Herzog v. O'Niel

Filing 109

MEMORANDUM AND ORDER - O'Neill's Motion for Summary Judgment (filing no. 89 ) is granted and Plaintiff's First Amendment claims against ONeill are dismissed with prejudice. Plaintiff's Objection to Defendant's Motion for Summary Judgment (filing no. 96 ), Motion for Investigation (filing no. 105 ) and Motion for Summary Judgment (filing no. 107 ) are denied. A separate judgment will be entered in accordance with this Memorandum and Order. Ordered by Judge Joseph F. Bataillon. (Copy mailed/e-mailed to pro se party)(GJG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
ANDREW A. HERZOG,
Plaintiff,
v.
DOCTOR STEPHEN O’NIEL,
Defendant.

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8:10CV313

MEMORANDUM
AND ORDER

This matter is before the court on Defendant’s Motion for Summary Judgment.
(Filing No. 89.) Also pending are Plaintiff’s Objection to Defendant’s Motion for
Summary Judgment (filing no. 96), Motion for Investigation (filing no. 105) and
Motion for Summary Judgment (filing no. 107). As set forth below, Defendant’s
Motion is granted and Plaintiff’s Motions are denied.
I.

BACKGROUND

Plaintiff filed a Complaint in Case Number 8:10CV313 on August 24, 2010,
against Stephen O’Niel (“O’Neill”).1 (Filing No. 1.) Plaintiff subsequently filed an
Amended Complaint against O’Neill in which he alleged that O’Neill violated his
First Amendment rights by ordering his staff to inspect incoming legal mail. (Filing
No. 22 at CM/ECF pp. 1-2.) On October 8, 2010, Plaintiff filed a separate complaint
in Case Number 8:10CV381 against O’Neill and six other individuals. (Case No.
8:10CV381, Filing No. 1.) In the separate complaint, Plaintiff noted that he had
already begun a lawsuit in Case Number 8:10CV313 dealing with the same facts. (Id.
at CM/ECF pp. 2-3.)

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Defendant has informed the court that the spelling of his name is “O’Neill.” (Filing No. 59
at CM/ECF p. 1.) The court will refer to Defendant by his correctly spelled name.

On January 26, 2011, the court directed Plaintiff to file an amended complaint
in Case Number 8:10CV313 that contained all of his claims, including those
presented in Case Number 8:10CV381. (Filing No. 47; Case No. 8:10CV381, Filing
No. 15.) On January 28, 2011, Plaintiff filed a Motion to Amend Complaint in Case
Number 8:10CV313. (Filing No. 49.) Because this Motion complied with the court’s
January 26, 2011, Memorandum and Order, the court consolidated Case Numbers
8:10CV313 and 8:10CV381 and conducted an initial review of Plaintiff’s Amended
Complaint. (Filing No. 57.) On initial review, the court dismissed all of Plaintiff’s
claims except for his claim that O’Neill violated his First Amendment rights by
authorizing NRC staff to open, inspect and read his incoming legal mail. (Filing No.
57 at CM/ECF pp. 8-10; see also Filing No. 49 at CM/ECF p. 2; Case Number
8:10CV381, Filing No. 1 at CM/ECF p. 5.) The court permitted this claim to proceed
against O’Neill in his individual capacity only. (Filing No. 57 at CM/ECF pp. 8-10.)
On November 29, 2011, O’Neill filed a Motion for Summary Judgment Based
on Qualified Immunity along with a Brief and an Index of Evidence in Support.
(Filing Nos. 89, 90 and 91.) On November 30, 2011, O’Neill filed an amended Brief
in Support of his Motion for Summary Judgment. (Filing No. 92.) In response,
Plaintiff filed an Objection to the Motion for Summary Judgment along with a Brief
in Support of his Objection. (Filing Nos. 96 and 97.) Thereafter, O’Neill filed a
Reply Brief. (Filing No. 100.)
Out of an abundance of caution, and because the Plaintiff failed to submit any
evidence in response to O’Neill’s Motion for Summary Judgment, the court gave
Plaintiff an additional opportunity to respond. (Filing No. 104.) In doing so, the
court directed Plaintiff to submit an affidavit or other evidence showing that O’Neill
ordered NRC staff to read his legal mail. (Id.) In response, Plaintiff filed a Motion
for Summary Judgment and a Brief in Support of his Motion. (Filing Nos. 107 and
108.)
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
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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.”).
O’Neill submitted a statement of material facts in accordance with the court’s
Local Rules. Further, O’Neill submitted evidence which was properly authenticated
by affidavit or sworn deposition testimony. Plaintiff did not submit any evidence in
opposition to Defendant’s Motion, even after the court gave him an additional
opportunity to do so. (See Filing Nos. 96, 97, 104, 107 and 108.) In light of this,
O’Neill’s Motion is deemed fully submitted and the court adopts the following
undisputed material facts.
II.

RELEVANT UNDISPUTED FACTS

1.
Plaintiff Andrew A. Herzog is a patient confined at the NRC. (See
Docket Sheet, Filing No. 1.)
2.
Defendant Stephen O’Neill is a licensed physician and board-certified
psychiatrist employed by the NRC. (Filing No. 91-2 at CM/ECF pp. 1-2.)
3.
On June 17, 2005, O’Neill issued a physician’s order directing NRC staff
to “[s]creen all [Plaintiff’s] incoming mail except from advocacy + attorney.” (Filing
No. 1 at CM/ECF p. 8.)

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4.
Plaintiff testified that he filed grievances in 2008 because an NRC staff
member opened and read his legal mail. Plaintiff testified that O’Neill resolved this
issue “with administration” and he was “satisfied” with the response. (Filing No. 911 at CM/ECF pp. 9-13.)
5.
O’Neill submitted an affidavit stating that he never ordered “the illegal
opening, confiscation or reading” of Plaintiff’s mail “from his attorney.” (Filing No.
91-2 at CM/ECF p. 2.)
III.
A.

ANALYSIS

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 (1986).
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B.

O’Neill’s Motion for Summary Judgment

O’Neill argues that he is entitled to qualified immunity because Plaintiff cannot
show that O’Neill violated his First Amendment rights. (Filing No. 92 at CM/ECF
pp. 8-14.)
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 Cir. 2011). With these factors in mind,
the court now turns to Plaintiff’s claims.

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Plaintiff alleges O’Neill authorized NRC staff to open, inspect and read his
incoming legal mail. (Filing No. 57 at CM/ECF pp. 8-10; see also Filing No. 49 at
CM/ECF p. 2; Case Number 8:10CV381, Filing No. 1 at CM/ECF p. 5.) Although
involuntarily committed individuals do not forfeit their First Amendment right to
receive incoming mail, that right may be limited by institutional regulations that are
reasonably related to a legitimate penological or institutional interest. Turner v.
Safley, 482 U.S. 78 (1987). Indeed, “[t]he governmental interests in running a state
mental hospital are similar in material aspects to that of running a prison.
Administrators have a vital interest in ensuring the safety of their staff, other patients,
and of course in ensuring the patients’ own safety.” Morgan v. Rabun, 128 F.3d 694,
697 (8th Cir. 1997); see also Revels v. Vincenz, 382 F.3d 870, 874 (8th Cir. 2004)
(although involuntarily committed patient of state hospital is not prisoner per se, his
confinement is subject to same safety and security concerns as that of prisoner). The
Supreme Court has held that prison officials may inspect, but not read, mail from an
attorney in the presence of an inmate. Wolff v. McDonnell, 418 U.S. 539, 576-77
(1974); Beese v. Liebe, 51 Fed. App’x 979, 981 (7th Cir. 2002) (concluding that
prison officials may inspect, but not read, a prisoner’s legal mail).
Here, the undisputed facts show that O’Neill issued a physician’s order
directing NRC staff to “[s]creen all [Plaintiff’s] incoming mail except from advocacy
+ attorney.” (Filing No. 1 at CM/ECF p. 8 (emphasis added).) O’Neill has also
submitted an affidavit stating that he never ordered “the illegal opening, confiscation
or reading” of Plaintiff’s mail “from his attorney.” (Filing No. 91-2 at CM/ECF p.
2.) In contrast, Plaintiff has not submitted any evidence to support his allegations.
He did not file copies of the mail that the NRC staff allegedly read, and he failed to
show that the mail in question was sent from his attorney or otherwise labeled as legal
mail. (See Filing Nos. 104, 107 and 108.) See, e.g., Merriweather v. Zamora, 569
F.3d 307, 312 (6th Cir. 2009) (stating, where plaintiff claimed that prison mailroom
employees read his legal mail, the court must first determine whether the contested
pieces of mail qualified as properly labeled legal mail). Plaintiff also testified that he
was “satisfied” with O’Neill’s response to his grievances alleging that NRC staff
opened and read his mail. (Filing No. 91-1 at CM/ECF pp. 9-13.) This testimony
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does not show that O’Neill failed to act, or acted unreasonably, in response to
Plaintiff’s grievances.
In his Motion for Summary Judgment, Plaintiff asks the court to allow him to
depose his former attorney Joel B. Jay (“Jay”), because Jay allegedly had difficulties
contacting Plaintiff at NRC. (See Filing No. 107 at CM/ECF pp. 1-2.) However,
Plaintiff does not describe how these difficulties relate to whether NRC staff read his
legal mail. Liberally construed, these difficulties relate to Plaintiff’s access to court
claim, which the court previously dismissed on April 13, 2011. (See Filing No. 57.)
In short, Plaintiff failed to come forward with evidence to dispute O’Neill’s
affidavit or refute O’Neill’s physician’s order directing NRC staff to screen Plaintiff’s
incoming mail “except from advocacy + attorney.” (Filing No. 1 at CM/ECF p. 8
(emphasis added); Filing No. 91-2 at CM/ECF p. 2.) Indeed, “a party opposing a
properly supported motion for summary judgment ‘may not rest upon the mere
allegations or denials of his pleading, but must set forth specific facts showing that
there is a genuine issue for trial.’” Anderson, 477 U.S. at 248 (quoting First Nat’l
Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288 (1968)) (internal quotation marks
omitted). Because Plaintiff failed to show that O’Neill violated his First Amendment
rights, O’Neill is entitled to qualified immunity and the court will dismiss Plaintiff’s
First Amendment claims against O’Neill with prejudice.2
IT IS THEREFORE ORDERED that:
1.
O’Neill’s Motion for Summary Judgment (filing no. 89) is granted and
Plaintiff’s First Amendment claims against O’Neill are dismissed with prejudice.

2

Because the court finds that Plaintiff failed to show that O’Neill violated his First
Amendment rights, the court need not address the second question in the qualified immunity
analysis.
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2.
Plaintiff’s Objection to Defendant’s Motion for Summary Judgment
(filing no. 96), Motion for Investigation (filing no. 105) and Motion for Summary
Judgment (filing no. 107) are denied.
3.
A separate judgment will be entered in accordance with this
Memorandum and Order.
DATED this 9th day of April, 2012.
BY THE COURT:
s/ Joseph F. Bataillon
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
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the availability or functionality of any hyperlink. Thus, the fact that a hyperlink ceases to work or
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