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15-323 - Guerry v. Frakes et al


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15-323 - Guerry v. Frakes et al
September 3, 2015
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MEMORANDUM AND ORDER granting 2 Motion for Leave to Proceed in forma pauperis. Plaintiff Brian Frank Guerry shall pay an initial partial filing fee of $27.91 within 30 days, unless an enlargement of time is granted in response to a written motion. The clerk's office is directed to send a copy of this order to the appropriate official at Plaintiff's institution. Pro Se Case Management Deadline set for 10/7/2015: initial partial filing fee payment due. Ordered by Chief Judge Laurie Smith Camp. (Copy mailed to pro se party and plaintiff's institution)(GJG)
February 22, 2016
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MEMORANDUM AND ORDER - Guerry's claims against Keith Broadfoot and R Holly are dismissed in their entirety. This matter may proceed to service of process as to Guerry's Eighth Amendment claims against Scott Frakes, Brian Gage, Guiffe, and Thompson. Guerry's state-law claims against these Defendants may also proceed to service of process; though, at this time, the court makes no finding with respect to its jurisdiction over these claims or whether they state a claim on which relief may be granted. The clerk of the court is directed to send to Guerry a copy of the Complaint, a copy of this Memorandum and Order, and 8 summons forms and 8 USM 285 Forms for service on Scott Frakes, Brian Gage, Guiffe, and Thompson in their individual capacities and official capacities. (See attached Notice Regarding Service.) Federal Rule of Civil Procedure 4(m) requires service of the complaint on a defendant within 90 days of filing the complaint. However, Guerry is 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. (See this court's General Order No. 2015-06.) If requested to do so in this matter, the United States Marshal will serve all process in this case without prepayment of fees from Guerry. In making such a request, Guerry must complete the USM 285 forms to be submitted to the clerk of the court with the completed summons forms. Without these documents, the United States Marshal will not serve process. Upon receipt of the completed forms, the clerk of the court will sign the summons forms and forward them to the United States Marshal for service on the defendants, together with a copy of the Complaint. The clerk of the court is directed to set the following pro se case management deadline: April 5, 2016: check for completion of service of process. Guerry's Motion to Appoint Counsel (Filing No. 5) is denied. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party with documents as directed)(GJG)
June 27, 2016
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MEMORANDUM AND ORDER - Plaintiff's Motion to Appoint Counsel (Filing No. 20) is denied without prejudice to reassertion. Plaintiff's Motion for Default Judgment (Filing No. 26) is denied. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party)(GJG)
September 16, 2016
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MEMORANDUM AND ORDER - Defendants' Motion to Dismiss (Filing No. 24) is granted, in part, as follows: (a) Plaintiff's claims against the Nebraska Department of Corrections Agency are dismissed in their entirety; (b) Plaintiff's state law claims against the prison officials in their official capacities are dismissed without prejudice to reassertion in state court; (c) Plaintiff's state law claims against the prison officials in their individual capacities are dismissed with prejudice; (d) Plaintiff's Eighth Amendment claims against the prison officials in their official capacities are dismissed with prejudice; and (e) Plaintiff's claims for declaratory and injunctive relief against all Defendants are dismissed. Plaintiff's "Objection to Dismiss" (Filing No. 29) and "Objection to Defendants' Motion" (Filing No. 31) are denied as moot. Plaintiff's Eighth Amendment claims for monetary relief against Defendants Frakes, Gage, Guiffe, and Thompson in their individual capacities may proceed. These Defendants shall answer Plaintiff's Complaint within fourteen days of this order. Thereafter, a progression order will be entered in this case. The clerk of court is directed to set a pro se case management deadline in this case using the following text: September 30, 2016: check for answer and issue progression order. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party)(GJG)
October 18, 2016
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MEMORANDUM AND ORDER - that Plaintiff's Motion for Reconsideration (Filing No. 34) is denied. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party) (KLF)
November 15, 2016
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MEMORANDUM AND ORDER - that Plaintiff's Motion for Appointment of Counsel (Filing No. 44) is denied without prejudice to reassertion. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party) (KLF)
February 22, 2017
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MEMORANDUM AND ORDER - Defendants' Motion for Judgment on the Pleadings (Filing No. 41) on the basis of qualified immunity is denied without prejudice to reassertion in a motion for summary judgment. Guerry's Motion for Reconsideration (Filing No. 52) and Objection to Defendants' Motion for Judgment on the Pleadings (Filing No. 54) are denied as moot. An amended progression order will be entered in accordance with this memorandum and order. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party)(GJG)
March 27, 2017
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MEMORANDUM AND ORDER - Defendants' Motion to Stay Discovery and All Case Progression (Filing No. 61) is granted. All discovery and progression deadlines in this case are hereby stayed. An amended progression order will be entered, if necessary, following a ruling on Defendants' motion for summary judgment. Defendants are not required to respond to any outstanding discovery requests, and Plaintiff is not authorized to serve any additional discovery requests, unless and until the court enters an order lifting the stay. Plaintiff, however, is not prohibited from filing a properly supported motion to obtain court approval to conduct limited discovery regarding issues raised by Defendants once they file their anticipated motion for summary judgment. See Federal Rule of Civil Procedure 56(d). The clerk's office is directed to strike Plaintiff's discovery requests (See Filing Nos. 47, 48, 49, 58, 59, 60) from the court file. Plaintiff is not prohibited from filing such requests, if necessary, following a ruling on Defendants' motion for summary judgment.The pretrial conference set to take place before Magistrate Judge Zwart on September 8, 2017, is cancelled. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party) (KLF)
April 11, 2017
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MEMORANDUM AND ORDER - No later than April 25, 2017, Defendants shall submit a brief (filed in both cases) addressing Montin and whether (a) I have subject matter jurisdiction to decide any claim made by Mr. Guerry under the STCA; and (b) if I lack subject matter jurisdiction to decide any claim made by Mr. Guerry under the STCA, what specific portions of the underlying pleading filed in state court must be remanded. Mr. Guerry may also file a brief no later than April 25, 2017, addressing these same questions but he is not required to do so. The motions to consolidate (Filing No. 68, Case No. 8:15CV323; Filing No. 3, Case No. 4:17CV3047) are held in abeyance and Mr. Guerry need not respond to the motions until further order of the court. The summary judgment motion filed in Case No. 8:15CV323 (Filing Nos. 63) is held in abeyance and Mr. Guerry need not respond to it until further order of the court. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party)(GJG)
May 4, 2017
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MEMORANDUM AND ORDER - Guerry's state law claims against Defendants in Case No. 4:17CV3047 are remanded back to the District Court of Johnson County, Nebraska. The clerk's office is directed to provide the Clerk of the District Court of Johnson County with a certified copy of this memorandum and order. The Clerk of the District Court of Johnson County is requested to notify the assigned state district court judge in Johnson County District Court Case No. CI 17-18 that the state law claims in Guerry's petition are remanded for his/her consideration. No later than May 18, 2017, Defendants shall specifically and objectively set forth (a) what additional federal claims and against whom remain in Guerry's state petition, and (b) what federal claims and against whom remain in Guerry's state petition that the court already disposed of in Case No. 8:15CV323. Defendants' motions to consolidate (Filing No. 68, Case No. 8:15CV323; Filing No. 3, Case No. 4:17CV3047) are granted as to Guerry's federal claims. See Fed. R. Civ. P. 42(a). Defendants shall file an answer in Case No. 4:17CV3047 no later than May 25, 2017. The court will thereafter issue a progression order for the consolidated cases. Defendants' summary judgment motion in Case No. 8:15CV323 (Filing No. 63) is denied without prejudice to reassertion. Guerry's "Motion for Objection to Summary Judgment" (Filing No. 71, Case No. 8:15CV323) is denied as moot. The clerk's office is directed to set the following pro se case management deadline: May 18, 2017: check for Defendants' pleading setting forth federal claims. The clerk's office is directed to set the following pro se case management deadline: May 25, 2017: check for Defendants' Answer in Case No. 4:17CV3047. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party) (KLF)
May 24, 2017
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MEMORANDUM AND ORDER that Guerry's Eighth Amendment failure-to-protect claims may proceed against the following Defendants in their individual capacities for monetary damages: Scott Frakes, Frank Hopkins, Brian Gage, Michelle Capps, Busboom, Christopher Connelly, Shaw Sherman, Austin Gocke, Crystal Rempel, Jacob Bents, Andrew King, Flinn, Christopher Ulrick, Chelsea Guiffre, and Daniel Thompson. Guerry's Eighth Amendment conditions-of-confinement claims may proceed against the following Defendants in their individual capacities for monetary damages: Scott Frakes, Frank Hopkins, Brian Gage, Michelle Capps, Busboom, Christopher Connelly, Shaw Sherman, Austin Gocke, Crystal Rempel, Jacob Bents, Andrew King, Flinn, Christopher Ulrick, Keith Broadfoot, R. Holly, Chelsea Guiffre, and Daniel Thompson. Guerry must identify John Doe, a corrections officer in Housing Units 2-C and D, and John and Jane Does, corrections officers, case managers, case workers, and staff working in Housing Units 2-A and B, before his failure-to-protect and conditions-of-confinement claims against them can proceed to service of process. Guerry will have 30 days from the date of this Memorandum and Order to take reasonable steps to identify John Doe and Jane Does. The clerk of the court is directed to set the following pro se case management deadline: June 23, 2017: check for names of John and Jane Does. Guerry's remaining federal constitutional claims are dismissed for failure to state a claim upon which relief may be granted. In Case No. 4:17CV3047, the clerk of the court is directed to obtain the last-known addresses for Defendants Brian Gage, Jacob Bents, Austin Gocke, Chelsea Guiffre, and Andrew King from the United States Marshals Service for service of process and complete 5 summons forms and 5 USM-285 forms for Defendants using the addresses provided by the Marshals Service and forward them together with a copy of Filing No. 1 in Case No. 4:17CV3047 and a copy of this Memorandum and Order to the Marshals Service for service of process on Defendants in their individual capacities. The clerk of the court is directed to file under seal any documents containing the last-known personal addresses for Defendants Gage, Bents, Gocke, Guiffre, and King. The clerk of the court is directed to set the following pro se case management deadline: August 22, 2017: check for completion of service of process. The clerk of the court is directed to provide the Clerk of the District Court of Johnson County with a certified copy of this Memorandum and Order. The Clerk of the District Court of Johnson County is requested to notify the assigned state district court judge in Johnson County District Court Case No. CI 17-18 that the federal constitutional claims discussed herein may set forth negligence claims under state law and are hereby remanded for his/her consideration. Member Cases: 8:15-cv-00323-RGK-PRSE, 4:17-cv-03047-RGK-PRSE Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party)(copy mailed to Clerk of the District Court of Johnson County as directed) (ADB)
June 8, 2017
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MEMORANDUM AND ORDER - This matter is before the court on Plaintiff Brian Frank Guerry's Motion to Compel. (Filing No. 79.) No later than July 8, 2017, Mr. David A. Lopez with the Nebraska Attorney General's Office, as counsel for those defendants already served, shall provide to the court the full names and addresses of "Tompkins, Case Worker," "Rodie, Correction Officer," "Steele, Correction Officer," and John and Jane Does from Housing Units 2-A and B, to the extent he knows or can reasonably ascertain them. The employment addresses of these individuals will be sufficient if they are still employed with the Nebraska Department of Correctional Services. If, however, any of these individuals is no longer employed with the Nebraska Department of Correctional Services, their personal addresses shall be filed under seal with the court. The court previously ordered the clerk of the court to obtain the last-known address for Andrew King from the United States Marshals Service for service of process on King. (Filing No. 76.) The Marshals Service has advised the court that there is more than one address for "Andrew King." Accordingly, Mr. Lopez shall also provide to the court the address for Andrew King, to the extent he knows or can reasonably ascertain it, in the manner provided in the preceding paragraph. The clerk's office is directed to set a pro se case management deadline using the following text: July 8, 2017: check for names and addresses from Mr. Lopez. Member Cases: 8:15-cv-00323-RGK-PRSE, 4:17-cv-03047-RGK-PRSE Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party) (KLF)
July 7, 2017
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MEMORANDUM AND ORDER denying (83) Motion for Reconsideration in case 8:15-cv-00323-RGK-PRSE; denying (23) Motion for Reconsideration in case 4:17-cv-03047-RGK-PRSE. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party)(ADB)
July 10, 2017
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MEMORANDUM AND ORDER that in accordance with the Memorandum and Order dated June 8, 2017 (Filing No. 80), Mr. David A. Lopez has provided to the court the names and addresses for those defendants not yet served with Plaintiff Brian Frank Guerry's Complaint in Case No. 4:17CV3047. Accordingly, In addition to those Defendants listed in the court's Memorandum and Order dated May 24, 2017 (Filing No. 76), Guerry's Eighth Amendment failure-to-protect and conditions-of-confinement claims may proceed against the following Defendants in their individual capacities for monetary damages: Paul Tompkins, Lucas A. Roede, Sonny Steele, Adam B. Cropp, and Sarah E. Glass. For service of process on the Defendants in individual capacity, the clerk of the court is directed to complete a summons form and a USM-285 form for the Defendants as outlined and provide to the USM for service. The United States Marshal shall serve all process in this case without prepayment of fees from Plaintiff. The clerk of the court is directed to file under seal any document containing the last-known personal addresses for Defendants Steele, Glass, and King. The clerk of the court is directed to add Paul Tompkins, Lucas A. Roede, Sonny Steele, Adam B. Cropp, and Sarah E. Glass in their individual capacities as parties in Case No. 4:17CV3047, and to terminate "John Doe(s)" as a Defendant in the same. The clerk of the court is directed to set the following pro se case management deadline: October 9, 2017: check for completion of service of process. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party) (copies provided to USM as directed) (ADB)
October 5, 2017
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MEMORANDUM AND ORDER - Mr. Lopez shall advise the court if the Nebraska Attorney General's Office also represents Andrew King, and if so, shall file a responsive pleading on his behalf no later than October 12, 2017, so that the court may enter a progression order. Mr. Lopez shall also inform the court as to whether the pending summary judgment motion is filed on behalf of Andrew King. Defendants' pending summary judgment motion will not be addressed until after the progression order is issued and Plaintiff Brian Frank Guerry is given time to respond. The clerk's office is directed to set a pro se case management deadline using the following text: October 12, 2017: check for responsive pleading for King. Member Cases: 8:15-cv-00323-RGK-PRSE, 4:17-cv-03047-RGK-PRSE Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party) (KLF)
October 12, 2017
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MEMORANDUM AND ORDER that Plaintiff Brian Frank Guerry shall have until November 13, 2017, to file any response to Defendants' pending summary judgment motion (Filing No. 88, Case No. 8:15CV323; Filing No. 41, Case No. 4:17CV3047). The clerk's office is directed to set a pro se case management deadline using the following text: November 13, 2017: check for Guerry's response to Defendants' summary judgment motion. Member Cases: 8:15-cv-00323-RGK-PRSE, 4:17-cv-03047-RGK-PRSE Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party) (LAC)
April 6, 2018
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MEMORANDUM AND ORDER - Defendants' Motion for Summary Judgment (Filing No. 88, Case No. 8:15CV323; Filing Nos. 41, 46, Case No. 4:17CV3047) is granted. A separate judgment will be entered. Member Cases: 8:15-cv-00323-RGK-PRSE, 4:17-cv-03047-RGK-PRSE Ordered by Senior Judge Richard G. Kopf. (LKO)
April 27, 2018
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MEMORANDUM AND ORDER - Plaintiff's Motion for Leave to Proceed in Forma Pauperis on Appeal (Filing No. 115, Case No. 8:15CV323; Filing No. 70, Case No. 4:17CV3047) is granted. Plaintiff shall pay an initial partial filing fee of $0.77 within 30 days unless an enlargement of time is granted in response to a written motion. After payment of the initial partial filing fee, Plaintiffs institution shall collect the additional monthly payments in the manner set forth in 28 U.S.C. ยง 1915(b)(2), quoted above, and shall forward those installments to the court. The clerk's office is directed to send a copy of this order to the appropriate official at Plaintiff's institution and to the Eighth Circuit Court of Appeals. Member Cases: 8:15-cv-00323-RGK-PRSE, 4:17-cv-03047-RGK-PRSE Ordered by Senior Judge Richard G. Kopf. (Copies mailed as directed) (LKO)
April 30, 2018
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MEMORANDUM AND ORDER - Plaintiff's Motion for Appointment of Counsel (filing no. 117, Case No. 8:15CV323; filing no. 72, Case No. 4:17CV3047) is denied without prejudice to reassertion before the Eighth Circuit. The clerk's office is directed to send a copy of this order to the Eighth Circuit Court of Appeals. Member Cases: 8:15-cv-00323-RGK-PRSE, 4:17-cv-03047-RGK-PRSE Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party and Court of Appeals) (LKO)