McCullough v. Pearlman
| Decision Date | 03 December 2018 |
| Docket Number | 8:18CV194 |
| Parties | WALLACE R. MCCULLOUGH, Plaintiff, v. BENJAMIN GERARD PEARLMAN, Sarpy County Attorney; SARPY COUNTY, RACHEL SPURGEON, #865 - Sarpy County Deputy Inv; DARIN MORRISSEY, #866 - Sarpy County Sheriff; and NICOLE R. HUTTER, Sarpy County Attorney; Defendants. |
| Court | U.S. District Court — District of Nebraska |
Plaintiff filed a Complaint on May 1, 2018. (Filing No. 1.) He has been given leave to proceed in forma pauperis. (Filing No. 6.) 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).2
Plaintiff, a non-prisoner who currently resides in Mississippi, brings this action against Defendants Sarpy County; Benjamin Gerard Perlman ("Perlman"), Senior Deputy Sarpy County Attorney; Nicole R. Hutter ("Hutter"), Deputy SarpyCounty Attorney; Lee Polikov ("Polikov"), Sarpy County Attorney; Sarpy County Deputy Investigator Rachel Spurgeon #865 ("Deputy Spurgeon"); and Sarpy County Deputy Darin Morrissey #866 ("Deputy Morrissey").3 (Filing No. 1; Filing No. 8.) Plaintiff does not set forth whether Defendants are sued in their official or individual capacities.
In the Complaint, Plaintiff claims that he was falsely arrested and jailed, and was maliciously prosecuted, for violating a state court child custody order and for contributing to the delinquency of a minor. (Filing No. 1 at CM/ECF pp. 3, 5-9.) Plaintiff also appears to challenge various orders entered in his state court divorce case and the actions of parties not named as defendants (for example, his ex-wife, her attorney, and judges involved in the divorce case). Plaintiff broadly alleges:
The Sarpy County Attorney's Office and Sheriff's office, in a combined effort, maliciously prosecuted Plaintiff by charging Plaintiff with 2 felony criminal charges that were brought with untrue probable cause and for a fraudulent purpose and were ultimately dropped and dismissed after serving their original purpose, which they were intended to only extradite Plaintiff to Nebraska to be served with a false Show Cause Order signed by an angry Recused Judge William B Zastera in a Civil Divorce case #CI0-2164 Sarpy County in which . . . that Show Cause order was dismissed due to being void because disqualified Zastera signed it. . . . The Civil and Criminal cases were combined by Sarpy county Courts, Prosecutors, and Sheriff's Office in an effort to severely violate Plaintiff's civil constitutionally protected rights . . . . [A]ny reasonable person could conclude that a malicious prosecution and a substantial abuse of process was conducted against the Plaintiff by a conspiracy committed by [Plaintiff's ex-wife], Mr. Perlman, Deputy Spurgeon, Deputy Morrisey, Nicole Hutter and her friend [Plaintiff's ex-wife's divorce attorney], and Judge William Zastera.
(Id. at CM/ECF p. 8.)4
Specifically, Plaintiff asserts that, on May 3, 2016, he was arrested during a traffic stop in Georgia "by at least 20 different officers from various state, federal, county, and local agencies for two false felony warrants that were manufactured by a false affidavit written by" Deputy Spurgeon of the Sarpy County Sheriff's Office. (Id. at CM/ECF pp. 7-8.) According to Plaintiff, Deputy Spurgeon's warrant affidavit included "numerous false statements" and omitted "exculpatory evidence" (text messages from Plaintiff's daughter), which Deputy Spurgeon "had in her possession." (Id. at CM/ECF pp. 5, 8.) Plaintiff alleges that Deputy Spurgeon's "lies" and omissions "misled Judge Hutton [state court judge] to sign warrants against Plaintiff." (Id. at CM/ECF p. 5.)
Plaintiff also asserts that Deputy Spurgeon "was coached" by Plaintiff's ex-wife and her divorce attorney and "recused" Judge Zastera. (Id. at CM/ECF p. 8.) Plaintiff states that Deputy Spurgeon should have told Plaintiff's ex-wife "to notify her attorney to try and seek a civil warrant for contempt in divorce court" instead of "scar[ing] [Plaintiff's] children with runaway charges and [seeking] criminal charges against Plaintiff." (Id. at CM/ECF p. 6.)
With respect to Deputy Morrissey, Plaintiff asserts that he should have notified Deputy Spurgeon about the exculpatory evidence that "he had obtained from Plaintiff's daughter's cell phone." (Id.) Plaintiff alleges that the text messages show that Plaintiff's daughter initiated contact with Plaintiff, which demonstrates that "no crime was committed and the case was civil in nature." (Id.)
Plaintiff alleges that the felony warrants "were only used as a tool to extradite Plaintiff back to Nebraska so that a recused Judge could serve Plaintiff with a false contempt charge (substantial abuse of process)" in a divorce matter. (Id. at CM/ECFp. 8; see also Filing No. 24 at CM/ECF p. 3 ( ).)
Plaintiff claims that Perlman, a Senior Deputy Sarpy County Attorney, maliciously prosecuted Plaintiff on the two felony charges. (Filing No. 1 at CM/ECF p. 5.) He alleges that Perlman refused to "drop the charges" even though Plaintiff's attorney "had repeatedly reminded him that the case was a civil matter" and "should be in civil court." (Id.) Plaintiff states that the felony charges were later dropped to four misdemeanors, but that Perlman persisted on "trying to get Plaintiff to plead guilty to one charge to dismiss the other three." (Id.) Plaintiff asserts that Perlman "forced" Plaintiff's two daughters to testify against him at trial and told them that, if they did not testify, "they would be forced to go to juvenile detention for Attempted runaway charges." (Id.) Plaintiff states that, although his daughter's text messages were introduced at trial and "tore apart" the prosecution's case, and although Perlman knew "the police report said that [Plaintiff] never entered the state of Nebraska's jurisdiction on any day of the incident or days around the incident," Perlman continued to "convince the judge and jury of [Plaintiff's] guilt." (Id.)
According to Plaintiff, "Judge Wester threw out all charges against [him]" and "conceded that the matter was civil and not criminal and that Plaintiff did not commit any crime whatsoever." (Id. at CM/ECF pp. 5, 8.) Plaintiff's state court records, available to this court online, confirm that a jury trial was held on October 20, 2016, and the court dismissed the misdemeanor charges against Plaintiff, but the records do not reflect the reason for dismissal. The court takes judicial notice of the state court records related to this case in State v. McCullough, Case No. CR16-1474, County Court of Sarpy County, Nebraska. See Stutzka v. McCarville, 420 F.3d 757, 760 n.2 (8th Cir. 2005) ().
Plaintiff further claims that Hutter, a Deputy Sarpy County Attorney, ordered Perlman "to keep prosecuting Plaintiff" after the felonies were dropped to misdemeanors in order to "scare Plaintiff into pleading guilty of at least a misdemeanor to take liability away from the malicious prosecution and abuse of process that had already occurred by Deputies, Prosecutors, and disqualified Judge Zastera." (Filing No. 1 at CM/ECF p. 6.) Plaintiff alleges that Hutter "chose to take 4 charges to trial where they were proven bogus[,] as well as the felonies[,] and thrown out of the court by angry Judge Wester." (Id.) Plaintiff asserts that Hutter "knew the case was civil" but that Hutter "was prosecuting it as a favor to Plaintiff's ex-wife's attorney . . . and as a favor to the 5-year disqualified Judge Zastera who was the initial Judge on the divorce case and longtime family friend of [Plaintiff's ex-wife's] high profile doctor family." (Id.) Plaintiff also alleges that Hutter falsified information on the National Crime Information Center ("NCIC") data system in an "attempt to convince any and all law enforcement around the country to see Plaintiff as the most dangerous criminal possible." (Id. at CM/ECF p. 8.) According to Plaintiff, the "derogatory information" on the NCIC included that Plaintiff was dangerous to law enforcement, a danger to others, a substance abuser, and mentally ill, and was "designed to justify law enforcement to use deadly force on sight of Plaintiff." (Id.)
Plaintiff claims that, as a result of Defendants' actions, he was in jail from May 3, 2016 until May 26, 2016; he has suffered complex post-traumatic stress, "extreme sadness every day that [his] children are being used to persecute and prosecute [him] when [he] is currently entitled to full custody of his children, not their mother," nightmares due to incarceration, and "chronic pain syndrome to right abdomen injury\surgery irritated by incarceration crawling to top bunk without a ladder"; he is unable to work, which has resulted in unpaid bills and ruined his credit; all his friends in Omaha "broke ties" with him; his ex-wife and her divorce attorney "continue to pursue contempt charges against him even though an active motion to modify the divorce decree is still pending and unanswered"; there are active warrants against him; and his driving privileges have been suspended. (Id. at CM/ECF p. 8.)
As relief, Plaintiff seeks $5,000,000.00 in damages; "habeas corpus" relief "from the malicious prosecution on the contempt warrants" issued by a "bias[ed] judge in the divorce court of Nebraska"5; a judgment declaring "all of Judge Zastera's orders and the entire divorce decree" void; and "a stay of enforcement on all actions by the State [of] Nebraska against Plaintiff to include releasing the hold on Plaintiff's driver's license privileges, not cancelling passport, not filing for any further warrants for Plaintiff's arrest,...
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