Webb v. Nebraska

Decision Date08 April 2021
Docket Number4:21CV3031
PartiesYOHAN WEBB, Plaintiff, v. STATE OF NEBRASKA, PETE RICKETTS, GAYLOR BAIRD, and JEFF BLIEMEISTER, Defendants.
CourtU.S. District Court — District of Nebraska
MEMORANDUM AND ORDER

Plaintiff Yohan Webb is currently incarcerated at the Lancaster County Jail. The court has granted Plaintiff permission to proceed in forma pauperis (Filing 15), and the court now conducts an initial review of the Complaint (Filing 1) to determine whether summary dismissal is appropriate under 28 U.S.C. §§ 1915(e) and 1915A.

I. SUMMARY OF COMPLAINT

Plaintiff's Complaint contains no factual allegations, but instead repeatedly directs the court to "SEE ORIGINAL COMPLAINT THAT WAS UPLOADED." (Filing 1 at CM/ECF pp. 4-6.) Plaintiff is apparently referencing the complaint from a previous case filed in this court, Case No. 8:19CV416. (Filing 1 at CM/ECF p. 10 (citing prior lawsuit he filed in federal court dealing with same facts).) Plaintiff's prior case, which sued the same Defendants among others, was dismissed on July 10, 2020, without prejudice for lack of prosecution and failure to comply with this court's orders. The lawsuit now before the court is an apparent attempt to relitigate the same facts against some of the same parties.1

II. LEGAL STANDARDS ON INITIAL REVIEW

The court is required to review prisoner and in forma pauperis complaints seeking relief against a governmental entity or an officer or employee of a governmental entity to determine whether summary dismissal is appropriate. See 28 U.S.C. §§ 1915(e) and 1915A. The court must dismiss a complaint or any portion of it that states a frivolous or malicious claim, that fails to state a claim upon which relief may be granted, or that seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B); 28 U.S.C. § 1915A(b).

Pro se plaintiffs must set forth enough factual allegations to "nudge[] their claims across the line from conceivable to plausible," or "their complaint must be dismissed." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 569-70 (2007); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) ("A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.").

"The essential function of a complaint under the Federal Rules of Civil Procedure is to give the opposing party 'fair notice of the nature and basis or grounds for a claim, and a general indication of the type of litigation involved.'" Topchian v. JPMorgan Chase Bank, N.A., 760 F.3d 843, 848 (8th Cir. 2014) (quoting Hopkins v. Saunders, 199 F.3d 968, 973 (8th Cir. 1999)). However, "[a] pro se complaintmust be liberally construed, and pro se litigants are held to a lesser pleading standard than other parties." Topchian, 760 F.3d at 849 (internal quotation marks and citations omitted).

III. DISCUSSION
A. Plaintiff's Complaint

Because Plaintiff makes no factual allegations, he fails to give the Defendants fair notice of the nature and grounds for his claims, as well as a general indication of the type of litigation involved. Topchian, 760 F.3d at 848. Further, he fails to plead factual content that would allow this court to draw the reasonable inference that the Defendants are liable for any sort of misconduct. Ashcroft, 556 U.S. at 678. Therefore, Plaintiff's Complaint currently fails to state a claim upon which relief can be granted.

While the court will grant Plaintiff leave to amend his Complaint to state factual allegations, Plaintiff should note that if his factual allegations are exactly the same as those already considered by the court in Case No. 8:19CV416, the court has already concluded that the State of Nebraska and Pete Ricketts, in his official capacity as Governor of the State of Nebraska, should be dismissed from the action based on Eleventh Amendment immunity and there were no facts alleged which supported a finding of liability against Mayor Gaylor Baird and Chief of Police Jeff Bliemeister. (Case No. 8:19CV416 at CM/ECF pp. 8-10.) These are the only four Defendants sued in the case now before the court.

B. Plaintiff's Motions

The Plaintiff has filed a variety of miscellaneous motions that will be individually addressed below.

1. Motion to Appoint Counsel (Filing 3)

The court cannot routinely appoint counsel in civil cases. In Davis v. Scott, 94 F.3d 444, 447 (8th Cir. 1996), the Eighth Circuit Court of Appeals explained that "[i]ndigent civil litigants do not have a constitutional or statutory right to appointed counsel. . . . The trial court has broad discretion to decide whether both the plaintiff and the court will benefit from the appointment of counsel . . . ." Id. (quotation and citation omitted). No such benefit is apparent at this time. Thus, Plaintiff's Motion to Appoint Counsel (Filing 3) will be denied without prejudice.

2. Motion for Copy of Complaint (Filing 5)

Plaintiff requests a free copy of the complaint filed in Case No. 8:19CV416. The statutory right to proceed in forma pauperis does not include the right to receive copies of documents without payment. See 28 U.S.C. § 1915; see also Haymes v. Smith, 73 F.R.D. 572, 574 (W.D.N.Y. 1976) ("The generally recognized rule is that a court may not authorize the commitment of federal funds to underwrite the necessary expenditures of an indigent civil litigant's action.") (citing Tyler v. Lark, 472 F.2d 1077, 1078 (8th Cir. 1973)). If Plaintiff requires copies of court documents, he should contact the Clerk of the Court's office to determine the proper method of requesting and paying for copies. Plaintiff's Motion will be denied.

3. Motion to Seal (Filing 13)

Plaintiff moves to seal various documents which were filed and have been publicly available for some time in this case and in Case No. 8:19CV416 because such filings "establish[] an 'evidentiary record' of no 'facts in dispute' to establish said violations by said judge" and can "be used in any and all investigation, grievances, complaints or review by the U.S. Senate for removal of a sitting U.S. federal judge should such investigations require." (Filing 13 (capitalization removed).)

As required by NECivR 7.5(a)(1), Plaintiff's Motion does not "state why sealing is required and whether redaction could eliminate or reduce the need for sealing," nor was the proper procedure followed for filing a potentially sealed document. Accordingly, Plaintiff's Motion to Seal will be denied.

4. Motion for Clarification (Filing 14)

Plaintiff wishes to know why this case, which Plaintiff has filed in the "correct venue," has been "circumvented back to the incorrect venue" and assigned to Judge Kopf, the same judge who was assigned to Case No. 8:19CV416. As noted above, "Nebraska constitutes one judicial district," 28 U.S.C. § 107, and Judge Kopf handles the entire pro se docket for Nebraska's one judicial district. (Filing 8 ¶ 13 ("Judge Kopf is the supervising pro se judge, and is assigned the overall responsibility for the management of cases assigned to the pro se docket."; Filing 8 ¶ 22 ("all . . . pro se cases filed in this court will be directly assigned to Judge Kopf").) Plaintiff's Motion for Clarification (Filing 14) will be granted.

5. Motion for Discovery (Filing 16)

Before this case is permitted to progress—including engaging in discovery—the court is required to review Plaintiff's in forma pauperis complaint to determine whether summary dismissal is appropriate. After such review, the court must dismiss the complaint or any portion of it that states a frivolous or malicious claim, that fails to state a claim upon which relief may be granted, or that seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B). Here, Plaintiff is being granted permission to file an amended complaint, and discovery will progress only after the sufficiency of Plaintiff's amended complaint is determined. Plaintiff's Motion for Discovery (Filing 16) will be denied.

6. Motion for Summary Judgment (Filing 22)

For the reasons stated in paragraph (5) above, Plaintiff's Motion for Summary Judgment is premature because the court has not yet performed initial review of Plaintiff's to-be-filed amended complaint. Plaintiff's Motion for Summary Judgment (Filing 22) will be denied.

7. Motion for New Judge (Filing 23)

Plaintiff requests a new judge because he objects to my rulings in other of Plaintiff's cases. "Whenever a party to any proceeding in a district court makes and files a timely and sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of any adverse party, such judge shall proceed no further therein, but another judge shall be assigned to hear such proceeding." 28 U.S.C. § 144 (Westlaw 2020). "[T]he plain text of § 144 mandates only that a district court judge ensure that another judge is assigned to any case in which a litigant has sufficiently alleged bias or prejudice, not that the recusal decision itself be rendered by a judge other than the judge to whom the motion is addressed." Akins v. Knight, 863 F.3d 1084, 1086 (8th Cir. 2017).

"Relief under section 144 is expressly conditioned on the timely filing of a legally sufficient affidavit." Holloway v. United States, 960 F.2d 1348, 1355 (8th Cir. 1992) (quoting United States v. Faul, 748 F.2d 1204, 1210 (8th Cir.1984)); see United States v. Johnson, 827 F.3d 740, 746 (8th Cir. 2016) (a legally sufficient affidavit is required to disqualify a judge from hearing a case). Because Plaintiff has not filed a legally sufficient affidavit—or, for that matter, any form of affidavit—he is not entitled to any relief under 28 U.S.C. § 144.

Alternatively, a recusal motion may be considered under 28 U.S.C. § 455, which provides, inter alia, that a judge shall disqualify himself where "he has a personal bias or prejudice concerning a party." 28 U.S.C. § 455(b)(1) (Westlaw ...

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