Welch v. Hilgers

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
BRENDAN WELCH,
Plaintiff,
vs.
MIKE HILGERS,
Defendant.
4:25CV3164
MEMORANDUM AND ORDER
This matter is before the Court on Plaintiff Brendan Welch’s complaint
filed on August 5, 2025, Filing No. 1, and its supplement filed on October 15,
2025. Filing No. 9. Plaintiff was granted leave to proceed in forma pauperis.
The Court now conducts an initial review of Plaintiff’s claims to determine
whether summary dismissal is appropriate under 28 U.S.C. § 1915(e)(2).
I. APPLICABLE LEGAL STANDARDS ON INITIAL REVIEW
The Court is required to review in forma pauperis and prisoner
complaints to determine whether summary dismissal is appropriate. See 28
U.S.C. § 1915(e); 28 U.S.C. § 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); 28 U.S.C. §
1915A(b).
“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)). Plaintiffs
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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.”).
“A pro se complaint must 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). This means that “if the
essence of an allegation is discernible, even though it is not pleaded with legal
nicety, then the district court should construe the complaint in a way that
permits the layperson’s claim to be considered within the proper legal
framework.” Stone v. Harry, 364 F.3d 912, 915 (8th Cir. 2004). However, even
pro se complaints are required to allege facts which, if true, state a claim for
relief as a matter of law. Martin v. Aubuchon, 623 F.2d 1282, 1286 (8th Cir.
1980).
II. SUMMARY OF COMPLAINT
Plaintiff sues Nebraska Attorney General, Mike Hilgers, asking this
Court to declare Nebraska’s sovereign immunity, Political Subdivision Tort
Claims Act (PSTCA), Neb. Rev. Stat. §§ 13-901 to 13-928, and State Tort
Claims Act (STCA), Neb. Rev. Stat. §§ Sections 81-8,209 to 81-8,235,
unconstitutional. The following summarizes Plaintiff’s claims.1
Plaintiff filed three cases in Small Claims Court in Lancaster County,
Nebraska, and each was transferred to the County Court by the defense.
1 To fully understand Plaintiff’s claims, the Court takes judicial notice of the relevant state court
records. See Stutzka v. McCarville, 420 F.3d 757, 761 n.2 (8th Cir. 2005) (court may take judicial notice
of public records). Nebraska's judicial records may be retrieved on-line through the JUSTICE site,
https://www.nebraska.gov/justice/case.cgi.
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In Welch v. Roy Parrish, CI 25-2629 (Lancaster Cnty. Ct.), Plaintiff
sought recovery of damages arising from a motor vehicle accident that occurred
on February 13, 2025, between Plaintiff’s vehicle and a StarTran city bus. The
bus was operated by the defendant, Roy Parrish, who was working in the
course and scope of his employment for the City of Lincoln. On April 18, 2025,
the County Court granted the defendant’s motion to dismiss because Plaintiff
had not satisfied the pre-suit filing requirements of the PSTCA prior to filing
a lawsuit. The case was dismissed without prejudice. Plaintiff did not appeal
the judgment of dismissal.
In Welch v. Capital Towing and City of Lincoln Parking Services
Division, CI 25-7500 (Lancaster Cnty. Ct.), Plaintiff sought damages for three
City of Lincoln parking tickets, towing costs, emotional distress resulting from
being stranded when his cargo van was towed, and his court costs. The city
moved to dismiss, arguing any court challenge to the tickets must be filed
before the District Court, not the County Court, and Plaintiff failed to file a
pre-suit claim as required under the PSTCA. Plaintiff responded on July 17,
2025, arguing, among other things, that the PSTCA violates his constitutional
rights, including the Supremacy Clause, U.S. Const. art. VI, cl. 2. On August
1, 2025, the County Court dismissed the case without prejudice for lack of
subject matter jurisdiction. The Plaintiff did not appeal the dismissal.
In Welch v. State of Nebraska Administrative DMV Office Financial
Responsibility Division and Officer Josh Fullerton, CI 25-5800 (Lancaster
Cnty. Ct.), Plaintiff alleged he suffered monetary damages because his driver’s
license was suspended by the DMV and an employee of the State. Plaintiff’s
filing, dated July 24, 2025, argued that the STCA and sovereign immunity
violated his constitutional rights and the Supremacy Clause. The State moved
to dismiss on August 4, 2025, arguing the STCA provides the exclusive means
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for asserting tort claims against the State of Nebraska or any of its agencies,
the State did not waive its sovereign immunity, and Nebraska’s District Courts
have exclusive jurisdiction over tort claims under the STCA and claims under
42 U.S.C. § 1983. The court dismissed the case for lack of subject matter
jurisdiction on August 11, 2025, explaining:
EVERY County Court Judge lacks jurisdiction to address the
claims filed by Plaintiff. District Court has exclusive jurisdiction
over lawsuits filed against the State of Nebraska.
. . .
Neb.Rev.Stat. Section 81-8,214 State Tort Claims Act; "The
district court, sitting without a jury, shall have exclusive
jurisdiction to hear, determine, and render judgment on any suit
or tort claim. Suits shall be brought in the district court of the
county in which the act or omission complained of occurred or, if
the act or omission occurred outside the boundaries of the State of
Nebraska, in the district court for Lancaster County."
Plaintiff did not appeal the dismissal of his case.
Plaintiff filed this federal case on August 5, 2025, Filing No. 1, with a
supplement to add the third County Court decision filed on October 15, 2025.
Filing No. 9. He claims the dismissal of his County Court cases resulted in
denial of his constitutional rights. He asks this court to declare sovereign
immunity, the PTSCA, and the STCA unconstitutional under the Supremacy
Clause of the United States Constitution.
III. DISCUSSION
A federal district court is not a substitute for state court appellate
review. Only the United States Supreme Court has federal appellate
jurisdiction over state court decisions. Exxon Mobil Corp. v. Saudi Basic Indus.
Corp., 544 U.S. 280, 284 (2005). The Rooker–Feldman2 doctrine prevents a
2 District of Columbia Ct. of Appeals v. Feldman, 460 U.S. 462 (1983); Rooker v. Fidelity Trust Co.,
263 U.S. 413 (1923).
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party who loses in state court from appealing an adverse state decision to the
lower federal courts. Id.
Nebraska’s judges are fully capable of ruling on Plaintiff’s federal
constitutional claims. But rather than raise his constitutional challenges on
direct appeal from the adverse County Court rulings, Plaintiff asks this Court
to rule on the constitutionality of Nebraska’s sovereign immunity, PTSCA, and
STCA. The Rooker-Feldman doctrine bars this Court from doing so.
IV. CONCLUSION
The Court is required to dismiss a complaint, or any portion of it, that
states a frivolous or malicious claim, fails to state a claim upon which relief
may be granted, or seeks monetary relief from a defendant who is immune from
such relief. 28 U.S.C. §§ 1915(e)(2). This court lacks subject matter jurisdiction
over Plaintiff’s complaint. This case must be dismissed.
Accordingly,
IT IS ORDERED:
1. This matter is dismissed without prejudice.
2. A separate judgment will be entered.
3. The plaintiff's motion for summons, Filing No. 3, is denied.
Dated this 26th day of November, 2025.
BY THE COURT:
_________________________________
John M. Gerrard
Senior United States District Judge
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