Controversies.'" Trump v. Hawaii, 138 S. Ct. 2392, 2416 (2018); U. S. Const. Art. III, § 2. The "irreducible constitutional minimum" of standing consists of three elements: "The plaintiff must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision." Spokeo, Inc. v. Robins, 136 S.Ct. 1540, 1547 (2016)). The plaintiff must "clearly ... allege facts demonstrating" each element at the pleading stage. Id. (quoting Warth v. Seldin, 422 U.S. 490, 518 (1975)).
To establish an injury in fact, a plaintiff must show an injury that is "'concrete and particularized' and 'actual or imminent, not conjectural or hypothetical.'" Id. at 1548 (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992)). For an injury to be "particularized," it "must affect the plaintiff in a personal and individual way." Id. (quoting Lujan, 504 U.S. at 560, n. 1). A "concrete" injury must be "de facto "; that is, it must actually exist. Id.
To the extent Epp brings an equal protection challenge regarding the application of Neb. Rev. Stat. § 25-1233(1) in his own criminal trial, proof that he was convicted and sentenced to prison clearly will satisfy the first element for Article III standing (i.e., injury in fact). But Epp cannot rely upon alleged violations of the rights of other criminal defendants in bringing this § 1983 action. See SOB, Inc. v. Cty. of Benton, 317 F.3d 856, 864 (8th Cir. 2003) ().
With respect to the second element (i.e., causation), Epp's theory of the case appears to be that his conviction stands, and he remains incarcerated, because the Nebraska Attorney General has a breached his continuing duty to inform "appropriate authorities" that § 25-1233(1) is unconstitutional and to "take corrective measures to have the statute invalidated." The court will assume for purposes of initial review that Epp's legal theory has merit. See Warth, 422 U.S. at 500 (); Braden v. Wal-Mart Stores, Inc., 588 F.3d 585, 591 (8th Cir. 2009). ("It is crucial ... not to conflate Article III's requirement of injury in fact with a plaintiff's potential causes of action, for the concepts are not coextensive.").
However, as to the third and final element (i.e., "redressability"), the court does not find it likely that the present action will result in Epp's conviction being set aside or his sentence being vacated. "Relief that does not remedy the injury suffered cannot bootstrap a plaintiff into federal court; that is the very essence of the redressability requirement." Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 107 (1998).
Because the Nebraska Attorney General does not have any authority to override the state court judgment that sent Epp to prison, "[w]hether [Epp's alleged injury] would be redressed by a favorable decision in this case depends on the unfettered choices made by independent actors not before the courts and whose exercise of broad and legitimate discretion the courts cannot presume either to control or to predict." ASARCO Inc. v. Kadish, 490 U.S. 605, 615 (1989). Article III standing...
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