United States District Court, D. Nebraska
CHRISTOPHER M. PAYNE, Plaintiff,
FRED BRITTEN, CHRISTOPHER CONNELLY, MICHELLE HILLMAN, LEE TINKLER, JERRY BELL, MAILROOM PERSON 1, MAILROOM PERSON 2, ET. AL., BENNY NOORDHOEK, CARINA MCROBERTS, and J KUNZMAN, Defendants.
MEMORANDUM AND ORDER
RICHARD G. KOPF, Senior District Judge.
This case has now been referred to me in the interests of judicial economy. I requested the reassignment since I also serve as the judge who manages the pro se docket for all the Nebraska judges and the pro se law clerks who assist with such cases. In doing so, I review every substantive proposed opinion before it reaches the judge to whom the case is assigned. This is done to assure consistency with respect to pro se cases. That approach was taken here, and Judge Bataillon, to whom the case was previously assigned, presumably relied upon the systematic approach our court has taken on pro se matters when he entered the opinion and preceding orders that were subsequently reversed by the Court of Appeals. In other words, Judge Bataillon presumably relied upon the fact that I reviewed the procedure and opinion used in this case.
Given Chief Judge Riley's stinging criticism in dissent about how this case was handled at the district court level, it seemed appropriate for me to handle this case on remand as the pro se docket manager who was originally responsible for proposing the tact taken in this court and the opinion issued by Judge Bataillon. Judge Bataillon agreed to the reassignment, and Chief Judge Smith Camp entered the order.
A panel majority of the United States Court of Appeals has ruled:
We reverse the district court's order converting the officials' motion to dismiss into a motion for summary judgment; vacate the district court's partial denial of the officials' motion for summary judgment; and remand with instructions for the district court to decide, consistent with this opinion, whether the officials are entitled to qualified immunity on the pleadings under Rule 12(b)(6).
Payne v. Britten, 749 F.3d 697, 702 (8th Cir. 2014).
I will strictly follow the foregoing instructions. That is, I now look only at Payne's pleadings (a complaint and an amended complaint) and the motion and brief submitted by the Defendants. I will not examine factual materials that are in the record submitted in response to the actions of this court requiring the parties (especially the Defendants) to submit factual information instead of ruling on the motion to dismiss.
The law on qualified immunity is well developed. Accordingly, I will not restate it, but rather endeavor to get at the essential questions without unnecessary discussion of, or citation to, the well understood authorities including those set out in Chief Judge Riley's dissent.
The lawsuit was filed on February 11, 2011, with a verified complaint that alleged, among other things, that several pieces of Payne's mail, both incoming and outgoing, had been held "pending criminal investigation" since October 13, 2010. (Filing no. 1.) Then on June 2, 2011, Payne filed a verified amended complaint that became Payne's operative pleading and that alleged the following facts:
V. Statement of Claim
(1) Plaintiff received multiple notices dated October 13, 2010, indicating that several pieces of mail, both incoming and outgoing had been held "pending criminal investigation";
(2) Plaintiff subsequently had multiple pieces of mail similarly held;
(3) Plaintiff began a series of Inmate Interview Requests to Defendant Fred Britten inquiring into the actions taken;
(4) Defendant Fred Britten responded to Plaintiff's Requests indicating that all of Plaintiff's mail is "being monitored and may be held for further review, if its contents warrant same, " at the request of Defendant Jerry Bell;
(5) Defendant Fred Britten indicated that the nature of the investigation, which caused Defendant Jerry Bell to request that Plaintiff's mail be monitored, is allegations of "Child Enticement";
(6) None [sic] of Plaintiff's correspondents is under the age of majority;
(7) Plaintiff has not engaged in any illegal activities, beit Child Enticement or [sic] otherwise, as alleged by Defendants;
(8) None of Plaintiff's outgoing correspondences contain information relative to such an investigation, as alleged by Defendants;
(9) Plaintiff has reason to believe [sic] that none of his incoming correspondences has information relative to such an investigation;
(10) Plaintiff filed numerous institutional grievances, in accordance with regulation, the most relevant of which are attached hereto;
(11) Defendant Carina McRoberts has read, and continues to read, Plaintiff's mail, both incoming and outgoing;
(12) Defendant Carina McRoberts has held, and continues to hold, Plaintiff's mail, both incoming and outgoing;
(13) Defendant J. Kunzman has read, and continues to read, Plaintiff's mail, both incoming and outgoing;
(14) Defendant J. Kunzman has held, and continues [sic] to hold, Plaintiff's mail, both incoming and outgoing;
(15) Defendant Lee Tinkler has read, and continues to read, Plaintiff's mail, both incoming and outgoing, on information and belief;
(16) Defendant Lee Tinkler has held, and continues to hold, Plaintiff's mail, both incoming and outgoing, on information and belief;
(17) Defendant Christopher Connelly has read, and continues to read, Plaintiff's mail, both incoming and outgoing, on information and belief;
(18) Defendant Christopher Connelly has read, and continues [sic] to read, Plaintiff's mail both incoming and outgoing, on information and belief;
(19) Defendant Michele Hillman, as Associate Warden, is assigned the duty of "Mailroom Supervisor";
(20) Defendant Michele Hillman has failed to ensure that staff follow proper policy and State law with regard to inmate mail, resulting in staff reading and holding Plaintiff's mail;
(21) Defendant Fred Britten, as Warden of the institution, is charged with ensuring that all staff conduct themselves according to proper policy ...