Herrera v. Mowry et al

Filing 13

MEMORANDUM AND ORDER - IT IS THEREFORE ORDERED that: To obtain service of process on Defendants in their individual capacities, Plaintiff must complete and return the summons forms which the Clerk of the court will provide. The Clerk of the court shall send SIX summons forms and SIX USM-285 forms to Plaintiff, 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 absenc e of the forms, service of process cannot occur. Upon receipt of the completed forms, the Clerk of the court will sign the summons forms, to be forwarded with a copy of the Complaint and Amended Complaint to the U.S. Marshal for service of process. The Marshal shall serve the summons and Complaint and 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 Marshal. The Clerk o f the court will copy the Amended Complaint, and Plaintiff does not need to do so. Plaintiff is hereby notified that failure to obtain service of process on a defendant within 120 days of the date of this order may result in dismissal of this matt er without further notice as to such defendant. A defendant has 21 days after receipt of the summons to answer or otherwise respond to a complaint. The Clerk of Court is directed to set a pro se case management deadline in this case with the follow ing text: "June 11, 2013: Check for completion of service of summons." 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 Joseph F. Bataillon. (Copy mailed to pro se party with Summons and 285 Forms)(TCL )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
PIMENIO V. HERRERA,
Plaintiff,
v.
TAMMY MOWRY, et al.,
Defendants.

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8:12CV321

MEMORANDUM
AND ORDER

This matter is before the court on Plaintiff Pimenio Herrera’s (“Plaintiff”)
Amended Complaint, which the court treats as supplemental to his original
Complaint. (Filing No. 12.) See NECivR 15.1(b) (stating court may consider
amended pleadings as supplemental to, rather than as superseding, the original
pleading). In Plaintiff’s Amended Complaint, Plaintiff clarifies that he is suing
Defendants in their individual capacities, not in their official capacities. (Filing No.
12.) In light of this clarification, Plaintiff’s claims against Defendants in their
individual capacities may now proceed to service.1

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In this action, Plaintiff alleges, among other things, that Defendants strapped
him naked to a stretcher and then transported him to another jail in view of the public.
The Eighth Circuit and other courts have recognized that degrading and humiliating
treatment such as that alleged by Plaintiff can form the basis for a constitutional
claim. See, e.g., Hill v. McKinley, 311 F.3d 899 (8th Cir. 2002) (female inmate
adequately stated a constitutional claim when left restrained and naked, exposed for
a substantial length of time in front of male prison guards); Palmer v. Johnson, 193
F.3d 346 (5th Cir. 1999) (prisoners established constitutional violation when left
outside in the cold, exposed to the elements overnight and deprived of “basic
elements of hygiene”); Davis v. Locke, 936 F.2d 1208 (11th Cir. 1991) (inmate
transported in a dog cage with hands tied behind his back and dragged out by his
ankles stated adequate claim).

For the reasons set forth here and in the court’s November 29, 2012,
Memorandum and Order, the court finds that Plaintiff’s allegations “nudge” his
Fourth and Eighth Amendment claims against Defendants across the line from
conceivable to plausible. Although the court finds that Plaintiff’s claims may proceed
against Defendants in their individual capacities, the court cautions Plaintiff that this
is only a preliminary determination based only on the allegations of the Complaint
and Amended Complaint and is not a determination of the merits of Plaintiff’s claims
or potential defenses thereto.
IT IS THEREFORE ORDERED that:
1.
To obtain service of process on Defendants in their individual capacities,
Plaintiff must complete and return the summons forms which the Clerk of the court
will provide. The Clerk of the court shall send SIX summons forms and SIX USM285 forms to Plaintiff, 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.
2.
Upon receipt of the completed forms, the Clerk of the court will sign the
summons forms, to be forwarded with a copy of the Complaint and Amended
Complaint to the U.S. Marshal for service of process. The Marshal shall serve the
summons and Complaint and 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 Marshal. The Clerk of the court will copy the
Amended Complaint, and Plaintiff does not need to do so.
3.
Federal Rule of Civil Procedure 4 requires service of the complaint on
a defendant within 120 days of filing the complaint. However, because in this order
Plaintiff is informed for the first time of these requirements, Plaintiff is granted, on
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the court’s own motion, an extension of time until 120 days from the date of this
order to complete service of process.
4.
Plaintiff is hereby notified that failure to obtain service of process on a
defendant within 120 days of the date of this order may result in dismissal of this
matter without further notice as to such defendant. A defendant has 21 days after
receipt of the summons to answer or otherwise respond to a complaint.
5.
The Clerk of Court is directed to set a pro se case management deadline
in this case with the following text: “June 11, 2013: Check for completion of service
of summons.”
6.
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 12th day of February, 2013.
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 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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