Rhodes v. Meyer

• Decision Date: 10 December 1963
• Docket Number: Civ. No. 01682.
• Citation: 225 F. Supp. 80
• Parties: Paul RHODES, Plaintiff, v. Clarence A. H. MEYER et al., Defendants.
• Court: U.S. District Court — District of Nebraska

225 F. Supp. 80

Paul RHODES, Plaintiff, v. Clarence A. H. MEYER et al., Defendants.

Civ. No. 01682.

United States District Court D. Nebraska.

December 3, 1963.

As Corrected December 10, 1963.

COPYRIGHT MATERIAL OMITTED

Paul Rhodes, Howe, Neb., pro se.

Robert A. Nelson, Lincoln, Neb., pro se, and for defendants Clarence A. H. Meyer, Cecil Brubaker, Dwain L. Jones, Gerald S. Vitamvas, Rush Clarke, Peter E. Marchetti, Virginia A. Schuetz, Leo Knudtson, Carl Sanders, Norval Houston, Michael Linch, George Turner, Robert G. Simmons, Edward F. Carter, Fred W. Messmore, John W. Yeager, Harry A. Spencer, Leslie Boslaugh, Robert C. Brower, Richard M. Van Steenberg, Albert W. Crites, Ted R. Feidler, H. B. Evnen, J. Arthur Curtiss, John Greenholtz, Maurice Sigler and George Lewis.

Clarence A. H. Meyer, Lincoln, Neb., pro se, and for defendants, Cecil Brubaker, Dwain L. Jones, Robert A. Nelson, Gerald S. Vitamvas, Rush Clarke, James L. Macken, Peter E. Marchetti, Virginia A. Schuetz, Leo Knudtson, Carl Sanders, Norval Houston, Michael Linch, George Turner, Robert G. Simmons, Edward F. Carter, Fred W. Messmore, John W. Yeager, Harry A. Spencer, Leslie Boslaugh, Robert C. Brower, Richard M. Van Steenberg, Albert W. Crites, Ted R. Feidler, H. B. Evnen (mistakenly named as H. B. Even), J. Arthur Curtiss and John Greenholtz.

DELEHANT, Senior District Judge.

Submitted in behalf of the parties, and pending for ruling by the court, are four separate motions to dismiss the plaintiff's amended complaint:

a) one filed by the defendant Robert A. Nelson (filing 26);

b) one filed by the defendants, Maurice Sigler and George Lewis (filing 27);

c) one filed by the defendants, Dwain L. Jones, Gerald S. Vitamvas, Peter E. Marchetti, H. B. Evnen and J. Arthur Curtiss (filing 28); and

d) one filed by the defendants, Clarence A. H. Meyer, Cecil Brubaker, Rush Clarke, James L. Macken, Virginia A. Schuetz, Leo Knudtson, Carl Sanders, Norval Houston, Michael Linch, George Turner, Robert G. Simmons, Edard F. Carter, Fred W. Messmore, John W. Yeager, Harry A. Spencer, Leslie Boslaugh, Robert C. Brower, Richard M. Van Steenberg, Albert W. Crites, Ted R. Feidler and John Greenholtz (filing 29).

Submitted also in the Motion to Dismiss of the defendant, Robert A. Nelson, is what constitutes a Motion to Strike paragraphs XIX, XXI and XXIII of the Amended Complaint as scandalous and impertinent, specifically with respect to that moving defendant.

The grounds upon which the Motions to Dismiss are explicitly premised may be recalled very briefly. Each of these Motions asserts all of these separate grounds for its allowance:

a) that the amended complaint is scandalous; impertinent and vexatious;

b) that the amended complaint fails to state a claim upon which relief can be granted against the several moving defendants;

c) that plaintiff's alleged claim is not within the protection of the Federal Civil Rights Act, or any other statutory or constitutional provision upon which plaintiff seeks to predicate his action; and,

d) that each moving party is immune from liability under the Federal Civil Rights Act for the reason that the conduct attributed to him or her, as the case may be, to the extent to which, if at all, any such conduct occurred, was done in his or her official capacity (as shortly herein indicated); for conduct in which capacity it is contended that immunity to suit exists.

Each of the two several motions filed as numbers 27 and 29 asserts the identity of the facts alleged in support of the claim put forth in the present amended complaint with the facts set out in case No. 01322, entitled Rhodes v. Houston, et al., D.C., 202 F.Supp. 624, affd. 8 Cir., 309 F.2d 959, cert. den. 372 U.S. 909, 83 S.Ct. 724, 9 L.Ed.2d 719; wherefore, bar by the rule res judicata is claimed.¹ For that matter, on the oral submission, all of the parties defendant pointed to the ruling in Rhodes v. Houston, supra, the defendants who were parties to it under the rule res judicata, and all parties defendant for its authoritative reasoning and legal cogency. And the several motions noted as filings 26, 27, and 29 insist that the amended complaint contains all of the vital defects of the complaint initially filed herein, which the court heretofore, upon motion, struck from the files (filing 24 and memorandum, filing 23).

To an understanding of the amended complaint, and the motions aimed at it, the identification of the parties and of their respective official positions or employment at the time or times involved in the litigation, appears to be necessary. This is now set down almost exclusively upon the basis of averments in the amended complaint, but, to an imperative extent, with corrective clarification by resort to available and pertinent public records.

Paul Rhodes, frequently referred to as Paul E. Rhodes, is, and for more than twenty years continuously heretofore has been, an attorney at law. He was born on July 27, 1919 in Nebraska, obtained in this state a common school and high school education, and studied in the University of Nebraska for six years in its College of Business Administration and its School of Law, from the latter of which he graduated in its class of 1943. He was admitted to the bar of Nebraska on June 23, 1943. He is, and, continuously since July 27, 1943, has been a member of the bar of this court. Hence, while he prosecutes this action pro se, he does so, not as an untutored layman, but rather as an experienced practitioner at the bar, for he has long and actively pursued the practice of his profession. He is a resident and citizen of Nebraska.

Each of the several defendants is, and at all times involved herein has been, a resident and citizen of Nebraska. Clarence A. H. Meyer is, and since January 5, 1961 has been, the Attorney General of Nebraska. At all times material herein, he was either the Deputy Attorney General or — and more recently, and now, supra — the Attorney General, of Nebraska. Cecil Brubaker and Dwain L. Jones, at all material times were Assistant Attorney Generals of Nebraska. At all such times Gerald S. Vitamvas was either an Assistant Attorney General, or the Deputy Attorney General, of Nebraska, and Rush Clarke and Robert A. Nelson were special Assistant Attorney Generals of Nebraska.² At such times, too, James L. Macken was the duly elected and qualified County Attorney of Morrill County, Nebraska; Virginia A. Schuetz, the duly elected and qualified Clerk of the District Court of Morrill County, Nebraska; Norval Houston and Michael Linch, respectively, the Sheriff and the Deputy Sheriff of Morrill County, Nebraska; Leo Knudtson and Carl Sanders, officers, or members, of the Nebraska Safety Patrol; George Turner, the Clerk of the Supreme Court of Nebraska; Robert G. Simmons, the Chief Justice of the Supreme Court of Nebraska;³ Edward F. Carter, Fred W. Messmore, John W. Yeager, Harry A. Spencer, Leslie Boslaugh and Robert C. Brower (inaccurately designated in the amended complaint as Robert C. Browers), Associate Justices of that court;⁴ Richard M. Van Steenberg, the District Judge of the Seventeenth Judicial District of Nebraska, wherein Morrill County is located;⁵ Albert W. Crites, the District Judge of the Sixteenth Judicial District of Nebraska; Maurice Sigler the warden and John Greenholtz the deputy warden, of Nebraska State Penitentiary, located at Lincoln, Nebraska; and George Lewis, a physician employed in his professional capacity by, and performing his duties within, the Nebraska State Penitentiary, and in part upon, and in relation to, members of the prison population of that institution.

The plaintiff instituted this action on March 8, 1963 by the filing of his complaint (filing 1). In the face, and after submission, of sundry motions to dismiss the complaint, the court, in harmony with a memorandum opinion (filing 23), on June 7, 1963, by an order duly entered herein, found that the complaint failed to comply with Rule 8(a) Federal Rules of Civil Procedure, and also was scurrilous, scandalous and impertinent, and ordered that the complaint be stricken from the files, but that the plaintiff be granted leave, on or before July 1, 1963 to serve and file herein an amended complaint. Under the leave thus granted, the amended complaint was served on June 25, 1963 and filed herein on June 26, 1963. The motions already outlined followed.

With an effort in the direction of adequacy, yet, with reasonably necessary abbreviation, the amended complaint is now summarized. At its threshold it declares that jurisdiction of the action is invoked under "28 U.S.C.A., 1331, 28 U. S.C.A., 1343, and 42 U.S.C.A. 1981, 1983, 1985, 1986, 1987, 1988 and the United States Constitution Amendments IV, V, VI, VII, VIII, XIII and XIV, and Article 1 section 9 of the United States Constitution, and sections of the Nebraska Statutes as follows: R.R.S.Neb.1943, re-issue of 1956 — 7-105, 7-106, 29-2801, 29-2805, 29-2806, 29-2809, 29-2819"; and follows with a declaration that the action is brought under the constitution and laws of the United States "and the amount in controversy exceeds $10,000.00, exclusive of interest, costs and fees." Then, at considerable length, after declaring the plaintiff's citizenship and residence, supra, it names the several defendants, Clarence A. H. Meyer, Cecil Brubaker, Dwain L. Jones, Robert A. Nelson, Gerald S. Vitamvas, Rush Clarke, James L. Macken, Virginia A. Schuetz, Leo Knudtson, Carl Sanders, Norval Houston, and Michael Linch, and attributes to each of them, as of all times material to the pleading, the office or public position hereinbefore identified in respect of each of them. It may also be understood that later in the pleading and less systematically, the amended complaint identifies separately the defendants, John Greenholtz, Maurice Sigler and George Lewis, and their respective positions in the Nebraska State Penitentiary as already disclosed herein. And as to each defendant in...