Niklaus v. Simmons, Civ. No. 305-L.

• Decision Date: 06 September 1961
• Docket Number: Civ. No. 305-L.
• Citation: 196 F. Supp. 691
• Parties: William NIKLAUS, Plaintiff, v. Robert G. SIMMONS, Edward F. Carter, Frederick W. Messmore, John W. Yeager, Elwood B. Chappell, Adolph E. Wenke, Paul E. Boslaugh, George H. Turner, and Clarence S. Beck, Defendants.
• Court: U.S. District Court — District of Nebraska

196 F. Supp. 691

William NIKLAUS, Plaintiff, v. Robert G. SIMMONS, Edward F. Carter, Frederick W. Messmore, John W. Yeager, Elwood B. Chappell, Adolph E. Wenke, Paul E. Boslaugh, George H. Turner, and Clarence S. Beck, Defendants.

Civ. No. 305-L.

United States District Court District of Nebraska.

April 21, 1961.

Supplemental Opinion September 6, 1961.

COPYRIGHT MATERIAL OMITTED

William Niklaus, plaintiff, pro se.

Walter D. James and John J. Wilson, Lincoln, Neb., for defendants Robert G. Simmons, Edward F. Carter, Frederick W. Messmore, John W. Yeager, Elwood B. Chappell, Adolph E. Wenke, Paul E. Boslaugh and George H. Turner.

Gerald S. Vitamvas, Lincoln, Neb., for defendant Clarence S. Beck.

DELEHANT, Senior District Judge.

By way of a departure from the customary usage here, this memorandum is being written in the first person. That may serve to minimize the confusion which, regard being had to the official positions of all of the defendants except one, might arise from the frequent employment of the term, "the court."

Ruling is presently being made upon separate motions to dismiss the amended complaint of plaintiff, served and filed herein by,

(a) the defendants, Robert G. Simmons, Edward F. Carter, Frederick W. Messmore, John W. Yeager, Elwood B. Chappell, Adolph E. Wenke, Paul E. Boslaugh, and George H. Turner, joining in a common motion; and,

(b) the defendant, Clarence S. Beck, acting alone.

While, in the pleading of the defendant, Clarence S. Beck, alternative motions for dismissal on the basis of the Statute of Limitations of Nebraska, under the several sections 25-208 and 25-219 R. R.S.Neb.1943, are joined with his primary motion for dismissal for failure to state a claim upon which relief can be granted, in view of the conclusion I have reached upon the issues tendered by the primary motion, I have considered it to be unnecessary to rule, and am not now ruling, upon those alternative grounds thus contingently asserted in support of the demanded dismissal.

The action was instituted by the plaintiff's filing in this court of a complaint against all of the defendants named in the caption hereto, and also against two other individual citizens of Nebraska, two Nebraska corporations, and three corporations organized under the laws of states other than Nebraska. Of the corporate defendants originally designated, one was a Nebraska entity engaged in the operation of a construction business, and each of the others was a corporation engaged in business as a surety or casualty company. Upon, and by an order made and given on September 20, 1960 (filing 38), that complaint was stricken from the files, on the ground of its scandalous and scurrilous character. But by leave of court, obtained on October 14, 1960 (filing 40), the plaintiff, on October 19, 1960, served and filed the Amended and Supplemental Complaint¹ (filing 39). To that amended and supplemental complaint only the persons so designated in the caption hereof are made defendants. I, therefore, assume, and I think correctly, that the other original defendants are no longer being proceeded against. Actually, none of the original corporate defendants which were organized under the laws of states other than Nebraska appears ever to have been served with process. I understand, therefore, that the presently moving parties are the only defendants against whom the action remains pending.

First, I shall summarize, as fully as appears to be necessary, yet as briefly as is allowable, the averments of the Amended and Supplemental Complaint; for it is the adequacy of those averments which alone the separate motions to dismiss severally challenge. In the interest of brevity, I shall refer to it as "the complaint," in full awareness that I am referring to the amended pleading.

The complaint asserts that Title 28 U.S.C. § 1343, gives this court jurisdiction over the subject matter of the action; that the plaintiff and all of the defendants are citizens of Nebraska; and that plaintiff's action arises under Article I, section 8, and Article IV, section 4, of the Constitution of the United States; Article VII, and Article XIV, section 1 of the Amendments to such Constitution; and Title 28 U.S.C. § 1343; Title 42 U.S.C.A. §§ 1983 and 1985; and Title 18 U.S.C. § 241.

Then it alleges that plaintiff was born in the United States on August 1, 1885; that, in the way of an education, he received from Hanover College (Indiana) on June 9, 1909 the degree of Bachelor of Science, and from the University of Nebraska, upon his graduation with honors from its School of Law, on June 9, 1915, the degree of Bachelor of Laws; his admission, after examination by the Nebraska State Bar Commission, and by order of the Supreme Court of Nebraska, on July 1, 1914, to practice as an attorney and counsellor of the bar of that court and of the state of Nebraska; his admission on September 24, 1914 to the bar of this court; and his admission during the year 1945 to practice as a member of the bar of the Court of Appeals, Eighth Circuit; and that "at the times herein mentioned,"² Robert G. Simmons was the duly elected Chief Justice, and Edward F. Carter, Frederick W. Messmore, John W. Yeager, Elwood B. Chappell, Adolph E. Wenke, and Paul E. Boslaugh were the duly elected and qualified Associate Justices, of the Supreme Court of Nebraska, and George H. Turner was the duly appointed Clerk of the Supreme Court of Nebraska; and Clarence S. Beck was the duly appointed Deputy Attorney General, and later the duly qualified Attorney General of Nebraska.³

In the complaint the plaintiff next alleges that at some time during, or prior to, 1946, the defendants entered into a conspiracy to injure plaintiff by depriving him of his license to practice law in Nebraska by the commencement and prosecution against him (of a disbarment proceeding) in the name of a fictitious entity as plaintiff; that in furtherance, and in the prosecution, of that conspiracy, defendant, Clarence S. Beck, acting under color of state authority and of his then office of Deputy Attorney General of Nebraska, and in concert with his codefendants, except the defendant, Paul E. Boslaugh (who had not then become an Associate Justice of the Supreme Court of Nebraska), "encouraged, excited and stirred up" a suit or controversy against plaintiff, with intent to injure him, in the name of "Nebraska State Bar Association," which plaintiff characterizes as "a fictitious entity," which conduct of the defendant, Clarence S. Beck, the plaintiff alleges to be violative of Section 28-716, R.R.S.Neb.1943;⁴ that in preparing the petition whereby (the disbarment proceeding against plaintiff) was commenced, the defendants, in furtherance of the conspiracy, attempted to conceal the defect in parties in such proceeding by denominating the plaintiff as "State of Nebraska, ex rel. Nebraska State Bar Association, Relator;" that the State of Nebraska had no interest in the subject matter of such petition, and the employment of the language, "State of Nebraska" in the title to the proceeding was and is meaningless and surplusage, as was and is also the employment of the word, "Relator"; that the Nebraska State Bar Association was not a corporation, was not formed for the purpose of carrying on any trade or business, or holding any species of property in the State of Nebraska, and was not a labor union representing employees in collective bargaining with employers, and was not, by any statute of Nebraska, authorized to sue or be sued; that the disbarment proceeding thus commenced was an action without a plaintiff; that, also in furtherance of such conspiracy, the defendant, George H. Turner, acting under color of his office as Clerk of the Supreme Court of Nebraska, and under color of state authority, caused the petition in such disbarment proceeding to be filed for record and entered in the docket of the Supreme Court of Nebraska as an instrument calculated to impel that court to action in an adversary proceeding, entitled State ex rel. Nebraska State Bar Ass'n v. Niklaus, 149 Neb. 859, 33 N.W. 2d 145; that on June 29, 1948, in furtherance of such conspiracy and in concert with their codefendants, George H. Turner and Clarence S. Beck, the defendants, Robert G. Simmons, Edward F. Carter, Frederick W. Messmore, John W. Yeager, Elwood B. Chappell and Adolph E. Wenke,⁵ acting under color of their respective offices and by state authority considered and ruled upon such petition for disbarment, thereby treating Nebraska State Bar Association as the relator therein, and granted the prayer of the petition, and adjudged that the plaintiff's license to practice the profession of law be revoked, and that the plaintiff be disbarred from the further practice of the profession of law in the State of Nebraska; and that since the entry of said order or judgment, the defendants have treated it as a valid order of the Supreme Court of Nebraska, forever disbarring the plaintiff from the practice of law in the State of Nebraska.

The plaintiff in the complaint further alleges that after the entry of such judgment of disbarment, the defendants⁶ "revitalized the conspiracy as one having for its object and purpose the further oppression, persecution, abuse, harassment and annoyance of the plaintiff;" that, in furtherance, and in the prosecution, of such conspiracy, and acting in concert with his codefendants, the defendant, George H. Turner, procured and employed one William L. Walker, an attorney at law, to prepare and file in the District Court of Lancaster County, Nebraska, a petition in the name of Nebraska State Bar Association, as plaintiff, against the plaintiff and his wife, Mary Niklaus, as defendants, of which the object or purpose "was for the extortion of money from the defendant⁷ for the benefit of all the members of the Nebraska State Bar Association; that such petition was filed on or about February 18, 1952; that to such petition, the present plaint...