Bennie et al v. Munn et al

Filing 174

MEMORANDUM AND ORDER - IT IS ORDERED: All individual-capacity claims against all defendants are dismissed with prejudice, as Plaintiff has abandoned such claims. From this date forward, the case caption shall reflect that all defendants are sued in their official capacities only. Paragraphs (C) 2-5 of the Order on Final Pretrial Conference (Filing 173 at CM/ECF p. 3), which lists as a controverted issue whether Defendants are entitled to qualified immunity, shall no longer be considered a "controverted and unresolved issue" for resolution at the non-jury trial in this matter. Defendants' Motion for Summary Judgment (Filing 154 ) based on qualified immunity is denied as moot, and the remainder of the motion is denied due to genuine issues of material fact precluding the entry of summary judgment. The unopposed Plaintiff's Motion to Seal Pursuant to Protective Order (Filing 162 ) is granted, and the Clerk of Court shall seal Exhibits 158, 159, 160, 161, 1 72, 173, 174, 175, 177, and 178 to Plaintiff's Index of Evidence (Filings 163 & 164 ) in opposition to Defendants' Motion for Summary Judgment. The unopposed Defendants' Motion to Seal Pursuant to Protective Order (Filing 158 ) i s granted, and the Clerk of Court shall seal Exhibits 15, 17, 41, 55, 56, 57, 58, and 59 to Defendants' Index of Evidence (Filing 159) in Support of Defendants' Motion for Summary Judgment. The unopposed Plaintiff's Motion to Strike Brief (Filing 167 ) is granted, and Plaintiff's first-filed Brief in Opposition to Defendants' Motion for Summary Judgment (Filing 165 ) shall be stricken. Ordered by Senior Judge Richard G. Kopf. (TCL )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
ROBERT R. BENNIE JR.,
individually and on behalf of Bob
Bennie Wealth Management, Inc.,

)
)
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Plaintiff,
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v.
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JOHN MUNN, in his official and
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individual capacity, JACK E.
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HERSTEIN, in his official and
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individual capacity, RODNEY R.
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GRIESS, in his official and individual )
capacity, and JACKIE L. WALTER, )
in her official and individual capacity, )
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Defendants.
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)

4:11CV3089

MEMORANDUM
AND ORDER

Pending before the court are Defendants’ Motion for Summary Judgment
(Filing 154); Defendants’ Motion to Seal Pursuant to Protective Order (Filing 158);
Plaintiff’s Motion to Seal Pursuant to Protective Order (Filing 162); and Plaintiff’s
Motion to Strike Brief (Filing 167).
Motion for Summary Judgment
Defendants move for summary judgment on the grounds that each defendant
in their individual capacity is entitled to qualified immunity; Defendants took no
adverse action against Plaintiff in retaliation for his exercise of his First Amendment
rights; none of Defendants’ actions would chill a person of ordinary firmness from
exercising his or her First Amendment rights; a retaliatory motive was not a

substantial factor in Defendants’ actions; and Defendants would have taken the same
actions regardless of Plaintiff engaging in protected activity. (Filing 154.)
With regard to the portion of Defendants’ Motion for Summary Judgment based
on qualified immunity, I note that after the parties filed their summary-judgment
materials, the Order on Final Pretrial Conference (Filing 173) was filed, which stated:
“Because plaintiff’s only remaining claims are for declaratory and injunctive relief,
plaintiff’s claims against the defendants are official capacity claims. All individual
capacity claims against all defendants have been abandoned by the plaintiff and are
dismissed with prejudice.” (Filing 173 at CM/ECF p. 3.) Because “[q]ualified
immunity only applies to claims against public officials in their individual capacities,”
Serna v. Goodno, 567 F.3d 944, 952 (2009) (citing Kentucky v. Graham, 473 U.S.
159, 166-67 (1985)), and because Plaintiff has abandoned all individual-capacity
claims, the portion of the Motion for Summary Judgment based on qualified immunity
shall be denied as moot.
As to the remainder of the Motion for Summary Judgment, suffice it to state
that in the parties’ almost 3,000 pages of summary-judgment materials (Filings 154,
155, 156, 157, 159, 160, 161, 163, 164, 166, 171), there are genuine issues of material
fact precluding the entry of summary judgment regarding the nature of Defendants’
actions taken against Plaintiff and the motivating factor behind those actions, as well
as credibility issues. Therefore, the remainder of Defendants’ Motion for Summary
Judgment (Filing 154) shall be denied as well.
Other Motions
Defendants’ Motion to Seal Pursuant to Protective Order (Filing 158),
Plaintiff’s Motion to Seal Pursuant to Protective Order (Filing 162), and Plaintiff’s
Motion to Strike Brief (Filing 167) are all unopposed and shall be granted.

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IT IS ORDERED:
1.
All individual-capacity claims against all defendants are dismissed with
prejudice, as Plaintiff has abandoned such claims.
2.
From this date forward, the case caption shall reflect that all defendants
are sued in their official capacities only.
3.
Paragraphs (C) 2-5 of the Order on Final Pretrial Conference (Filing 173
at CM/ECF p. 3), which lists as a controverted issue whether Defendants are entitled
to qualified immunity, shall no longer be considered a “controverted and unresolved
issue” for resolution at the non-jury trial in this matter.
4.
Defendants’ Motion for Summary Judgment (Filing 154) based on
qualified immunity is denied as moot, and the remainder of the motion is denied due
to genuine issues of material fact precluding the entry of summary judgment.
5.
The unopposed Plaintiff’s Motion to Seal Pursuant to Protective Order
(Filing 162) is granted, and the Clerk of Court shall seal Exhibits 158, 159, 160, 161,
172, 173, 174, 175, 177, and 178 to Plaintiff’s Index of Evidence (Filings 163 & 164)
in opposition to Defendants’ Motion for Summary Judgment.
6.
The unopposed Defendants’ Motion to Seal Pursuant to Protective Order
(Filing 158) is granted, and the Clerk of Court shall seal Exhibits 15, 17, 41, 55, 56,
57, 58, and 59 to Defendants’ Index of Evidence (Filing 159) in Support of
Defendants’ Motion for Summary Judgment.
7.
The unopposed Plaintiff’s Motion to Strike Brief (Filing 167) is granted,
and Plaintiff’s first-filed Brief in Opposition to Defendants’ Motion for Summary
Judgment (Filing 165) shall be stricken.

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DATED this 4th day of February, 2014.
BY THE COURT:
Richard G. Kopf
Senior United States District Judge

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