Castonguay v. Newton et al

Filing 118

MEMORANDUM AND ORDER - Defendants' Motion to Extend Time to file an Amended Motion for Summary Judgment (Filing No. 94 ) and Plaintiff's Motion Opposing Defendants' Motion to Extend Time to file an Amended Motion for Summary Judgment (Filing No. 98 ) are denied as moot. Defendants' Objections and Motions to Strike (Filing Nos. 104 , 106 , 109 , 111 , 113 , 115 and 117 ) are granted in part and denied in part in accordance with this Memorandum and Order. Plaintiff&# 039;s Objections (Filing Nos. 107 , 110 and 114 ) are granted to the extent that Plaintiff's supplemental documents will not be stricken from the record and denied to the extent that they request further relief. Defendants' Amended Mot ion for Summary Judgment (Filing No. 95 ) is denied without prejudice to reassertion in accordance with this Memorandum and Order. Plaintiff's Motion Opposing Defendants' Reply Brief (Filing No. 105 ) is denied. To obtain service of proc ess on Defendants, Plaintiff must complete and return the summons forms which the Clerk of the court will provide. The Clerk of the court shall send THREE (3) summons forms and THREE (3) USM-285 forms to Plaintiff for service upon Defendants in their individual capacities together with a copy of this Memorandum and Order. Plaintiff shall, as soon as possible, complete the forms and send the completed forms back to the Clerk of the court. In the absence of the forms, service of process cannot oc cur. Upon receipt of the completed forms, the Clerk of the Court will sign the summons form, to be forwarded with a copy of the Amended Complaint to the U.S. Marshal for service of process. Plaintiff shall have until September 23, 2011, to cure any service defects. If Plaintiff fails to cure any service defects in accordance with this Memorandum and Order, Defendants may move to dismiss this matter by submitting properly authenticated evidence showing that service was improper. If Plaintiff pro perly serves Defendants, Defendants may resubmit their arguments regarding the merits of Plaintiff's claims in a Motion for Summary Judgment filed within 21 days of service. If Defendants elect to file a Motion for Summary Judgment, Plaintiff sh all have 14 days to file a response. The parties are bound by the Federal Rules of Civil Procedure and by the Local Rules of this court. Plaintiff shall keep the court informed of his current address at all times while this case is pending. Failure to do so may result in dismissal. Ordered by Judge Laurie Smith Camp. (Copy mailed/e-mailed to pro se party along with summonses and 285 forms)(GJG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
PAUL CASTONGUAY,
Plaintiff,
v.
JEFFREY NEWTON, Director,
EARNEST BLACK, Sgt., MARK
FOXALL, Associate Director, and
UNKNOWN DEFENDANTS,
Defendants.

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CASE NO. 8:09CV413

MEMORANDUM
AND ORDER

This matter is before the court on Defendants’ Amended Motion for Summary
Judgment. (Filing No. 95.) Also pending are Defendants’ Motion to Extend Time to File
an Amended Motion for Summary Judgment (Filing No. 94), Plaintiff’s Motion Opposing
Defendants’ Motion to Extend Time to File an Amended Motion for Summary Judgment
(Filing No. 98) and eleven other Motions and Objections filed by the parties (Filing Nos.
104, 105, 106, 107, 109, 110, 111, 113, 114, 115 and 117). For the reasons discussed
below, Defendants’ Amended Motion for Summary Judgment is denied and Plaintiff will be
given an opportunity to serve Defendants in their individual capacities.
I. BACKGROUND
Plaintiff filed his original Complaint on November 17, 2009, alleging First
Amendment and access-to-courts claims against Douglas County Corrections (“DCC”),
three named individuals and other unknown individuals. (Filing No. 1 at CM/ECF p. 1.) On
December 29, 2009, the court conducted an initial review of Plaintiff’s original Complaint
and determined that it failed to state a claim against DCC upon which relief could be
granted. (Filing No. 8.) However, the court gave Plaintiff 30 days to amend his Complaint

to clearly state a claim against DCC. (Id. at CM/ECF p. 6.) On February 23, 2010, Plaintiff
filed an Amended Complaint. (Filing No. 12.) After reviewing the Amended Complaint the
court dismissed Plaintiff’s claims against DCC because Plaintiff failed to state a claim upon
which relief may be granted in accordance with Jane Doe A By & Through Jane Doe B v.
Special Sch. Dist. of St. Louis County, 901 F.2d 642, 645 (8th Cir.1990). (See Filing Nos.
8 and 13.) However, the court permitted Plaintiff’s First Amendment and access-to-courts
claims to proceed against the remaining Defendants. (Filing No. 13.)
On June 9, 2010, Summons were returned executed upon Defendants Jeffery
Newton (“Newton”), Earnest Black (“Black”) and Mark Foxall (“Foxall”). (Filing Nos. 19, 20
and 21.) After extensions of time, Defendants filed an Answer and began discovery. (See
Filing Nos. 22-26, 29.) On January 14, 2011, Defendants filed a Motion for Summary
Judgment along with a Brief and Index of Evidence in support arguing, among other things,
that Plaintiff failed to exhaust his administrative remedies. (Filing Nos. 64, 65 and 66.)
However, counsel for Defendants later discovered new documents showing that Plaintiff
may have exhausted his administrative remedies. (Filing No. 90 at CM/ECF p. 1.) On April
12, 2011, Defendants filed a Motion for Leave to File an Amended Motion for Summary
Judgment seeking to withdraw several arguments. (Id. at CM/ECF p. 2.) On May 2, 2011,
the court granted Defendants’ Motion for Leave to File an Amended Motion for Summary
Judgment and informed the parties that in considering any amended motion for summary
judgment, or response thereto, the court would disregard the parties’ previously filed
documents relating to the original Motion for Summary Judgment. (Filing No. 93 at
CM/ECF pp. 1-2.) However, the court also informed the parties that they could cite to

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previously-filed indices of evidence. (Id. at CM/ECF p. 2.) The court gave Defendants until
May 17, 2011, to file an amended motion for summary judgment. (Id. at CM/ECF p. 3.)
On May 13, 2011, Defendants filed a Motion to Extend Time to file their Amended
Motion for Summary Judgment. (Filing No. 94.) However, three days later, and before the
May 17, 2011, filing deadline, Defendants filed their Amended Motion for Summary
Judgment. (Filing No. 95.) In response, Plaintiff filed a Motion Opposing Defendants’
Motion to Extend and a Brief Opposing the Amended Motion for Summary Judgment.
(Filing Nos. 98 and 99.) On June 2, 2011, Defendants filed a Reply Brief. (Filing No. 101.)
Because Defendants timely filed their Amended Motion for Summary Judgment,
Defendants’ Motion to Extend Time to file their Amended Motion for Summary Judgment
and Plaintiff’s Motion Opposing Defendant’s Motion to Extend are denied as moot.
The party seeking 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 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 citations 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.; see also
Fed. R. Civ. P. 56(e) (“A supporting or opposing affidavit must be made on personal
knowledge, set out facts that would be admissible in evidence, and show that the affiant
is competent to testify on the matters stated.”).
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Defendants have submitted a statement of material facts and properly-authenticated
evidence in accordance with the court’s Local Rules. Plaintiff has submitted a Brief
Opposing Defendants’ Amended Motion for Summary Judgment (Filing No. 99) and
numerous supplemental documents (Filing Nos. 103, 105, 108, 110, 112 and 116).
Defendants have responded to the supplemental documents with Motions to Strike and
Objections. (Filing Nos. 104, 106, 109, 111, 113, 115 and117.) The court will address
these Motions to Strike and Objections before setting forth the relevant undisputed material
facts.
II. SUPPLEMENTAL DOCUMENTS, MOTIONS TO STRIKE & OBJECTIONS
As discussed above, Plaintiff has elected to file several supplemental documents.
(See Filing Nos. 103, 105, 108, 110, 112 and 116.) In each instance, Defendants have
filed an Objection and Motion to Strike, arguing, among other things, that Plaintiff failed to
request the court’s leave to file the supplemental documents in accordance with NECivR
7.0.1(c). (Filing Nos. 104, 106, 109, 111, 113 and 117.) In response, Plaintiff has filed two
Objections and Defendants have filed an Objection to Plaintiff’s Objection. (Filing Nos.
107, 114 and 115.)
The court has carefully reviewed Plaintiff’s supplemental documents, Defendants’
Motions to Strike and the parties’ Objections. Plaintiff’s supplemental documents generally
restate allegations from his Amended Complaint and arguments from his Brief in
Opposition to Defendants’ Motion for Summary Judgment. As Defendants point out,
Plaintiff failed to comply with NECivR 7.0.1(c) because he did not seek the court’s leave
to file any of his supplemental documents. (See Docket Sheet; Filing Nos. 104, 106, 109,
111, 113, 114, 115 and 117.) Defendants urge the court to strike these documents from
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the record. However, motions to strike are viewed with disfavor and infrequently granted.
Lunsford v. United States, 570 F.2d 221, 229 (8th Cir. 1977). In light of this, and Plaintiff’s
pro se status, the court will not strike Plaintiff’s supplemental documents.
Separately, in each of their Motions to Strike, Defendants also request leave to
respond to Plaintiff’s supplemental filings. (See Filing Nos. 104, 106, 109, 111, 113, 115
and 117.) For the reasons discussed below, such a response may be unnecessary.
However, to the extent that Defendants desire to respond to Plaintiff’s supplemental
documents, they may do so in accordance with Part 9 of the “IT IS THEREFORE
ORDERED” section. Plaintiff is warned that if he continues to ignore the court’s local rules
and orders, this matter may be dismissed without further notice. Defendants’ Objections
and Motions to Strike (Filing Nos. 104, 106, 109, 111, 113, 115 and 117) are granted in
part and denied in part. Plaintiff’s Supplemental Motion for Stay and Objections (Filing
Nos. 107, 110 and 114) are granted to the extent that Plaintiff’s supplemental documents
will not be stricken from the record and denied to the extent that they request further relief.
This matter is deemed fully submitted and the court adopts the following relevant material
facts.
III.

RELEVANT MATERIAL FACTS

1.
Plaintiff Paul Castonguay is currently being held in Tecumseh State Prison
in Tecumseh, Nebraska.
2.
Plaintiff’s claims relate to restrictions that occurred while he was detained in
DCC in Omaha, Nebraska.
3.

Defendants Newton, Foxall and Black are DCC employees.

4.

On July 9, 2010, Summons were returned executed upon Newton, Foxall and

Black.
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5.
These Summons were served upon Karen Bieterman (“Bieterman”) who was
designated to accept service on behalf of DCC.
(See Docket Sheet; Filing No. 1 at CM/ECF p. 7; Filing Nos. 9, 19, 20, 21, 97-2 and 102-1.)
IV. 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 (8th Cir. 1997).
In order to withstand a motion for summary judgment, the nonmoving party must
substantiate allegations with “‘sufficient probative evidence [that] would permit a finding in
[his] favor on more than mere speculation, conjecture, or fantasy.’” Moody v. St. Charles
Cty., 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.

Defendants’ Amended Motion for Summary Judgment
In their Amended Motion for Summary Judgment and supporting Brief, Defendants

argue, among other things, that the court lacks personal jurisdiction over Defendants in
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their individual capacities. (Filing No. 96 at CM/ECF pp. 18-21.) The court will explore this
argument after briefly discussing Plaintiff’s official capacity claims against Defendants.
1.

Official Capacity Claims

As discussed in the court’s previous Orders, Plaintiff’s claims against DCC were
dismissed because Plaintiff failed to state a claim upon which relief may be granted in
accordance with Jane Doe. (See Filing Nos. 8 and 13.) Liberally construed, Plaintiff also
sues Newton, Foxall and Black in both their official and individual capacities. (Filing No.
1 at CM/ECF p. 3.) See also NECivR 15.1(b) (permitting the court to consider a pro se
litigant’s amended pleadings “as supplemental to, rather than as superseding, the original
pleading”).
A claim against an individual, in his official capacity, is in reality a claim against the
entity which employs the official. See Parrish v. Ball, 594 F.3d 993, 997 (8th Cir. 2010)
(concluding a suit against a public official in his official capacity is actually a suit against
the entity for which the official is agent) (citations and quotations omitted). Accord Eagle
v. Morgan, 88 F.3d 620, 629 n.5 (8th Cir. 1996) (“‘[A]n official-capacity suit is, in all
respects other than name, to be treated as a suit against the entity.’”) (quoting Kentucky
v. Graham, 473 U.S. 159, 165 (1985)). Thus, to sustain an action against Newton, Foxall
and Black in their official capacities, Plaintiff must prove that DCC “itself caused the
constitutional violation at issue.” Elder–Keep v. Aksamit, 460 F.3d 979, 986 (8th Cir.
2006). The court has already addressed this issue. (See Filing Nos. 8 and 13.) Because
Plaintiff’s claims against DCC have been dismissed, Plaintiff’s claims against Newton,
Foxall and Black, in their official capacities, are also dismissed.

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2.

Personal Jurisdiction

“[A] federal court generally may not rule on the merits of a case without first
determining that it has jurisdiction over the category of claim in suit (subject-matter
jurisdiction) and the parties (personal jurisdiction). . . . Without jurisdiction the court cannot
proceed at all in any cause; it may not assume jurisdiction for the purpose of deciding the
merits of the case.” Sinochem Int’l Co. v. Malaysia Int’l Shipping Corp., 549 U.S. 422, 43031 (2007) (citations and quotations omitted). In addition, “[b]efore a federal court may
exercise personal jurisdiction over a defendant, the procedural requirement of service of
summons must be satisfied.” Omni Capital Int’l, Ltd. v. Rudolf Wolff & Co., 484 U.S. 97,
104 (1987).
As set forth in Federal Rule of Civil Procedure 4(e):
Unless federal law provides otherwise, an individual—other than a minor, an
incompetent person, or a person whose waiver has been filed—may be
served in a judicial district of the United States by:
(1) following state law for serving a summons in an action brought in courts
of general jurisdiction in the state where the district court is located or where
service is made; or
(2) doing any of the following:
(A) delivering a copy of the summons and of the complaint to the
individual personally;
(B) leaving a copy of each at the individual’s dwelling or usual place
of abode with someone of suitable age and discretion who resides there; or
(C) delivering a copy of each to an agent authorized by appointment
or by law to receive service of process.
Fed. R. Civ. P. 4(e).
Here, Plaintiff’s summons forms for Newton, Foxall and Black were returned
executed upon Bieterman, who was designated to accept service on behalf of DCC. (Filing
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Nos. 19, 20 and 21.) Defendants argue that because Plaintiff’s summons forms were
served upon Bieterman, service upon Newton, Foxall and Black in their individual
capacities was improper. (Filing No. 96 at CM/ECF pp. 18-21.) However, it is unclear from
the record whether Bieterman was authorized to accept service of process on behalf of
Newton, Foxall and Black in their individual capacities. Stated another way, Defendants
do not cite to any evidence showing that Bieterman lacked authorization to receive service
of process on behalf of Newton, Foxall and Black in their individual capacities.
Because the record is unclear as to whether service was proper, the court will grant
Plaintiff 30 days to cure any service defects. See, e.g., McCaslin v. Cornhusker State
Indus., 952 F. Supp. 652, 659 (D. Neb. 1996) (internal citation omitted) (stating the “court
has broad remedial power to correct the service, . . . especially where justice demands and
prejudice would not result to the improperly served parties”). If Plaintiff fails to cure any
service defects in accordance with this Memorandum and Order, Defendants may move
to dismiss this matter by submitting properly authenticated evidence showing that service
was improper. If Plaintiff properly serves Defendants, Defendants may resubmit their
arguments regarding the merits of Plaintiff’s claims in a Motion for Summary Judgment
filed within 21 days of service. If Defendants elect to file a Motion for Summary Judgment,
Plaintiff shall have 14 days to file a response.
IT IS THEREFORE ORDERED that:
1.

Defendants’ Motion to Extend Time to file an Amended Motion for Summary
Judgment (Filing No. 94) and Plaintiff’s Motion Opposing Defendants’ Motion
to Extend Time to file an Amended Motion for Summary Judgment (Filing No.
98) are denied as moot;

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2.

Defendants’ Objections and Motions to Strike (Filing Nos. 104, 106, 109,
111, 113, 115 and 117) are granted in part and denied in part in accordance
with this Memorandum and Order;

3.

Plaintiff’s Objections (Filing Nos. 107, 110 and 114) are granted to the extent
that Plaintiff’s supplemental documents will not be stricken from the record
and denied to the extent that they request further relief;

4.

Defendants’ Amended Motion for Summary Judgment (Filing No. 95) is
denied without prejudice to reassertion in accordance with this Memorandum
and Order;

5.

Plaintiff’s Motion Opposing Defendants’ Reply Brief (Filing No. 105) is
denied;

6.

To obtain service of process on Defendants, Plaintiff must complete and
return the summons forms which the Clerk of the court will provide. The
Clerk of the court shall send THREE (3) summons forms and THREE (3)
USM-285 forms to Plaintiff for service upon Defendants in their individual
capacities together with a copy of this Memorandum and Order. Plaintiff
shall, as soon as possible, complete the forms and send the completed
forms back to the Clerk of the court. In the absence of the forms, service of
process cannot occur;

7.

Upon receipt of the completed forms, the Clerk of the Court 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 the
summons and Amended Complaint without payment of costs or fees.
Service may be by certified mail pursuant to Fed. R. Civ. P. 4 and Nebraska
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;

8.

Fed. R. Civ. Pro. 4 requires service of the complaint on a defendant within
120 days of filing the complaint. However, Plaintiff filed his original
Complaint more than one year and nine months ago and has already
attempted service of process once. Thus, Plaintiff shall have until
September 23, 2011, to cure any service defects;

9.

If Plaintiff fails to cure any service defects in accordance with this
Memorandum and Order, Defendants may move to dismiss this matter by
submitting properly authenticated evidence showing that service was
improper. If Plaintiff properly serves Defendants, Defendants may resubmit
their arguments regarding the merits of Plaintiff’s claims in a Motion for
Summary Judgment filed within 21 days of service. If Defendants elect to file
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a Motion for Summary Judgment, Plaintiff shall have 14 days to file a
response; and
10.

The parties are bound by the Federal Rules of Civil Procedure and by
the Local Rules of this court. Plaintiff shall keep the court informed of his
current address at all times while this case is pending. Failure to do so may
result in dismissal.

DATED this 22nd day of August, 2011.
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
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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
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