Winters v. Baker et al

Filing 14

MEMORANDUM AND ORDER denyin- Plaintiff's Motion for Protection/Restraining Order (Filing No. 11 ) is denied. Plaintiff's Motion for Copies and Information (Filing No. 12 ) is granted in part and denied in part in accordance with this M emorandum and Order. Plaintiff's constitutional claims for monetary damages against Defendants in their official capacities are dismissed with prejudice. Plaintiff's retaliation and Eighth Amendment claims against Defendants in their o fficial capacities, for injunctive relief, may proceed to service. In addition, plaintiff's state law claims may proceed to service. To obtain service of process on Defendants, plaintiff must complete and retu rn the summons forms which the cl erk of the court will provide. The clerk of the court shall send FOUR (4) summons forms and FOUR (4) USM-285 forms (for service on Defendants in their official capacities 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 clerk of the court. In the absence of the forms, service of process cannot occur. Upon receipt of the completed forms, the clerk of the court will sign the su mmons form, to be forwarded with a copy of the amended complaint to the U.S. Marshal for service of process. The clerk of the court is directed to set a pro se case management deadline in this case with the following text: "March 3, 2014: Check for completion of service of summons." Ordered by Senior Judge Lyle E. Strom. (Copy mailed to pro se party with forms)(AOA)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
BEAUFORD WILMER WINTERS,
Plaintiff,

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v.
BAKER, Sgt. (of the Tecumseh
State Correctional
Institution), BALLUE, Cpl,
SANFORD, Cpl., and HERREA, &
Cpl. (of the Tecumseh Stat
Correctional Institution),
Defendants.

4:13CV3135

MEMORANDUM AND ORDER

This matter is before the Court on plaintiff’s Amended
Complaint (Filing No. 13), Motion for Protection/Restraining
Order (Filing No. 11), and Motion for Copies and Information
(Filing No. 12).
I.

The Court will address each filing in turn.

AMENDED COMPLAINT
On October 15, 2013, the Court conducted an initial

review of plaintiff’s complaint and determined that it failed to
state a claim upon which relief could be granted (Filing No. 10).
However, the Court gave plaintiff until November 12, 2013, to
file an amended complaint.

(Id. at CM/ECF p. 7.)

On October 25,

2013, plaintiff filed an amended complaint (Filing No. 13).
After reviewing plaintiff’s amended complaint, and when
liberally construed, plaintiff has alleged sufficient facts to

state a retaliation claim and an Eighth Amendment claim against
Defendants in their official capacities for injunctive relief
only.

See Cooper v. Schriro, 189 F.3d 781, 784 (8th Cir. 1999)

(per curiam) (allegation that correction officers threatened
inmate’s safety because he used prison grievance system is
actionable retaliation claim under § 1983).

Accordingly, the

Court will permit plaintiff’s retaliation and Eighth Amendment
claims against Defendants in their official capacities, for
injunctive relief, to proceed to service.

To the extent that

plaintiff alleges state law claims, such claims may also proceed
to service.

However, for the reasoning discussed in the Court’s

October 15, 2013, Memorandum and Order, plaintiff’s
constitutional claims for monetary damages will be dismissed
(Filing No. 10 at CM/ECF pp. 5-6).
II.

MOTION FOR PROTECTION/RESTRAINING ORDER
Also pending is plaintiff’s Motion for Protection/

Restraining Order (Filing No. 11).

In this motion, plaintiff

alleges that Defendants are in a “supervisory position” over him
and that he thinks they will retaliate against him for filing
this case.

(Id.)

Liberally construed, plaintiff asks the Court

to enter an order that prevents the named Defendants from
interacting with plaintiff.

(Id.)

The standards set forth by

Dataphase Sys., Inc. v. C.L. Sys., Inc., 640 F.2d 109 (8th Cir.
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1981), apply to plaintiff’s request.

In Dataphase, the Court,

sitting en banc, clarified the factors district courts should
consider when determining whether to grant a motion for
preliminary injunctive relief:
(1) the threat of irreparable harm
to the movant; (2) the state of
balance between this harm and the
injury that granting the injunction
will inflict on other parties
litigant; (3) the probability that
movant will succeed on the merits;
and (4) the public interest.
Id. at 114.

“No single factor in itself is dispositive; rather,

each factor must be considered to determine whether the balance
of equities weighs toward granting the injunction.”

United

Indus. Corp. v. Clorox Co., 140 F.3d 1175, 1179 (8th Cir. 1998).
“At base, the question is whether the balance of equities so
favors the movant that justice requires the court to intervene to
preserve the status quo until the merits are determined . . . .”
Dataphase, 640 F.2d at 113.
After carefully considering the record, including
plaintiff’s motion, the Court finds that the Dataphase factors do
not favor plaintiff to a degree sufficient to warrant issuance of
preliminary injunctive relief.

Accordingly, plaintiff’s Motion

for Protection/Restraining Order will be denied without
prejudice.

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III. MOTION FOR COPIES AND INFORMATION
Last, plaintiff has filed a document that the Court
liberally construes as a Motion for Copies and Information
(Filing No. 12).

In the motion, plaintiff asks the Court for

information about this case and for copies of every document
filed in this case.

(Id.)

However, plaintiff does not have the

right to receive copies of documents without payment, even if the
Court granted him leave to proceed in forma pauperis.

28 U.S.C.

§ 1915; see also Haymes v. Smith, 73 F.R.D. 572, 574 (W.D.N.Y.
1976) (“The generally recognized rule is that a court may not
authorize the commitment of federal funds to underwrite the
necessary expenditures of an indigent civil litigant’s action.”)
(citing Tyler v. Lark, 472 F.2d 1077 (8th Cir. 1973), other
citations omitted).

If plaintiff requires copies of court

documents, he should contact the clerk of the court to determine
the proper method of requesting and paying for copies.

To the

extent this Memorandum and Order addresses plaintiff’s request
for information, his motion will be granted.

To the extent

plaintiff seeks some other form of relief, his motion will be
denied.

Accordingly,
IT IS ORDERED:
1.

Plaintiff’s Motion for Protection/Restraining

Order (Filing No. 11) is denied.
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2.

Plaintiff’s Motion for Copies and Information

(Filing No. 12) is granted in part and denied in part in
accordance with this Memorandum and Order.
3.

Plaintiff’s constitutional claims for monetary

damages against Defendants in their official capacities are
dismissed with prejudice.
4.

Plaintiff’s retaliation and Eighth Amendment

claims against Defendants in their official capacities, for
injunctive relief, may proceed to service.

In addition,

plaintiff’s state law claims may proceed to service.
5.

To obtain service of process on Defendants,

plaintiff must complete and return the summons forms which the
clerk of the court will provide.

The clerk of the court shall

send FOUR (4) summons forms and FOUR (4) USM-285 forms (for
service on Defendants in their official capacities 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 clerk of the court.

In the

absence of the forms, service of process cannot occur.
6.

Upon receipt of the completed forms, the clerk of

the court will sign the summons form, to be forwarded with a copy
of the amended complaint to the U.S. Marshal for service of
process.

The Marshal shall serve the summons and amended
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complaint without payment of costs or fees.

Service may be by

certified mail pursuant to Fed. R. Civ. P. 4 and Nebraska law in
the discretion of the Marshal.

The clerk of the court will copy

the amended complaint, and plaintiff does not need to do so.
7.

Fed. R. Civ. Pro. 4 requires service of a

complaint on a defendant within 120 days of filing the complaint.
However, because in this order plaintiff is informed for the
first time of these requirements, plaintiff is granted, on the
Court’s own motion, an extension of time until 120 days from the
date of this order to complete service of process.
8.

Plaintiff is hereby notified that failure to

obtain service of process on a defendant within 120 days of the
date of this order may result in dismissal of this matter without
further notice as to such defendant.

A defendant has twenty-one

(21) days after receipt of the summons to answer or otherwise
respond to a complaint.
9.

The clerk of the court is directed to set a pro se

case management deadline in this case with the following text:
“March 3, 2014:
10.

Check for completion of service of summons.”
The parties are bound by the Federal Rules of

Civil Procedure and by the Local Rules of this Court.

Plaintiff

shall keep the Court informed of his current address at all times

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while this case is pending.

Failure to do so may result in

dismissal.
DATED this 5th day of November, 2013.
BY THE COURT:
/s/ Lyle E. Strom
____________________________
LYLE E. STROM, Senior Judge
United States District Court

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