Rhodes v. Houston

• Decision Date: 31 January 1962
• Docket Number: Civ. 01322.
• Citation: 202 F. Supp. 624
• Parties: Paul E. RHODES, Plaintiff, v. Norval HOUSTON et al., Defendants.
• Court: U.S. District Court — District of Nebraska

202 F. Supp. 624

Paul E. RHODES, Plaintiff, v. Norval HOUSTON et al., Defendants.

Civ. 01322.

United States District Court D. Nebraska.

January 31, 1962.

COPYRIGHT MATERIAL OMITTED

Paul E. Rhodes, Howe, Neb., per se.

Robert A. Nelson, Sp. Asst. Atty. Gen. and Dwain L. Jones, Deputy Atty. Gen., for defendants.

H. B. Evnen and J. Arthur Curtiss, Lincoln, Neb., for Lumberman's Mutual Casualty Co.

James L. Macken, Bridgeport, Neb., for defendants James L. Macken and others.

VAN PELT, District Judge.

This is an action based upon the federal Civil Rights Act brought by Paul E. Rhodes as plaintiff against a number of Nebraska judicial and law enforcement officers, a North Platte, Nebraska law firm and the bonding companies of a number of the defendants.

Counsel for defendants have filed fifteen separate motions to dismiss the action, and after hearing and the submission of briefs the matter is now submitted for determination.

It is first necessary to summarize the allegations of the complaint, as amended pursuant to leave of court granted at the hearing. It begins by alleging jurisdiction under the provisions of 28 U.S.C.A. §§ 1331, 1343; 42 U.S.C.A. §§ 1983, 1986; Article 1, Section 9 of the United States Constitution and Amendments 14, 4, 6, 8, and 13 thereto. The court here notes that, while the complaint does not so state, it is apparent that 42 U.S.C.A. § 1985 is relied upon as the basis for the charge of conspiracy alleged in the second cause of action.

The complaint next proceeds to identify the defendants at the times material to the actions complained of: Norval Houston, Sheriff of Morrill County, Nebraska; Michael Linch, a Deputy Sheriff of Morrill County; Leo Knudtson, an officer of the Nebraska State Highway Patrol; Carl Sanders, a Colonel in the Nebraska State Highway Patrol; Maryland Casualty Co., the bonding Company for Houston and Linch; Virginia A. Schuetz, Clerk of the District Court of Morrill County; James L. Macken, County Attorney of Morrill County; Clarence A. H. Meyer, Attorney General of Nebraska; Cecil S. Brubaker, Assistant Attorney General; Rush Clarke, Special Assistant Attorney General; Beatty, Clarke, Morgan & Murphy, a partnership doing business in North Platte, Nebraska; Maurice Sigler, Warden of the Nebraska State Penitentiary; John Greenholtz, Deputy Warden of the penitentiary; Samuel W. Dickerson, Business Manager of the penitentiary; George Turner, Clerk of the Nebraska Supreme Court; Richard Van Steenberg, District Judge for the District Court of Morrill County; Albert W. Crites, Acting District Judge of the Sixteenth Judicial District of Nebraska; Ted R. Fiedler, Acting District Judge for the Seventeenth Judicial District and Morrill County, Nebraska.

The essential allegations of the first cause of action recite that on or about November 21, 1960 plaintiff was tried in absentia for contempt of court in the District Court of Morrill County before the defendant Richard Van Steenberg, plaintiff neither being present nor represented by counsel; that he was sentenced to nine months hard labor in the Nebraska State Penitentiary and fined $2500.00; that at the conclusion of the trial defendant Van Steenberg entered an order overruling plaintiff's motion for a continuance, which recited that the State had introduced evidence to show "considerable physical activity on the part of the Defendant wholly inconsistent with the Defendant's claim of physical inability to stand trial; * * *." The order also overruled his motion to dismiss the information, and found the defendant guilty of contempt and imposed sentence; that on or about November 23, 1960 the defendant Schuetz, as Clerk of the District Court of Morrill County, acting under color of her office and without a mittimus or other direction of court, issued an order of commitment directed to the Sheriff of Morrill County which ordered him to execute the sentence; that under color of this "Order of Commitment" and at the direction of defendant Macken, defendant Houston and W. W. Schultz, Sheriff of Cheyenne County, arrested plaintiff and imprisoned him in the Cheyenne County jail; that on January 16, 1961 plaintiff obtained a writ of habeas corpus from John H. Kuns, the District Judge of Cheyenne County, which was issued and returned, and that Judge Kuns on January 16, 1961 made a journal entry indicating that the writ was issued on the "sole ground that his arrest by respondents was not by virture of any warrant or order of commitment;" that no error proceeding, appeal, or other review was sought of such order, and said judgment is now final; that on January 23, 1961 plaintiff was arrested by defendants Houston, Linch and Knudtson under the order of defendant Macken and that such action was taken under color of the "commitment heretofore referred to;" that no warrant or valid commitment had ever been issued for the arrest and detention of plaintiff; that such action was taken by defendants Houston, Linch, Knudtson and Macken with knowledge and in disobedience of the writ of habeas corpus and with intent to deny plaintiff equal protection, and that the individual defendants "planned and agreed to commit all the acts alleged herein;" that plaintiff demanded counsel but was refused; that at the time of plaintiff's arrest and imprisonment there was no valid judgment or sentence against him; that the court entering the judgment was without jurisdiction to do so, and was without jurisdiction to pronounce sentence at hard labor to the penitentiary; that plaintiff never was given a jury trial; that plaintiff after his arrest demanded access to courts of Cheyenne County which was refused by defendants Houston, Linch, Knudtson and Macken; that he was then taken to the penitentiary; that the action taken by defendants Van Steenberg and Macken on November 21, 1960 was done knowing they had no jurisdiction to conduct a trial in absentia and to pass a sentence imposing infamous punishment, and for the purpose of denying plaintiff his federal civil rights; that plaintiff filed a notice in the District Court of Morrill County on November 2, 1960 setting forth, inter alia, that there was no jurisdiction over him; that on January 23, 1961 plaintiff was held in the penitentiary by and at the direction of defendants Sigler and Greenholtz. The complaint then proceeds to point out various details of plaintiff's life in the penitentiary, and includes allegations that he was being held as a convict, under the color of the commitment sentence, and was deprived of the privilege of practicing law, and that he was put in solitary confinement as a result of a disciplinary "hearing". Plaintiff also alleges that shortly after his arrest he made demand on defendant Turner for his release but Turner refused to direct such release; that at no time was plaintiff charged with the commission of a crime, afforded a jury trial, or represented by adequate counsel. Plaintiff then recites various ways in which he has been damaged. Plaintiff concludes his first cause of action with a prayer for damages against the defendants other than the Justices of the Supreme Court.

Plaintiff's second cause of action alleges that prior to the events set out the individual defendants, except the Justices of the Supreme Court, entered into a conspiracy with intent to deny plaintiff equal protection, and with the intent to injure him for enforcing or attempting to enforce his rights to equal protection.

The third cause of action prays for a restraining order against further imprisonment, and that portion of the complaint was denied by this court, after hearing, on September 22, 1961. It also prays for a "temporary and permanent injunction against the defendants" from violation of the plaintiff's civil right, rights, privileges and immunities."

Plaintiff's First Cause of Action

Plaintiff has divided his complaint into three causes of action. The first cause of action recites the events which this court has summarized above. It appears to be based primarily upon 42 U.S.C.A. § 1983 which provides:

"Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress."

The court will follow plaintiff's organization of the complaint and examine each of the so-called causes of action separately.¹ The first cause of action devotes one extended paragraph to identifying each of the named defendants and alleging that their actions were performed under the color of their various offices and authority. Other than this mention by way of identification no further reference is made as far as a number of the defendants are concerned, and no actions are set forth in which it is claimed they participated. As to these persons the first cause of action states no claim. Rule eight of the Federal Rules of Civil Procedure, 28 U.S.C.A. requires that the complaint shall contain a "short and plain statement of the claim showing that the pleader is entitled to relief."

Obviously, when nothing whatsoever is alleged, plaintiff has not complied with that portion of the rule requiring him to show that he is entitled to relief. Despite the accepted liberality with which this rule is to be interpreted, a complaint must at the minimum reveal the basis upon which relief is sought. Mathews v. Kilroe, 170 F.Supp. 416 (S.D. N.Y.1959). This deficiency in the complaint means that the first cause of action states no claim against the following defendants: Sanders, Meyer, Brubaker, Clarke, the firm of Beatty, Clarke, Morgan & Murphy, Dickerson, Crites and Fiedler.

Plaintiff's first cause of action does, however, allege certain specific acts...