Sundquist v. State of Nebraska et al

Filing 77

ORDER - 1) Defendants' objection, (Filing No. 76 ), is sustained.2) Plaintiff's motion to extend the deadline for adding parties, (Filing No. 74 ), is denied.3) Plaintiff's motion to file an amended complaint, (Filing No. 73 ), is denied. Ordered by Magistrate Judge Cheryl R. Zwart. (Copy e-mailed to pro se party)(JAB)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
MARVIN DOUGLAS SUNDQUIST,
Plaintiff,

8:14CV220

vs.
ORDER
STATE OF NEBRASKA, et. al.,
Defendants.
The plaintiff has filed a motion to amend, stating his proposed amended complaint
adds clarity, replaces Jon Bruning with Doug Peterson and Courtney Phillips, all in their
official capacities, and adds Joseph Acierno, in his individual capacity, as a defendant.
(Filing No. 73; Filing No. 73-1). The proposed complaint also adds a claim for punitive
damages. Under the court’s progression order, Plaintiff’s deadline for moving to amend
was November 16, 2015. (Filing No. 30). That deadline was never extended or stayed
by any court order. Plaintiff therefore also moves to continue the deadline for moving to
amend the complaint. (Filing No. 74).
Defendants object to Plaintiff’s motion to amend, stating any amendment to add
claims against Acierno would be futile, the motion to amend is untimely, and Plaintiff has
failed to show good cause for extending the court-imposed deadline for amending his
pleadings. (Filing No. 76). For the reasons stated below, Plaintiff’s motion for extension
of time to add parties and his motion to amend his complaint will be denied.
Plaintiff’s initial complaint alleged a claim against Acierno in his individual
capacity. By order dated August 10, 2015, the court dismissed this claim, explaining:
Sundquist has failed to allege facts plausibly suggesting that . . . Acierno
[was] personally involved in the alleged violations of his constitutional
rights, or that [he was] deliberately indifferent to those violations.
Accordingly, Sundquist's individual-capacity claims against . . . Acierno
will be dismissed for failure to state a claim.

(Filing No. 21, at CM/ECF p. 5).
Plaintiff argues that he now possesses evidence of Acierno’s personal involvement
in the alleged violation of Plaintiff’s constitutional rights—evidence he lacked when he
initially filed this lawsuit and prior to November 16, 2015, the deadline for moving to
amend. (Filing No. 73). Specifically, Plaintiff relies on Filing No. 44, exhibits 14 and
15, the orders signed by Acierno as a DHHS hearing officer in 2013 and 2014,
respectively. (Filing Nos. 44-14 (DHHS Order Denying Motion to Dismiss) & 44-15
(DHHS Findings of Fact and Conclusion of Law; Order)).

Exhibits 14 and 15 were mailed to Plaintiff on December 9, 2013, and January 28,
2014, respectively.

During a conference with the undersigned magistrate judge on

January 5, 2015, (Filing No. 72, Audio File), Plaintiff confirmed that DHHS sent these
documents to Plaintiff’s correct mailing address as of the date of these mailings. Plaintiff
filed the above-captioned lawsuit on July 29, 2014. (Filing No. 1). Exhibits 14 and 15
were again brought to Plaintiff’s attention on October 2, 2015, when Defendant served
copies on Plaintiff as exhibits in support of Defendants’ motion for summary judgment.

Pursuant to Rule 16(b)(4), a case management order setting progression deadlines
“may be modified only for good cause and with the judge's consent.” Fed. R. Civ. P.
16(b)(4). The movant's level of diligence and the degree of prejudice to the parties are
both factors to consider when assessing if good cause warrants extending a case
management deadline, with the movant’s diligence being the first consideration and the
extent of prejudice to either party considered only following a requisite threshold finding
of due diligence. Sherman v. Winco Fireworks, Inc., 532 F.3d 709, 716-17 (8th Cir.
2008); Marmo v. Tyson Fresh Meats, Inc., 457 F.3d 748, 759 (8th Cir. 2006).
The deadline for moving to amend or add parties expired before the plaintiff filed
his pending motion to amend. Even had it not, the court finds the information Plaintiff
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relies on as support for his new allegations against Acierno was available to Plaintiff
before this litigation was filed. And it was again served on Plaintiff a month before the
deadline to amend pleadings. Plaintiff has failed to show due diligence in pursuing his
claims against Acierno, both from the outset of this case and before the court-ordered
deadline for moving to amend. This case has been pending for over six months, and it
has been the subject of substantial and ongoing motion practice. The deposition deadline,
March 30, 2016, is rapidly approaching.

The court finds the case progression and

scheduling will be adversely affected, and Defendants’ trial preparation will be
prejudiced, if Acierno is again named as a defendant at this stage of the litigation. And
Plaintiff has failed to show good cause for extending the court-ordered deadline for filing
motions to amend.
Accordingly,
IT IS ORDERED:
1)

Defendants’ objection, (Filing No. 76), is sustained.

2)

Plaintiff’s motion to extend the deadline for adding parties, (Filing No. 74),
is denied.

3)

Plaintiff’s motion to file an amended complaint, (Filing No. 73), is denied.

February 10, 2016.
BY THE COURT:
s/ Cheryl R. Zwart
United States Magistrate Judge

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