A.W. v. State of Nebraska et al

Filing 68

MEMORANDUM AND ORDER - Plaintiffs' motion for leave to amend (Filing No. 65 ) is granted in part and denied in part, as follows: a. Paragraph 1 of the statement of relief requested" by Plaintiffs' motion for summary judgment (Filing N o. 59 ) is amended by interlineation by inserting "One," after "Counts" and before "Two and Three." b. Paragraph 2 of the "statement of relief requested" by Plaintiffs' motion for summary judgment (Filing No. 59 ) is stricken. c. In all other respects, the motion is denied. Plaintiffs' motion for summary judgment (Filing No. 59 ), as amended by this order, and Defendants' motion for summary judgment (Filing No. 56 ) are taken under submission, and no further briefing or evidentiary filings will be permitted by either side without prior leave of court. Plaintiffs' requests for oral argument are denied. Ordered by Senior Judge Richard G. Kopf. (MKR)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
A.W., a minor child, by and through
JOHN DOE and JANE DOE, as Next
Friends and Guardians,
Plaintiffs,
v.
DOUG PETERSON, Attorney General
of Nebraska; COLONEL BRADLEY
RICE, Superintendent of Law
Enforcement and Public Safety for
Nebraska State Patrol; PAUL WOOD,
County Attorney for Red Willow
County; and GENE MAHON, Sheriff
for Red Willow County,
Defendants.

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8:14CV256

MEMORANDUM
AND ORDER

This matter is before court on cross-motions for summary judgment (Filing
Nos. 56, 59) based on a joint set of stipulated facts (Filing No. 55). Questions of law
presented by the motions are whether Nebraska’s Sex Offender Registration Act
(“SORA”), Neb. Rev. Stat.§§ 29-4001 to 29-4014, requires the minor plaintiff, A.W.,
to register publicly as a sex offender, and, if so, whether the Act is constitutional.
In particular, the plaintiffs claim that SORA’s public registration requirement, if
applied to A.W., will (1) subject him to cruel and unusual punishment in violation of
the Eighth Amendment to the United States Constitution and Article I, section 9 of the
Nebraska Constitution (Filing No. 24, ¶ 38); (2) deny him equal protection contrary
to the Fourteenth Amendment to the United States Constitution and Article I, section
3 of the Nebraska Constitution (Filing No. 24, ¶ 40); (3) deprive him of the right to
substantive due process in violation of the Fourteenth Amendment to the United States
Constitution and Article I, section 3 of the Nebraska Constitution (Filing No. 24,

¶ 42)1; and (4) violate the privileges and immunities clause of the Article IV, Section
2, Clause 1 of the United States Constitution and Article I, section 16 of the Nebraska
Constitution” (Filing No. 24, ¶ 44).
Both motions for summary judgment were filed on December 23, 2015, which
was the deadline established in the court’s final progression order (Filing No. 51). The
defendants have moved for summary judgment on all four claims. The plaintiffs’
motion, however, only requests that judgment be entered in their favor on the equal
protection and substantive due process claims. The motion’s “statement of relief
sought,” see Fed. R. Civ. P. 7(b)(1)(C), reads as follows:
WHEREFORE, Plaintiffs pray that the Court:
1.

Grant Plaintiffs’ Motion for Summary Judgment in their favor for
all the causes of action pled in Counts Two and Three as against
all Defendants;

2.

Reserve the issue of damages flowing from enforcement of the
challenged provisions;

3.

Reserve the issue of attorney fees; and

4.

Set the matter for oral argument to address the issues raise herein.

(Filing No. 59 at CM/ECF p. 2).
On January 13, 2016, the same day they responded to the defendants’ motion
for summary judgment by briefing only the Eighth Amendment claim, the plaintiffs
filed a motion “for leave to amend Plaintiffs’ Motion for Summary Judgment to
include Plaintiffs’ Eighth Amendment claim and strike Plaintiffs’ prayer regarding
damages” (Filing No. 65 at CM/ECF p. 1). The motion concludes:

1

The plaintiffs also alleged a procedural due process violation in their amended
complaint, but such claim was dismissed with prejudice on July 13, 2015, when the
court granted in part a Rule 12(b)(6) motion filed by the defendants (Filing No. 42).
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WHEREFORE, Plaintiffs pray that the Court:
1.

Grant Plaintiffs’ Amended Motion for Summary Judgment in their
favor for all the causes of action pled in Counts One, Two and
Three as against all Defendants;

2.

Reserve the issue of attorney fees; and

3.

Set the matter for oral argument to address the issues raise herein.

(Filing No. 65 at CM/ECF pp. 1-2). The plaintiffs’ motion does not “state the basis
for the motion” as required by Nebraska Civil Rule 7.1(a), nor is there a supporting
brief. See NECivR 7.1(a)(1). The defendants have not responded to the plaintiffs’
motion for leave to amend, but they have replied to the plaintiffs’ brief in opposition
to the defendants’ motion for summary judgment.
The court construes the plaintiffs’ motion for leave to amend their motion for
summary judgment as requesting that two changes be made to Filing No. 59: (1) that
paragraph 1 of the “statement of relief requested” be amended by interlineation to add
Count One (the Eighth Amendment claim) as being subject to the plaintiffs’ motion
for summary judgment2 and (2) that paragraph 2 of the “statement of relief requested”
(pertaining to damages) be stricken in its entirety.3 The court will grant both requests
and will consider the plaintiffs’ brief filed in opposition to the defendants’ motion for
summary judgment (Filing No. 63) and index of evidence (Filing No. 64) as also
having been filed in support of the plaintiffs’ amended motion for summary judgment.
No further briefing or evidentiary filings will be permitted by either side without prior
leave of court.

2

Count Four (claim based on the privileges and immunities clause) will not be
subject to the plaintiffs’ amended motion for summary judgment, but is subject to the
defendants’ motion for summary judgment.
3

As the defendants have noted in their brief filed in opposition to the plaintiffs’
motion for summary judgment, the amended complaint seeks only declaratory and
injunctive relief.
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The plaintiffs’ requests for oral argument will be denied. Generally, the court
does not hear oral argument on summary judgment motions, see NECivR 56.1, and
the plaintiffs have not provided any reason for making an exception in this case.
Accordingly,
IT IS ORDERED that:
1.

Plaintiffs’ motion for leave to amend (Filing No. 65) is granted in part
and denied in part, as follows:
a.

Paragraph 1 of the “statement of relief requested” by Plaintiffs’
motion for summary judgment (Filing No. 59) is amended by
interlineation by inserting “One,” after “Counts” and before
“Two and Three.”

b.

Paragraph 2 of the “statement of relief requested” by Plaintiffs’
motion for summary judgment (Filing No. 59) is stricken.

c.

In all other respects, the motion is denied.

2.

Plaintiffs’ motion for summary judgment (Filing No. 59), as amended by
this order, and Defendants’ motion for summary judgment (Filing No.
56) are taken under submission, and no further briefing or evidentiary
filings will be permitted by either side without prior leave of court.

3.

Plaintiffs’ requests for oral argument are denied.

February 16, 2016.

BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

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