Glenn R. Waite v. Robert O. Hippe ( 1999 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 98-2816
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Glenn R. Waite, *
*
Appellant, *
*
v. * Appeal from the United States
* District Court for the
Robert O. Hippe, Judge; Paul D. * District of Nebraska.
Empson, Judge; Sara Olsen; Ann *
Rosenberry, Clerk; James L. * [UNPUBLISHED]
Macken, Judge, *
*
Appellees. *
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Submitted: July 5, 1999
Filed: July 19, 1999
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Before HANSEN, FAGG, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
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PER CURIAM.
Glenn R. Waite appeals from the district court’s1 order dismissing with prejudice
his declaratory judgment action. Mr. Waite asked the district court to declare
unconstitutional both Neb. Rev Stat. § 24-318 (1995), which authorizes Nebraska state
1
The Honorable Richard G. Kopf, United States District Judge for the District
of Nebraska.
judges to order the county attorney to investigate and possibly prosecute when it
appears an offense has been committed “in connection with the trial of any cause,” and
Neb. Rev. Stat. § 7-101 (1997), which forbids the unauthorized practice of law.
We affirm the dismissal, because we conclude that Mr. Waite lacked standing
and his claims were not ripe for review, and thus the district court lacked jurisdiction.
See Steel Co. v. Citizens for a Better Env’t, 118 S. Ct. 1003, 1016 (1998) (standing is
threshold jurisdictional question); Johnson v. Missouri, 142 F.3d 1087, 1090 n.4 (8th
Cir. 1998) (ripeness issue may overlap with standing question). Mr. Waite premises
his constitutional challenge to sections 7-101 and 24-318 on a state court order
requiring the court clerk to notify the county attorney if and when Mr. Waite files
additional pro se pleadings in certain state court actions, and ordering the county
attorney to investigate and to prosecute if a criminal offense is uncovered. We
conclude that these circumstances are insufficient to create the requisite “injury in fact.”
See Brouhard v. Lee, 125 F.3d 656, 661 (8th Cir. 1997) (injury-in-fact, required for
standing, is actual or imminent invasion of legally protected interest, which is both
concrete and particularized to plaintiff); cf. Johnson, 142 F.3d at 1088-90 (holding that
prisoners lacked injury-in-fact to challenge state statute imposing sanctions on prisoners
who filed frivolous lawsuits, where no statutory sanctions had yet been imposed on
them).
Accordingly, we affirm the district court’s dismissal of Mr. Waite’s action, but
we modify the dismissal to be without prejudice. See Ahmed v. United States, 147 F.3d
791, 797 (8th Cir. 1998).
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A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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