Montin v. Gibson et al

Filing 104

MEMORANDUM OPINION - Defendants' Motion for Summary Judgment 77 is granted, defendants' Motions to Strike (Filing Nos. 92 and 97 ) are denied and Montin's objections (Filing Nos. 91 and 96 ) are denied. A separate order will be entered in accordance with this memorandum opinion. Ordered by Senior Judge Lyle E. Strom. (Copy mailed to pro se party)(AOA)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
JOHN MAXWELL MONTIN,
Plaintiff,
v.
BILL GIBSON, CEO, DR. Y.
SCOTT MOORE; DR. RAJEEN
CHATURVEDI; and MARC
OSTRANDER,
Defendants.

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4:09CV3153

MEMORANDUM OPINION

This matter is before the Court on defendants’ Motion
for Summary Judgment (Filing No. 77).

Also pending are two

objections filed by plaintiff John Maxwell Montin (“Montin”)
(Filing Nos. 91 and 96), and two corresponding Motions to Strike
filed by defendants (Filing Nos. 92 and 97).

For the reasons

discussed below, defendants’ Motion for Summary Judgment will be
granted, defendants’ Motions to Strike will be denied and
Montin’s objections will be denied.
I.

BACKGROUND
Montin is a patient at the Lincoln Regional Center

(“LRC”) in Lincoln, Nebraska (Filing No. 1 at CM/ECF p. 1).
Montin filed his original complaint in this matter on July 17,
2009, alleging defendants violated his constitutional rights by
removing his personal computer on July 1, 2009.
pp. 1, 6, 8.)

(Id. at CM/ECF

After initial review, the Court determined that

Montin’s complaint failed to state a claim upon which relief

could be granted (Filing No. 8 at CM/ECF p. 6).

However, the

Court granted Montin the opportunity to amend.

(Id. at CM/ECF

pp. 6-7.)
On September 29, 2009, Montin filed an amended
complaint (Filing No. 13).

After reviewing the amended

complaint, the Court permitted this matter to proceed to service
(Filing No. 14).

Montin had until April 26, 2010, to perfect

service of process on defendants.

(Id. at CM/ECF p. 2.)

On

February 4, 2010, the clerk of the court issued summons for Bill
Gibson (“Gibson”) and Marc Ostrander (“Ostrander”) in both their
official and individual capacities, and Y. Scott Moore (“Moore”)
and Rajeen Chaturvedi (“Chaturvedi”) in their individual
capacities only (Filing No. 15).

On February 23, 2010, the

summonses were returned as “executed.”
19, 20, and 21.)

(Filing Nos. 16, 17, 18,

The summons forms were served by the United

States Marshal and each was directed to be served on defendants
at the “Lincoln Regional Center.”

(Filing Nos. 16, 17, 18, 19,

20, and 21.)
On April 9, 2010, defendants filed a motion to dismiss
along with an index of evidence in support (Filing Nos. 24 and
25).

In their motion, defendants argued that Montin failed to

properly execute service of process on defendants (Filing No.
24).

In addressing this motion, the Court determined that Montin

had failed to properly serve defendants in both their individual

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and official capacities (Filing No. 27).

However, the Court

denied defendants’ motion to dismiss and gave Montin an
additional 30 days in which to perfect service of process on
defendants.

(Id. at CM/ECF pp. 4, 6.)

In doing so, the Court

warned Montin that failure to properly serve defendants by the
deadline would result in the dismissal of his claims.

(Id. at

CM/ECF p. 6.)
On July 27, 2010, defendants filed a second motion to
dismiss (Filing No. 37).

In their motion, defendants stated that

Montin perfected service upon Gibson in both his individual and
official capacity and Ostrander in his official capacity only
(Filing No. 37 at CM/ECF p. 1).

However, defendants also argued

that Montin failed to serve Moore, Chaturvedi, and Ostrander in
their individual capacities.

(Id. at CM/ECF pp. 1-2.)

Montin

did not respond, and on September 8, 2010, the Court dismissed
plaintiff’s individual capacity claims against Moore, Chaturvedi,
and Ostrander (See Filing No. 39).
On September 22, 2010, Montin filed a motion for stay,
which the Court liberally construed as a motion to reconsider the
Court’s September 8, 2010, Memorandum and Order (Filing Nos. 41
and 43).

In his motion, Montin argued that defendants wrongfully

prevented service of process by the United States Marshal (Filing
No. 41).

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On November 8, 2010, the Court granted Montin’s motion
to reconsider and directed defendants to supplement the record
with information to show the steps that the United States
Marshals took to locate Moore, Chaturvedi, and Ostrander (Filing
No. 43).

Defendants complied with the Court’s Memorandum and

Order and had no objection to providing Montin with an additional
opportunity to serve Moore, Chaturvedi, and Ostrander (Filing
Nos. 44 and 45).

As a result, the Court provided Montin with one

last opportunity to serve Moore, Chaturvedi, and Ostrander in
their individual capacities (Filing No. 48).
On April 20, 2011, summonses were returned executed
upon Ostrander, Chaturvedi, and Moore (Filing Nos. 50, 51 and
52).

Defendants filed an amended answer (Filing No. 56) and the

Court entered a progression order (Filing No. 57).

After

engaging in discovery, defendants filed a motion for extension of
progression dates (Filing No. 70).

On August 8, 2011, the Court

granted defendants’ motion and entered a second progression order
providing that all dispositive motions should be filed on or
before October 28, 2011 (Filing No. 71).
On October 28, 2011, defendants filed a motion for
summary judgment along with a brief and index of evidence in
support (Filing Nos. 77, 78 and 79).

On November 8, 2011,

defendants moved to file a supplemental brief (Filing No. 80).
The Court granted this motion and also provided Montin with

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additional time to file an opposing brief.

(Id.)

On December

21, 2011, Montin filed a brief in opposition to defendants’
motion for summary judgment along with an index of evidence and
separate statement of undisputed material facts (Filing Nos. 86,
87, and 88).

Thereafter, defendants filed a timely reply brief

in support of their motion for summary judgment (Filing No. 94),
and an additional index of evidence (Filing No. 95).

Montin has

also filed two objections to defendants’ evidence (Filing Nos. 91
and 96).

Defendants have moved to strike these objections

(Filing Nos. 92 and 97).
The party seeking the entry of summary judgment in its
favor must set forth “a separate statement of material facts
about which the moving party contends there is no genuine issue
to be tried and that entitles the moving party to judgment as a
matter of law.”

NECivR 56.1(a)(1).

If the non-moving party

opposes the motion, that party must “include in its [opposing]
brief a concise response to the moving party’s statement of
material facts.”

NECivR 56.1(b)(1).

Such response must “address

each numbered paragraph in the movant’s statement” of facts and
must contain pinpoint citations to evidence supporting the
opposition.

Id.

“Properly referenced material facts in the

movant’s statement are considered admitted unless controverted in
the opposing party’s response.”

Id.; see also Fed. R. Civ. P.

56(e) (“A supporting or opposing affidavit must be made on

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personal knowledge, set out facts that would be admissible in
evidence, and show that the affiant is competent to testify on
the matters stated.”).
Defendants have submitted a statement of material facts
in accordance with the Court’s Local Rules and properly
authenticated evidence (See Filing Nos. 78, 79, 85, 94 and 95).
Montin has responded (See Filing Nos. 86, 87, and 88).
Accordingly, this matter is deemed fully submitted and the Court
adopts the relevant undisputed facts set forth below.
RELEVANT UNDISPUTED FACTS1

II.

1.

In May 2006, the LRC issued Policy IM-02 (LRC).

This policy provides that:
In order to protect the patient and
minimize risk to the hospital,
computer/internet access and use by
patients residing at the Lincoln
Regional Center will be as follows:
A. Patients will not have
access to personally-owned
computers. Any other related
electronic equipment patients may
use on the unit while in the
hospital need to be approved by the
treatment team. If computers or
other related electronic equipment
are brought in to the hospital,

1

The Court notes that Montin objects to several documents
in defendants’ index of evidence (i.e. Filing Nos. 79-2 through
79-8) (Filing No. 91). Montin argues that these documents are
“immaterial” because defendants have “admitted” to the material
issues of his complaint in Filing No. 79-9. (Id.) The Court
disagrees and will consider the content in defendants’ index of
evidence that is undisputed by Montin.
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these will be marked and stored (as
per policy) with the patient’s
other belongings. IS&T staff will
not provide technical support for
any non-state equipment or
non-state business.
B. Patients may access the
internet as approved by the
treatment team only on a
State-authorized computer.
Patients accessing the internet
must be monitored by staff at all
times. Staff will report any
inadvertent access to sites of an
inappropriate nature. Staff will
document such access on an Unusual
Occurrence Form, and submit this
report to the Facility Operations
Officer by the end of the shift.
C. Concerns regarding internet
use by patients will be referred to
the treatment team. Repeated
misuse of State equipment may
result in loss of computer
privileges.
(Filing No. 79-8.)
2.

Despite Policy IM-02 (LRC), and other LRC policies

related to patient personal property, Montin was permitted to use
a personally-owned computer.
a June 12, 2009, statement.

This privilege was memorialized in
The statement was signed by

Ostrander and Montin, specifically providing that:
John Montin has been allowed the
privilege of having his own
personal computer, a privilege that
is not given to any other patient.
Therefore, effective July 1, 2009,
John must maintain Level III of the
program to continue to have the
privilege of having his own
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computer. Should John fail to
maintain level III he will lose
this privilege and will not be
allowed to earn it back.
(Filing No. 79-9.)
3.

The Level System referred to in the June 12, 2009,

statement is designed to provided an incentive for patients to
cooperate in their treatment programs.

A refusal to participate

in treatment results in a failure to earn points towards
privileges (Filing No. 87 at CM/ECF pp. 16-17); see also Case No.
4:08CV3082, Filing No. 56-2 at CM/ECF pp. 2-3.2)

2

To support his claims, Montin has filed a copy of an
affidavit Moore filed in a previous case. (See Case No.
4:08CV3082, Filing No. 56-2.) In Case Number 4:08CV3082, Montin
claimed that he was being punished for exercising his right to
refuse medical treatment by a “points based behavioral
modification treatment program” that the LRC implemented in 1997
and 1998. (Case No. 4:08CV3082, Filing No. 1 at CM/ECF pp. 4-5.)
Ultimately, the Court dismissed Montin’s claims because they were
barred by the statute of limitations. (Case No. 4:08CV3082,
Filing Nos. 83 and 84.) The Eighth Circuit Court of Appeals
summarily affirmed this decision. (Case No. 4:08CV3082, Filing
Nos. 90 and 91.)
In a separate but similar case, Case Number 4:07CV3271,
Montin alleged that in 1998, the LRC changed its policies and
unconstitutionally removed certain privileges and liberties, such
as Montin’s ability to take unsupervised walks. (Case No.
4:07CV3271, Filing No. 8 at CM/ECF pp. 6-9.) On September 1,
2009, this Court dismissed Case Number 4:07CV3271, concluding
Montin’s claims were barred by the applicable statute of
limitations and that he was not entitled to equitable tolling.
(Case No. 4:07CV3271, Filing Nos. 70 and 71.) However, the
Eighth Circuit reversed and remanded Case Number 4:07CV3271.
(Case No. 4:07CV3271, Filing No. 87.) In doing so, the Eighth
Circuit directed this Court to reconsider whether Montin’s mental
condition entitled him to equitable tolling. (Id.) On remand,
this Court dismissed Case Number 4:07CV3271 on the merits,
concluding the LRC’s policies regarding the termination of
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4.

Patients who achieve Level III demonstrate

appropriate behavior and the ability to exercise reasonably good
judgment.

As a result, Level III patients receive the most

privileges at the LRC (Filing No. 79-1 at CM/ECF p. 2).
5.

Because Montin failed to attend group therapy

sessions and otherwise engage in therapeutic activities deemed
necessary for his treatment, he lost his Level III status.

As a

result, Montin’s personally-owned computer was removed from his
room and stored pursuant Policy IM-02 (LRC) (Filing No. 79-4 at
CM/ECF p. 4; Filing No. 86 at CM/ECF pp. 1-2).
6.

LRC patients currently have access to televisions

and computers in common or recreational areas during prescribed
hours (Filing No. 79-4 at CM/ECF p. 3).
III.

ANALYSIS
A.

Defendants’ Motions to Strike
Defendants ask the Court to strike Montin’s objections

to their evidence because Montin failed to comply with the
Court’s local rules when he filed them (Filing Nos. 92 and 97).
Before filing his objections, Montin filed a timely brief, index
of evidence, and statement of material facts in opposition to

unsupervised walks was not a substantial departure from
professional judgment and that Montin’s due process rights were
not violated. (Case No. 4:07CV3271, Filing Nos. 120 and 121.)
Montin’s current claims relate to the removal of his
personally-owned computer in 2009. Therefore, the statute of
limitations is not at issue in this matter.
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defendants’ motion for summary judgment (Filing Nos. 86, 87, and
88).

However, he failed to request leave of court to file

additional documents (i.e. his objections) in accordance with
NECivR 7.0.1(c).

NECivR 7.0.1(c) (providing that a moving party

may reply to an opposing brief, however neither party may “file
further briefs or evidence without the court’s leave”).
Nevertheless, motions to strike are viewed with disfavor and
infrequently granted.
229 (8th Cir. 1977).

Lunsford v. United States, 570 F.2d 221,
In light of this, and Montin’s pro se

status, the Court will not strike Montin’s objections and
defendants’ motions to strike will be denied.
B.

Motion for Summary Judgment Standard
Summary judgment should be granted only “if the

pleadings, the discovery and disclosure materials on file, and
any affidavits show that there is no genuine issue as to any
material fact and that the movant is entitled to judgment as a
matter of law.”

Fed. R. Civ. Pro. 56(c).

See also Egan v. Wells

Fargo Alarm Servs., 23 F.3d 1444, 1446 (8th Cir. 1994).

It is

not the Court’s function to weigh evidence in the summary
judgment record to determine the truth of any factual issue.
Bell v. Conopco, Inc., 186 F.3d 1099, 1101 (8th Cir. 1999).

In

passing upon a motion for summary judgment, the district court
must view the facts in the light most favorable to the party

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opposing the motion.

Dancy v. Hyster Co., 127 F.3d 649, 652 (8th

Cir. 1997).
In order to withstand a motion for summary judgment,
the nonmoving party must substantiate their allegations with
“‘sufficient probative evidence [that] would permit a finding in
[their] favor on more than mere speculation, conjecture, or
fantasy.’”

Moody v. St. Charles County, 23 F.3d 1410, 1412 (8th

Cir. 1994) (quoting Gregory v. City of Rogers, 974 F.2d 1006,
1010 (8th Cir. 1992)).

“A mere scintilla of evidence is

insufficient to avoid summary judgment.”

Id.

Essentially the

test is “whether the evidence presents a sufficient disagreement
to require submission to a jury or whether it is so one-sided
that one party must prevail as a matter of law.”

Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986).
C.

Defendants’ Motion for Summary Judgment
Defendants argue, among other things, that they are

entitled to summary judgment because Montin cannot establish a
deprivation of his equal protection and due process rights
(Filing No. 78 at CM/ECF pp. 3-10).

For the reasons discussed

below, the Court agrees.
1.

Equal Protection

The Equal Protection Clause “requires the government to
treat similarly situated people alike.”

Klinger v. Dep’t of

Corr, 31 F.3d 727, 731 (8th Cir. 1994).

To state an equal

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protection claim, a plaintiff must establish that he was treated
differently from others similarly situated.

Johnson v. City of

Minneapolis, 152 F.3d 859, 862 (8th Cir. 1998); see also Mathers
v. Wright, 636 F.3d 396, 399 (8th Cir. 2011) (concluding that to
state a class-of-one equal protection claim, a plaintiff must
allege that a defendant intentionally treated her differently
from others who are similarly situated and that no rational basis
existed for the difference in treatment).

Different treatment of

dissimilarly situated persons does not violate the equal
protection clause.

Barket, Levy & Fine, Inc. v. St. Louis

Thermal Energy Corp., 21 F.3d 237, 242 (8th Cir. 1994).
Here, the undisputed facts show that in 2006 the LRC
enacted Policy IM-02 (LRC) (Filing No. 79-8).

This Policy

prohibited all patients from possessing personally-owned
computers.

(Id.)

Despite Policy IM-02, and other LRC policies

related to patient personal property, Montin was permitted to use
a personally-owned computer (Filing No. 79-9).

This privilege

was not given to any other patient at LRC and Montin has not
identified any other patient who was similarly situated in all
relevant respects.

Absent this showing, defendants’ removal of

Montin’s personally-owned computer does not violate the Equal
Protection Clause.

See Flowers v. City of Minneapolis, 558 F.3d

794, 798 (8th Cir. 2009) (“To establish a violation of the Equal
Protection Clause, . . . [plaintiff] must show that he was
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treated differently than other persons who were ‘in all relevant
respects similarly situated.’”).

Accordingly, defendants are

entitled to summary judgment on Montin’s equal protection claim.
2.

Due Process

In addition to his equal protection claim, Montin
alleges defendants’ removal of his computer violated his due
process rights.

To establish a due process claim, Montin must

demonstrate that (1) he has a protected liberty interest or
property interest at stake, and (2) he was deprived of such an
interest without due process of the law. See Van Horn v. Neb.
State Racing Comm’n, 304 F. Supp. 2d 1151, 1165 (2004).

To

constitute a liberty interest, an individual must have a
legitimate claim or entitlement to the subject of the deprivation
that rises to more than a unilateral hope or expectation.
Kentucky Dep’t of Corr. v. Thompson, 490 U.S. 454, 460 (1989).
In “order to establish a liberty interest for a due process
claim, the right has to be found in one of two places.

The

rights are found either under the U.S. Constitution or State
law.”

Persechini v. Callaway, 651 F.3d 802, 806 (8th Cir. 2011).
Involuntarily committed individuals like Montin retain

“constitutionally protected interests in conditions of reasonable
care and safety, reasonably nonrestrictive confinement
conditions, and such training as may be required by these
interests.”

Youngberg v. Romeo, 457 U.S. 307, 324 (1982).

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However, with regard to the nature of treatment, states “enjoy
wide latitude in developing treatment regimens” for mental health
patients.

Kansas v. Hendricks, 521 U.S. 346, 368 n.4 (1997).

The professionals who provide care and treatment for committed
individuals do not have to employ the best possible alternative
or use the least restrictive means available.

See Collignon v.

Milwaukee Cnty., 163 F.3d 982, 990 (7th Cir. 1998) (finding that
a disagreement about which of many professionally acceptable
treatment plans should have been implemented does not make out a
substantive due process claim).

In fact, “a decision, if made by

a professional, is presumptively valid; liability may be imposed
only when the decision by the professional is such a substantial
departure from accepted professional judgment, practice, or
standards as to demonstrate that the person responsible actually
did not base the decision on such a judgment.”

Youngberg, 457

U.S. at 323.
As discussed above, LRC Policy IM-02 (LRC) specifically
prohibited patients from possessing personally-owned computers.
(See Filing Nos. 79-1, 79-2, 79-3, 79-7 and 79-8.)

This policy

was enacted in order to protect the patient and minimize risk to
the hospital (Filing No. 79-8).

Despite this policy, Montin was

granted the privilege of possessing and using a personally-owned
computer, a privilege contingent upon his continued maintenance
of Level III status.

(See Filing No. 79-9.)

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When Montin refused

to attend group therapy sessions and otherwise engage in
therapeutic activities deemed necessary for his treatment, he
lost his Level III status and his personally-owned computer was
removed and stored pursuant Policy IM-02 (LRC) (Filing No. 79-4
at CM/ECF pp. 3-4; Filing No. 86 at CM/ECF pp. 1-2).
Notwithstanding this removal, Montin still had the ability to use
a computer, if permitted by his treatment team, in a common or
recreational area of the LRC during prescribed hours (Filing No.
79-4 at CM/ECF p. 3).
Although Montin is entitled to reasonably
nonrestrictive confinement conditions, the undisputed facts show
that defendants’ decision to remove his personally-owned computer
was due to his failure to participate in treatment.

This

decision is presumptively valid and Montin offers no evidence to
show that it is a substantial departure from accepted
professional judgment, practice, or standards.
U.S. at 323.

Youngberg, 457

Indeed, in a case involving pre-trial detainees,

the Supreme Court has recognized that detainees “are not
susceptible to easy solutions,” and has held that administrators
“should be accorded wide-ranging deference in the adoption and
execution of the policies and practices that in their judgment
are needed to preserve internal order and to maintain
institutional security.”
(1979).

Bell v. Wolfish, 441 U.S. 520, 547-48

“The same is true for civil detainees.”

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Tunget v.

Smith, No. 08-3089,
2010).

2010 WL 1241831, at *6 (C.D. Ill. Mar. 19,

Defendants are entitled to summary judgment on Montin’s

due process claims.
3.

Retaliation

To the extent Montin claims defendants retaliated
against him by removing his computer for refusing to participate
in treatment, his claim lacks merit.

As discussed above,

Montin’s liberty is subject to the professional judgment and
decisions of his treatment team.

Montin has failed to

demonstrate that defendants’ treatment decisions constitute such
a substantial departure from accepted professional judgment as to
demonstrate that defendants actually did not base their decisions
on such judgment.

See Youngberg, 457 U.S. at 323.

Moreover,

professionals enjoy wide latitude to offer patients incentives to
comply with treatment.

Cf. McKune v. Lile, 536 U.S. 24, 26

(2002) (concluding an essential tool of prison administration is
authority to offer inmates various incentives to behave, and the
Constitution accords prison officials wide latitude to bestow or
revoke these perquisites as they see fit); LaRue v. Matheney, No.
2:08-00983, 2010 WL 786249, at *8 (S.D.W. Va. Mar. 4, 2010)
(stating that while an inmate has a right to refuse sex offender
treatment, the inmate does not have a cause of action to avoid
the consequences of such refusal, such as loss of privileges).

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A

separate order will be entered in accordance with this memorandum
opinion.
DATED this 6th day of August, 2012.
BY THE COURT:
/s/ Lyle E. Strom
____________________________
LYLE E. STROM, Senior Judge
United States District Court

* This opinion may contain hyperlinks to other documents or
Web sites. The U.S. District Court for the District of Nebraska
does not endorse, recommend, approve, or guarantee any third
parties or the services or products they provide on their Web
sites. Likewise, the Court has no agreements with any of these
third parties or their Web sites.
The Court accepts no
responsibility for the availability or functionality of any
hyperlink.
Thus, the fact that a hyperlink ceases to work or
directs the user to some other site does not affect the opinion of
the Court.
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