Castonguay v. Newton et al
MEMORANDUM AND ORDER - Defendants' Motion for Summary Judgment (Filing No. 130 ) is granted and Plaintiff's claims against Defendants are dismissed with prejudice. Plaintiff's Objection to Defendant's Motion for Summary Judgm ent (Filing No. 140 ) is denied. Defendants' Objections (Filing Nos. 121 , 151 and 153 ) and Motion to Dismiss (Filing No. 127 ) are denied as moot. Plaintiff's Objection to Defendants' Motion to Dismiss (Filing No. 132 ), Objection to Defendants Motion for Extension of Time (Filing No. 147 ), and Objection to Objection (Filing No. 153 ) are denied as moot. A separate judgment will be entered in accordance with this Memorandum and Order. Ordered by Chief Judge Laurie Smith Camp. (Copy mailed/e-mailed to pro se party)(GJG)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
JEFFREY NEWTON, et al.,
CASE NO. 8:09CV413
This matter is before the court on Defendants’ Motion for Summary Judgment.
(Filing No. 130.) Also pending are several other Motions filed by the parties. (Filing Nos.
121, 127, 132, 140, 147, 151, 152, and 153.) As set forth below, Defendants’ Motion for
Summary Judgment is granted and the other pending Motions are denied.
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 Jeffrey
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 additional 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. (Filing No. 93 at CM/ECF pp. 1-2.)
On May 16, 2011, Defendants filed their Amended Motion for Summary Judgment
along with a Brief in Support. (Filing Nos. 95 and 96.) In their Brief, Defendants argued,
among other things, that the court lacked personal jurisdiction over Defendants in their
individual capacities. (Filing No. 96 at CM/ECF pp. 18-21.) On August 22, 2011, the court
denied Defendants’ Amended Motion for Summary Judgment because the record was
unclear as to whether service was proper. (Filing No. 118 at CM/ECF pp. 8-9.) In doing
so, the court provided Plaintiff 30 days to cure any service defects. The court also
informed the parties that if Plaintiff failed to properly serve Defendants, Defendants could
move to dismiss this matter. (Id.) However, if Plaintiff properly served Defendants,
Defendants could resubmit their arguments regarding the merits of Plaintiff’s claims in a
Motion for Summary Judgment. (Id. at CM/ECF p. 9.)
On September 26, 2011, Defendants filed a Motion to Dismiss because Plaintiff
failed to serve Newton in accordance with the court’s August 22, 2011, Memorandum and
Order.1 (Filing No. 127.) In their Motion to Dismiss, Defendants informed the court that
they would also be filing a motion for summary judgment with regard to Black and Foxall.
(Id.) On October 3, 2011, Defendants filed a Motion for Summary Judgment along with
Brief in Support. (Filing Nos. 130 and 131.) A day later, Defendants filed a lengthy Index
of Evidence in Support. (Filing Nos. 135, 136 and 137.) On October 13, 2011, Plaintiff
filed an Objection to Defendants’ Motion for Summary Judgment. (Filing No. 140.) On
October 24, 2011, Defendants filed a Reply Brief and an additional Index of Evidence in
Support of their Motion for Summary Judgment. (Filing Nos. 148 and 149.)
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
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
An “Amended Summons” was returned executed on upon Newton on October 21,
2011. (See Filing Nos. 126 and 146.) Although service did not occur in accordance with
the court’s August 22, 2011, Memorandum and Order, it appears that Plaintiff was able to
locate Newton and diligently attempted to serve him. (Id.; see also Filings Nos. 120, 121
and 122.) However, because the court is granting Defendants’ Motion for Summary
Judgment, the court need not entertain additional briefing, or argument, regarding whether
service was proper upon Newton.
movant’s statement” of facts and must contain pinpoint citations to evidence supporting the
“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.”).
Defendants submitted a statement of material facts in accordance with the court’s
Local Rules and evidence properly authenticated by affidavit. Plaintiff has submitted a
response. This matter is therefore deemed fully submitted and the court adopts the
following relevant undisputed facts.
RELEVANT UNDISPUTED FACTS
Plaintiff Paul Castonguay is a prisoner incarcerated at the Tecumseh State
Correctional Institution in Tecumseh, Nebraska. (See Docket Sheet.)
Plaintiff was previously incarcerated at the Douglas County Correctional
Center. (See Filing No. 1 at CM/ECF p. 5.)
While Plaintiff was incarcerated at the Douglas County Correctional Center,
Defendants restricted his ability to send mail to, or call, anyone other than his public
defender. (Filing No. 12 at CM/ECF pp. 1-3; Filing No. 137-17; Filing No. 137-4 at CM/ECF
Because this restriction prevented Plaintiff from communicating directly with
the court, Plaintiff mailed his original Complaint in this matter under another inmate’s name
(i.e. “Jason Hawthrone”). (See Filing No. 1 at CM/ECF pp. 3, 7.)
Defendants enacted this restriction after the District Court of Douglas County,
Nebraska, issued an order revoking Plaintiff’s phone and outgoing mail privileges on
February 12, 2009. (Filing No. 136-3, Attach. 3.)
The February 12, 2009, order states:
THIS MATTER comes before the Court on the oral motion of the
State of Nebraska asking the Court to revoke the Defendant’s phone
privileges, the phone privileges of inmates who have allowed the Defendant
to use their phone privileges and to revoke the Defendant’s outgoing mail
privileges. The State of Nebraska was represented by Deputy County
Attorneys Leigh Ann Retelsdorf and Matthew M. Kuhse. The Defendant was
present in court and represented by Assistant Public Defender LeAnne M.
On December 31, 2008, this Court modified the Defendant’s bond to
include a no-contact order with Pauline Castonguay, a material witness.
Despite this order, the State informed the Court that the Defendant has
contacted a material witness, Pauline Castonguay, sixteen (16) times since
December 31, 2009 [sic]. In addition, the State informed the Court that the
Defendant has used the data numbers of six (6) other inmates at the
Douglas County Correctional Center to contact Pauline Castonguay. The
Defendant, through his attorney, objected to the State’s motion[.]
The Court being fully advised in the premises hereby overrules the
Defendant’s objection and sustains the State’s oral motion.
IT IS THEREFORE ORDERED that the Douglas County Correctional
Center revoke the Defendant’s phone privileges.
IT IS FURTHER ORDERED that the Douglas County Correctional
Center revoke the phone privileges of Derrick Scay, Jasin Cooks, David
Jaramillo, James Graham and Steven Arnold as they have provided the
Defendant with their data numbers to make calls to Pauline Castonguay.
IT IS FURTHER ORDEDED [sic] that the Douglas County
Correctional Center revoke the out-going [sic] mail privileges of the
In early November 2009, Plaintiff contacted his public defender and informed
her of his difficulties contacting Jami Birkel (“Birkel”), an assistant public defender who had
been appointed to represent Plaintiff in a separate case. (Filing No. 137-22 at CM/ECF p.
Thereafter, Plaintiff’s public defender spoke to the county attorney about
Birkel’s representation of Plaintiff. (Id.) After this discussion, Plaintiff’s public defender
sent Plaintiff a letter informing him that Newton was giving plaintiff privileges to both call
and send mail to the Douglas County District Court Clerk’s Office and Jami Birkel. (Filing
Standard of Review
Summary judgment should be granted only “if the pleadings, the discovery and
disclosure materials on file, and any affidavits show that there is no genuine issue as to
any material fact and that the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. Pro. 56(c). See also Egan v. Wells Fargo Alarm Servs., 23 F.3d 1444, 1446 (8th Cir.
1994). It is not the court’s function to weigh evidence in the summary judgment record to
determine the truth of any factual issue. Bell v. Conopco, Inc., 186 F.3d 1099, 1101 (8th
Cir. 1999). 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 their allegations with “‘sufficient probative evidence [that] would permit a
finding in [their] 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 v. Liberty Lobby, Inc., 477 U.S. 242, 251-52
Defendants’ Motion for Summary Judgment
Defendants argue, among other things, that they are entitled to qualified immunity
because they were complying with a state court order that revoked Plaintiff’s phone and
outgoing mail privileges. (Filing No. 131 at CM/ECF pp. 35-44.)
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), (citing 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
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 an 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 . . . .” Henderson
v. Munn, 439 F.3d 497, 501 (8th Cir. 2006), (citations and quotations omitted). A court
“may consider these factors in either order.” Stepnes v. Ritschel, 663 F.3d 952, 960 (8th
Here, the undisputed facts show that Defendants restricted Plaintiff’s phone and
outgoing mail privileges while he was incarcerated at the Douglas County Correctional
Center. (Filing 12 at CM/ECF pp. 1-3; Filing No. 137-17.) The extent of this restriction is
However, even assuming that this restriction violated Plaintiff’s First
Amendment rights and denied him access to the courts, Defendants are entitled to
qualified immunity because they were complying with an order from the District Court of
Douglas County, Nebraska. The Eighth Circuit has stated that “[a] reasonably competent
official should know that it is not lawful to disobey a . . . [a] court order.” Slone v. Herman,
983 F.2d 107, 111 (8th Cir. 1993); see also Walters v. Grossheim, 990 F.2d 381, 384 (8th
Cir. 1993), (affirming district court’s decision to deny qualified immunity defense where
prison officials disobeyed a state court order on the advice of counsel). Moreover,
Defendants were mindful to provide Plaintiff the ability to send mail to, and call, his public
defender. (See Filing No. 137-17.) Under these circumstances, Defendants could have
reasonably believed that their conduct was lawful in light of clearly established law. See
Smithson, 235 F.3d at 1061. Defendants are entitled to qualified immunity and Plaintiff’s
Complaint is dismissed with prejudice.
IT IS THEREFORE ORDERED that:
Defendants’ Motion for Summary Judgment (Filing No. 130) is granted and
Plaintiff’s claims against Defendants are dismissed with prejudice;
Plaintiff’s Objection to Defendant’s Motion for Summary Judgment (Filing No.
140) is denied;
Defendants’ Objections (Filing Nos. 121, 151 and 153) and Motion to
Dismiss (Filing No. 127) are denied as moot;
Plaintiff’s Objection to Defendants’ Motion to Dismiss (Filing No. 132),
Objection to Defendants’ Motion for Extension of Time (Filing No. 147), and
Objection to Objection (Filing No. 153) are denied as moot; and
A separate judgment will be entered in accordance with this Memorandum
DATED this 10th day of February, 2012.
BY THE COURT:
s/Laurie Smith Camp
Chief United States District Judge
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