Wilson v. Sabatka-Rine et al

Filing 63

MEMORANDUM AND ORDER- Defendants' Motion for Summary Judgment (filing no. 53 ) is granted in part and denied in part as set forth in this Memorandum and Order. Plaintiff's Motion to Reinstate (filing no. 62 ) is denied. A new Order Setting Schedule for Progression of Case will be entered. Ordered by Judge Joseph F. Bataillon. (Copy mailed to pro se party)(MKR)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
HAROLD B. WILSON,
Plaintiff,
v.
DIANE SABATKA-RINE, et al.,
Defendants.

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4:11CV3215

MEMORANDUM
AND ORDER

This matter is before the court on Defendants’ Motion for Summary Judgment.
(Filing No. 53.) Also pending are Plaintiff’s Motion to Reinstate Final Progression
Order, Motion for Appeal Conference, and Motion for Sanctions (hereafter “Plaintiff’s
Motion to Reinstate”). (Filing No. 62.) For the reasons set forth below, Defendants’
Motion for Summary Judgment is granted in part. Plaintiff’s Motion to Reinstate is
denied; however, a new progression order will be entered.
I.

BACKGROUND

Plaintiff, who is currently confined in the Lincoln Correctional Center (“LCC”),
filed his original Complaint in this matter on November 25, 2011. (Filing No. 1; see
also Docket Sheet.) On January 18, 2012, he filed an Amended Complaint naming
nine employees of the Nebraska Department of Correctional Services (“DCS”) as
Defendants in both their individual and official capacities. (Filing No. 12 at CM/ECF
pp. 1, 2.) The court reviewed the Amended Complaint to determine whether summary
dismissal would be appropriate under 28 U.S.C. §§ 1915(e) and 1915A. (See Filing
No. 15 at CM/ECF p. 1.) After completing this review, the court dismissed with
prejudice Plaintiff’s claims for monetary damages against Defendants in their official
capacities, dismissed without prejudice Plaintiff’s due process claims related to his
protective custody classification, concluded that the Amended Complaint fails to state
a claim upon which relief may be granted, and provided Plaintiff with an opportunity
to amend his Amended Complaint. (See generally Filing No. 15.)

Plaintiff filed a four-count Second Amended Complaint, (filing no. 18), and the
court conducted another review to determine whether summary dismissal was in order
(filing no. 19). The court dismissed Claim One, which reasserted Plaintiff’s
previously-dismissed protective custody classification claim and added new allegations
that Plaintiff’s “single cell” status was removed without due process. (Filing No. 19
at CM/ECF pp. 2-3.) The court also dismissed Claim Four, which alleged that certain
inmates received preferential treatment as a part of a transition program. (Id. at
CM/ECF p. 4.) The court determined, however, that Claim Two (which alleges First
Amendment violations), Claim Three (which alleges a First Amendment access to
courts violation), and Plaintiff’s state law claims could proceed to service. (Id. at
CM/ECF p. 3-4.)
In Claim Two, Plaintiff alleges that Defendants interfered with his practice of
the Wiccan religion by 1) preventing him from attending “Samhain and Yule rituals”;
2) transferring him from the Nebraska State Penitentiary (“NSP”) to the LCC, where
Wiccan inmates receive comparatively less class time, worship time, and access to
certain religious items; 3) denying Plaintiff’s request to attend two Wiccan Sabbats in
2011; 4) confiscating Plaintiff’s personal Book of Shadows, which records his
religious notes, rituals, spells, reflections, and meditations; 5) banning a particular
“Wiccan clergy person” from visiting Plaintiff during his time at NSP and failing to
locate a replacement; 6) depriving Plaintiff of his religious medallion for more than 30
days; and 7) denying Plaintiff access to a tarot card deck, runes, and gemstones while
he was in segregated confinement. (Filing No. 18 at CM/ECF pp. 7-9.) Plaintiff also
alleges that his cell does not provide enough space for him to cast a ritual circle. (Id.
at CM/ECF p. 7.) Separately, Plaintiff alleges in Claim Two that Defendants interfered
with his participation in a paralegal studies course by confiscating his textbook and
“forc[ing him] to send out three associated Cd-roms which [were] part of the course.”
(Id. at CM/ECF p. 8.)

2

In Claim Three, Plaintiff alleges that Defendants restricted him to no more than
50 minutes of law library access per week at NSP. (Id. at CM/ECF p. 9-10.) He adds
that these restrictions caused him to lose a case, which in turn resulted in the “Sheriff’s
Execution Sale” of Plaintiff’s mobile home. (Id.)
Plaintiff completed service upon the following Defendants: Diane Sabatka-Rine,
Melvin Rouf, Michael Edison, Randy Bartells, Zarata, Cockrell, Grove, Hoesing, and
Famon. (Filing Nos. 22, 23, 24, 25, 26, 27, 28, 29, and 30.) These Defendants were
served in their individual capacities, but not in their official capacities. (See Docket
Sheet.) On November 28, 2012, Plaintiff moved to voluntarily dismiss his claims
against “Jose Zarate, Kim Cockrell, Samuel Grove, Damian Hoesing, and Steve
Fannon.” (Filing No. 51 at CM/ECF p. 2.) This motion was granted, (filing no. 59);
thus, only Claims Two and Three against Defendants Sabatka-Rine, Rouf, Edison, and
Bartelt in their individual capacities remain viable.1
On January 7, 2013, Defendants filed a Motion for Summary Judgment along
with a supporting Brief and Index of Evidence. (Filing Nos. 53, 54, and 55.) On
January 22, 2013, Plaintiff filed a Reply in Opposition to Defendants’ Motion for
Summary Judgment. (Filing No. 56.)
This court’s local rules require a party moving for summary judgment to set
forth “a separate statement of material facts about which the moving party contends
there is no genuine issue to be tried and that entitle[] the moving party to judgment as
a matter of law.” NECivR 56.1(a)(1). If the non-moving party opposes the motion,

1

Although a summons was issued for “Randy Bartells,” documents in the record
show that the correct spelling of this Defendant’s surname is Bartelt. (Compare Filing
No. 22 with Def.’s Index, Ex. 4, Bartelt Aff., Filing No. 55-9.) In the interest of
clarity, the court will use the correct spelling.
Hereafter, the term “Defendants” refers to Sabatka-Rine, Rouf, Edison, and
Bartelt collectively and in their individual capacities only, unless otherwise indicated.
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that party must “include in its brief a concise response to the moving party’s statement
of material facts.” NECivR 56.1(b)(1). The non-moving party’s response must “state
the number of the paragraph in the movant’s statement of material facts that is
disputed” and must contain pinpoint citations to the evidence upon which the nonmoving party relies. Id. “Properly referenced material facts in the movant’s statement
are considered admitted unless controverted in the opposing party’s response.” Id.
(emphasis omitted).
Defendants have submitted a statement of material facts in accordance with the
court’s local rules, (see filing no. 54 at CM/ECF pp. 2-13), and they have authenticated
the evidence upon which they rely, (see filing no. 55). Although Plaintiff has
responded to Defendants’ Motion for Summary Judgment, he does not dispute any of
the numbered paragraphs in Defendants’ statement of material facts. (See generally
Filing No. 56.) Nor does he cite any evidence in support of his response. (See
generally id.) Plaintiff requests that his deposition (which is cited by Defendants in
support of their Motion for Summary Judgment) be stricken because “the court has
refused to allow [Plaintiff’s] request for deposing the defendants and witnesses in this
case.” (Id. at CM/ECF p. 6; see also Filing No. 59 at CM/ECF pp. 1-2 (denying
Plaintiff’s Motion for Sanctions and Objection to Interrogatories).) This request is
denied, and the court deems this matter fully submitted. The following undisputed
material facts are adopted for the purposes of this Memorandum and Order.
II.

UNDISPUTED MATERIAL FACTS

1.
Nebraska law provides that DCS “shall fulfill those functions of state
government relating to the custody, study, care, discipline, training, and treatment of
persons in correctional and detention institutions.” Neb. Rev. Stat. § 83-922.
2.
DCS maintains a grievance procedure governed by the Nebraska
Administrative Code, Title 68, Chapter 2. (See Def.’s Index, Ex. 5, Gilbride Aff. ¶¶
6-7 & Ex. A, Filing No. 55-11.)
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3.
DCS’s grievance procedure is set forth in Administrative Regulation (AR)
217.02. (Def.’s Index, Ex. 2, Sabatka-Rine Aff. Ex. C, Filing No. 55-5 at CM/ECF p.
12.)
4.
Plaintiff began his incarceration at DCS’s NSP in 1986. (Def.’s Index,
Ex. 1, Wilson Dep. at 9, Filing No. 55-1 at CM/ECF p. 3.) He remained at NSP until
January 4, 2012, when he was transferred to LCC. (Id., Ex. 1, Wilson Dep. at 22,
Filing No. 55-1 at CM/ECF p. 7.)
5.
Plaintiff has been practicing the Wiccan religion since he was 18 years
old. (Def.’s Index, Ex. 1, Wilson Dep. at 30, Filing No. 55-1 at CM/ECF p. 6.)2
6.
On or about September 1, 2011, Plaintiff discovered that another inmate
was stealing incense from the chapel and selling it on the yard. When Plaintiff
confronted the inmate, the inmate struck Plaintiff. The fight was not witnessed by NSP
staff, but on the following day NSP staff received information about the incident and
placed Plaintiff in segregation. (Def.’s Index, Ex. 1, Wilson Dep. at 23, Filing No. 551 at CM/ECF p. 7.) Plaintiff remained in segregation at NSP’s Housing Unit #4 from
September 2, 2011, until his transfer to LCC on January 4, 2012. (Id., Wilson Dep. at
14, Filing No. 55-1 at CM/ECF p. 5; Def.’s Index, Ex. 2, Sabatka-Rine Aff. ¶ 3, Filing
No. 55-2 at CM/ECF p. 1.)
7.
When Plaintiff was first placed in segregation, a “significant amount” of
his property was taken from him. (Def.’s Index, Ex. 1, Wilson Dep. at 17, Filing No.
55-1 at CM/ECF p. 5.) He was directed to send some of this property (i.e., certain
paperwork, law books, religious books, and CD-ROMs related to a paralegal course
he was taking) out of the institution for safety and security purposes. (Id., Wilson Dep.
at 17-19, 42, Filing No. 55-1 at CM/ECF p. 5, 11; Def.’s Index, Ex. 3, Edison Aff. ¶
4, Filing No. 55-8 at CM/ECF p. 2.) Other items (i.e., Plaintiff’s Book of Shadows,
2

Pages of Defendants’ Exhibit 1 are out of sequence.
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Religious Medallion, Tarot Cards, Religious Runes, and Religious Gemstones) were
sent to property control. (Def.’s Index, Ex. 3, Edison Aff. ¶ 5, Filing No. 55-8 at
CM/ECF p. 2.)
8.
NSP’s Operational Memorandum 204.001.101, which was in effect at
relevant times, states that inmates are allowed to keep a religious necklace with a
medallion, “up to 5 books/magazines,” and one deck of poker or pinochle cards while
in segregated confinement at Housing Unit #4. (Def.’s Index, Ex. 3, Edison Aff. ¶ 6,
Filing No. 55-8 at CM/ECF p. 2; see also id., Ex. 2, Sabatka-Rine Aff. ¶¶ 4-9, Filing
No. 55-2 at CM/ECF p. 2-3.)
A.

Plaintiff’s Book of Shadows

9.
Plaintiff’s Book of Shadows consisted of a three-ring binder containing
books, spells, rituals, prayers, and insights written by Plaintiff. (Def.’s Index, Ex. 1,
Wilson Dep. at 19, Filing No. 55-1 at CM/ECF p. 5.) Plaintiff describes the Book of
Shadows as being similar to a diary. (Id.)
10. Plaintiff states that at some unspecified time, he asked for his Book of
Shadows to be returned. He was informed that he could not have the binder because
it contained steel. Plaintiff then asked for the contents of the Book of Shadows to be
returned, and he was informed by NSP staff that the contents were not in their
possession. Plaintiff filed a grievance about this matter, and according to Plaintiff,
NSP staff reported “that they didn’t have it.” (Def.’s Index, Ex. 1, Wilson Dep. at 20,
Filing No. 55-1 at CM/ECF p. 5.)
11. NSP records show that on November 16, 2011, Plaintiff submitted an
Informal Grievance Resolution Form requesting that his Book of Shadows be returned
to him. (Def.’s Index, Ex. 2, Sabatka-Rine Aff. ¶ 12, Filing No. 55-2 at CM/ECF p.
3; id., Sabatka-Rine Aff. Ex. D, Filing No. 55-5 at CM/ECF p. 18.) On November 29,
2011, Defendant Edison, who serves as the Unit Manager of Housing Unit #4 at NSP,
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responded to Plaintiff’s grievance by writing, “This incident is being reviewed and
appropriate actions will be taken.” (Def.’s Index, Ex. 2, Sabatka-Rine Aff. ¶ 13, Filing
No. 55-2 at CM/ECF p. 3; id., Sabatka-Rine Aff. Ex. D, Filing No. 55-5 at CM/ECF
p. 18.) Defendant Sabatka-Rine, who serves as the Warden at NSP, states that NPS
staff received no further grievances from Plaintiff regarding the Book of Shadows or
its contents. (Id., Sabatka-Rine Aff. ¶¶ 1, -1, Filing No. 55-2 at CM/ECF pp. 1, 3.)
B.

Plaintiff’s Religious Medallion

12. When Plaintiff was placed in segregation on the day after the fight, an
unidentified officer took Plaintiff’s Religious Medallion from him. (Def.’s Index, Ex.
1, Wilson Dep. at 55-57, Filing No. 55-1 at CM/ECF pp. 14-15.) A property control
record indicates that Defendant Edison returned the Religious Medallion to Plaintiff
on October 13, 2011. (Def.’s Index, Ex. 3, Edison Aff. Ex. A, Filing No. 55-8 at
CM/ECF p. 4.)
C.

Plaintiff’s Tarot Cards and Gemstones

13. During his time in administrative segregation at NSP, Plaintiff was not
allowed to possess his Tarot Cards and Religious Gemstones. (Def.’s Index, Ex. 1,
Wilson Dep. at 59-60, Filing No. 55-1 at CM/ECF pp. 14-15.) The Tarot Cards and
Gemstones were returned to Plaintiff upon his transfer to LCC on January 4, 2012.
(Id.)
D.

Ritual Circle

14. Plaintiff’s religious beliefs require him to worship in a ritual circle during
each of eight annual Sabbats, during a full moon, and sometimes during a new moon.
(Def.’s Index, Ex. 1, Wilson Dep. at 29, Filing No. 55-1 at CM/ECF p. 6.)

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15. Plaintiff is not a “solitary practitioner” of Wicca; he always meets with
other Wiccans of similar faiths to practice his religion. (Def.’s Index, Ex. 1, Wilson
Dep. at 30-31, Filing No. 55-1 at CM/ECF p. 6.)
16. Plaintiff cannot cast a ritual circle in his cell because there is not enough
space for one, and he cannot practice Wicca with other inmates in his cell because
inmates are not allowed to enter each other’s cells. (Def.’s Index, Ex. 1, Wilson Dep.
at 31-32, Filing No. 55-1 at CM/ECF p. 6.) He can only cast ritual circles in the
religious center. (Id., Ex. 1, Wilson Dep. at 32, Filing No. 55-1 at CM/ECF p. 6.)
17. Plaintiff was permitted to practice ritual circle worship with other
Wiccans at the NSP Religious Center once per week. (Def.’s Index, Ex. 1, Wilson
Dep. at 32-33, Filing No. 55-1 at CM/ECF p. 6, 9.)
E.

Wiccan Clergy

18. Cynthia Blodgett-Griffin is the high priestess of the order of the Red
Grail, which is a local Wiccan coven. (Def.’s Index, Ex. 1, Wilson Dep. at 43-44,
Filing No. 55-1 at CM/ECF p. 11.)
19. Plaintiff was not allowed to see Blodgett-Griffin during his time in
segregation. (Def.’s Index, Ex. 1, Wilson Dep. at 43-44, Filing No. 55-1 at CM/ECF
p. 11.)
20. According to Defendant Bartelt, who serves as the Religious Coordinator
at NSP, Blodgett-Griffin was suspended from DCS indefinitely, effective August 24,
2011, for reasons unrelated to Plaintiff’s lawsuit. (Def.’s Index, Ex. 4, Bartelt Aff. ¶¶
1, 3, Filing No. 55-9 at CM/ECF p. 1.)
21. DCS AR 208.01, which is titled Religious Services, states, “If requested,
the Religious Coordinator shall assist the inmate in contacting religious
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representatives. However, the inmate is not guaranteed a specific religious
representative.” (Def.’s Index, Ex. 4, Bartelt Aff. Ex. A at 8, Filing No. 55-10 at
CM/ECF p. 2.)
22. Inmate Interview Request forms dated December 28, 2011, and January
4, 2012, indicate that DCS staff contacted a Rev. Philip Kessler on behalf of Plaintiff.
(Def.’s Index, Ex. 4, Bartelt Aff. Exs. B-C, Filing No. 55-10 at CM/ECF pp. 8-9.)
Rev. Kessler was a member of the Red Grail, the head of a second Wiccan coven
called Blue Moon Covenant, and the director of the Pagan Allied Network in Central
Nebraska. (Def.’s Index, Ex. 1, Wilson Dep. at 48, Filing No. 55-1 at CM/ECF p. 12.)
A clergy visitor application was sent to Rev. Kessler, but Rev. Kessler did not return
the application. (Def.’s Index, Ex. 4, Bartelt Aff. ¶¶ 11-12, Filing No. 55-9 at
CM/ECF p. 2.)
23. During his deposition, Plaintiff explained that he was alleging that
Defendants violated their own rules by failing to locate new Wiccan volunteers to
participate in religious programming at LCC. (Def.’s Index, Ex. 1, Wilson Dep. at 45,
Filing No. 55-1 at CM/ECF p. 12.)
24. Plaintiff and other Wiccans at LCC asked the LCC Religious Coordinator,
who is not a defendant in this action, to locate volunteers and Wiccan representatives
to come to LCC to participate in worship services and classes at LCC. (Def.’s Index,
Ex. 1, Wilson Dep. at 46-47, Filing No. 55-1 at CM/ECF p. 12.) The LCC Religious
Coordinator gave Plaintiff the address for Rev. Kessler. (Def.’s Index, Ex. 1, Wilson
Dep. at 47, Filing No. 55-1 at CM/ECF p. 12.) Plaintiff knew Rev. Kessler, and he
chose not to contact him because he assumed Rev. Kessler would not agree to serve
as a religious representative. (Def.’s Index, Ex. 1, Wilson Dep. at 47-49, Filing No.
55-1 at CM/ECF p. 12-13.) Plaintiff based this assumption on comments Rev. Kessler
made on a radio program. (Def.’s Index, Ex. 1, Wilson Dep. at 49, Filing No. 55-1 at
CM/ECF p. 13.) Plaintiff did not take any other action with the Religious Coordinator
to have a Wiccan clergy member come to LCC. (Id.)
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F.

Plaintiff’s Paralegal Course

25. When Plaintiff was placed in segregation in September 2011, he was
participating in a paralegal course through Adams State College. (See Def.’s Index,
Ex. 1, Wilson Dep. at 41-42, Filing No. 55-1 at CM/ECF p. 11.)
26. Plaintiff’s textbook was confiscated when he was placed in segregation.
The book was returned to him sometime later, and he was able to complete his
paralegal degree after a three-month delay. Plaintiff states that the delay remains a part
of the instant lawsuit, but the textbook itself is no longer part of the case. (Def.’s
Index, Ex. 1, Wilson Dep. at 41-42, Filing No. 55-1 at CM/ECF p. 11.)
G.

Plaintiff’s Access to the Courts Claim

27. Plaintiff’s access to the courts claim is based on events that occurred
during his segregated confinement at NSP between September 2011 and January 2012.
(Def.’s Index, Ex. 1, Wilson Dep. at 13-14, 87, Filing No. 55-1 at CM/ECF p. 4, 22.)
More specifically, Plaintiff’s claim pertains to his involvement in a case entitled
Ascentia Real Estate Investment Company FKA Colorado Real Estate and Investment
Co., d/b/a Woodlawn Estates Mobile Homes v. Glover, No. CI 11 14182 (hereinafter
Glover), in the County Court of Lancaster County, Nebraska. (Def.’s Index, Ex. 1,
Wilson Dep. at 95-96, Filing No. 55-1 at CM/ECF p. 24; Def.’s Index, Ex. 1, Wilson
Dep. Ex. 2, Filing No. 55-1 at CM/ECF p. 43.)
28. Glover was commenced on December 8, 2011, by Ascentia Real Estate
Investment Company (“Ascentia”), which filed a petition for restitution to obtain
immediate possession of a mobile home lot (hereinafter “the Premises”) located in
Lincoln, Nebraska. (Def.’s Index, Ex. 1, Wilson Dep. Ex. 2 at 1, Filing No. 55-1 at
CM/ECF p. 43.)

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29. The petition alleged that Jillian B. Glover occupied a mobile home
situated on the Premises under the terms of a written lease agreement; that Harold B.
Wilson3 and Gracy S. Sedlak4 were the owners of the mobile home situated on the
Premises; and Glover, Wilson, and Sedlak failed to pay rent, late fees, water and sewer
charges, trash removal, and mowing charges for the Premises. (Def.’s Index, Ex. 1,
Wilson Dep. Ex. 2 at 1-2, Filing No. 55-1 at CM/ECF pp. 43-44.)
28. On December 9, 2011, a summons was issued for service of the petition
upon Wilson at the Premises. (Def.’s Index, Ex. 1, Wilson Dep. Ex. 3 at 1, Filing No.
55-1 at CM/ECF p. 49.) The summons was returned unserved. (Def.’s Index, Ex. 1,
Wilson Dep. Ex. 3 at 2, Filing No. 55-1 at CM/ECF p. 50.)
29. On December 22, 2011, Ascentia moved for an order allowing substitute
service upon Wilson, Glover, and Sedlak. (Def.’s Index, Ex. 1, Wilson Dep. Ex. 4,
Filing No. 55-1 at CM/ECF p. 51-52.) This motion was granted on December 23,
2011, and the court determined that service “at the Defendants’ residence and by
regular United States mail will give Defendants notice of this action.” (Def.’s Index,
Ex. 1, Wilson Dep. Ex. 5, Filing No. 55-1 at CM/ECF p. 53.)
30. A county court Journal Entry and Order indicates that after Wilson,
Glover, and Sedlak failed to appear at a hearing on January 5, 2012, the court
concluded that the rental contract existing between the parties had been breached; that
there was unpaid rent owed to Ascentia; and that a writ of restitution would issue
“commanding the Sheriff or Constable to remove defendant(s) and all other occupants

3

In the interest of clarity, Plaintiff will be referred to by his surname (“Wilson”),
rather than “plaintiff” or “defendant,” throughout the following discussion of Glover.
4

Sedlak’s name is occasionally spelled “Sedlack” in various documents. The
court will use the spelling “Sedlak,” which corresponds to the spelling used by Ms.
Sedlak herself. (See, e.g., Def.’s Index, Ex. 1, Wilson Dep. Ex. 12 at 1, Filing No. 551 at CM/ECF p. 64.)
11

from the subject premises.” (Def.’s Index, Ex. 1, Wilson Dep. Ex. 7 at 3, Filing No.
55-1 at CM/ECF p. 58.) Judgment was entered in favor of Ascentia and against
Glover, Wilson, and Sedlak for restitution of the Premises. (Id.)
31. The writ of restitution was issued on January 6, 2012. (Def.’s Index, Ex.
1, Wilson Dep. Ex. 10, Filing No. 55-1 at CM/ECF p. 62.) The writ commanded the
sheriff “to cause the defendant(s) to be forthwith removed from the premises” and to
“levy the goods and chattels of said defendant(s).” (Id.)
32. On January 10, 2012, the sheriff posted a copy of the writ of restitution
on the mobile home. (Def.’s Index, Ex. 1, Wilson Dep. Ex. 16, Filing No. 55-1 at
CM/ECF p. 71.) The sheriff levied on the mobile home, which remained on the
Premises, on January 12, 2012. (Id.) Beginning on January 23, 2012, the sheriff
caused a notice to be published in the Daily Reporter for four consecutive weeks
stating that the mobile home would be offered for sale at public auction on February
23, 2012. (Def.’s Index, Ex. 1, Wilson Dep. Exs. 16-17, Filing No. 55-1 at CM/ECF
pp. 71-72.)
33. On January 31, 2012, Wilson and Sedlak filed an objection to the sale of
the mobile home. (Def.’s Index, Ex. 1, Wilson Dep. Ex. 12 at 1, Filing No. 55-1 at
CM/ECF p. 64.) A Lancaster County Court Civil Worksheet indicates that the county
court reviewed Wilson’s and Sedlak’s motion on February 3, 2012, and noted that
“Judgment was entered on 1/5/12 [and] 1/26/12.” (Def.’s Index, Ex. 1, Wilson Dep.
Ex. 13, Filing No. 55-1 at CM/ECF p. 66.)
34. On February 21, 2012, Wilson submitted to the county court a proposed
injunction to stop the sale of the mobile home. (Def.’s Index, Ex. 1, Wilson Dep. Ex.
14 at 1-3, Filing No. 55-1 at CM/ECF pp. 67-69.) Wilson’s request to stop the sale
was denied by the court on February 22, 2012. (Def.’s Index, Ex. 1, Wilson Dep. Ex.
15, Filing No. 55-1 at CM/ECF p. 70.)

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35. On February 23, 2012, ARA Homes purchased the mobile home at the
public auction for the sum of $1,500. (Def.’s Index, Ex. 1, Wilson Dep. Ex. 16, Filing
No. 55-1 at CM/ECF p. 71.) Sedlak appeared at the auction and attempted to buy the
mobile home back, but she did not have enough money to do so. (Id., Ex. 1, Wilson
Dep. at 70, Filing No. 55-1 at CM/ECF p. 18.)
36. Wilson states that he learned about Ascentia’s lawsuit in late November
or early December 2011 when a Dr. Barnwell visited him and informed him about it.
(Def.’s Index, Ex. 1, Wilson Dep. at 69, 74, Filing No. 55-1 at CM/ECF p. 18-19.)
After Wilson spoke with Dr. Barnwell, he communicated with Sedlak via mail about
the case. (Def.’s Index, Ex. 1, Wilson Dep. at 76, Filing No. 55-1 at CM/ECF p. 19.)
Also, in approximately November 2011, Wilson was allowed to have daily phone calls
with Sedlak. (Id.) Wilson told Sedlak “to make sure she goes to all the court
proceedings and make sure that she keeps [Wilson] informed of whatever that she’s
served.” (Id.) Wilson also began to conduct legal research to learn methods of
stopping the sheriff’s sale. (Def.’s Index, Ex. 1, Wilson Dep. at at 69-70, Filing No.
55-1 at CM/ECF p. 18.) He attempted to contact Ascentia’s counsel to discuss the
matter, but she refused to speak with him. (Def.’s Index, Ex. 1, Wilson Dep. at 72,
Filing No. 55-1 at CM/ECF p. 18.) Sedlak also attempted to negotiate with Ascentia’s
counsel, but she was unsuccessful. (Def.’s Index, Ex. 1, Wilson Dep. at at 71, Filing
No. 55-1 at CM/ECF p. 18.)
III.
A.

ANALYSIS

Standard of Review

Summary judgment should be granted only “if the movant shows that there is
no genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. Pro. 56(a). It is not the court’s function to weigh
evidence in the summary judgment record to determine the truth of any factual issue.
Schilf v. Eli Lilly & Co., 687 F.3d 947, 949 (8th Cir. 2012). In passing upon a motion
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for summary judgment, the district court must view the facts in the light most favorable
to the party opposing the motion. Dancy v. Hyster Co., 127 F.3d 649, 652-53 (8th Cir.
1997).
In order to withstand a motion for summary judgment, the nonmoving party
must substantiate allegations with “‘sufficient probative evidence [that] would permit
a finding in [his] favor on more than mere speculation, conjecture, or fantasy.’”
Moody v. St. Charles Cnty., 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).
B.

Defendants’ Motion for Summary Judgment

Defendants argue that they are entitled to summary judgment because they are
immune from suit in their individual capacities pursuant to the doctrine of qualified
immunity. (E.g., Filing No. 54 at CM/ECF p. 2.) “Qualified immunity shields
government officials from liability for civil damages and the burdens of litigation
‘insofar as their conduct does not violate clearly established statutory or constitutional
rights of which a reasonable person would have known.’” McKenney v. Harrison, 635
F.3d 354, 358 (8th Cir. 2011) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982)). “An official is entitled to qualified immunity against a § 1983 action unless
(1) the facts, construed in the light most favorable to the party seeking damages,
establish a violation of a constitutional or statutory right, and (2) the right was clearly
established at the time of the violation.” Id. (citing Pearson v. Callahan, 555 U.S. 223
(2009)).
Defendants also argue that some of Plaintiff’s claims must be dismissed because
1) Plaintiff failed to exhaust administrative remedies; 2) the claims are moot; or 3)
14

Plaintiff has failed to establish that Defendants had any personal involvement in any
wrongdoing, and they cannot be held liable on a theory of respondeat superior. (Filing
No. 54 at CM/ECF pp. 23-26.)
The court will analyze each of Plaintiff’s claims in turn to determine whether
Defendants are entitled to summary judgment.
1.

Book of Shadows

Defendants argue that Plaintiff’s claims surrounding the confiscation and loss
of his Book of Shadows must be dismissed because Plaintiff failed to exhaust
administrative remedies.
Under 42 U.S.C. § 1997e(a), a prisoner may not bring an action challenging
prison conditions pursuant to 42 U.S.C. § 1983 “until such administrative remedies as
are available are exhausted.” The Supreme Court instructs that “‘exhaustion’ under
§ 1997e(a) means proper exhaustion, that is, ‘using all steps that the agency holds out,
and doing so properly (so that the agency addresses the issues on the merits).’”
Hammett v. Cofield, 681 F.3d 945, 947 (8th Cir. 2012) (quoting Woodford v. Ngo, 548
U.S. 81, 90 (2006)). “Therefore, ‘a prisoner must complete the administrative review
process in accordance with the applicable procedural rules, including deadlines, as a
precondition to bringing suit in federal court.’” Id. (citation omitted).
The record shows that DCS rules and regulations provide for a three-step
grievance process. (E.g., Def.’s Index, Ex. 5, Gilbride Aff. Ex. A at 2-6, Filing No. 5511 at CM/ECF p. 4-8.) The record also shows that Plaintiff completed an Informal
Grievance Resolution Form on November 16, 2011, requesting return of the Book of
Shadows, but he did not complete the three-step grievance process. Therefore, the
court agrees with Defendants that Plaintiff failed to exhaust his administrative
remedies, and Plaintiff’s claims regarding the Book of Shadows must be dismissed.

15

2.

Medallion

Defendants argue that Plaintiff’s claim regarding the confiscation of his religious
medallion must be dismissed because there is no evidence that any of the named
defendants had any personal involvement in the confiscation. (Filing No. 54 at
CM/ECF pp. 26, 30.) The court agrees. There is evidence that Defendant Edison
returned the religious medallion to Plaintiff on October 13, 2011, but there is no
evidence that Edison (or any other Defendant) seized the religious medallion when
Plaintiff was taken to segregation. Plaintiff testified that he could not remember who
took the medallion, though he believed it might have been an officer named Cockral.
(Def.’s Index, Ex. 1, Wilson Dep. at 57, Filing No. 55-1 at CM/ECF p. 15.)
Defendants cannot be held liable for the seizure of the religious medallion under a
theory of respondeat superior. E.g., Nelson v. Corr. Med. Serv., 583 F.3d 522, 534-35
(8th Cir. 2009) (concluding, in a § 1983 case, an official is only liable for his own
misconduct and is not accountable for the misdeeds of his agents under a theory such
as respondeat superior or supervisor liability). Given the undisputed facts, the court
finds that Defendants are entitled to summary judgment on Plaintiff’s claims regarding
his religious medallion.
3.

Tarot Cards and Gemstones

Defendants argue that Plaintiff’s claims involving the confiscation of his Tarot
Cards and Gemstones are moot because Plaintiff “is no longer incarcerated at NSP and
subject to the allegedly offending policies” and because the items have been returned.
(Filing No. 54 at CM/ECF p. 25.) In support of their argument, Defendants rely upon
Zajrael v. Harmon, 677 F.3d 353, 355 (8th Cir. 2012), which states,
Zajrael’s claim for injunctive relief under [the Religious Land Use
and Institutionalized Persons Act (RLUIPA)] is moot. He complains
about policies or practices at the [East Arkansas Regional Unit (EARU)],
but he was transferred out of that facility in 2006, and is now housed at
16

the Varner facility. Because Zajrael is no longer subject to the policies
that he challenges, there is no live case or controversy. The exception to
the mootness doctrine for claims capable of repetition yet evading review
is not applicable, because Zajrael made no showing that a retransfer to
EARU is likely. Although this court might exercise jurisdiction after a
transfer if there was proof that officials moved an inmate for the purposes
of mooting his claim, there is no evidence of such motivation in this case.
Id. (citations omitted) (emphasis added). (See also Filing No. 54 at CM/ECF pp. 2425.)
Zajrael involved only “official capacity” claims against state employees;
therefore, the plaintiff was prohibited from seeking damages under the Religious Land
Use and Institutionalized Persons Act, and was limited to seeking prospective relief.
See 677 F.3d at 355. In contrast, Plaintiff has brought “individual capacity” claims
against Defendants, and he is not prohibited from seeking damages under § 1983. E.g.,
Hafer v. Melo, 502 U.S. 21, 31 (1991) (holding state officers sued in their individual
capacities be personally liable for damages under § 1983). Because Plaintiff is not
limited to obtaining only prospective relief, the court is not persuaded that Plaintiff’s
claims were rendered moot by his transfer from NSP to LCC. Nor does the fact that
Defendants eventually returned the religious items to Plaintiff render his claims moot.
Defendants also argue, in conclusory fashion, that they are immune from suit
because “it would not have been clear to a reasonable official in the position of
Defendants herein, under the specifically alleged factual context of this case, that any
of their conduct was unlawful.” (Filing No. 54 at CM/ECF p. 32.) Defendants’ failure
to provide any substantive support for this argument renders it difficult for the court
to determine whether Defendants are entitled to qualified immunity. Nevertheless, the
court will analyze whether “(1) the facts, construed in the light most favorable to the
party seeking damages, establish a violation of a constitutional or statutory right, and
(2) the right was clearly established at the time of the violation.” McKenney, 635 F.3d
at 358 (citing Pearson, 555 U.S.at 232).
17

“Although prisoners retain their constitutional rights, limitations may be placed
on the exercise of those rights in light of the needs of the penal system.” Murphy v.
Mo. Dep’t of Corr., 372 F.3d 979, 982 (8th Cir. 2004). Thus, “[c]onstitutional claims
that would otherwise receive strict scrutiny analysis if raised by a member of the
[public] are evaluated under a lesser standard of scrutiny in the context of a prison
setting.” Id. (citing Turner v. Safley, 482 U.S. 78, 81 (1987)). “A prison regulation
or action is valid, therefore, even if it restricts a prisoner’s constitutional rights if it is
‘reasonably related to legitimate penological interests.’” Id. (quoting Turner, 482 U.S.
at 89).
To analyze a claim based on an alleged violation of the First Amendment’s Free
Exercise Clause, the court should “consider first the threshold issue of whether the
challenged governmental action ‘infringes upon a sincerely held religious belief.’”
Murphy, 372 F.3d at 983 (quoting Hamilton v. Shriro, 74 F.3d 1545, 1550 (8th Cir.
1996)). The court should then consider the following four factors set forth in Turner:
1) whether there is a valid rational connection between the prison regulation and the
government interest justifying it; 2) whether there is an alternative means available to
the prison inmates to exercise the right; 3) whether an accommodation would have a
significant ripple effect on guards, other inmates, and prison resources; and 4) whether
there is an alternative that fully accommodates the prisoner at de minimis cost to valid
penological interests. See id. at 982-83 (citing Turner, 482 U.S. at 89-90).
In this case, there is no dispute that the confiscation of Plaintiff’s Tarot Cards
and Gemstones infringed on Plaintiff’s sincerely held religious belief. There is also
no dispute that pursuant to NSP policy, inmates in segregation were allowed to keep
(among other things) a religious medallion and poker or pinochle cards, but Plaintiff
was not allowed to keep his Tarot Cards or Gemstones. After considering the evidence
in a light favorable to Plaintiff and with the four Turner factors in mind, the court finds
that there is a genuine issue whether Plaintiff was deprived of his Tarot Cards in

18

violation of the First Amendment.5 Furthermore, the court is not persuaded that a
reasonable official would not have known that confiscating Plaintiff’s Tarot Cards
while allowing other inmates to possess playing cards would offend Plaintiff’s clearly
established First Amendment rights. In short, Defendants are not entitled to qualified
immunity on Plaintiff’s claim involving the confiscation of his Tarot Cards.
Finally, Defendants argue that there is no evidence that Sabatka-Rine, Rouf, or
Bartelt had any personal knowledge of, or involvement in, the confiscation of
Plaintiff’s religious property. (Filing No. 54 at CM/ECF p. 26.) The court agrees.
Because there is no evidence that Sabatka-Rine, Rouf, or Bartelt had any connection
with the confiscation of the Tarot Cards and Gemstones, and because they cannot be
held personally liable on a theory of respondeat superior, they are entitled to summary
judgment on this claim. Defendants do not suggest, however, that Edison had no
personal involvement in the confiscation of these items. (See id. at CM/ECF pp. 3032.) Therefore, Edison is not entitled to summary judgment.
In summary, Plaintiff’s claims that Defendants confiscated his Tarot Cards and
Gemstones in violation of the First Amendment remain viable against Edison in his
individual capacity. In all other respects, Defendants are entitled to summary
judgment on these claims.
4.

Ritual Circle

Defendants argue that Plaintiff’s inability to cast a ritual circle in his cell does
not violate the First Amendment because “the evidence shows it is not part of

5

The parties’ briefs and the evidence summarized therein do not provide the
court with sufficient information about the Plaintiff’s Gemstones to permit a wellreasoned determination about whether their confiscation violated the First Amendment.
The court therefore defers ruling on that issue pending additional facts and argument.
19

[Plaintiff’s] sincerely held religious belief to perform ritual circle worship in his cell.”
(Id. at CM/ECF p. 18.) Defendants explain,
[Plaintiff’s] sincerely held religious belief is that he practices ritual circle
worship at the LCC religious center with other Wiccans. [Plaintiff] never
has other Wiccans join him in his cell in order to perform ritual circle
worship. The only place at LCC with enough space for [Plaintiff] to
adequately cast a large enough ritual circle for worship with other
Wiccans is the LCC religious center. [Plaintiff] is currently allowed to
cast ritual circles large enough to practice his religious belief at the LCC
religious center with the other LCC Wiccans.
Consequently, the size of [Plaintiff’s] cell is immaterial to the
adequate practice of [Plaintiff’s] sincerely held religious beliefs because
[Plaintiff] never casts ritual circles in his cell and [Plaintiff] never has
other Wiccans join him in his cell for religious worship.
(Id.)
The court disagrees with Defendants’ suggestion that the size of Plaintiff’s cell
is immaterial to the practice of his religion. Indeed, the record clearly shows that
Plaintiff does not cast ritual circles in his cell because he lacks sufficient space and
because other Wiccans (with whom he must practice in accordance with his sincere
beliefs) are not allowed into Plaintiff’s cell. There is no indication that if these space
and access restrictions were removed, Plaintiff would not cast his ritual circles in his
cell. Put differently, the court is not persuaded that “the evidence shows it is not part
of [Plaintiff’s] sincerely held religious belief to perform ritual circle worship in his
cell.” (Id. at CM/ECF p. 18.)
Nevertheless, there is no dispute that Plaintiff was allowed to cast ritual circles
of adequate size, and with other Wiccan inmates participating, in the NSP religious
center once per week. Plaintiff has not claimed that this alternative is somehow
inadequate. Nor has he claimed that the Defendants should increase the size of
20

Plaintiff’s cell or alter the prison rules regarding inmates’ access to one another’s cells
to accommodate Plaintiff’s religious beliefs. In short, after considering the Turner
factors (see supra Part III.B.3), the court agrees that Plaintiff’s inability to cast ritual
circles in his cell does not violate the First Amendment, and that Defendants are
entitled to summary judgment on this claim.
5.

Wiccan Clergy

Plaintiff alleges that Defendants made no efforts to locate and recruit Wiccan
clergy to minister to Plaintiff after he was transferred to LCC. Defendants argue that
the undisputed facts do not support Plaintiff’s claim. (Filing No. 54 at CM/ECF p. 19.)
The court agrees. The record shows that the LCC Religious Coordinator identified
Rev. Kessler as a potential volunteer and provided Plaintiff with Rev. Kessler’s contact
information. Plaintiff then determined on his own not to contact Rev. Kessler, and he
took no further action with the Religious Coordinator to attempt to locate an alternate
clergy person. Because there is no indication that any Defendant acted or failed to act
in a manner that infringed upon Plaintiff’s sincerely held religious beliefs by hindering
his ability to obtain the services of a clergy person, Plaintiff cannot establish the
“threshold issue” of his claim. See Murphy, 372 F.3d at 983.
6.

Paralegal Course

Plaintiff has alleged that Defendants interfered with his participation in a
paralegal studies course by confiscating his textbook and forcing him to send courserelated CD-ROMs out of the institution. (Filing No. 18 at CM/ECF p. 8.) Defendants
argue that this claim must be dismissed because it has no connection with Plaintiff’s
religion. (Filing No. 54 at CM/ECF pp. 18-19.) It is well-established, however, that
restrictions limiting inmates’ access to non-religious books may be the subject of First
Amendment claims. See, e.g., Bell v. Wolfish, 441 U.S. 520, 548-52 (1979)
(concluding that a prohibition on inmates’ receipt of hardback books did not violate

21

the First Amendment because the restriction was a rational response to a security
problem).
Defendants also suggest that Plaintiff’s claim is moot because Plaintiff received
his paralegal degree in August 2012 and the confiscated textbook has been returned to
him. (Filing No. 54 at CM/ECF p. 19.) For the reasons set forth above in Part III.B.3,
the court is not persuaded that the claim is moot.
As noted previously, Defendants offer a conclusory argument that they are
immune from suit because “it would not have been clear to a reasonable official in the
position of Defendants herein, under the specifically alleged factual context of this
case, that any of their conduct was unlawful.” (Id. at CM/ECF p. 32.) Also as noted
previously, the vagueness of Defendants’ argument makes it difficult for the court to
analyze the issue of qualified immunity. In any case, the record shows that inmates in
segregation at NSP were entitled to possess five books or magazines, and yet Plaintiff
was not allowed to possess his paralegal course book. Thus, viewed in a light
favorable to Plaintiff, the evidence indicates that the confiscation of the materials
violated NSP’s own regulation. Furthermore, after considering and applying the
Turner factors described above,6 and given the paucity of the briefing on this issue, the
court is not persuaded that the facts fail to establish a First Amendment violation. Nor
is the court persuaded that a reasonable officer would not have been aware that
depriving Plaintiff of his course materials without a rational basis for doing so would
violate the First Amendment.

6

To refresh, the court should consider: 1) whether there is a valid rational
connection between the prison regulation and the government interest justifying it; 2)
whether there is an alternative means available to the prison inmates to exercise the
right; 3) whether an accommodation would have a significant ripple effect on guards,
other inmates, and prison resources; and 4) whether there is an alternative that fully
accommodates the prisoner at de minimis cost to valid penological interests. See
Murphy, 372 F.3d at 982-83 (citing Turner, 482 U.S. at 89-90).
22

The court agrees with Defendants, however, that there is no evidence that
Sabatka-Rine, Rouf, or Bartelt personally interfered with Plaintiff’s paralegal course
or had any knowledge that such interference was occurring. These Defendants are
therefore entitled to summary judgment on this claim. Because Defendants do not
appear to argue that Edison had no personal involvement in the confiscation of
Plaintiff’s course materials (see filing no. 54 at CM/ECF pp. 30-32), Plaintiff’s claim
remains viable against Edison.
7.

Access to Courts

Plaintiff alleges that Defendants violated his right to meaningful access to the
courts, and as a result of this interference he was unable to mount an effective defense
in the Grove case. (Filing No. 18 at CM/ECF pp. 9-10.)
The framework for analyzing access to court claims brought by inmates is set
forth in Lewis v. Casey, 518 U.S. 343 (1996). “Lewis explains and narrows the
Supreme Court’s earlier holding in Bounds v. Smith, 430 U.S. 817, 97 S. Ct. 1491, 52
L. Ed. 2d 606 (1977), concerning the nature of the right and the requirements for relief.
In the context of an allegedly inadequate prison law library, the Court determined that
the right of access to the courts guarantees an inmate the ability to file lawsuits that
directly or collaterally attack the inmate’s sentence or that challenge the conditions of
the inmate’s confinement, but it does not extend the right to ‘discover grievances’ or
to ‘litigate effectively once in court.’” Cody v. Weber, 256 F.3d 764, 767-68 (8th Cir.
2001) (quoting Lewis, 518 U.S. at 354-55). In short, Lewis states,
Bounds does not guarantee inmates the wherewithal to transform
themselves into litigating engines capable of filing everything from
shareholder derivative actions to slip-and-fall claims. The tools it
requires to be provided are those that the inmates need in order to attack
their sentences, directly and collaterally, and in order to challenge the
conditions of their confinement. Impairment of any other litigating

23

capacity is simply one of the incidental (and perfectly constitutional)
consequences of conviction and incarceration.
518 U.S. at 355 (emphasis in original).
Viewing the record in a light favorable to Plaintiff, it is clear that Plaintiff has
not suffered the sort of injury that falls within the constitutional protections afforded
in Bounds and Lewis. The Grove case was not related to Plaintiff’s sentence,
conviction, or conditions of confinement, and therefore Defendants had no
constitutional obligation to provide him with the resources to litigate it. Defendants
are therefore entitled to summary judgment on Plaintiff’s access to the courts claim.
8.

Remaining Claims

The Second Amended Complaint includes allegations that Defendants
transferred Plaintiff from NSP to LCC in order to interfere with his practice of Wicca.
(Filing No. 18 at CM/ECF pp. 7-8; see also Filing No. 56 at CM/ECF p. 4.) It also
includes allegations that Defendants refused to allow Plaintiff to attend Samhain and
Yule rituals and “two sabbats in 2011.” (Filing No. 18 at CM/ECF p. 7.) Defendants’
Motion for Summary Judgment does not address these claims; therefore, they remain
viable.
In summary, Defendants are entitled to summary judgment on Plaintiff’s claims
involving the Book of Shadows, the religious medallion, the ritual circle, the Wiccan
clergy, and access to the court. Defendants Sabatka-Rine, Rouf, and Bartelt are also
entitled to summary judgment on Plaintiff’s claims involving Tarot Cards, Gemstones,
and paralegal course materials. Plaintiff’s claims involving Tarot Cards, Gemstones,
and paralegal course materials remain viable against Defendant Edison in his
individual capacity. Plaintiff’s claims involving his transfer from NSP to LCC and
interference with his attendance at religious rituals remain viable against all
Defendants in their individual capacities.
24

C.

Plaintiff’s Motion to Reinstate

Plaintiff has filed a Motion requesting that the court reinstate the Progression
Order. (Filing No. 62; see also Filing No. 37.) This request is well-taken; however,
the court finds that entry of a new progression order would be preferable to the
reinstatement of the existing one. Plaintiff’s request is therefore denied.
Plaintiff also “moves under Rule 33 for a conference with the Defendants to
address possible settlement.” (Filing No. 62 at CM/ECF p. 1.) This request is denied,
though the parties are encouraged to discuss the possible settlement of this action.
Finally, Plaintiff asks for sanctions due to Defendants’ alleged failure “to answer
properly served Interrogatories.” (Id. at CM/ECF p. 1.) As there has been no showing
that Defendants had notice of Plaintiff’s interrogatories before he filed his Motion or
that Plaintiff consulted with Defendants’ counsel to resolve the dispute, Plaintiff’s
request for sanctions is denied.
IT IS THEREFORE ORDERED that:
1.

Defendants’ Motion for Summary Judgment (filing no. 53) is granted in
part and denied in part as set forth in this Memorandum and Order.

2.

Plaintiff’s Motion to Reinstate (filing no. 62) is denied.

25

3.

A new Order Setting Schedule for Progression of Case will be entered.

DATED this 27th day of September, 2013.
BY THE COURT:
s/ Joseph F. Bataillon
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 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.
26