Full opinion text
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); e) 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 Bru-baker, Rush Clarke, James L. Macken, Virginia A. Schuetz, Leo Knudtson, Carl Sanders, Norval Houston, Michael Linch, George Turner, Robert G. Simmons, Ed-ard F. Carter, Fred W. Mess-more, 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 plaintiffs 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 ease 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. 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 bom 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 Nebras-lea. 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. 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; 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; Richard M. Van Steenberg, the District Judge of the Seventeenth Judicial District of Nebraska, wherein Morrill County is located ; 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, Nerval 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 this paragraph mentioned, the amended complaint is regarded as asserting that every act by such amended complaint attributed to such defendant was done or performed under the color and authority of his or her designated office or position. The amended complaint’s initial identification of the defendants mentioned in the last preceding paragraph (other than the defendants, John Greenholtz, Maurice Sigler and George Lewis) is followed by paragraph III, which contains this language: “That each of the defendant (sic) hereinafter named were at all times hereto pertinent and now are (sic) attorneys and counselors or one of said positions, namely the defendants, Clarence A. H. Meyer, Cecil Brubaker, Dwain L. Jones, Robert A. Nelson, Gerald S. Vitamvas, Rush ■Clarke, James L. Macken, Peter E. Marchetti, George Turner, Robert G. Simmons, Edward F. Carter, Fred W. Messmore, John W. Yeager, Harry A. Spencer, Leslie Boslaugh, Robert C. Browers (sic), Richard M. Van Steenberg, Albert W. Crites, and Ted R. Feidler, H. B. Even (sic) and J. Arthur Curtiss, and were all attorneys admitted to the Nebraska State Bar, Nebraska State Bar Association, to practice law by the Supreme Court of Nebraska, and all of their actions as hereinafter described were under the color and authority of that office as Attorney at Law of the State of Nebraska, and the Nebraska State Bar Association, an official part of, organ of, and division of the State of Nebraska.” Paragraph IV of the amended complaint is copied in full as follows: “That previous to November 21, 1960 the defendants, Richard M. Van Steenberg, Clarence A. H. Meyer, Dwain L. Jones, Gerald S. Vitamvas, Rush Clarke, James L. Macken, Virginia A. Schuetz, Leo Knudtson, Carl Sanders, Norval Houston, Michael Linch, and George Turner and Albert W. Crites, entered into an agreement to deprive this plaintiff of his Federal Civil and Constitutional Rights without due process of law and to deny him equal protection of the law; notwithstanding that previous to November 20, 1960 the said Richard M. Van Steenberg had disqualified himself as District Judge of the District Court of Morrill County, Nebraska, in all actions in which Paul Rhodes was plaintiff or defendant, and that said disqualification was on account of bias and passion and prejudice against this plaintiff that would prevent this plaintiff from securing a fair trial and that said situation still existed on November 21, 1960 and on December 5,1960 and at all times thereafter, the disqualification had not been removed.” Adverting, by reference, to its paragraph last quoted, the amended complaint next avers that notwithstanding Judge Van Steenberg’s alleged disqualification, and in furtherance of the conspiracy (both mentioned in such quoted paragraph) “the defendants last above named,” that is to say, Richard M. Van Steenberg, Clarence A. H. Meyer, Dwain L. Jones, Gerald S. Vitamvas, Rush Clarke, James L. Macken, Virginia A. Schuetz, Leo Knudtson, Carl Sanders, Norval Houston, Michael Linch, George Turner and Albert W. Crites, secured from one H. Snyder, Deputy Sheriff of Denver County, Colorado, a false affidavit to the effect that he served on Paul Rhodes a Notice of Plearing in Case No. 4819 then pending in the District Court of Morrill County, Nebraska, and caused such affidavit to be filed on November 18, 1960 in such Case No. 4819, “knowing said affidavit of service of Notice of hearing to be held on November 21, 1960, was a false affidavit, when in truth and in fact they well knew that said notice was not delivered to Paul E. Rhodes at 7:45 A.M. on the 15th day of November, 1960.” (Emphasis added.) It is also alleged that the Snyder affidavit was procured and filed in such Case 4819 for the purpose of deceit and fraud upon the court “with the intent to deceive and with the intent to defraud the court, the Judge, the Party to the action, this plaintiff,” that reference being manifestly to the use of the affidavit by its filing in Case No. 4819. With reference, still, to that allegedly false affidavit, it is also alleged that “all of the defendants * * * named in this action except one defendant, Peter E. Marchetti,” secured a copy of such false affidavit, which copy was prepared by the defendant, Virginia A. Schuetz, with the intent to deceive, and perpetrate a fraud upon, the Honorable Robert Van Pelt, one of the judges of this court and the presiding judge in Case No. 01322 in this court (vide infra), and caused such copy to be filed in such case No. 01322 in this» court on January 24, 1962, while Case-No. 01322 was pending here, all with the-intent to deceive Judge Van Pelt, and. to defraud and deceive the plaintiff herein, which was done through the collusion, with one another of all of the defendants hereto except Peter E. Marchetti, and; in violation of the statutes and constitution of the United States, the constitution of Nebraska, and sections 7-105 and'. 7-106 R.R.S.Neb.1943, Reissue of 1956; and at the time of such filing of such, copy in this court, the defendants hereto, except Peter E. Marchetti “had plaintiff confined in the ‘Hole’ (meaning thereby, the prison jail) of the Nebraska State-Penitentiary, held incommunicado and' without use of telephone, and other necessary freedom to properly defend himself against said fraud, and had been deprived of his liberty by said defendants,, as well as typewriter and other necessary elements and necessaries to prepare-pleading and defend against said false-affidavit and collusion and all of the defendants except Peter E. Marchetti consented thereto.” The plaintiff further avers in the-amended complaint that in furtherance-of such collusion and conspiracy, the defendants, except Peter E. Marchetti, proceeded on November 21,1960 “to try this-plaintiff in absentia for Contempt off Court,” the court then entered therein» an order, showing that the defendant (meaning the plaintiff herein) was not. present and was not represented by counsel, and that hearing was had on the-merits, and considering, ordering and. adjudging Paul Rhodes to be guilty off Contempt of Court as charged and sentencing him “to confinement in the Ne~ braska State Penitentiary at Lincoln, Nebraska, for a period of nine (9) months at hard labor, Sundays and holidays excepted, and to pay a fine in the amount of two thousand five hundred dollars ($2,500.00) and the costs of this proceeding,” all allegedly in deprivation •of his Federal Civil Rights and Constitutional Rights. The plaintiff then alleges in his amend•ed complaint that “in furtherance of the •collusion, deceit and fraud heretofore alleged all of the defendants in this ac■tion” — apparently thus not excepting Peter E. Marchetti — further agreed to ■deprive plaintiff of his Federal Civil Rights and Federal Constitutional guarantees by securing and preparing or ■causing to be prepared, or consenting to -the preparation of, “on December 18, 1961 or thereabout” false affidavits of •John Greenholtz and Maurice Sigler, respectively the deputy warden and warden of the Nebraska State Penitentiary, and acting under the color of their respective offices, in which were contained false and untrue statements of fact, of which a verbatim statement is set out in a footnote hereto; that such affidavits were sworn to by the affiants therein in their respective official capacities, were procured by all defendants hereto, and were filed in Case No. 01322 then pending in this court with intent to deceive this court and the Judge in such action, and even the plaintiff himself, all in collusion and conspiracy between the defendants. At considerable length the plaintiff, in his amended complaint, alleges several features of his imprisonment for the apparent purpose of particularizing the falsity of specific features of the Green-holtz-Sigler affidavits. These averments include statements: a) that from January 23, 1961 to July 7, 1961 plaintiff was held prisoner in the Nebraska State Penitentiary by all of the defendants hereto as a convict, i. e. convict No. 21675, serving a sentence and on January 23, 1961 was assigned such number in the chronological order of convicts received to serve felony sentences; b) that no inmate of such penitentiary held for safe keeping of a sheriff or court pending conviction and until final execution of sentence is ever or had been assigned a convict number to and including July 7, 1961; c) that from January 23, 1961 to July 7, 1961 both inclusive plaintiff was subjected to hard labor by the defendants to this action, involuntary servitude, by being forced to take and submit to a course of prison orientation and was assigned to the Reception Center, in the Penitentiary for that purpose; that no safekeeper in the Penitentiary is assigned to the reception center and forced to take an orientation course, consisting of the first four weeks of hard labor assignment of all convicts; d) that notice that plaintiff was not being held as a safekeeper was given by the publication on or about February 18, 1961 and June 13, 1961 in “The Forum,” a weekly newspaper, evidently by the publication of his photograph with the legend, “Rhodes 21675;” e) that from February 21, 1961 to May 12, 1961 plaintiff was by, or with the consent of, the defendants, assigned to the general prison population, and no safekeeper has ever been so assigned in such penitentiary. Reverting to Case No. 01322 in this court, and the same case on appeal, being Case No. 16990, 309 F.2d 959, United States Court of Appeals, Eighth Circuit, the plaintiff, in the amended complaint,, makes further allegations to the effect, a) that, in furtherance of the alleged conspiracy all of the defendants in this action, made further use of the foregoing allegedly false affidavits in Case No. 01322, and in appellate Case No. 16990, by declaring in a brief in the latter phase of that litigation that the plaintiff, under his sentence for Contempt of Court was not required to serve any part of his sentence at hard labor “and that portion of the sentence has become a nullity;” and that such use was-made with intent to deceive the-United States Court of Appeals, Eighth Circuit, and the judges thereof in the then pending case and constitutes a violation of Section 7-106 R.R.S.Neb.1943; b) that in oral argument in Appellate Case No. 16990, on September 17, 1962, the defendant, Robert A. Nelson, all other defendants consenting, “did succeed in causing said court * * to rely thereon” (i. e. on the allegedly false affidavits) “to this plaintiff’s detriment;” c) that in their brief to this court in Case No. 01322, the defendants hereto, with intent to perpetrate a fraud on the plaintiff hereto and to deceive the Hon-able Robert Van Pelt, the judge acting therein, told the court that in the case of Paul E. Rhodes v. W. W. Shulz et al, being Case No. 6617 in the District Court of Cheyenne County, Nebraska (a habeas corpus proceeding brought by the plaintiff), the Sheriff did not have a copy of the commitment issued on November 25, 1960 by the Clerk of the District Court of Morrill ‘County, Nebraska, in Case No. 4819 therein, referred to as set out in his return and alleged to be delivered to the court with his return in Case No. 6617, Cheyenne County, Nebraska, wherein the court discharged the plaintiff from "“the unlawful commitment and judgment of Case No. 4819, District Court of Morrill County, Nebraska,” when, actually, “the same was in the files in said case in Cheyenne County, Nebraska, and had been there since the sheriff had delivered the return and the commitment copy to the Judge of said Cheyenne County Court on January 14, 1961;” <d) that, later, the defendants in oral argument before the United States Court of Appeals, Eighth Circuit in Case No. 16990, lied to such court by declaring that the discharge of plaintiff in the Habeas Corpus Case was granted because the only document which the sheriff had in his possession as a basis for plaintiff’s arrest was a copy of the order of the District Court of Morrill County, Nebraska, and not the commitment issued by the Clerk of such court; whereas, in truth the commitment was served, and the endorsement of the sheriff on the reverse side thereof so shows; e) that the defendant, Robert A. Nelson, all defendants hereto consenting, on September 17, 1962, in response to questions from the Judges of the Court of Appeals, (manifestly in the course of oral argument in Case No. 16990) falsely represented to that court that plaintiff had not been forced to serve his sentence at hard labor between January 23, 1961 and July 7, 1961; For the rest, the plaintiff in his amended complaint avers (a) his demand, on February 23, 1963 upon the defendant Maurice Sigler, as Warden of the Nebraska State Penitentiary, for “a certified copy of the plaintiff’s prison record, record entry in admission book, plaintiff’s receipt for personal property, plaintiff's pictures and finger print card,” after tendering the legal fee therefor, which request was refused, although such records are public records, and that such records were altered and forged sometime on or about July 5, 1961 at the direction of Maurice Sigler with the knowledge and consent of, and in conspiracy with all of the other defendants, the further to deny the plaintiff equal protection of the law and due process of law, and in discrimination against the plaintiff as a member of the white race, “because defendant Maurice Sigler with consent of defendant Meyer, furnished members of the negro race a copy of their prison records upon a tender of the proper legal fee therefor but refused this plaintiff and same privilege. This plaintiff is a white man.;” and (b) that plaintiff demanded with tender of legal fee, on February 26, 1963, of defendant George Lewis, prison physician, a certified copy of plaintiff’s hospital record in the Penitentiary from January 23, 1961 to July 5, 1961, but was refused a copy of such record; that such a hospital record does exist, and was altered and forged on or about July 5, 1961, with the consent of all of the defendants, for like purpose as the alleged alteration and forgery, supra, of his prison record, “and with the intent to deceive the United States Court and the Nebraska Supreme Court in an action then pending in said court entitled Rhodes v. Sigler, and to deprive this plaintiff of due process and equal protection of the law and his rights guaranteed by the 14th Amendment of the United States Constitution, and in a common conspiracy of all of the defendants to this action to deny this Plaintiff his Federal Civil Rights and Federal Constitutional Rights.” Approximately midway in his Amended Complaint, the plaintiff avers, somewhat interestingly, “that the defendants in the case at Bar would be liable for Common law tort damages.” The sole ad damnum averment of the amended complaint is copied in full, as follows: “As a direct and proximate result of the aforesaid acts of the defendants, and each of them, the plaintiff, Paul E. Rhodes has suffered great pain and mental anguish, from then until now and will continue to so suffer in the future; and he has lost and will in the future lose large sums of money by reason of having been greatly humiliated and held up to public scorn and derision as a result of the foregoing acts of the defendants, and lost the sum of $4,-200,000.00 he would have recovered in a jury trial of said action Civil Case No. 01322 in the United States District Court of Nebraska. That Plaintiff is an attorney at law and contempt of court is not a crime in the state of Nebraska.” The following sentence concludes the Amended Complaint: “That all of the aforesaid acts above mentioned in this complaint were done by the defendants under color of state law, state statute, ordnance (sic) or regulation.” The prayer of the Amended Complaint, “demands judgment against the defendants and each of them, jointly and severally, in the amount of eight million four hundred thousand dollars ($8,400,000.00), further demanding punitive damages against the defendants and each of them, jointly and severally, in the amount of four million two hundred thousand dollars ($4,200,000.00) and the costs of this action; and he further demands such other relief as this court deems just, proper and equitable.” It has appeared to be prudent — to an adequate understanding, perhaps, necessary — thus exhaustively to take notice of the allegations of the amended complaint. Those allegations are the material towards which the motions now pending are severally directed. They must also be kept in view in their entirety, both on the score of the impact-upon them of the plaintiff’s personal: background, education and professional career, and for their relation to earlier-comparable litigation presented here at-the behest of the plaintiff (vide et supra et infra), and to a yet pending suit by him instituted in this court during the-pendency of this action (vide infra). To a reasonable and allowable extent, this court may also evaluate the present, litigation in its context, of which a part is identified in the amended complaint itself, thus by the plaintiff; a part is-available in the records and files of this-court; and a further portion is reflected in reported rulings of the Supreme-Court of Nebraska. The amended complaint makes frequent allusion to Civil Case No. 01322 in this court. Those references are to-Rhodes v. Houston, 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, with which this court will shortly be concerned herein. Direction is also-made in the amended complaint to certain litigation in the state courts of Nebraska,, which the plaintiff conceives to be basic to this action. Reached by such references are Case No. 4819 in the District. Court of Morrill County, Nebraska, in-which the sentence of the plaintiff for contempt of court was pronounced, and case No. 6617 in the District Court of Cheyenne County, Nebraska, Rhodes v. Schulz, et al, the habeas corpus proceeding which, as plaintiff alleges, he instituted against the sheriff of Cheyenne County, Nebraska, to obtain his-release from custody, after his arrest pursuant to the judgment theretofore pronounced against him in Civil Case No. 4819 in the District Court of Morrill County, Nebraska. The references-to the state court cases lead the court to the somewhat related opinions of the Supreme Court of Nebraska in Rhodes v. Houston, 172 Neb. 177, 108 N.W.2d 807; Rhodes v. Crites, 173 Neb. 501, 113 N.W.2d 611; Rhodes v. Sigler, 172 Neb. 439, 109 N.W.2d 731; and McFarland v. State, 172 Neb. 251, 109 N.W.2d 397; and in the probably irrelevant Rhodes v. Star Herald Printing Company, 173 Neb. 496, 113 N.W.2d 658. And there is Rhodes v. Van Steenberg et al, presently pending in this court as Civil Case No. 01784, D.C., 225 F.Supp. 113. Paul Rhodes is the sole plaintiff in this case and was the sole plaintiff in Case No. 01322, Rhodes v. Houston (D.C.Neb.) 202 F.Supp. 624, affd. 309 F.2d 959, cert. den. 372 U.S. 909, 83 S.Ct. 724, 9 L.Ed. 2d 719. Of the defendants to this action, Clarence A. H. Meyer, Cecil Brubaker, Rush Clarke, James L. Maeken, Virginia A. Schuetz, Leo Knudtson, Carl Sanders, Norval Houston, Michael Linch, George Turner, Robert G. Simmons, Fred W. Messmore, John W. Yeager, Harry A. Spencer, Leslie Boslaugh, Robert C. Brower, Richard M. Van Steenberg, Albert W. Crites, Ted R. Feidler, John Greenholtz and Maurice Sigler were defendants also in Case No. 01322, Rhodes v. Houston, supra, and Dwain L. Jones, Robert A. Nelson, Gerald S. Vitamvas, Peter E. Marchetti, H. B. Evnen, J. Arthur Curtiss and George Lewis were not defendants in Case No. 01322 Rhodes v. Houston, supra. Defendants in Case No. 01322, Rhodes v. Houston, identified as The Maryland Casualty Company, Lumbermen’s Mutual Casualty Company, Western Surety Company, Fidelity and Casualty Company of New York, Beatty, Clarke, Morgan & Murphy, and Samuel W. Dickerson, are not parties to this case. In complete awareness of the hazard of oversimplification, the court now observes that the claim — or claims — advanced by the plaintiff in Case No. 01322, Rhodes v. Houston, supra, lies — or lie— at the heart of the claim tendered in the amended complaint in this action. The court has not failed to perceive that in Case No. 01322, the plaintiff undertook, with respect to his demand for a personal judgment for damages in terms of money, to seek it in two equal sums, each of two million, one hundred thousand dollars, under separate counts or “causes of action,” of which no part was there sought against any of the defendants, Robert G. Simmons, Edward F. Carter, Fred W. Messmore, John W. Yeager, Harry A. Spencer, Leslie Bos-laugh and Robert C. Brower, and that those two counts differ only in that the second count contains an explicit averment of a conspiracy among all of the defendants to that suit, except the seven last above named “with the purpose of impeding, hindering, obstructing, or defeating the courts of Justice of the State of Nebraska, with intent to deny to the Plaintiff Paul E. Rhodes equal protection of the laws and with the intent to injure him for enforcing or attempting to enforce his rights to equal protection of the laws the individual defendants planned and agreed to commit all of the acts alleged herein under the circumstances alleged herein,” But in Case No. 01322, he also included a third and final count, wherein he alleged that the seven defendants last named threatened, as Justices of the Supreme Court of Nebraska, to “commit or suffer to be committed further violation of the civil rights, privileges and immunities of the plaintiff by causing his apprehension and incarceration in the Nebraska State Penitentiary at hard labor” and prayed for injunctive relief from this court against such imprisonment and against the violation of the plaintiff’s rights guaranteed by the Constitution of the United States, such injunctive relief to be aimed at all defendants to such action, including the Justices of the state’s Supreme Court. For all of the present purposes of the court, the plaintiff’s inclusion as defendants in Case No. 01322, Rhodes v. Houston, supra, of the several defendant insurance corporations and the law partnership, Beatty, Clarke, Morgan & Murphy, and the Penitentiary business manager, Samuel W. Dickerson, may be disregarded. The insurance corporations were made defendants only as sureties upon the separate official bonds of sundry defendants to that action, who were public officers. Any significance they might have had in that litigation was dependent on the liability, or immunity from liability, to the plaintiff of the several principal obligors upon their respective bonds. And the opinion of Judge Van Pelt, along with the judgment in that action, demonstrates the triviality of the inclusion as defendants of Beatty, Clarke, Morgan & Murphy and Samuel W. Dickerson, and each or either of them. The court keeps in view the inclusion in that case of defendants who are also parties defendant to this one, and the inclusion in this action of the parties identified, supra, who were not parties to Case No. 01322. To the court it appears to be quite impossible essentially to distinguish the claim set out in the amended complaint herein from the claim — or claims in combination — set out in Case No. 01322. Both demand the vindication of an alleged right of the same plaintiff and are rooted in a single prosecution, conviction, and sentence of him. Putting aside the insignificant defendants to Case No. 01322 mentioned in the last preceding paragraph, there is no presently material variety in the parties defendant to the two actions. Of the defendants to this action, who were not similarly placed in Case No. 01322, Dwain L. Jones, Gerald S. Vitamvas, Peter E. Mar-ehetti, H. B. Evnen and J. Arthur Cur-tiss, and each of them, are free from any charge in the amended complaint of the commission of any individual act, and are charged, if at all, only in some language aimed at “all of the defendants.” Averments touching acts, affirmative or negative, of the several defendants, Robert A. Nelson and George Lewis, are separately and briefly mentioned later herein. For the rest, both cases were, and the present one is, presented against the same defendants, that is to say, those already identified herein as common to both cases. It is true that there is some difference in detail in the manner of plaintiff’s declaration of his claim — or claims — in the two cases. The more significant of these are now mentioned. Recalled again is the plaintiff’s division in Case No. 01322 of his demand into three counts, two primarily for money judgments, and the third for injunctive relief, in contrast with the presence here of an amended complaint with demand for a money judgment in a single count. It is also to be observed, however, that both in the present amended complaint, and in each count of the complaint, in Case No. 01322, the prayer is and was both for a money judgment and, in broad language, for general equitable relief. Finally, the third count in Case No. 01322, in which the complaint was filed on September 21, 1961, was directed unmistakably at a single and particular problem which then confronted the plaintiff, his threatened and imminent return to the Nebraska State Penitentiary for the service of the sentence theretofore imposed upon him for contempt of court in Case No. 4819 in the District Court of Morrill County, Nebraska. After denial, on December 5, 1960 of a motion for a new trial in that action, the plaintiff had sought review, on petition in error by the Supreme Court of Nebraska. On September 21, 1961, plaintiff’s time for filing briefs incident to that review either had already expired, or was about to expire. He then knew either that he had failed, or that he was about to fail, to file such briefs. At any rate, he did so fail. On October 17, 1961, the mandate of the Supreme Court of Nebraska was executed and issued declaring the dismissal of such “error proceedings” “for failure to file briefs under the provisions of Rule 15” “and remanding the case” “to you the said district court, in order that such proceedings may be had therein as according to right and justice and the laws of the State of Nebraska ought to be had.” That meant, and foreshadowed, the execution of the sentence. And it was to intercept that already imminent consequence that the plaintiff, on September 21, 1961, expressly included in his complaint in Case No. 01322, filed only twenty-six days before the entry of the mandate, its Count III and its prayer for injunctive relief, including the issuance of a restraining order. On September 22, 1961, after due hearing in which the plaintiff personally participated, this court, acting through Judge Van Pelt, denied and overruled the application for restraining order. And by order, dated January 29, 1962, with a detailed explanatory opinion filed two days later, the complaint was dismissed in its entirety, {vide infra), thus also denying any injunctive relief. While the complaint in Case No. 01322 alleged, and the amended complaint in this case alleges, the creation some time prior to November 21, 1960, and the existence, of a conspiracy to deprive the plaintiff of his rights guaranteed under the Constitution of the United States, especially the right to the equal protection of the laws, there is an observable difference between the two actions in the manner of the identification of the “conspirators.” Despite some ambiguity, it is concluded that the second count of the complaint in Case No. 01322 charged the conspiracy to have been erected between all of “the individual defendants excepting only the Justices of the Supreme Court.” But, by paragraph IV {vide supra) of the amended complaint in the present action, the conspirators are identified as “Richard M. Van Steenberg, Clarence A. H. Meyer, Dwain L. Jones, Gerald S. Vitamvas, Rush Clarke, James L. Macken, Virginia A. Schuetz, Leo Knudtson, Carl Sanders, Norval Houston, Michael Linch, George Turner and Albert W. Crites.” There are, thus, relatively minor differences in the identification of the alleged conspirators, partly accounted for by the variety between the two cases, already noted in respect of the parties defendant. But the conspiracy alleged, if one existed, was single and the same in both of the cases. And the court also observes that in the amended complaint, there are allegations that defendants, other than the conspirators, committed certain of the alleged acts against the plaintiff in furtherance of the conspiracy, that, with the design of infusing the conspiratorial element into their acts. Attention is once more directed to paragraph III of the amended complaint. It is not quoted again. But notice is taken of its allegation that the defendants, Clarence A. H. Meyer, Cecil Brubaker, Dwain L. Jones, Robert A. Nelson, Gerald S. Vitamvas, Rush Clarke, James L. Macken, Peter E. Marchetti, 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 and J. Arthur Curtiss were, at all times pertinent, members of the “Nebraska State Bar, Nebraska State Bar Association to practice law by the Supreme Court of Nebraska.” That inducing statement is followed by the assertion that all of their alleged actions “were under color and authority of their office as attorney at laws of the State of Nebraska, and the Nebraska State Bar Association, an official part of, organ of, and division of the State of Nebraska.” That final averment is not a pleading of fact but the advancement of the plaintiff’s own conclusion of law. And, as such, it is confused, mistaken and wholly invalid. Respecting the creation of the Nebraska State Bar Association, see In re Integration of the Nebraska State Bar Association (September 20, 1937) 133 Neb. 283, 275 N.W. 265, 114 A.L.R. 151; State ex rel. Nebraska State Bar Association v. Merten, 142 Neb. 780, 7 N.W.2d 874, 877. In the latter opinion, the state’s Supreme Court, by which Nebraska’s Bar had recently theretofore been integrated, supra, discussed briefly and partially the effect of such action. Shortly stated, in Nebraska, notwithstanding the integration of the Bar, attorneys at the bar of the state remain — as they theretofore always had been — “officers of the court.” But they are in no wise officers of the State of Nebraska, or of any governmental subdivision of such state. If, therefore, as seems rather probable, the plaintiff undertakes, by paragraph III of his amended complaint, to attribute to every wrongful professional act by a member of the Nebraska State Bar Association, the quality of an act done under color of authority as an officer of the State of Nebraska, and thereby to invoke the jurisdiction for the vindication of the violated right, of the United States District Courts under the Civil Rights Act, he is leaning on a broken reed. ' The notion is simply absurd. Though in a presently distinguishable setting, the writer hereof recently had occasion to consider certain aspects of the functioning of the Nebraska State Bar Association in Niklaus v. Simmons (D.C.Neb.) 196 F.Supp. 691. That opinion will be cited later herein to a point in respect of which it is considered to have pertinence. But it may be that through paragraph III, supra, plaintiff intends to offer the position that by virtue of the integration of the state’s bar, and the membership of all of its active attorneys in the Nebraska State Bar Association, actionable liability for the wrong of every erring lawyer is imposed upon the Association — or even directly upon every other member of the Association. Such a view has, indeed, been advanced. But it is without virtue. And it is not believed that that is the thrust of the plaintiff’s importation into this litigation of the Association’s existence. The court observes, too, that in addition to the issues directly tendered to the court by the pleading for determination in Case No. 01322, Rhodes v. Houston, supra, the amended complaint in this action alleges the procurement and use of the allegedly false affidavit of H. Snyder respecting service of notice on the plaintiff in Case No. 4819, District Court of Morrill County, Nebraska. To the extent of its use in Case No. 4819, in the District Court of Morrill County, Nebraska, it was matter for submission to Judge Van Pelt in Case No. 01322, Rhodes v. Houston, supra, for it was initially used in the state court in November, 1960. But it is also and principally advanced here in support of the contention that by its use in Case No. 01322, fraud was practiced upon this court and Judge Van Pelt, and later and on appeal, upon the Court of Appeals, Eighth Circuit, and the Supreme Court of the United States. Of the same nature are the allegations respecting the affidavits of John Greenholtz and Maurice Sigler, which it is charged, in Case No. 01322, were used both in this court and on appeal, and also respecting allegedly false statements in the appellees’ briefs and record on appeal, and the oral statements of the defendant, Robert A. Nelson, before the Court of Appeals, Eighth Circuit. The features mentioned in this paragraph were not, indeed, contentions made up and formally tendered to Judge Van Pelt as primary issues in the case before him. But the question remains whether they were not so completely interwoven with the then pending litigation before this court, and the appellate forums, as to be foreclosed by the ruling in Case No. 01322. That question will be adverted to later herein. In approaching a final ruling on the pending motions to dismiss, disposition may be made, with only brief comment, of several contentions which have had the court’s consideration. In this course, those conclusions that are the more controlling will be reserved for later announcement. Without explicit identification, the defendant, Robert A. Nelson, appends to his motion to dismiss (filing 26) a motion to strike, at least as against him, paragraphs XIX, XXI and XXIII of the amended complaint, on the ground that they are scandalous and impertinent, particularly as to the moving party. The court is denying and overruling that request in all its parts. Such action does not imply an unqualified approval of the challenged paragraphs in their entirety. Actually, it is difficult to arrive at an understanding of precisely what, if anything, the plaintiff charges against Mr. Nelson in paragraph XIX. He seems never to have reached in it the point towards which he started. In paragraph XXI the allegation that the defendants “lied” to the Court of Appeals in language appearing on page 64 in their brief is inelegant and savors more of the barnyard than of the court room. But the court, though not edified by such epithets, is also not confused by them. Such paragraph finally discloses the material in the brief at which it is aimed. And that is what matters. Paragraph XXIII is blunt in its attribution of falsity in fact and deception in motive, to Mr. Nelson’s oral response to a question from the Court of Appeals. But it discloses the pleader’s position without discreditable language; and the position, whether well taken or not, is one he may legitimately take. The court holds only that the challenged material, under proper judicial supervision, could not harm any defendant. In his charge to a jury, and at other points in litigation, a judge may — sometimes must — soften the asperity of a litigant’s pleading. He should not, with any regularity, be called upon to fumigate it. As has already been indicated, each of the motions shown as filings 26 27 and 29 assigns, as a ground for dismissal of the amended complaint, the position that it contains all of the fatal defects of the original complaint which the court struck from the files in harmony with an explanatory memorandum (filings 24 and 23). While the motions to dismiss are all now being sustained, such action is not premised upon that position. And it is not believed to be well taken. The court considered (filing 23) that the complaint both failed to comply with Rule 8(a), Federal Rules of Civil Procedure, in respects which the court pointed out, and was scurrilous, scandalous and impertinent. The amended complaint followed. In reasonable measure, the scurrility, impertinence and scandalous features of the complaint were eliminated by the amended complaint. Admittedly, it is still not a model of a short and plain statement either of the grounds of jurisdiction, or as a showing that the plaintiff is entitled to relief. It fails in the test of cohesiveness, and' obscurely takes several positions from undisclosed premises. But the court, thinks that dismissal should not result from that probable inadequacy. Each of the motions to dismiss assigns, as a ground for its allowance the claim-that the amended complaint is “scandalous, impertinent and vexatious.” That contention has been respectfully considered; for decision touching it is not obvious or easy. The amended complaint, at several junctures, betrays evidence of hatred, bitterness and resentment on the part of its author. But it. has rationally to be regarded in its context. It was prepared by one who is both a lawyer and the allegedly injured man. It speaks against the backdrop, of the collapse of a recently promising — ■ or at least hopeful — career, of inevitably hostile reaction, and of the impulse to. retaliation. In such circumstances a rational tolerance must be exercised in the-appraisal of the language whereby he-who is injured, whether deservedly or wrongfully, declares his demand for retribution. He ought ordinarily not to-be held to the same standard of restraint, which one would observe whose wounds were less galling. And the court has undertaken to believe that the plaintiff thinks himself to have been treated with unwarranted harshness, and to approach the language and manner of his pleading accordingly. So regarded, it is not fatally offensive. Proceeding thus, the court declines to regard the amended complaint as scandalous, impertinent or vexatious. Insofar as the several motions filed as numbers 27 and 29 assert the identity of the facts relied upon by the plaintiff in support of his claim advanced in the amended complaint with the facts supportive of his claims in Case No. 01322, Rhodes v. Houston, D.C., 202 F.Supp. 624, aff’d 8 Cir., 309 F.2d 959, cert. den. 372 U.S. 909, 83 S.Ct. 724, 9 L.Ed.2d 719, and, upon that basis, invoke the application of the rule res judicata, their contention, and that of the other defendants upon the same subject, are given consideration shortly hereinafter. Each motion to dismiss asserts as one of its supporting grounds that the plaintiff’s claim asserted in the amended complaint is not within the protection of the Federal Civil Rights Act, or any other statutory or constitutional protection upon which plaintiff seeks to predicate his action. From the files in Case No. 01322, Rhodes v. Houston, supra, it appears that each motion to dismiss in that action also made a like assertion, and thereby challenged the court’s jurisdiction. In the case last mentioned, Judge Van Pelt appears not to have made explicit determination upon the question thus presented, but rather to have passed upon the motions before him upon the questions of the adequacy of the complaint to state a claim supporting relief, and the related immunity' to suit of the defendants. Confronted with a like situation, the court is presently pursuing a similar course. But it must not be understood as rejecting the jurisdictional position of the moving defendants, or as minimizing its vital significance. It is an important, and probably a vital, issue whose determination against the plaintiff would obviate the necessity of presently meeting any other problems now presented. And the writer of this memorandum acknowledges grave doubt whether, even on paper, the plaintiff has brought himself under the jurisdictional coverage of the Civil Rights Act, whether that Act ever has been or, even with its current liberal application, is, operative to confer jurisdiction on this court to determine, as between citizens of Nebraska, controversies that arise out of what is essentially a suit for damages on account of false imprisonment or malicious prosecution, or both. The court comes, finally, to the important assertions of all of the movants, b) that the amended complaint fails to state a claim upon which relief can be granted against the several moving defendants; 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 performed in his or her official capacity (as already indicated and as later shortly summarized) for conduct in which capacity immunity to suit exists. In one sense, and to some degree, the former of those two assertions embraces the latter, and an affirmative resolution of the latter requires a like answer to the former. By his amended complaint, his briefs, and his oral argument, the plaintiff has drawn to the court’s attention, as vital •to his claim, several items of already contested litigation, of which, to be sure, he has advanced his own interpretation. He has thereby caused the court to examine the public files in that litigation, and to pursue its studies upon each of the cases to its conclusion, or to its present position. The plaintiff’s citation of Case No. 4819 in the District Court of Morrill County, Nebraska, directs the court to Case No. 4772A, also in that court. An examination of the files in Case No. 4772A discloses that it was commenced on November 21, 1959 by the filing in behalf of the State of Nebraska, through Clarence S. Beck, its then Attorney General, in the District Court of Morrill County, Nebraska, of a complaint against Paul E. Rhodes (the plaintiff herein) charging Mr. Rhodes with the commission on February 8, 1959 in Morrill County, Nebraska, of the crime of arson by setting fire to and burning a store building used as a drug store, the property of Ray C. Neumann and Alma Neu-mann. On November 13, 1959, Mr. Rhodes appeared in open court, the defendant herein, Albert W. Crites, presiding as District Judge, and on the reading to him of the complaint, demanded a preliminary hearing, which Judge Crites then set for December 4, 1959. Bond was then fixed at one thousand dollars. On December 4 and 5, 1959, pursuant to the earlier setting, supra, the preliminary hearing was held before the District Court of Morrill County, Nebraska, Judge Crites again presiding. Evidence was submitted and the parties rested; and the court found that “the crime charged in the complaint (had) been committed and that there (was) probable cause to believe that the defendant” (i.e. Mr. Rhodes) “(had) committed the offense,” and entered an order committing him to jail and fixing bail at one thousand dollars. On December 7, 1959, Mr. Rhodes filed in that case an appearance bond in the penal sum of one thousand dollars. On January 11, 1960, the State of Nebraska, by Clarence S. Beck, its then Attorney General, filed in Case No. 4772A an information against Mr. Rhodes charging him with the crime of arson in like manner as he had been charged in the complaint, supra. On the same day, the sureties on his appearance bond surrendered Mr. Rhodes into the custody of Norval Houston, sheriff of Morrill County, Nebraska, and Mr. Rhodes was arraigned upon the information, Judge Crites again presiding, and refused to plead either guilty or not guilty. Whereupon, the court entered in his behalf a plea of not guilty, remanded Mr. Rhodes to the custody of the sheriff, and ordered his confinement in jail until he should furnish bail, which was again fixed at one thousand dollars. Pursuant to such order he was, by the sheriff of Morrill County, Nebraska, confined in the Scotts Bluff County jail, a course that was within the discretion of the sheriff. However, on January 15, 1960, Mr. Rhodes provided a cash bond in the sum of one thousand dollars. Case No. 4772A has never been tried upon its merits, and appears to be pending upon a motion by the defendant in it, Paul E. Rhodes, for its dismissal on account of the lapse without trial of more than three terms of court, within the reach of Section 29-1203, R.R.S.Neb.1943, Reissue of 1956. In fact, the motion seems to have been submitted and to be under the consideration of the court in which it is pending. Case No. 4772A, in the District Court of Morrill County, Nebraska, has thus extensively been syn opsized for the reason that it is basic to Case No. 4819 in that court, out of which, more immediately, this suit arose. But Mr. Rhodes, either on or shortly before January 11, 1960, had instituted in the County Court of Morrill County, Nebraska, a proceeding for a writ of habeas corpus against Norval Houston, the sheriff, to obtain his release from the custody of the sheriff under commitment in Case No. 4772A. And on January 11, 1960, in that habeas corpus proceeding, the County Court of Morrill County, Nebraska, Judge Robert D. McFarland presiding, granted a writ of ha-beas corpus, fixed January 27, 1960 as the time for final hearing thereon, and entered an order discharging and releasing Mr. Rhodes from the sheriff’s custody on his personal recognizance. But, notwithstanding that order, the sheriff, later in the same day, took Mr. Rhodes before the District Court, in which the arraignment was then held, supra. On January 27, 1960, the County Court of Morrill County, Nebraska, Robert D. McFarland, Judge Presiding, made and entered in the habeas corpus proceeding pending therein, supra, what it denominated as a “Bench Warrant and Complaint” of which a copy is set out in a footnote. The “Bench Warrant and Complaint” was not served. And on February 1, 1960, Judge McFarland entered in his court an order “withdrawing” it. That habeas corpus proceeding was appealed to the District Court of Mor-rill County, and in the appellate proceeding, Norval Houston, the sheriff, moved for the dismissal and quashing of the proceeding on the ground that the County Court had no jurisdiction to entertain it. But, on April 26, 1960, hearing was had on that motion, and the District Court, Judge Edmund Nuss of the tenth judicial district presiding, found that the County Court did have jurisdiction over the habeas corpus proceeding, and denied and overruled the motion for its dismissal, (see, however, McFarland v. State, infra) But, on July 29, 1960, Case No. 4819 in the District Court of Morrill County, Nebraska,, was instituted by the State of Nebraska against Mr. Rhodes, by the filing therein by Clarence S. Beck, then Attorney General of Nebraska, of an Information for Contempt of Court. The information, briefly summarized, disclosed the pendency of Case No. 4772A against Mr. Rhodes; the pendency on and before January 27, 1960 of the ha-beas corpus proceeding in the County Court of Morrill County, Nebraska, and Mr. Rhodes’ expectation that such final judgment as might be entered in it would be appealed to the District Court (as it later was, supra); the participation as presiding judge in Case No. 4772A of Judge Crites; and charged that on January 27, 1960, Paul Rhodes “willfully, unlawfully and contemptuously and with the intent to obstruct the proceedings and hinder the due administration of justice in the above entitled action, suit, proceeding and process then pending in and before this court entitled The State of Nebraska, plaintiff vs. Paul E. Rhodes, defendant, and in any and all other actions, suits, proceedings, and processes then pending in and before this court, or which might thereafter be pending in this court in which the defendant Paul E. Rhodes was in any way involved, and to lessen and destroy the authority, dignity and integrity of courts generally and particularly this court, and to bring the courts of the State of Nebraska generally, and particularly this court, and the Honorable Albert W. Crites, the judge thereof, into public disrepute, and to scandalize them and cause the public to lose confidence in courts generally, and particularly in this court, and to intimidate this court, and the Honorable Albert W. Crites, the judge thereof, and to coerce this court and the Honorable Albert W. Crites, the judge thereof, to decide issues and matters in favor of the defendant Paul E. Rhodes, and to force and bring about by coercion, intimidation, threats and other acts the retirement of Albert W. Crites as a judge of this court and the substitution of another judge or judges in all matters pending in this court in which Paul E. Rhodes was in any way involved, and to prevent the Honorable Albert W. Crites from presiding as a judge of this court by incarcerating him in jail, and to deprive the State of Nebraska of its right to a fair trial in the above mentioned cases, actions, suits, proceedings and processes by a tribunal free and untrammeled by attempts at coercion, intimidation and threats of public odium and derision, did willfully, unlawfully and contemptuously attempt to obstruct the proceedings and hinder the due administration of justice in this court generally, and in the above mentioned actions, suits, proceedings and processes in particular, by doing and performing the acts and things hereinafter set forth and charged: “That with the intent above alleged, and in the attempt above alleged, the defendant did on and immediately before the 27th day of January, 1960, in Morrill County, Nebraska, conspire with and aid, abet, assist, procure, counsel, persuade and cause Robert D. McFarland, who was the County Judge of Morrill County, Nebraska, to prepare, write, sign and issue out of the County Court of Morrill County, Nebraska, and to deliver to the Sheriff of Mor-rill County, Nebraska, a certain ‘Bench Warrant and Complaint’ of which the following is a copy: (Here follows a true copy of the “Bench Warrant and ° Complaint”, which is not now repeated.) “and to threaten to incarcerate the Honorable Albert W. Crites, a judge of this court, in jail for the purpose of preventing him from performing his duties as district judge generally and as a judge of this court, all contrary to the authority and integrity of this court and against the dignity thereof.” On August 1, 1960, a writ for the attachment of the body of Mr. Rhodes for contempt under the immediately foregoing information was issued out of the District Court of Morrill County, Nebraska, pursuant to an order under that date of such court, the defendant herein, Richard M. Van Steenberg, Judge presiding, which writ was duly executed. On the same day, Paul Rhodes was brought before the court, was granted one month to answer the information and make his defense in anticipation of a trial, whose date was later to be fixed, and was released from custody, subject to the further order of the court. Mr. Rhodes made and filed his ans