Herzog v. O'Niel

Filing 64

MEMORANDUM AND ORDER - O'Neill's Motion to Dismiss (filing no. 58 ) is denied without prejudice to reassertion in a motion for summary judgment. Plaintiff's Motion for Summary Judgment (filing no. 60 ) is denied as premature. In ac cordance with Federal Rule of Civil Procedure 12(a)(4)(A), O'Neill shall file his answer no later than 14 days from the date of this Memorandum and Order. A separate progression order will be entered progressing this matter to final disposition. Ordered by Chief 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 Stephen O’Neill’s1 Motions to Dismiss.
(Filing No. 58.) Also pending is Plaintiff’s Motion for Summary Judgment. (Filing No. 60.)
As set forth below, the Motions are denied.
On April 13, 2011, the court conducted a detailed review of Plaintiff’s Amended
Complaint. (Filing No. 57.) In that Memorandum and Order, the court liberally construed
and analyzed each of Plaintiff’s claims. (Id.) In doing so, the court determined that Plaintiff
had set forth enough allegations to “nudge” his First Amendment claim against O’Neill
“across the line from conceivable to plausible,” the same standard used to resolve a motion
to dismiss filed under Federal Rule of Civil Procedure 12(b)(6). See Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 569-70 (2007); see also Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950
(2009) (“A claim has facial plausibility when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.”); Burke v. N. D. Dep’t of Corr. & Rehab., 294 F.3d 1043, 1043-44 (8th Cir. 2002)
(holding that a pro se complaint must be construed liberally).
Rather than file an answer, O’Neill elected to file a Motion to Dismiss, arguing that
Plaintiff’s Amended Complaint fails to state a claim upon which relief may be granted.
(Filing Nos. 58 and 59.) However, the court already resolved that question and declines to
revisit it now. For the reasons set forth in its April 13, 2011, Memorandum and Order,
Plaintiff has set forth sufficient facts to nudge his claims across the line from conceivable to
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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.

plausible. While Plaintiff’s claims may not ultimately withstand a motion for summary
judgment, they are enough to withstand the pending Motion to Dismiss.
Also pending is Plaintiff’s Motion for Summary Judgment. (Filing No. 60.) O’Neill
has not filed an answer in this matter and has not had the opportunity to conduct discovery.
Accordingly, Plaintiff’s Motion for Summary Judgment is premature. If O’Neill files an
answer, the court will enter a progression order that sets forth the discovery timeline in this
matter. Plaintiff may file a motion for summary judgment after discovery is completed.
IT IS THEREFORE ORDERED that:
1.

O’Neill’s Motion to Dismiss (filing no. 58) is denied without prejudice to

reassertion in a motion for summary judgment.
2.

Plaintiff’s Motion for Summary Judgment (filing no. 60) is denied as

premature.
3.

In accordance with Federal Rule of Civil Procedure 12(a)(4)(A), O’Neill shall

file his answer no later than 14 days from the date of this Memorandum and Order.
4.

A separate progression order will be entered progressing this matter to final

disposition.
DATED this 5 th day of August, 2011.
BY THE COURT:
s/ Joseph F. Bataillon
Chief 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.

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