Winters v. Baker et al

Filing 33

MEMORANDUM OPINION before the Court on the motion of defendants to dismiss plaintiff's official capacity claims 31 . 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)(MKR)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
BEAUFORD WILMER WINTERS,
Plaintiff,
v.
BAKER, Sgt. (of the Tecumseh
State Correctional
Institution), BALLUE, Cpl,
SANFORD, Cpl., and HERREA, &
Cpl. (of the Tecumseh State
Correctional Institution),
Defendants.

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4:13CV3135

MEMORANDUM OPINION

This matter is before the Court on the motion of the
defendants to dismiss plaintiff’s official capacity claims
(Filing No. 31).

The plaintiff Beauford Winters (“Winters”)

appears pro se and has failed to respond.

Defendants seek

dismissal solely on the basis that service of process was
insufficient.
I. STANDARD OF REVIEW
In deciding a motion to dismiss, the reviewing court
views the facts in the light most favorable to the nonmoving
party, and gives the nonmoving party the benefit of all
reasonable inferences that can be drawn from the facts.
Knaub, 245 Neb. 172, 512 N.W.2d 124 (1994).

Knaub v.

If there is evidence

in favor of the nonmoving party, the case may not be decided as a

matter of law, and a motion to dismiss may not be granted.

Id.

Under Haines v. Kerner, pleadings prepared by inmates who lack
access to counsel must be liberally construed.
(1972).

404 U.S. 519

However, the pleadings must still contain sufficient

facts upon which a claim can be based. See, e.g., Brandon v.
County of Richardson, 252 Neb. 839, 566 N.W.2d 766 (1997).
II. DISCUSSION
Defendants argue that plaintiff has failed to effect
service of process by either of the options afforded under
Federal Rule of Civil Procedure 4(j).

Rule 4(j) provides for

service by
(A) delivering a copy of the
summons and of the complaint to its
chief executive officer; or
(B) serving a copy of each in the
manner prescribed by that state's
law for serving a summons or like
process on such a defendant.
Plaintiff served the individual defendants at their
place of employment.

Service was not made with Michael Kenney,

Director of the Nebraska Department of Correctional Services -the chief executive officer of the governmental body by which the
defendants were employed.

Nor was service made at the Attorney

General’s Office in accordance with Nebraska law.

The Eighth

Circuit has not ruled on whether Rule 4(e) or Rule 4(j) is the

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appropriate method of service for state employees being sued in
their official capacity, but the Court will follow the cases from
this district which have pursued analysis under 4(j).

Montin v.

Gibson, 4:09CV3153, 2010 WL 2287572 (D. Neb. June 3, 2010);
Montin v. Estate of Johnson, 4:07CV3271, 2008 WL 4225244 (D. Neb.
Sept. 9, 2008).

But see, Echevarria-Gonzalez v. Gonzalez-Chapel,

849 F.2d 24, 28 (1st Cir. 1988) (requiring plaintiffs serving
state employees in their official capacity to comply with Rule
4(e)).

Plaintiff has not complied with the service requirements

of Rule 4.
As explained in the Court’s previous order, plaintiff’s
complaint is construed to have sued the defendants in their
official capacity only.
case.

This leaves no further claims in this

See Winters v. Baker, 4:13CV3135, 2014 WL 3547923 (D. Neb.

July 17, 2014).

A separate order will be entered in accordance

with this memorandum opinion.
DATED this 18th day of August, 2014.
BY THE COURT:
/s/ Lyle E. Strom
____________________________
LYLE E. STROM, Senior Judge
United States District Court

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