Bruesch v. Schmalenberger et al

Filing 67

ORDER ADOPTING REPORT AND RECOMMENDATION by Judge Daniel L. Hovland. The Court adopts 58 the Report and Recommendation and grants 38 Motion for Summary Judgment. The Court denies 50 Motion for Summary Judgment and denies 31 Motion for Summary Judgment.(MM) Distributed on 2/2/2015. (rh)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
SOUTHWESTERN DIVISION
Nicholas Dodge Bruesch,

)
)
Plaintiff,
)
ORDER ADOPTING REPORT
)
AND RECOMMENDATION
vs.
)
)
Case No. 1:13-cv-077
Robyn Schmalenberger, Patrick Branson, )
Tammy Homan, Darly Kunz, and
)
Marlane Middlestrand,
)
)
Defendants.
)
______________________________________________________________________________
The Plaintiff, Nicholas Dodge Bruesch, is an inmate in the custody of the North Dakota
Department of Corrections and Rehabilitation (“DOCR”). He initiated this civil rights action against
the Defendants for violating First Amendment and due process rights by censoring his mail on July
9, 2013. See Docket No. 1. An amended complaint was filed on August 19, 2013. See Docket No.
12. Both the Plaintiff and the Defendants have moved for summary judgment. See Docket Nos. 31,
38, and 50. The motions were referred to Magistrate Judge Charles S. Miller, Jr. for a Report and
Recommendation. On December 10, 2014, Judge Miller issued his Report and Recommendation
wherein he recommended denying the Plaintiff’s motions and granting the Defendants’ motion. See
Docket No. 58. The parties were given fourteen (14) days to file any objections to the Report and
Recommendation. The Plaintiff’s time to file an objection was extended to January 30, 2015. See
Docket No. 63. The Plaintiff filed his objection and a supporting affidavit on January 29, 2015. See
Docket Nos. 64 and 65. The Defendants filed a response in opposition to the Plaintiff’s objection
on January 30, 2015. See Docket No. 66.
The Court has carefully reviewed the entire record including the Report and
1

Recommendation, relevant case law, the Plaintiff’s objection, and the Defendants’ response to the
Plaintiff’s objection and finds the Report and Recommendation to be persuasive. The record does
not support the Plaintiff’s claims of violation of his First Amendment and due process rights.
Accordingly, the Court ADOPTS the Report and Recommendation (Docket No. 58) in its
entirety. The Defendants’ motion for summary judgment (Docket No. 38) is GRANTED. The
Plaintiff’s motion and amended motion for summary judgment (Docket Nos. 31 and 50) are
DENIED.
IT IS SO ORDERED.
Dated this 2nd day of February, 2015.
/s/ Daniel L. Hovland
Daniel L. Hovland, District Judge
United States District Court

2