Stack et al v. Saunders County Corrections et al

Filing 71

MEMORANDUM AND ORDER- Muhollands Motion to Dismiss Plaintiffs Second Amended Complaint (Filing No. 54 ) is denied as premature; Plaintiffs Motion for Leave to file a third amended complaint (Filing No. 58 ) and his "Motion to Grant Second Amended Complaint" (Filing No. 61 ) are denied; Plaintiff shall have until March 25, 2013, to serve Muholland in his individual capacity. If Plaintiff fails to serve Muholland in his individual capacity by March 25, 2013, his claims against Muholland will be dismissed without further notice. To obtain service of process on Muholland, Plaintiff must complete and return the summons forms, which the Clerk of the court will provide. The Clerk of the court shall send ONE (1) summons forms and ONE (1) USM-285 forms (for service on Muholland in his individual capacity only) to Plaintiff together with a copy of this Memorandum and Order. Plaintiffs Discovery Motions (Filing Nos. 65 and 68 ) are denied as premature; and Because th is Memorandum and Order updates the parties regarding the status of this case, Plaintiffs Motions for Status (Filing Nos. 50 , 66 and 69 ) are denied as moot. ( Pro Se Case Management Deadline set for 3/25/2013: Check for completion of service of summons upon Muholland.) Ordered by Chief Judge Laurie Smith Camp. (Copies mailed as directed with 1 summons and 1 USM-285 Form)(MKR)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
REECE R. STACK,
Plaintiff,
v.
BEN STYSKAL, in his individual
capacity, and W.H. MUHOLLAND, in
his individual capacity,
Defendants.

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CASE NO. 4:11CV3197

MEMORANDUM
AND ORDER

This matter is before the court on several Motions filed by the parties. (Filing Nos.
50, 54, 58, 61, 65, 66, 68 and 69.) The court will address Defendant W.H. Muholland’s
(“Muholland’) Motion to Dismiss (Filing No. 54) first and then turn to the parties’ other
motions.
I.

Muholland’s Motion to Dismiss
On October 4, 2012, Muholland filed a Motion to Dismiss Plaintiff’s Second

Amended Complaint along with a Brief in Support.1 (Filing Nos. 54 and 55.) In his Brief,
Muholland argues that Plaintiff’s claims against him should be dismissed because he was
not served within 120 days of Plaintiff’s filing of his original complaint. (Filing No. 55 at
CM/ECF pp. 1-2.) In filing this motion, however, Muholland ignored the court’s August 14,
2012, Memorandum and Order, which provided Plaintiff with 120 days, or until December
12, 2012, to complete service of process. (Filing No. 43 at CM/ECF pp. 8-9.) Accordingly,
Muholland’s motion is denied as because it was filed prematurely.

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Muholland has filed a special appearance for the sole purpose of contesting
service. (Filing No. 53.)

II.

Plaintiff’s Motion to Amend & Motion to Grant Second Amended Complaint
In response to Muholland’s Motion to Dismiss, Plaintiff filed a Motion for Leave to

file an amended complaint and a “Motion to Grant Second Amended Complaint.” (Filing
Nos. 58 and 61.) In these Motions, Plaintiff argues that he properly served Muholland and
that Defendants failed to follow the court’s deadlines. (Filing No. 61.) Although the court
agrees that Defendant Muholland ignored the court’s service of process deadline, the
record does not show that Muholland has been served. Indeed, attached to Plaintiff’s
“Motion to Grant Second Amended Complaint” were two service of process receipts. (Id.
at CM/ECF pp. 3-4.) These forms show that service of process was executed upon two
Defendants previously dismissed from this matter (Advanced Medical Healthcare and
Saunders County Corrections) instead of Muholland. (Id.; see also Filing No. 43.)
Separately, Plaintiff has filed a document entitled “Documented Evidence for 4:11cv-3192.” (Filing No. 59) and a document entitled “(Documentary Evidence) Third
Amended Complaint” (Filing No. 63.)
The court has carefully reviewed Plaintiff’s pleadings. When liberally construed,
these pleadings show that Plaintiff is confused as to why Muholland filed a Motion to
Dismiss before the court’s service of process deadline. Plaintiff also seems to believe that
he has already properly served Muholland. Moreover, Plaintiff has failed to clearly explain
whether he wants to file a third amended complaint or whether he is just filing evidence to
support his current claims.2 Accordingly, the court will deny Plaintiff’ s Motion for Leave to
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If Plaintiff seeks to file a third amended complaint, he must file a motion requesting
leave from the court to do so. Such a motion should clearly explain why he is entitled to
file a third amended complaint and the proposed amended pleading should be attached.
See Fed. R. Civ. P. 15(a)(2); NECivR 15.1.
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file a third amended complaint (Filing No. 58.) and his “Motion to Grant Second Amended
Complaint” (Filing No. 61).
However, on the court’s own motion, Plaintiff shall have until March 25, 2013, to
serve Muholland in his individual capacity. If Plaintiff fails to serve Muholland in his
individual capacity by March 25, 2013, his claims against Muholland will be dismissed
without further notice.
III.

Plaintiff’s Discovery Motions
Also pending are two Discovery Motions filed by Plaintiff. (Filing Nos. 65 and 68.)

In these Motions, Plaintiff asks the court allow certain camera footage into evidence. (Id.)
However, because service of process issues still remain, this court has yet to permit
discovery in this matter. Accordingly, Plaintiff’s Discovery Motions will be denied as
premature.
IT IS THEREFORE ORDERED that:
1.

Muholland’s Motion to Dismiss Plaintiff’s Second Amended Complaint (Filing
No. 54) is denied as premature;

2.

Plaintiff’s Motion for Leave to file a third amended complaint (Filing No. 58)
and his “Motion to Grant Second Amended Complaint” (Filing No. 61) are
denied;

3.

Plaintiff shall have until March 25, 2013, to serve Muholland in his individual
capacity. If Plaintiff fails to serve Muholland in his individual capacity by
March 25, 2013, his claims against Muholland will be dismissed without
further notice;

4.

To obtain service of process on Muholland, Plaintiff must complete and
return the summons forms, which the Clerk of the court will provide. The
Clerk of the court shall send ONE (1) summons forms and ONE (1) USM-285
forms (for service on Muholland in his individual capacity only) to Plaintiff
together with a copy of this Memorandum and Order. Plaintiff shall, as soon
as possible, complete the forms and send the completed forms back to the
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Clerk of the court. In the absence of the forms, service of process cannot
occur;
5.

The Clerk of the Court is directed to set a pro se case management deadline
in this case with the following text: “March 25, 2013: Check for completion of
service of summons upon Muholland;”

6.

Plaintiff’s Discovery Motions (Filing Nos. 65 and 68) are denied as
premature; and

7.

Because this Memorandum and Order updates the parties regarding the
status of this case, Plaintiff’s Motions for Status (Filing Nos. 50, 66 and 69)
are denied as moot.

DATED this 11th day of February, 2013.
BY THE COURT:

s/Laurie Smith Camp
Chief United States District Judge

*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
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