Barton v. Heineman et al

Filing 35

MEMORANDUM AND ORDER - Defendants' Motions for Summary Judgment are granted (Filing Nos. 22 and 32 ). Plaintiff's claims against Tuma are dismissed without prejudice. Plaintiff's claims against Trooper Hayes, Governor Heinema n, Bruning, and Captain Parish are dismissed with prejudice. This matter remains pending against Doe. Barton shall have 45 days in which to identify Doe, amend his complaint to state a claim against the identified defendant, and serve the ide ntified defendant. Failure to adequately do so will result in dismissal without further notice. The clerk's office shall send ONE summons form and ONE USM-285 form to Plaintiff, together with a copy of this Memorandum and Order. Plaintiff m ust complete the forms and return them in accordance with this Memorandum and Order. Upon receipt of the completed forms, the clerk's office will sign the summons form, to be forwarded with a copy of the Amended Complaint to the U.S. Marsh al for service of process. The Marshal shall serve summons and the Amended Complaint without payment of costs or fees. Service may be by certified mail pursuant to Federal Rule of Civil Procedure 4 and Nebraska law in the discretion of the Ma rshal. The Clerk of the court will copy the Amended Complaint, and Plaintiff does not need to do so. (Pro Se Case Management Deadline set for 4/24/2012: Deadline for Plaintiff to identify and serve defendant, and amend complaint.) Ordered by Chief Judge Laurie Smith Camp. (Copy mailed and e-mailed to pro se party with forms as directed) (TEL)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
BERNARD BARTON,
Plaintiff,
v.
DAVE HEINEMAN, JON BRUNING,
BRYAN TUMA, RYAN HAYES, JOHN
DOE, and JIM PARISH,
Defendants.

)
)
)
)
)
)
)
)
)
)
)

CASE NO. 7:11CV5000

MEMORANDUM
AND ORDER

This matter is before the court on Defendants’ Notice of Non-Service (Filing No. 20),
and Motions for Summary Judgment (Filing Nos. 22 and 32). For the reasons set forth
below, Defendants’ Motions for Summary Judgment are granted.
I. NOTICE OF NON-SERVICE
On August 19, 2011, Defendants filed a Notice of Non-Service and an Affidavit in
support of the Notice. (Filing Nos. 20 and 20-1, Attach. 1.) The Notice and Affidavit show
that Plaintiff Bernard Barton (“Barton” or “Plaintiff”) failed to properly serve Defendant
Bryan Tuma (“Tuma”). Barton listed the address of the Nebraska State Patrol (“NSP”) on
the summons form for Tuma. (Filing No. 12 at CM/ECF p. 3.) According to the Affidavit
produced by Defendants, Tuma was no longer employed by the NSP when the summons
was issued. (Filing No. 20-1, Attach. 1.) In light of this, Defendants argue, Tuma did not
receive proper service of process. The court agrees.
The court previously warned Barton that failure to serve a defendant by November
4, 2011, could result in dismissal of this matter as to such defendant without further notice.
(Filing No. 11 at CM/ECF p. 2.) Barton failed to properly serve Tuma by November 4,

2011. In addition, Barton did not respond to the Notice of Non-Service. Therefore, the
court will dismiss Barton’s claims against Tuma, but will do so without prejudice.
II. MOTIONS FOR SUMMARY JUDGMENT
A.

Background
Barton filed his Complaint in this matter on February 14, 2011. (Filing No. 1.) He

filed an Amended Complaint on May 31, 2011. (Filing No. 9.) Barton’s Amended
Complaint is the operative complaint in this matter. Liberally construed, Barton alleged in
his Amended Complaint that Ryan Hayes (“Trooper Hayes”) and John Doe (“Doe”) violated
Barton’s Fourth Amendment rights during a traffic stop. Liberally construed, Barton also
alleged that Dave Heineman (“Governor Heineman”), Jon Bruning (“Bruning”), and Jim
Parish (“Captain Parish”) promoted and tolerated unlawful and discriminatory searches and
seizures of vehicles in pursuit of economic forfeiture. The court conducted a detailed initial
review of Barton’s Complaint and Amended Complaint. (Filing Nos. 6 and 11.) Based on
this review, the court permitted Barton to serve process on Defendants.
Governor Heineman and Bruning filed a Motion for Summary Judgment on
September 8, 2011. (Filing No. 22.) Trooper Hayes and Captain Parish filed a Motion for
Summary Judgment on November 8, 2011. (Filing No. 32.) In support of their Motions,
Defendants filed Briefs (Filing Nos. 24 and 33) and Indices of Evidence (Filing Nos. 23 and
34). Barton has not responded to Defendants’ Motions in any way and the time in which
to do so has now passed.
The party seeking the entry of summary judgment in its favor must set forth “a
separate statement of material facts about which the moving party contends there is no

2

genuine issue to be tried and that entitles the moving party to judgment as a matter of law.”
NECivR 56.1(a)(1). If the non-moving party opposes the motion, that party must “include
in its [opposing] brief a concise response to the moving party’s statement of material facts.”
NECivR 56.1(b)(1). Such response must “address each numbered paragraph in the
movant’s statement” of facts and must contain pinpoint references to evidence supporting
the opposition. Id. “Properly referenced material facts in the movant’s statement are
considered admitted unless controverted in the opposing party’s response.” Id. (emphasis
in the original).
Defendants submitted statements of material fact in accordance with the court’s
Local Rules. Further, Defendants submitted evidence that was properly authenticated by
affidavit. The court deems Defendants’ Motions fully submitted, and adopts the following
undisputed material facts, as set forth by Defendants.
B.

Relevant Undisputed Facts

The Parties
1.

Barton is a natural person residing at 315 W. Lynn St., Elmwood, Illinois.

2.
Governor Heineman is and has been at all relevant times the Governor for
the State of Nebraska.
3.
Bruning is and has been at all relevant times the Attorney General for the
State of Nebraska.
4.
Trooper Hayes is and has been employed with the NSP as a full-time trooper
since 1998.
5.
Trooper Hayes received training through the Nebraska State Patrol Training
Academy in 1998 and 1999.
6.
During the 24-week training course, Trooper Hayes was instructed in the
following areas: investigative stops, searches and seizures, arrests, the exclusionary rule,
public and private arrests (including arrests and searches in private residences and third3

party residence), the Fourth Amendment, warrant requirements, motor vehicle searches,
warrantless searches, constitutional and statutory procedures for warrants, statute
requirements for obtaining and executing warrants, procedures to protect and dispose of
seized property, arrest and detention of persons, Miranda rights, frisks and pat downs,
affidavits, and probable cause.
7.
Trooper Hayes has also received ongoing training through in-service training
annually or biannually in several key areas including firearms training, defensive tactics,
emergency vehicle operations, RADAR/VASCAR, CPR, and legislative updates.
8.
Captain Parish is employed with the NSP as the Captain/Troop Area “D”
Commander.
9.
As a Troop Area “D” Commander in 2009, Captain Parish was responsible
for the punctual attendance, appearance, good order, efficiency, and discipline of all
members and employees under his command.
10.
Captain Parish was also responsible for supervising the work of his
subordinates and extending to them such guidance as may be necessary for the proper
understanding of the efficient performance of their duties.
The Traffic Stop
11.
In May 2009, Trooper Hayes was working in the Traffic Division of the NSP
and was responsible for enforcing Nebraska laws specifically related to traffic safety and
public protection.
12.
On May 9, 2009, Barton was driving Barton’s owned 1988 Ford Thunderbird
eastward on Interstate 80 in Lincoln County, west of North Platte, Nebraska.
13.
On May 9, 2009, at approximately 11:00 a.m., Hayes was patrolling Interstate
80 in North Platte, Nebraska, when he observed a vehicle traveling on Interstate 80
exceeding the posted speed limit of 75 miles per hour.
14.

Trooper Hayes signaled the vehicle to pull over to the side of the road.

15.
Trooper Hayes approached the vehicle and asked the driver to exit the
vehicle and accompany him back to Trooper Hayes’s state issued patrol car so he could
collect the driver’s information and run a check on his driver’s license, which was standard
NSP practice.
16.
Barton accompanied Trooper Hayes back to Trooper Hayes’s patrol car
where Barton provided Trooper Hayes with a copy of his driver’s license and registration.

4

17.
While inside Trooper Hayes’s patrol car, Trooper Hayes initiated a
conversation with Barton as Barton’s information was being processed.
18.
During the conversation with Barton, Trooper Hayes observed Barton’s
behavior and demeanor as suspicious.
19.
Trooper Hayes observed Barton was very uncomfortable, stand-offish, and
would not maintain eye contact with Trooper Hayes.
20.
Trooper Hayes questioned Barton about the nature of his travel and observed
that Barton’s responses were vague and that his story did not make sense.
21.

Trooper Hayes reasonably perceived Barton’s behavior to be suspicious.

22.
Trooper Hayes asked Barton if Barton would give consent for Trooper
Trooper Hayes to search his vehicle.
23.

Barton would not consent to a search of his vehicle.

24.
At approximately 11:19 a.m., Trooper Hayes detained Barton’s vehicle and
put a call into Lieutenant Mark Stokey with the NSP K9 Unit to conduct a search of Barton’s
vehicle.
25.
At approximately 11:39 a.m., Lieutenant Stokey and the K9 arrived at the
scene and conducted an exterior “sniff” of Barton’s vehicle that resulted in a positive
alert/indication of drug odor.
26.
Lieutenant Stokey and Trooper Hayes searched Barton’s vehicle and located
a residual amount of marijuana near the front floorboard area of the vehicle.
27.

No citations were issued to Barton in regard to the residue that was found.

28.

Barton left the scene of the stop at approximately 12:11 p.m.

29.
At no time was Barton placed under arrest by Trooper Hayes or any other
NSP officers.
Events Following the Traffic Stop
30.
On a later date, Barton called the NSP Troop D Headquarters and spoke with
Captain Parish.
31.
During the phone call, Barton complained about the May 9, 2009, traffic stop
performed by Trooper Hayes.
5

32.
After Captain Parish spoke with Barton, Captain Parish watched the video
of the May 9, 2009, traffic stop.
33.
After watching the video, Captain Parish called Barton back and informed
Barton that he observed at all times during the traffic stop video that Trooper Hayes
followed NSP policies and practices and at no time violated Barton’s rights.
34.
Following Captain Parish’s review of the May 9, 2009, traffic stop, a formal
internal affairs form was completed and the stop was subsequently reviewed by another
NSP investigating officer who also adjudged that no misconduct had occurred during the
traffic stop of Barton.
35.

The complaint was closed as a “No Misconduct” case.

Facts Relating to Governor Heineman, Bruning, and Captain Parish
36.
Captain Parish has no actual knowledge of a policy or practice of the NSP
that “promotes and or tolerates unlawful and discriminatory seizures in pursuit of economic
forfeitures, or that sanctions defective evidentiary procedures in support of false action, in
furtherance of an atmosphere of public intimidation in asserting basic rights” as alleged in
Plaintiff’s Amended Complaint, nor has he ever instituted or implemented a policy and
practice to the same effect.
37.
Bruning is not responsible for training, nor has he ever trained any member
of the NSP.
38.
Bruning has no knowledge of or involvement in the traffic stop in which
Barton was stopped.
39.
Bruning has no actual knowledge of a policy or practice of the NSP that
“promotes and or tolerates unlawful and discriminatory seizures in pursuit of economic
forfeitures, or which sanctions defective evidentiary procedures in support of false action,
in furtherance of an atmosphere of public intimidation in asserting basic rights” as alleged
in Plaintiff’s Amended Complaint.
40.
Bruning has never instituted or implemented a policy and practice that
“promotes and or tolerates unlawful and discriminatory seizures in pursuit of economic
forfeitures, or which sanctions defective evidentiary procedures in support of false action,
in furtherance of an atmosphere of public intimidation in asserting basic rights” as alleged
in Plaintiff’s Amended Complaint.
41.
Bruning has never established a program of training law enforcement officers
that is deliberately indifferent to the civil rights of motorists.

6

42.
Governor Heineman is not responsible for training, nor has he ever trained
any member of the NSP.
43.
Governor Heineman has no knowledge of or involvement in the traffic stop
in which Barton was stopped.
44.
Governor Heineman has no actual knowledge of a policy or practice of the
NSP that “promotes and or tolerates unlawful and discriminatory seizures in pursuit of
economic forfeitures, or which sanctions defective evidentiary procedures in support of
false action, in furtherance of an atmosphere of public intimidation in asserting basic rights”
as alleged in Plaintiff’s Amended Complaint.
45.
Governor Heineman has never instituted or implemented a policy and
practice that “promotes and or tolerates unlawful and discriminatory seizures in pursuit of
economic forfeitures, or which sanctions defective evidentiary procedures in support of
false action, in furtherance of an atmosphere of public intimidation in asserting basic rights”
as alleged in Plaintiff’s Amended Complaint.
46.
Governor Heineman has never established a program of training law
enforcement officers that is deliberately indifferent to the civil rights of motorists.
(Filing Nos. 24 and 33.)
III. ANALYSIS
A.

Standard of Review
Summary judgment should be granted only “if the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a matter
of law.” Fed. R. Civ. Pro. 56(a). It is not the court’s function to weigh evidence in the
summary judgment record to determine the truth of any factual issue. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 249-51 (1986). In passing upon a motion for summary
judgment, the district court must view the facts in the light most favorable to the party
opposing the motion. Dancy v. Hyster Co., 127 F.3d 649, 652-53 (8th Cir. 1997).
In order to withstand a motion for summary judgment, nonmoving parties must
substantiate allegations with “‘sufficient probative evidence [that] would permit a finding in
7

[his] favor on more than mere speculation, conjecture, or fantasy.’” Moody v. St. Charles
County, 23 F.3d 1410, 1412 (8th Cir. 1994), (quoting Gregory v. City of Rogers, 974 F.2d
1006, 1010 (8th Cir. 1992)). “A mere scintilla of evidence is insufficient to avoid summary
judgment.” Id.

Essentially the test is “whether the

evidence presents a sufficient

disagreement to require submission to a jury or whether it is so one-sided that one party
must prevail as a matter of law.” Anderson, 477 U.S. at 251-52.
B.

Trooper Hayes–Qualified Immunity
Trooper Hayes argues that he is entitled to qualified immunity because Barton has

not shown the violation of any constitutional right. The court agrees and finds that
summary judgment in favor of Trooper Hayes is warranted.
Qualified immunity is a question of law to be determined by the court and should
ordinarily be decided long before trial. Hunter v. Bryant, 502 U.S. 224, 228 (1991). “Public
officials, of course, are entitled to qualified immunity from liability for damages under 42
U.S.C. § 1983 if ‘their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.’” Domina v. Van
Pelt, 235 F.3d 1091, 1096 (8th Cir. 2000), (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982)). In short, “qualified immunity shields a defendant from suit if he or she could have
reasonably believed his or her conduct to be lawful in light of clearly established law and
the information [that the defendant] possessed.” Smithson v. Aldrich, 235 F.3d 1058, 1061
(8th Cir. 2000), (citations and quotations omitted). “The qualified immunity standard gives
ample room for mistaken judgments by protecting all but the plainly incompetent or those
who knowingly violate the law.” Id. (citations and quotations omitted). Moreover, qualified

8

immunity is “the usual rule” and state actors will enjoy qualified immunity in all but
“exceptional cases.” Foy v. Holston, 94 F.3d 1528, 1532 (11th Cir. 1996).
The court focuses on two questions to determine whether a state official is entitled
to qualified immunity: “(1) whether, after viewing the facts in the light most favorable to the
party asserting the injury, there was a deprivation of a constitutional or statutory right; and,
if so, (2) whether the right was clearly established at the time of the deprivation such that
a reasonable official would understand that their conduct was unlawful in the situation he
confronted.” Henderson v. Munn, 439 F.3d 497, 501-502 (8th Cir. 2006). Thus, the “initial
inquiry is whether the facts as alleged show that the officers’ conduct violated a
constitutional right. . . . If the facts do not show a violation, [a court] need not proceed
further with the qualified immunity analysis.” Brockinton v. City of Sherwood, 503 F.3d 667,
672 (8th Cir. 2007).
Liberally construed, Barton alleges that Trooper Hayes violated Barton’s Fourth
Amendment rights because he questioned him about matters unrelated to the traffic stop.
(Filing No. 9 at CM/ECF p. 6 (“Barton alleges unlawful diversion of primary investigative
scope away from ostensible cause for stop, commencing with contentious, extraneous
questioning prior to initial release to leave.”).) Barton does not dispute the validity of the
initial traffic stop. Rather, he alleges that Trooper Hayes’s actions after he pulled Barton
over violated the Fourth Amendment.
When an officer makes a routine traffic stop, the officer may “‘conduct an
investigation reasonably related in scope to the circumstances that initially prompted the
stop.’” U.S. v. Lyons, 486 F.3d 367, 371 (8th Cir. 2007), (quoting United States v. McCoy,
200 F.3d 582, 584 (8th Cir. 2000)). In addition, the officer “may detain a motorist while the
9

officer completes certain routine tasks related to the traffic violation, such as writing a
citation and completing the computerized checks of a driver’s license, vehicle registration,
and criminal history.” Id.
The Fourth Amendment applies to limit any detention or search after the officer
decides to allow a routine traffic offender to depart with a ticket, warning, or all clear. Id.
Indeed, the officer “cannot continue to detain a motorist after the initial stop is completed
unless the officer has a reasonable articulable suspicion for believing that criminal activity
[is] afoot.” Id. “If, during a traffic stop, an officer develops a reasonable, articulable
suspicion that a vehicle is carrying contraband, he has justification for a greater intrusion
unrelated to the traffic offense.” Id. (internal quotations omitted).
Trooper Hayes stopped Barton for speeding. (Filing No. 34-1, Attach. 1, at CM/ECF
p. 2.) While conducing a routine investigation related to the traffic stop, Trooper Hayes
developed a “reasonable articulable suspicion” of illegal activity sufficient to detain Barton
for further investigation. “While reasonable suspicion must be more than an inchoate
hunch, the Fourth Amendment only requires that police articulate some minimal, objective
justification for an investigatory stop.” Lyons, 486 F.3d at 371.
Trooper Hayes, a trained and experienced officer who has been with the NSP since
1998, stated in his Affidavit that Barton’s behavior raised his suspicions. (Filing No. 34-1,
Attach. 1, at CM/ECF p. 3.) Specifically, Barton appeared “uncomfortable, stand-offish and
would not maintain eye contact.” (Id.) When Trooper Hayes asked Barton about the
nature of his travel, Barton’s responses “were vague and his story did not make sense.”
(Id.) These statements in Trooper Hayes’s Affidavit establish that Trooper Hayes had at

10

least a minimal, objective justification for an investigatory stop. In other words, Trooper
Hayes was justified in detaining Barton for further investigation. Barton has offered no
evidence or argument to the contrary.
Liberally construed, Barton also alleges that the duration of the stop was
unreasonable and violated his constitutional rights. (Filing No. 9.) The undisputed facts
are that the total time of the stop was approximately one hour and eleven minutes. (Filing
No. 34-1, Attach. 1, at CM/ECF pp. 2-3.) This time included the initial stop, the verification
of Barton’s travel documents, Trooper Hayes’s questioning of Barton, the telephone call
to the K9 unit, the arrival of the K9 unit, and the search of Barton’s vehicle. (Id.)
“A dog sniff may be the product of an unconstitutional seizure if the traffic stop is
unreasonably prolonged before the dog is employed. . . . However, when police need the
assistance of a drug dog in roadside Terry stops, it will in general take time to obtain one[.]
. . . [T]he state highway patrol cannot be expected to have drug dogs immediately available
to all officers in the field at all times. Lyons, 486 F.3d at 372, (internal citations and
quotations omitted).
Here, the traffic stop itself lasted approximately 19 minutes. Trooper Hayes stopped
Barton’s vehicle at 11:00 a.m.

(Filing No. 34-1, Attach. 1, at CM/ECF p. 2.)

At

approximately 11:19 a.m., Trooper Hayes detained Barton’s vehicle and called the K9 unit.
(Id. at CM/ECF p. 3.) There is no evidence that Trooper Hayes unnecessarily delayed the
initial stop.
The canine unit arrived at approximately 11:39, only 20 minutes after being called.
(Id.) This 20 minute wait was not excessive under the circumstances. See Lyons, 486
F.3d at 372 (holding that 31 minute detention to wait for drug dog was reasonable where
11

the officer requested the dog immediately after developing reasonable suspicion); United
States v. White, 42 F.3d 457, 460 (8th Cir. 1994), (determining that it was reasonable for
an officer to detain a truck for 80 minutes while awaiting the arrival of a drug dog where the
officer “acted diligently to obtain the dog, and the delay was caused only by the remote
location of the closest available dog.”).
Lieutenant Mark Stokey (“Stokey”) and the drug dog arrived at the scene at
approximately 11:39 p.m., and conducted an exterior sniff of the vehicle. The drug dog
alerted, Trooper Hayes and Stokey searched the vehicle, and located a residual amount
of marijuana near the front floorboard area. (Filing No. 34-1, Attach. 1, at CM/ECF p. 3.)
The dog sniff and search of Barton’s vehicle lasted approximately 30 minutes. (Id.) Barton
has provided no evidence that Trooper Hayes was dilatory in his search of the vehicle or
that there was any unnecessary delay. Based on the undisputed evidence, the court finds
that, after viewing the facts in the light most favorable to Barton, Trooper Hayes did not
clearly violate Barton’s constitutional rights. Accordingly, Barton’s claim for monetary
damages against Trooper Hayes in his individual capacity is dismissed.
C.

Bruning, Governor Heineman, and Captain Parish
Liberally construed, Plaintiff’s Amended Complaint alleges that Governor Heineman,

Bruning, and Captain Parish promoted and tolerated unlawful and discriminatory searches
and seizures of vehicles in pursuit of economic forfeiture. (Filing No. 9.) Here, the court
begins its analysis by noting that Governor Heineman, Bruning, and Captain Parish’s
statements of fact in support of their motions for summary judgment are “considered
admitted” under Nebraska Civil Rule 56.1(b). Governor Heineman, Bruning, and Captain

12

Parish’s unopposed statements of fact explain that they had no knowledge of a policy or
practice of the NSP that promotes or tolerates unlawful and discriminatory seizures in
pursuit of economic forfeitures, and they did not implement any such policies or practices.
(Filing No. 23-1, Attach. 1, at CM/ECF pp. 1-2; Filing No. 23-2, Attach. 2, at CM/ECF pp.
1-2; and Filing No. 34-3, Attach. 3, at CM/ECF pp. 4-5.)
Barton presented no arguments, facts, or evidence disputing these statements of
fact. Indeed, Barton did not oppose Defendants’ Motions for Summary Judgment in any
way. Because Barton has done nothing to controvert Defendants’ unopposed statements
of fact, he has not raised a genuine issue of material fact from which a reasonable jury
could conclude that constitutional violations occurred.

Therefore, the court grants

summary judgment to Governor Heineman, Bruning, and Captain Parish.
D.

Defendant Doe
Defendant Doe, named in the Amended Complaint, has not joined in Defendants’

Motions. As of the date of this Memorandum and Order, Barton has not identified Doe or
properly served him with process. See Robinett v. Correctional Training Facility, 2010 WL
2867696, *4 (N.D.Cal. July 20, 2010), (“[U]sing Doe defendants creates its own problem:
those persons cannot be served with process until they are identified by their real names.”)
However, Barton did attempt to serve Doe. (See summons form addressed to “John Doe”
at Filing No. 13.)
The Eighth Circuit Court of Appeals has held that dismissal of a “John Doe” pleading
is only proper when it appears that the true identity of the defendant cannot be learned
through discovery or the court’s intervention. See Munz v. Parr, 758 F.2d 1254, 1257 (8th

13

Cir. 1985), (“Rather than dismissing the claim, the court should have ordered disclosure
of Officer Doe’s identity by other defendants named and served or permitted the plaintiff
to identify the officer through discovery. . . . Munz should have then been permitted to
amend the complaint and serve the identified defendant.”).
Out of an abundance of caution, the court will not dismiss Doe from this matter at
this time. Rather, Barton shall be given 45 days in which to identify Doe, amend his
complaint to state a claim against the identified defendant, and serve the identified
defendant. According to Defendants’ pleadings, the NSP dog handler, referred to as “John
Doe” by Barton, is actually Lieutenant Mark Stokey. (See Filing No. 34-1, Attach. 1, at
CM/ECF p. 3.)
IT IS THEREFORE ORDERED that:
1.

Defendants’ Motions for Summary Judgment are granted (Filing Nos. 22 and
32);

2.

Plaintiff’s claims against Tuma are dismissed without prejudice;

3.

Plaintiff’s claims against Trooper Hayes, Governor Heineman, Bruning, and
Captain Parish are dismissed with prejudice;

4.

This matter remains pending against Doe. Barton shall have 45 days in
which to identify Doe, amend his complaint to state a claim against the
identified defendant, and serve the identified defendant. Failure to
adequately do so will result in dismissal without further notice;

5.

The clerk’s office shall send ONE summons form and ONE USM-285 form
to Plaintiff, together with a copy of this Memorandum and Order. Plaintiff
must complete the forms and return them in accordance with this
Memorandum and Order;

6.

Upon receipt of the completed forms, the clerk’s office 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 summons and the
Amended Complaint without payment of costs or fees. Service may be by
certified mail pursuant to Federal Rule of Civil Procedure 4 and Nebraska
14

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; and
7.

The court directs the clerk’s office to set a case management deadline in this
matter using the following text: April 24, 2012: Deadline for Plaintiff to
identify and serve defendant, and amend complaint.

DATED this 9th day of March, 2012.
BY THE COURT:

s/Laurie Smith Camp
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 hyperlink ceases to work or directs the user to some other site does
not affect the opinion of the court.
15