Montin v. Estate of Dale Johnson et al

Filing 107

ORDER DISMISSING PARTY sustaining 106 Plaintiff's Motion to Dismiss Party. Christine Peterson is dismissed as a defendant in this lawsuit. John Montin, by and through his attorney, also gave notice that his prayer for relief in his amended complaint should be considered narrowed as stated. Ordered by Magistrate Judge Cheryl R. Zwart. (JAB)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
JOHN MAXWELL MONTIN,
Plaintiff,
vs.
BILL GIBSON and CHRISTINE
PETERSON,
Defendants.

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CASE NO. 4:07CV3271
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) ORDER DISMISSING PARTY
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This matter comes before the Court on a motion by John Montin,
pursuant to Fed.R.Civ.P. 41(a)(2). Montin seeks to dismiss Christine
Peterson as a party to this action. Plaintiff alleges that Ms. Peterson has
retired and is no longer employed as CEO of the Department of Health and
Human Services and therefore cannot provide any relief to him. Ms.
Peterson was served in her official capacity only. Plaintiff’s counsel reports
that he has discussed the motion to dismiss Ms. Peterson with her attorney in
the Nebraska Attorney General’s office and that Mr. Rumbaugh indicated
that he does not oppose the motion. Plaintiff believes this leaves only Bill
Gibson, sued in his official capacity only as the sole remaining defendant.
The Court finds this motion should be and hereby is sustained.
Christine Peterson is dismissed as a defendant in this lawsuit.

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John Montin, by and through his attorney, also gave notice that his
prayer for relief in his amended complaint should be considered narrowed to
specifically seek only:
1. A declaratory judgment that Plaintiff earned a vested,
constitutionally based, substantive due process right to take therapeutic,
unsupervised walks about the grounds of the Lincoln Regional Center.
2. A declaratory judgment that he possesses a constitutionally based
and based on Nebraska statute substantive due process right to the least
restrictive treatment, which would include therapeutic, unsupervised walks
about the grounds of the Lincoln Regional Center.
3. A declaratory judgment that he possesses a constitutionally based,
substantive due process right to have his treatment team and his treating
psychiatrist consider the medical decision of whether he should be eligible
to take therapeutic, unsupervised walks on the grounds of the Lincoln
Regional Center.
4. An injunction authorizing his treatment team and his treating
psychiatrist to make appropriate recommendations concerning the
unsupervised, therapeutic walks to the Hayes County District Court.
Montin, by and through his counsel, informed the Court that Montin
no longer believes that there is any basis for seeking money damages and

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that he waives and gives up any such claim in this suit. This notice does not
require any action by the Court. However, the Court notes that this notice
does not limit which issues may be addressed by Defendant Bill Gibson
whatsoever.

/s/ Cheryl Zwart
_________________________
Cheryl Zwart
United States Magistrate Judge

1/11/2012
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Date

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