Guerry v. Frakes et al

Filing 11

MEMORANDUM AND ORDER - Guerry's state law claims against Defendants in Case No. 4:17CV3047 are remanded back to the District Court of Johnson County, Nebraska. The clerk's office is directed to provide the Clerk of the District Court of Joh nson County with a certified copy of this memorandum and order. The Clerk of the District Court of Johnson County is requested to notify the assigned state district court judge in Johnson County District Court Case No. CI 17-18 that the state law cla ims in Guerry's petition are remanded for his/her consideration. No later than May 18, 2017, Defendants shall specifically and objectively set forth (a) what additional federal claims and against whom remain in Guerry's state petition, and (b) what federal claims and against whom remain in Guerry's state petition that the court already disposed of in Case No. 8:15CV323. Defendants' motions to consolidate (Filing No. 68 , Case No. 8:15CV323; Filing No. 3 , Case No. 4:17CV304 7) are granted as to Guerry's federal claims. See Fed. R. Civ. P. 42(a). Defendants shall file an answer in Case No. 4:17CV3047 no later than May 25, 2017. The court will thereafter issue a progression order for the consolidated cases. Defendant s' summary judgment motion in Case No. 8:15CV323 (Filing No. 63 ) is denied without prejudice to reassertion. Guerry's "Motion for Objection to Summary Judgment" (Filing No. 71 , Case No. 8:15CV323) is denied as moot. The clerk& #039;s office is directed to set the following pro se case management deadline: May 18, 2017: check for Defendants' pleading setting forth federal claims. The clerk's office is directed to set the following pro se case management deadline: May 25, 2017: check for Defendants' Answer in Case No. 4:17CV3047. 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

BRIAN FRANK GUERRY,
8:15CV323
Plaintiff,
vs.
SCOTT FRAKES, Director; BRIAN
GAGE, Warden; GUIFFE, Case
Worker; and THOMPSON, Case
Worker;

MEMORANDUM
AND ORDER

Defendants.

BRIAN FRANK GUERRY,

4:17CV3047

Plaintiff,
vs.
SCOTT FRAKES, in his individual
capacity; FRANK HOPKINS, in his
individual capacity; BRIAN GAGE, in
his individual capacity; MICHELLE
CAPPS, in her individual capacity; et
al.,
Defendants.
This matter is before the court on Defendants’ Notice of Removal of Case
No. 4:17CV3047 (Filing No. 1) and Defendants’ Motion to Consolidate Case No.
4:17CV3047 with Case No. 8:15CV323 (Filing No. 68, Case No. 8:15CV323;
Filing No. 3, Case No. 4:17CV3047). In light of the language in Montin v. Moore,
846 F.3d 289 (8th Cir. 2017), the court ordered Defendants to submit a brief

addressing Montin and whether (a) the court has subject matter jurisdiction to
decide any claim made by Guerry under the Nebraska State Tort Claims Act
(“STCA”); and (b) if the court lacks subject matter jurisdiction to decide any claim
by Guerry under the STCA, what specific portions of the underlying pleading filed
in state court must be remanded. (Filing No. 70.) The court stayed Defendants’
motions to consolidate and summary judgment motion in Case No. 8:15CV323
until it could resolve these questions raised by Defendants’ removal of Case No.
4:17CV3047. (Id.)
Defendants argue that the court has supplemental jurisdiction pursuant to 28
U.S.C. § 1367 over any “viable STCA claim” raised by Guerry in Case No.
4:17CV3047. (Filing No. 73 at CM/ECF p. 2.) Defendants urge the court not to
read Montin as holding that “individual capacity claims against state officials for
acts or omissions alleged to have occurred within such officials’ state employment
must actually be construed as official capacity claims under the STCA.” (Id. at
CM/ECF p. 6.) They insist that Montin is distinguishable from Case No.
4:17CV30471, and that the applicable legal precedent is Kruger v. Nebraska, 820
F.3d 295 (8th Cir. 2016), wherein the court and the Eighth Circuit Court of
Appeals addressed the merits of Kruger’s removed state law claims against state
government defendants, dismissing them pursuant to one of the STCA’s statutory
exceptions. (Id. at CM/ECF pp. 2-6.) Kruger, of course, preceded Montin.
The court cannot ignore the language in Montin. The Eighth Circuit found
that it “must treat the state law malpractice claim as if it is against defendants in
their official capacities” because “all the actions or omissions alleged occurred in
the scope of defendants’ state employment,” and despite Montin’s insistence that
his state law claim was against defendants in their individual capacities. 846 F.3d
at 292-93. The Court concluded, then, that Montin was required to bring his state
1

Defendants insist that Montin is distinguishable because (1) it was not a
removal case, and (2) the missing “backdrop” from the opinion is that Montin
actually pursued official capacity claims against the state government defendants
throughout the litigation. (Filing No. 73 at CM/ECF pp. 5-6.)
2

law claim under the STCA in state district court because “any waiver of sovereign
immunity” by Nebraska did “not extend to actions brought in federal court.” Id. at
293. This is because “[s]tate sovereign immunity bars actions in federal court
regardless of the basis for otherwise appropriate subject matter jurisdiction.” Id.
(emphasis added). This language suggests to the court that it must construe
Guerry’s state law claims as against Defendants in their official capacities2 and
remand of those claims is required. See also, 28 U.S.C.A. § 1441(c)(2) (West).3
2

“[A]ll the actions or omissions alleged occurred in the scope of defendants’
state employment” – such as releasing different units of inmates into the yard for
medication prior to the prison riot, opening one exit door and not another during
the prison riot, and failing to provide Guerry medical attention after the prison riot.
It is also clear that Guerry intended to seek relief under the STCA for the very fact
that he filed his pleading in state district court after the court dismissed, in Case
No. 8:15CV323, his state law claims against the defendants in their official
capacities without prejudice so that he could pursue them in state court. (See Filing
No. 33 at CM/ECF p. 4.)
3

Section 1441(c) provides:
(c) Joinder of Federal law claims and State law claims. - -(1)
If a civil action includes - (A) a claim arising under the Constitution, laws, or
treaties of the United States (within the meaning of
section 1331 of this title), and
(B) a claim not within the original or supplemental
jurisdiction of the district court or a claim that has been
made nonremovable by statute, the entire action may be
removed if the action would be removable without the
inclusion of the claim described in subparagraph (B).
(2) Upon removal of an action described in paragraph (1), the
district court shall sever from the action all claims described in
paragraph (1)(B) and shall remand the severed claims to the
State court from which the action was removed. Only
defendants against whom a claim described in paragraph (1)(A)
3

Indeed, at the very least, Montin presents a complex jurisdictional question and “a
district court is required to resolve all doubts about federal jurisdiction in favor of
remand.” See Transit Cas. Co. v. Certain Underwriters at Lloyd’s of London, 119
F.3d 619, 625 (8th Cir. 1997).
The court also finds judicial estoppel appropriate here. Counsel is the same
in each of these cases, and the defendants and the claims overlap.4 The defendants
in Case No. 8:15CV323 filed a motion to dismiss Guerry’s Complaint on the
ground that it failed to state a claim upon which relief could be granted. (Filing No.
24.) Counsel specifically argued that the court should dismiss Guerry’s state law
claims against the defendants in their official capacities on the same principles
later iterated in Montin – the court’s ability to exercise supplemental jurisdiction
does not override Eleventh Amendment sovereign immunity of the states. (Filing
No. 25 at CM/ECF p. 5.) Counsel further requested the court “dismiss [those state
law claims] without prejudice to Plaintiff’s ability to pursue them in state court in
accordance with the STCA.” (Id.) The court granted the motion and dismissed
Guerry’s state law claims “against the Department and prison officials in their
official capacities . . . without prejudice to Plaintiff’s ability to pursue them in state
court.” (Filing No. 33 at CM/ECF p. 4.) Not surprisingly, Guerry then filed suit in
state district court. (Filing No. 1-1, Case No. 4:17CV3047.)
The Eighth Circuit has stated:

has been asserted are required to join in or consent to the
removal under paragraph (1).
4

Guerry sues additional defendants in Case No. 4:17CV3047 than in Case
No. 8:15CV323. However, Guerry included in Case No. 4:17CV3047 all of the
defendants that he originally sued in Case No. 8:15CV323. Those defendants are
Scott Frakes, Brian Gage, Keith Broadfoot, R. Holly, Chelsea Guiffre, and Daniel
Thompson. Further, Guerry’s claims in each case stem from the May 10, 2015,
prison riot at the Tecumseh State Correctional Institution.
4

Judicial estoppel is an equitable doctrine which “prevents a party from
asserting a claim in a legal proceeding that is inconsistent with a claim
taken by that party in a previous proceeding.” New Hampshire v.
Maine, 532 U.S. 742, 749, 121 S. Ct. 1808, 149 L.Ed.2d 968 (2001)
(quoting 18 Moore's Federal Practice § 134.30, p. 134-62 (3d ed.
2000)). We look to three factors to determine whether judicial
estoppel should apply: (1) whether a party’s later position is “clearly
inconsistent” with its previous position; (2) whether the party
succeeded in persuading the first court to accept its position; and (3)
“whether the party seeking to assert an inconsistent position would
derive an unfair advantage ... if not estopped.” Stallings, 447 F.3d at
1047 (quoting New Hampshire, 532 U.S. at 750-51, 121 S. Ct. 1808).
Van Horn v. Martin, 812 F.3d 1180, 1182 (8th Cir. 2016). All three apply here.
Defendants ask the court to accept removal of Guerry’s state law claims from state
district court after the court granted their request5 to dismiss them so that Guerry
could pursue them in state district court. Defendants ask the court to exercise
supplemental jurisdiction over Guerry’s state law claims but previously argued that
it could not. First, these positions are “clearly inconsistent.” Second, the court
accepted Defendants’ position that Guerry’s state law claims were barred by
sovereign immunity when it dismissed them in Case No. 8:15CV323 without
prejudice to reassertion in state district court. And third, Defendants are prolonging
the proceedings in state and federal court, thereby depriving Guerry of an efficient
and timely resolution of his claims. Defendants will be bound by the relief they
requested.
IT IS THEREFORE ORDERED that:
1.
Guerry’s state law claims against Defendants in Case No.
4:17CV3047 are remanded back to the District Court of Johnson County,
Nebraska. The clerk’s office is directed to provide the Clerk of the District
5

The request of the overlapping defendants - Scott Frakes, Brian Gage,
Keith Broadfoot, R. Holly, Chelsea Guiffre, and Daniel Thompson. But more
specifically, Counsel’s request.
5

Court of Johnson County with a certified copy of this memorandum and
order. The Clerk of the District Court of Johnson County is requested to
notify the assigned state district court judge in Johnson County District Court
Case No. CI 17-18 that the state law claims in Guerry’s petition are remanded
for his/her consideration.
2.
No later than May 18, 2017, Defendants shall specifically and
objectively set forth (a) what additional federal claims and against whom remain in
Guerry’s state petition, and (b) what federal claims and against whom remain in
Guerry’s state petition that the court already disposed of in Case No. 8:15CV323.
3.
Defendants’ motions to consolidate (Filing No. 68, Case No.
8:15CV323; Filing No. 3, Case No. 4:17CV3047) are granted as to Guerry’s
federal claims. See Fed. R. Civ. P. 42(a). Defendants shall file an answer in Case
No. 4:17CV3047 no later than May 25, 2017. The court will thereafter issue a
progression order for the consolidated cases.
4.
Defendants’ summary judgment motion in Case No. 8:15CV323
(Filing No. 63) is denied without prejudice to reassertion.
5.
Guerry’s “Motion for Objection to Summary Judgment” (Filing No.
71, Case No. 8:15CV323) is denied as moot.
6.
The clerk’s office is directed to set the following pro se case
management deadline: May 18, 2017: check for Defendants’ pleading setting forth
federal claims.
7.
The clerk’s office is directed to set the following pro se case
management deadline: May 25, 2017: check for Defendants’ Answer in Case No.
4:17CV3047.

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Dated this 4th day of May, 2017.
BY THE COURT:
s/ Richard G. Kopf
Senior 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
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