Wilson et al v. Geerdes et al

Filing 25

MEMORANDUM AND ORDER - This matter may proceed to service of process as to Plaintiffs' 42 U.S.C. § 1983 claims based on due process, equal protection, and retaliation against Defendants Jason Geerdes, Fred Britten, Cathy Sheair, and Scott F rakes in their official capacities only. Because Defendants are sued only in their official capacities, they shall be served at the office of the Nebraska Attorney General. The clerk of the court is directed to complete summons forms and USM-285 form s for each of the Defendants using the address Office of the Nebraska Attorney General, 2115 State Capitol, Lincoln, NE 68509, and forward them together with a copy of the Complaint and a copy of this Memorandum and Order to the Marshals Service for service of process on Defendants. Defendants shall have 21 days from the date they are served to file an answer or other responsive pleading to Plaintiffs' Complaint. Wilson's Motion for Status is granted. (Filing No. 16 .) Shadle has bee n given leave to proceed in forma pauperis. (Filing No. 14 .) Shadle's Motion (Filing No. 21 ) seeking an extension of time to file his initial partial filing fee is denied as moot. The court received Shadle's initial partial filing fee o n January 20, 2017. All other pending motions (Filing Nos. 15 , 17 , 18 , 22 , and 24 ) will be stayed in abeyance pending a response from Defendants. The clerk's office shall terminate Defendants Brad Exstrom, Troy Hawk, and Richard Cruic kshank from the case until the court acts on Wilsons Motion to Amend (Filing No. 18 ). The clerk's office shall set a pro se case management deadline using the following text: February 15, 2017: check for Defendants' response. (Pro Se Case Management Deadline set for 2/15/2017.) Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party and USM with summons) (CS)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
HAROLD BRYAN WILSON, AND
RILEY NICOLE SHADLE,
8:16CV524
Plaintiffs,
MEMORANDUM
AND ORDER

vs.
JASON GEERDES, FRED BRITTEN,
CATHY SHEAIR, SCOTT FRAKES,
Defendants.

Plaintiffs Harold Bryan Wilson (“Wilson”) and Riley Nicole Shadle
(“Shadle”) (or “Plaintiffs”) filed a Complaint on November 30, 2016.1 (Filing No.
1.) They have each been given leave to proceed in forma pauperis. (Filing Nos. 13,
14.) Plaintiffs have various motions pending before this court. (Filing Nos. 15-24.)
Wilson and Shadle are incarcerated with the Nebraska Department of
Corrections. They seek to get married and to remain in the same facility. (Filing
No. 1 at CM/ECF p. 3.) Wilson is male and Shadle is “a transgender female
residing in a male facility.” (Id. at CM/ECF p. 2.) They contend that staff have
harassed them at the direction of Defendants for sitting too close together and
displaying non-sexual, physical contact with each other because they are both
considered male. (Id.) They allege that Wilson was “reclassed for transfer” to the
state penitentiary from the Lincoln Correctional Center because they wish to
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Shadle alleges that Wilson signed the Complaint with her permission. (See
Filing No. 24.) The court will take no action on the parties’ failure to comply with
Rule 11 at this time. See Fed. R Civ. P. 11(a) (“Every pleading, written motion,
and other paper must be signed by at least one attorney of record in the attorney’s
name---or by a party personally if the party is unrepresented.”). Rather, the court
will revisit the issue and also consider appointing counsel after Defendants have
answered or otherwise responded to Plaintiff’s allegations.

marry.2 (Id.) They maintain that another incarcerated couple, Mr. and Mrs. Paul
Gilpatrick, were allowed to marry in 2016, and that other couples are allowed to
remain together in the same facility. (Id.) They allege that they are prohibited from
having contact with one another and therefore cannot comply with this court’s
order that each of them sign any document filed in this case. (See Filing Nos. 6,
12.) Wilson and Shadle seek injunctive relief. (Filing No. 1 at CM/ECF p. 3.)
Liberally construed, Wilson and Shadle allege federal constitutional claims
of due process, equal protection, and retaliation against Defendants Jason Geerdes,
Fred Britten, Cathy Sheair, and Scott Frakes in their official capacities. See Turner
v. Safley, 482 U.S. 78 (1987) (invalidating a regulation that restricted marriage
access for prison inmates). See also, Obergefell v. Hodges, 135 S. Ct. 2584 (2015)
(recognizing fundamental right to marry for same-sex couples). Given the nature of
their allegations and the state of the law, the court will allow this case to proceed to
service of process.
IT IS THEREFORE ORDERED that:
1.
This matter may proceed to service of process as to Plaintiffs’ 42
U.S.C. § 1983 claims based on due process, equal protection, and retaliation
against Defendants Jason Geerdes, Fred Britten, Cathy Sheair, and Scott Frakes in
their official capacities only.
2.
Because Defendants are sued only in their official capacities, they
shall be served at the office of the Nebraska Attorney General. See Federal Rule of
Civil Procedure 4(j)(2); Neb. Rev. Stat. § 25-510.02 (Reissue 2016). The clerk of
the court is directed to complete summons forms and USM-285 forms for each of
the Defendants using the address “Office of the Nebraska Attorney General, 2115

2

It appears that Wilson has been transferred to the Nebraska State
Penitentiary from the Lincoln Correctional Center, where Shadle remains. (See
Filing Nos. 12, 24.)
2

State Capitol, Lincoln, NE 68509,” and forward them together with a copy of the
Complaint and a copy of this Memorandum and Order to the Marshals Service for
service of process on Defendants.
3.
Defendants shall have 21 days from the date they are served to file an
answer or other responsive pleading to Plaintiffs’ Complaint.
4.
Wilson’s Motion for Status is granted. (Filing No. 16.) Shadle has
been given leave to proceed in forma pauperis. (Filing No. 14.)
5.
Shadle’s Motion (Filing No. 21) seeking an extension of time to file
his initial partial filing fee is denied as moot. The court received Shadle’s initial
partial filing fee on January 20, 2017.
6.
All other pending motions (Filing Nos. 15, 17, 18, 22, and 24) will be
stayed in abeyance pending a response from Defendants. The clerk’s office shall
terminate Defendants Brad Exstrom, Troy Hawk, and Richard Cruickshank from
the case until the court acts on Wilson’s Motion to Amend (Filing No. 18).
7.
The clerk’s office shall set a pro se case management deadline using
the following text: February 15, 2017: check for Defendants’ response.
Dated this 26th day of January, 2017.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

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