Oliveira-Coutinho v. Frakes et al

Filing 88

MEMORANDUM AND ORDER - Plaintiff's Motions for Limited Interrogatories and Request for Admissions (Filing Nos. 74 , 75 , 76 , 77 , 78 , 79 ) are denied. Plaintiff's Motion to Disqualify Defendants' Counsel (Filing No. 72 ) is de nied. The Clerk of Court is directed to terminate Plaintiff's "Objection" (Filing No. 82 ) as a pending motion and re-docket it as a Brief in Opposition to Defendants' Motion for Summary Judgment (Filing No. 63 ). Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party) (KLF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
JOSE OLIVEIRA-COUTINHO,
Plaintiff,
v.
SCOTT FRAKES, Director of
Nebraska Dept of Correctional
Services, et al.,
Defendants.

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4:15CV3159

MEMORANDUM
AND ORDER

Six days after the court denied Plaintiff’s Motion for Limited Discovery (Filing
No. 70), Plaintiff filed six more Motions for Limited Interrogatories and Request for
Admissions (Filing Nos. 74-79). The motions request limited discovery “in order to
provide the plaintiff an opportunity to adequately and meaningfully reply to
Defendants’ Brief In Support of Motion for Summary Judgment.” (Filing No. 74.)
For the same reasons stated in the court’s prior order (Filing No. 73) denying
Plaintiff’s previous Motion for Limited Discovery (Filing No. 70), Plaintiff’s
additional Motions for Limited Interrogatories and Request for Admissions (Filing
Nos. 74-79) will also be denied because:
1.

Plaintiff previously filed two Motions for Extensions of Time (Filing
Nos. 66, 68) within which to respond to Defendants’ Motion for
Summary Judgment, which were granted. (Filing No. 69.) Neither of
Plaintiff’s prior Motions for Extension of Time asserted that Plaintiff
needed additional discovery in order to respond to Defendants’ Motion.

2.

Plaintiff does not explain why the additional discovery he now seeks
could not have been requested before discovery closed along with his

other discovery requests. (See Filing No. 41, Plaintiff’s Motion for
Discovery dated June 15, 2017, requesting numerous documents dealing
with legal books available at Plaintiff’s institution, availability of
interpreters and translations, and dozens of administrative regulations
and operational memoranda.)
3.

Plaintiff has failed to show “by affidavit or declaration that, for specified
reasons, [he] cannot present facts essential to justify its opposition.” Fed.
R. Civ. P. 56(d). In fact, Plaintiff has thoroughly responded to
Defendants’ Motion for Summary Judgment with a Reply (Filing No.
81), Objection (Filing No. 82), Affidavit (Filing No. 83), Statement of
Disputed Factual Issues (Filing No. 84), and a 186-page Index of
Exhibits (Filing No. 86).

Plaintiff has also filed a Motion to Disqualify Defendants’ Counsel (Filing No.
72) because counsel “[t]estif[ied] about facts”—thereby making counsel a
witness—when counsel filed an affidavit stating he is “competent to testify to the
matters set forth herein” and he made the affidavit “upon [his] personal knowledge.”
(Filing No. 64-5.) The affidavit to which Plaintiff refers is an affidavit from
Defendants’ counsel presenting to the court a “true and correct copy” of a document
contained in the court file from one of Plaintiff’s cases in the Nebraska Supreme
Court, State v. Jose C. Oliveira-Coutinho (S-13-798). The document shows that
Plaintiff requested, and was granted, an extension of time from the United States
Supreme Court to file a petition for a writ of certiorari in that case.
In order to file this Nebraska court record with this court, counsel was required
to file an affidavit under Nebraska Civil Rule 7.1(a)(2)(C), which provides in part:
“An affidavit must identify and authenticate any documents offered as evidence. The
affidavit must be made on personal knowledge, set forth facts that would be
admissible in evidence, show affirmatively that the affiant is competent to testify to
the matters stated . . . .” See PW Eagle, Inc. v. Schnase, 376 F. Supp. 2d 945, 946 (D.
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Neb. 2005) (“The local rules require that documents used as evidence to support or
oppose a motion must be authenticated by affidavit.”); Hillard v. Clarke, 245 F.R.D.
419, 420 (D. Neb. 2007) (same). Therefore, Plaintiff’s motion will be denied.1
Finally, Plaintiff has filed an “Objection” (Filing No. 82) to Defendants’
Motion for Summary Judgment (Filing No. 63). Nebraska Civil Rule 7.1(b)(1)(A)
prohibits the filing of an “objection” to a motion. Rather, a party must file a “brief that
concisely states the reasons for opposing the motion and cites to supporting
authority.” The court will treat Plaintiff’s Objection as a Brief in Opposition to
Defendants’ Motion for Summary Judgment.
Accordingly,
IT IS ORDERED:
1.
Plaintiff’s Motions for Limited Interrogatories and Request for
Admissions (Filing Nos. 74, 75, 76, 77, 78, 79) are denied;

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I do not address whether counsel’s affidavit properly authenticates the court
record because Plaintiff’s only argument is that counsel is acting as a witness. Even
if the court record has not been properly authenticated, this court is entitled to take
judicial notice of public records. Levy v. Ohl, 477 F.3d 988, 991 (8th Cir. 2007) (court
may take judicial notice of public records); Stutzka v. McCarville, 420 F.3d 757, 761
n.2 (8th Cir. 2005) (court “may take judicial notice of judicial opinions and public
records”). In Nebraska, court records are public records. Neb. Op. Att’y Gen. No.
97055, 1997 WL 643407, at *3 (Oct. 16, 1997) (“records of the court . . . are subject
to the Public Records Statutes”); Neb. Rev. Stat. § 84-712.01(1) (Westlaw 2018)
(defining public records as “all records and documents . . . belonging to this state . .
. or any agency, branch, department, board, bureau, commission, council, subunit, or
committee of any of the foregoing”); Neb. Ct. R. § 1-809 (Westlaw 2018) (“Court
records will be available for public access in the courthouse during regular office
hours.”).
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2.
Plaintiff’s Motion to Disqualify Defendants’ Counsel (Filing No. 72) is
denied; and
3.
The Clerk of Court is directed to terminate Plaintiff’s “Objection” (Filing
No. 82) as a pending motion and re-docket it as a Brief in Opposition to Defendants’
Motion for Summary Judgment (Filing No. 63).
DATED this 15th day of February, 2018.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

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