Rhodes v. Van Steenberg, Civ. No. 01784.

CourtUnited States District Courts. 8th Circuit. United States District Court of Nebraska
Writing for the CourtWilliam F. Ryan, Omaha, Neb., for defendants Patrick E. Corrigan and Jack Knudtson
Citation225 F. Supp. 113
PartiesPaul RHODES, Plaintiff, v. Richard M. VAN STEENBERG et al., Defendants.
Docket NumberCiv. No. 01784.
Decision Date16 December 1963

225 F. Supp. 113

Paul RHODES, Plaintiff,
v.
Richard M. VAN STEENBERG et al., Defendants.

Civ. No. 01784.

United States District Court D. Nebraska.

December 16, 1963.


225 F. Supp. 114

Paul Rhodes, Howe, Neb., pro se.

William F. Ryan, Omaha, Neb., for defendants Patrick E. Corrigan and Jack Knudtson.

Clarence A. H. Meyer, Atty. Gen. of Nebraska, Lincoln, Neb., and Robert A. Nelson, Sp. Asst. Atty. Gen. of Nebraska, Lincoln, Neb., for defendants Richard M. Van Steenberg, Clarence A. H. Meyer, Cecil Brubaker, Robert A. Nelson, Gerald S. Vitamvas, Rush Clarke, Clarence S. Beck, James L. Macken, Virginia A. Schuetz, Leo Knudtson, Carl Sanders, Norval Houston, Albert W. Crites, John Greenholtz, and Maurice Sigler.

DELEHANT, Senior District Judge.

Certain preliminary notations should be made. Paul Rhodes is sometimes known as Paul E. Rhodes. Not only is he the sole plaintiff in this action; he was the sole plaintiff in an action recently pending in this court identified as Case No. 01322, being Rhodes v. Houston, et al. (D.C.Neb.) 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; and on March 8, 1963, as the sole plaintiff, he instituted in this court Case No. 01682 by the filing of an original complaint, and filed in that action an amended complaint on June 26, 1963, exactly thirty days before he filed his complaint in this action. On December 3, 1963, after due consideration, and in accordance with a memorandum opinion of like date, an order of this court was duly made and given granting and sustaining sundry motions to dismiss the amended complaint, and dismissing such amended complaint in Case No. 01682. The defendant, designated in plaintiff's complaint herein as "John Doe," is Patrick E. Corrigan, who, on November 2, 1961 was the duly elected, qualified and acting sheriff of Douglas County, Nebraska, of which the county seat is Omaha.

Of the defendants to this action, Richard M. Van Steenberg, Clarence A. H. Meyer, Cecil Brubaker, Rush Clarke, James L. Macken, Virginia A. Schuetz, Leo Knudtson, Carl Sanders, Norval Houston, Albert W. Crites, John Greenholtz and Maurice Sigler were parties defendant to Case No. 01322 (Rhodes v. Houston, et al.) and are parties defendant to Case No. 01682 (Rhodes v. Meyer,

225 F. Supp. 115
et al.); Robert A. Nelson and Gerald S. Vitamvas are parties defendant to Case No. 01682, but were not parties to Case No. 01322; and Clarence S. Beck, Patrick E. Corrigan and Jack Knudtson were not, and are not, parties defendant to either of the earlier suits

As briefly as may reasonably be, the plaintiff's complaint is first recalled in fairly complete outline.

He professes to find jurisdiction under "section 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 reissue of XXXX-X-XXX, 7-106, 29-2801, 29-2805, 29-2806, 29-2809, 29-2819." He adds, in the foregoing context, that the action is brought under the Constitution and Laws of the United States of America and the amount in controversy exceeds $10,000.00, exclusive of interest, costs and fees, and obviously undertakes thereby to support his jurisdictional reliance on section 28 U.S.C. § 1331.

He avers his United States citizenship, and his residence in Nebraska, which necessarily involves an assertion that he is a citizen of Nebraska, Constitution of United States, Article XIV, section 1. In a single numbered paragraph he asserts that at all times pertinent to his complaint, the defendant, Clarence A. H. Meyer was either the duly appointed deputy Attorney General, or the duly elected and acting Attorney General, of Nebraska; the defendant Gerald S. Vitamvas was either Assistant Attorney General or Deputy Attorney General of Nebraska; the defendants, Rush Clarke and Robert A. Nelson were Special Assistant Attorney Generals of Nebraska; the defendant Cecil Brubaker (whom he names as Cecil S. Brubaker) was Assistant Attorney General of Nebraska; the defendant Norval Houston was the Sheriff of Morrill County, Nebraska, and the defendant Virginia A. Schuetz was the Clerk of the District Court of that county; and the acts charged in the complaint against such defendants, and against each of them, were performed, and each such defendant was acting in such performance, under the color and authority of the office of each such defendant.

In another paragraph of the complaint, he alleges that "on November 21, 1960 and at all times prior thereto,1 the defendant, Richard M. Van Steenberg was the District Judge of the Seventeenth Judicial District of Nebraska, including Morrill County, Nebraska; that on November 22, 1961 the defendant, Patrick E. Corrigan, was the Sheriff, and the defendant, Jack Knudtson, was a deputy sheriff, of Douglas County, Nebraska; that at all times pertinent to the complaint the defendant, James L. Macken, was the County Attorney of Morrill County, Nebraska, and the defendants, John Greenholtz and Maurice Sigler, were respectively the deputy warden and the warden of the Nebraska State Penitentiary; that on November 21, 1960, and until January, 1962, the defendant, Clarence S. Beck was the Attorney General of Nebraska; and that in the performance by the several defendants in this paragraph named of the acts respectively attributed to them in the complaint, each of such defendants acted under the color and authority of his said office.

In paragraph V of the complaint, he alleges:

"That some time prior to November 21, 1960 the defendants Richard M. Van Steenberg, Clarence A. H. Meyer, Cecil Brubaker, Gerald S. Vitamvas, Rush Clarke, Clarence S. Beck, and Norval Houston entered into a conspiracy to deprive this plaintiff of his federal Civil Rights and his Federal Constitutional Rights and that all actions of all
225 F. Supp. 116
defendants hereinafter alleged were made and done in the furtherance of said conspiracy to deprive this plaintiff of His Federal Civil and Constitutional Rights. That all defendants did all acts knowing that said acts were in the furtherance of said conspiracy and that the said defendants and each of them possessed the power and authority under the scope of their office and the power and authority of their office to prevent the deprivation of this plaintiff's Federal Constitutional Rights privileges and immunities and Federal Civil Rights."

In the next succeeding paragraph of the complaint, he further asserts:

"That on November 21, 1960, and on September 28, 1960, the defendants Richard M. Van Steenberg, Clarence A. H. Meyer, Cecil Brubaker, Rush Clarke, Clarence S. Beck, James L. Macken and Virginia A. Schuetz without a jury and over the written protests of this plaintiff tried this plaintiff in absentia and in the absence of this plaintiff for criminal contempt of court in the District Court of Morrill County, Nebraska and called witnesses produced evidence and took testimony in the absence of this plaintiff, all in violation of the IV, V, VI, VIII, XIII and XIV Amendments of the United States Constitution and at the conclusion of said trial in absentia entered a written order sentencing this plaintiff to nine months HARD LABOR in the Nebraska State Penitentiary in violation of the XIII and XIV Amendments of the United States Constitution, but did not order the clerk to issue a commitment or execution of said sentence to HARD LABOR."

The plaintiff next alleges in the complaint that notwithstanding the failure of the trial court, i. e. the District Court of Morrill County, Nebraska, to direct her so to do, the defendant, Virginia A. Schuetz on November 25, 1960, did issue a commitment to the Nebraska State Penitentiary, and deliver it to the defendant, Norval Houston, as sheriff of Morrill County, Nebraska, and that on January 16, 1961, at the direction of the defendant, Norval Houston, sheriff of Morrill County, Nebraska, the plaintiff was arrested by W. W. Schulz, sheriff of Cheyenne County, Nebraska in the Court House of Cheyenne County, Nebraska, and deprived of his liberty without probable cause, and without a warrant, claiming as his authority for such arrest, the commitment of the Clerk of the District Court of Morrill County, Nebraska, on November 25, 1960, supra.

The plaintiff then alleges that on January 16, 1961 (thus, on the day of his arrest) one John H. Kuns, District Judge of Cheyenne County, Nebraska (therefore, of the county in whose Court House the plaintiff had been arrested), granted the plaintiff a writ of habeas corpus against such arrest and imprisonment on the grounds that the District Court of Morrill County, Nebraska, had no power, authority or jurisdiction to try the plaintiff for contempt of court in absentia, and that the District Court of Morrill County, Nebraska, also had no power, authority or jurisdiction to sentence the plaintiff to commitment to the Nebraska State Penitentiary at hard labor for a period of nine months, and that such sentence was violative of, and repugnant to, the thirteenth and fourteenth amendments of the United States Constitution and was void; that on January 16, 1961 (thus, also on the day of his arrest) W. W. Schulz, sheriff of Cheyenne County, Nebraska, was served with such writ of habeas corpus, and on the same day made return thereto in writing, and produced the body of the plaintiff before the District Court of Cheyenne County, Nebraska, and John H. Kuns, the District Judge thereof, and attached to and made a part of such return and delivered to such court a copy of the judgment of the District Court of Morrill County, Nebraska, under date of November 21, 1960, supra, and a copy of the order of commitment issued by the

225 F. Supp. 117
Clerk of the District Court of Morrill County, Nebraska, supra, in Case No. 4819 therein,...

To continue reading

Request your trial
13 practice notes
  • Gaito v. Strauss, Civ. A. No. 65-1018.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • February 3, 1966
    ...(9th Cir. 1950); Wilson v. Hinman, 172 F.2d 914 (10th Cir. 1949); Rhodes v. Meyer, 225 F.Supp. 80 (D.Neb.1963); Rhodes v. Van Steenberg, 225 F.Supp. 113 (D.Neb.1963), aff'd 334 F.2d 709 (8th Cir. 1964); Sherwin v. Oil City National Bank, 18 F.R.D. 188 (W.D. Pa.1955), aff'd 229 F.2d 835 (3d ......
  • Roberts v. Pepersack, Civ. A. No. 17031.
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Maryland)
    • June 29, 1966
    ...contention affords no basis for suing the warden. The cases of Rhodes v. Meyer, 225 F.Supp. 80 (D.Neb.1963) and Rhodes v. Van Steenberg, 225 F.Supp. 113 (D.Neb.1963) may be in agreement with Delaney, although those cases are unclear on this point. Here too plaintiff's claim was of a bizarre......
  • Rhodes v. Houston, Civ. No. 01322
    • United States
    • United States District Courts. 8th Circuit. United States District Court of Nebraska
    • September 8, 1966
    ...days after the denial of certiorari to review that affirmance, supra. 9 For opinion, see D.C., 225 F.Supp. 80. 10 For opinion, see D.C., 225 F.Supp. 113. 11 It will be observed that in the immediately foregoing quotation from Case No. 01682, essentially repeated in Case No. 01784, the court......
  • Rhodes v. Meyer, No. 17580
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • November 16, 1964
    ...the pleadings and the extensive history of this litigation in excellent memorandum opinions reported at 225 F.Supp. 80 (Meyer) and 225 F.Supp. 113 (Van Judge Van Pelt in Rhodes v. Houston, D.C.Neb., 202 F.Supp. 624, aff'd, 8 Cir., 309 F.2d 959, cert. denied 372 U.S. 909, 83 S.Ct. 724, 9 L.E......
  • Request a trial to view additional results
13 cases
  • Gaito v. Strauss, Civ. A. No. 65-1018.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • February 3, 1966
    ...(9th Cir. 1950); Wilson v. Hinman, 172 F.2d 914 (10th Cir. 1949); Rhodes v. Meyer, 225 F.Supp. 80 (D.Neb.1963); Rhodes v. Van Steenberg, 225 F.Supp. 113 (D.Neb.1963), aff'd 334 F.2d 709 (8th Cir. 1964); Sherwin v. Oil City National Bank, 18 F.R.D. 188 (W.D. Pa.1955), aff'd 229 F.2d 835 (3d ......
  • Roberts v. Pepersack, Civ. A. No. 17031.
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Maryland)
    • June 29, 1966
    ...contention affords no basis for suing the warden. The cases of Rhodes v. Meyer, 225 F.Supp. 80 (D.Neb.1963) and Rhodes v. Van Steenberg, 225 F.Supp. 113 (D.Neb.1963) may be in agreement with Delaney, although those cases are unclear on this point. Here too plaintiff's claim was of a bizarre......
  • Rhodes v. Houston, Civ. No. 01322
    • United States
    • United States District Courts. 8th Circuit. United States District Court of Nebraska
    • September 8, 1966
    ...days after the denial of certiorari to review that affirmance, supra. 9 For opinion, see D.C., 225 F.Supp. 80. 10 For opinion, see D.C., 225 F.Supp. 113. 11 It will be observed that in the immediately foregoing quotation from Case No. 01682, essentially repeated in Case No. 01784, the court......
  • Rhodes v. Meyer, No. 17580
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • November 16, 1964
    ...the pleadings and the extensive history of this litigation in excellent memorandum opinions reported at 225 F.Supp. 80 (Meyer) and 225 F.Supp. 113 (Van Judge Van Pelt in Rhodes v. Houston, D.C.Neb., 202 F.Supp. 624, aff'd, 8 Cir., 309 F.2d 959, cert. denied 372 U.S. 909, 83 S.Ct. 724, 9 L.E......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT