Wilson et al v. Bruning et al

Filing 25

MEMORANDUM AND ORDER - Plaintiffs' First Amendment claim against Frank Hopkins in his individual and official capacities may proceed to service of process. All other claims against all other Defendants are dismissed. To obtain service of process on Defendant Frank Hopkins, Plaintiffs must complete and return the summons forms that the Clerk of the court will provide. The Clerk of the court shall send two summons forms and two USM-285 forms to Plaintiff, together with a c opy of this Memorandum and Order for service on Frank Hopkins in his individual and official capacities. 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. The Clerk of Court is directed to set a pro se case management deadlinein this case with the following text: "August 15, 2014: Check for completion ofservice of summons."Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party with summonses) (AOA)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
HAROLD B. WILSON, and GRACY )
S. SEDLAK,
)
)
Plaintiffs,
)
)
v.
)
)
JON BRUNING, et al.,
)
)
Defendants.
)

8:13CV130

MEMORANDUM
AND ORDER

This matter is before the court on its own motion. On November 7, 2013, the
court entered a Memorandum and Order allowing Plaintiffs to file an amended
complaint that states a claim upon which relief may be granted. (Filing No. 20.)
Plaintiffs filed an Amended Complaint on December 10, 2013. (Filing No. 21.) The
court considers Plaintiffs’ Amended Complaint as supplemental to their original
Complaint. NECivR 15.1(b) (stating that in pro se cases, the court may consider an
amended pleading as supplemental to the original pleading, rather than as
superseding).
The court has carefully reviewed Plaintiffs’ Complaint and Amended
Complaint and finds that Plaintiffs’ claim that prison regulations violate their First
Amendment right to freedom of association may proceed to service of process.
Plaintiffs’ factual allegations with respect to this claim are lodged against Frank
Hopkins only. (See Filing No. 21 at CM/ECF p. 2 (“On 1-18-2013 Frank Hopkins
signed a Step II grievance for Director Houston . . . denying consideration of Ms.
Sedlack visiting Mr. Wilson until three years after March 23, 2012.”).) The court
cautions Plaintiff that this is only a preliminary determination based 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.

All other claims against all other Defendants will be dismissed. As the court
discussed in its previous order, Plaintiffs’ arguments that they are being denied the
right to marry are foreclosed by the Eighth Circuit Court of Appeals’ opinion in
Citizens for Equal Protection v. Bruning, 455 F.3d 859 (8th Cir. 2006). (Filing No.
20.) Plaintiff Harold Wilson’s request that the court order the prison to allow him to
wear a hat is unrelated to the claims alleged in the Complaint and Amended
Complaint. To the extent Wilson wishes to sue the prison for a violation of his
religious rights because he is not allowed to wear a hat, he must do so in a separate
action.
IT IS THEREFORE ORDERED that:
1.
Plaintiffs’ First Amendment claim against Frank Hopkins in his individual
and official capacities may proceed to service of process. All other claims against all
other Defendants are dismissed.
2.
To obtain service of process on Defendant Frank Hopkins, Plaintiffs must
complete and return the summons forms that the Clerk of the court will provide. The
Clerk of the court shall send two summons forms and two USM-285 forms to Plaintiff,
together with a copy of this Memorandum and Order for service on Frank Hopkins in
his individual and official capacities. 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.
3.
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 the 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
Complaint and Amended Complaint, and Plaintiff does not need to do so.
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4.
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
Plaintiffs are informed for the first time of these requirements, Plaintiffs are granted,
on the court’s own motion, an extension of time until 120 days from the date of this
order to complete service of process.
5.
Plaintiffs are 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.
6.
The Clerk of Court is directed to set a pro se case management deadline
in this case with the following text: “August 15, 2014: Check for completion of
service of summons.”
7.
The parties are bound by the Federal Rules of Civil Procedure and by the
Local Rules of this court. Plaintiffs shall keep the court informed of their current
address at all times while this case is pending. Failure to do so may result in dismissal.
DATED this 17th day of April, 2014.
BY THE COURT:
Richard G. Kopf
Senior 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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