Montin v. Moore et al

Filing 33

ORDER that Defendant's motion for leave to file supplemental support brief #27 is denied as moot. Defendant's motion to strike and substitute supplemental support brief #28 is granted. Defendant Scalora's motion for summary judgment #4 is denied, without prejudice. Plaintiff's motion to defer action of summary judgment motion #14 is denied as moot. Ordered by Senior Judge Lyle E. Strom. (SLP)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
JOHN MAXWELL MONTIN,

)
)
Plaintiff,
)
)
v.
)
)
Y. SCOTT MOORE, M.D., MARIO
)
SCALORA, Ph.D., MARY PAINE,
)
Ph.D., STEPHEN PADEN, M.D.,
)
LISA WOODWARD, Ph.D., CHIN
)
CHUNG, M.D., MARCO BAQUERO,
)
M.D., EUGENE OLIVETO, M.D.,
)
ANN EVELYN, M.D., DINESH
)
KARUMANCHI, M.D., RAJEEV
)
CHATURVEDI, M.D., JOANNE
)
MURNEY, Ph.D., SHERRI
)
BROWNING, Ph.D., LORRENE
)
JURGENS, Nurse Practitioner, )
MINDY ABEL, Psy.D., CYNTHIA
)
PETERSON, Nurse Practitioner, )
JAMES ALLISON, Ph.D., CORRINE )
McCOY, Program Manager,
)
JENNIFER CIMPL, Psy.D.,
)
SHANNON BLACK, Psy.D.,
)
ZAKARIA SIDDIQUI, M.D.,
)
ROBERTO ALVES, Psy.D.,
)
KATHLEEN BARRETT, Psy.D.,
)
KLAUS HARTMANN, M.D.,
)
)
Defendants.
)
)

4:14CV3142

MEMORANDUM AND ORDER

This matter is before the Court upon defendant Mario
Scalora’s motion for summary judgment filed pursuant to Federal
Rule of Civil Procedure 56 (Filing No. 4) with an index of
evidence (Filing No. 5) and supporting brief (Filing No. 6).

The

plaintiff responded by filing a motion to defer action on summary

judgment under Rule 56(d) of the Federal Rules of Civil Procedure
(Filing No. 14), with an index of evidence (Filing No. 15), an
affidavit (Filing No. 16), and brief in support of his motion
(Filing No. 17).

The defendant responded to the plaintiff’s

motion to defer action on summary judgment with a brief in
opposition (Filing No. 19), to which the plaintiff replied
(Filing No. 29).

Defendant Scalora filed a motion (Filing No.

28) to strike his original supplemental support brief (Filing No.
27).

Upon reviewing the motions, briefs, evidence, and relevant

law, the Court finds as follows.
BACKGROUND
The plaintiff, John Maxwell Montin (“Montin”), filed a
complaint on July 11, 2014, alleging violation of his civil
rights pursuant to 42 U.S.C. § 1983 and state tort medical
malpractice claims (Filing No. 1).

The plaintiff’s claims arise

out of his evaluation and diagnosis while committed to the
Lincoln Regional Center (“LRC”).

Montin was committed to the LRC

on August 13, 1993, by the Hays County District Court for an
evaluation after a jury found him to be not responsible by reason
of insanity on two felony charges (Id. at ¶ 29).

On July 16,

2013, Montin was unconditionally released from court-ordered
treatment at LRC because he was found to be no longer dangerous
to himself or others by reason of mental illness or defect and
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will not be so dangerous in the foreseeable future (Id. at ¶ 31).
The plaintiff alleges that the defendants failed to determine
that he was not mentally ill, and that he did not suffer from a
condition requiring treatment (Id. at ¶ 40).

In addition, the

plaintiff alleges various civil rights claims against the named
defendants (Id. at ¶¶ 76-90).
Defendant Mario Scalora (“Scalora”) moves this Court
under Rule 56 of the Federal Rules of Civil Procedure for summary
judgment in his favor.

Scalora argues that any claim against him

is barred by the applicable statue of limitations, and that any
claim against him for damages is barred by state sovereign
immunity, U.S. Const. amend. XI, absolute and qualified immunity
(Filing No. 6, at 1).

In response, Montin moves this Court to

defer or deny Scalora’s motion for summary judgment to allow time
for discovery.

Montin argues that he has had no opportunity for

discovery, and deferring the summary judgment ruling would allow
him to obtain discovery relevant to the state law malpractice
cause of action (Filing No. 29, at 1, 6).
STANDARD OF REVIEW: SUMMARY JUDGMENT
Summary judgment may be entered when there is no
genuine issue of material fact and the moving party is entitled
to judgment as a matter of law.

Fed. R. Civ. P. 56.

The burden

of proof is on the moving party to set forth the basis of its
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motion.

Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548,

91 L.Ed.2d 265 (1986).

The Court must view all facts and

inferences in the light most favorable to the nonmoving party.
Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 106
S.Ct. 1348, 89 L.Ed.2d 538 (1986).

"The non-moving party,

however, must still "present evidence sufficiently supporting the
disputed material facts that a reasonable jury could return a
verdict in [their] favor."

Pope v. ESA Services, Inc., 406 F.3d

1001, 1003-4 (8th Cir. 2005) (quoting Gregory v. City of Rogers,
Ark., 976 F.2d 1006, 1010 (8th Cir. 1992)).

Summary judgment is

appropriate where a plaintiff fails to present evidence
sufficient to create a jury question as to an essential element
of his claim.

Turner v. Honeywell Fed. Manuf. & Tech., 336 F.3d

716 (8th Cir. 2003).
FEDERAL RULE OF CIVIL PROCEDURE 56(d)
Federal Rule of Civil Procedure 56(d) states,
When Facts Are Unavailable to the
Nonmovant. If a nonmovant shows by
affidavit or declaration that, for
specified reasons, it cannot
present facts essential to justify
its opposition, the court may:
(1) defer considering the motion or
deny it;
(2) allow time to obtain affidavits
discoorrdeclarations or to take
ve y; or

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(3) issue any other appropriate
order.
“Although discovery need not be complete before a case
is dismissed, summary judgment is proper only if the nonmovant
has had adequate time for discovery.” Robinson v. Terex Corp. 439
F.3d 465, 467 (8th Cir. 2006).

“[Rule 56(d)] allows a summary

judgment motion to be denied, or the hearing on the motion to be
continued, if the nonmoving party has not had an opportunity to
make full discovery.”

Celotex, 477 U.S. at 326.

“The nonmoving

party must make a showing, however, that discovery has been
inadequate.”

Robinson, 439 F.3d at 467.

“Rule [56(d)] is not a shield that can be raised to
block a motion for summary judgment without even the slightest
showing by the opposing party that his opposition is
meritorious.”

Willmar Poultry Co. v. Morton-Norwich Prod., Inc.,

520 F.2d 289, 297 (8th Cir. 1975).

Instead, “[a] party invoking

its protections must do so in good faith by affirmatively
demonstrating . . . how postponement of a ruling on the motion
will enable him, by discovery or other means, to rebut the
movant’s showing of the absence of a genuine issue of fact.”

Id.

“[Rule 56(d)] provides a ‘safeguard against an improvident or
premature grant of summary judgment . . . and [it] should be
applied with a spirit of liberality.’”

Weber v. The Travelers

Home and Marine Ins. Co., No. 10–2142, 2011 WL 1757563, at *1 (D.
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Minn. March 1, 2011) (quoting United States ex rel. Bernard v.
Casino Magic Corp., 293 F.3d 419, 426 (8th Cir. 2002)).
Here, Montin maintains that defendant Scalora’s motion
for summary judgment is premature because he has had no
opportunity to conduct discovery.

Montin argues that discovery

could help develop evidence for the statute of limitations issue.
Montin wishes to investigate Scalora’s involvement with the LRC
and University of Nebraska graduate students after May 2010.

In

addition, Montin claims that discovery will aid in determining
Scalora’s role and function at the LRC.
Scalora, on the other hand, argues that discovery is
not necessary.

Scalora claims that Montin has not alleged any

facts which would toll the running of the statute of limitations.
In addition, Scalora argues that additional information is not
material to the resolution of the summary judgment motion.
The Court finds that Montin is entitled to a
postponement of the ruling on defendant’s motion for summary
judgment so that Montin may proceed with discovery.

The

plaintiff is not using Rule 56(d) as a shield, but rather
genuinely believes that discovery may impact the merits of the
motion for summary judgment.

Defendant’s motion for summary

judgment will be denied, without prejudice, with leave to re-file
following discovery.

Accordingly,
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IT IS ORDERED:
1) Defendant’s motion for leave to file supplemental
support brief (Filing No. 27) is denied as moot.
2) Defendant’s motion to strike and substitute
supplemental support brief (Filing No. 28) is granted.
3) Defendant Scalora’s motion for summary judgment
(Filing No. 4) is denied, without prejudice.
4) Plaintiff’s motion to defer action of summary
judgment motion (Filing No. 14) is denied as moot.
DATED this 22nd day of December, 2014.
BY THE COURT:
/s/ Lyle E. Strom
____________________________
LYLE E. STROM, Senior Judge
United States District Court

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