United States District Court, D. Nebraska
MEMORANDUM AND ORDER
RICHARD G. KOPF, Senior District Judge.
This matter is before me on several motions filed by the parties, including a Motion to Dismiss filed by Defendant Chris Anderson ("Anderson") (filing no. 54), and a Motion for Summary Judgment, or in the Alternative, Motion to Dismiss, filed by Defendants Travis Jarzynka ("Jarzynka") and E. Jones ("Jones") (filing no. 64). As set forth below, I will deny Anderson's Motion to Dismiss for untimely service as moot because Plaintiff has failed to state a claim against Anderson upon which relief may be granted. In addition, I will grant in part and deny in part Jarzynka and Jones' Motion for Summary Judgment, or in the Alternative, Motion to Dismiss.
Plaintiff filed his original Complaint in this matter on October 18, 2012. (Filing No. 1.) Thereafter, Plaintiff filed an Amended Complaint on January 28, 2013, and a Second Amended Complaint on May 13, 2013. (Filing Nos. 14 and 16.) In his Second Amended Complaint, Plaintiff alleged claims against 12 individual Defendants. (Filing No. 16 at CM/ECF p. 1.) Plaintiff sues these Defendants in their individual capacities only. ( Id. )
On August 22, 2013, the court conducted an initial review of Plaintiff's Second Amended Complaint. (Filing No. 20.) In doing so, the court dismissed several of Plaintiff's claims, but permitted claims against Iowa Police Officers Anderson and Jarzynka, Douglas County Sheriff Jones, and Pottawattamie County Sheriffs Eric Rogers ("Rogers") and Steve Barrier ("Barrier"), to proceed to service. ( Id. ) Condensed and summarized, Plaintiff alleges that Anderson directed Jarzynka and Jones to "cross state lines" and enter Plaintiff's "Nebraska" house with an "Iowa warrant" and arrest him on December 14, 2010. (Filing No. 16 at CM/ECF pp. 5-8.) During the arrest, Jarzynka allegedly punched Plaintiff in the mouth and tased him, which resulted in Plaintiff being transported to the hospital. ( Id. at CM/ECF pp. 5-6.) Plaintiff was subsequently incarcerated in Douglas County, Nebraska, for 66 days. ( Id. at CM/ECF p. 14.) On February 18, 2011, Rogers and Barrier transported Plaintiff to Iowa. ( Id. at CM/ECF pp. 14-16.) Plaintiff believes he was improperly transported to Iowa without formal extradition. ( Id. at CM/ECF pp. 60-61.)
On February 11, 2014, Anderson filed a Motion to Dismiss arguing Plaintiff's claims against him should be dismissed because of untimely service. (Filing No. 54 at CM/ECF p. 2.) Plaintiff has filed a "Motion in Rebuttal" arguing that Anderson was "dodging" service. (Filing No. 56.)
On April 7, 2014, Jarzynka and Jones filed a Motion for Summary Judgment, or in the Alternative, Motion to Dismiss, along with a Brief and Index of Evidence in Support. (Filing Nos. 64, 65 and 66.) In their Brief, Jarzynka and Jones argue that they were authorized to arrest Plaintiff as deputized officers of a federal task force, Plaintiff's medical records conclusively show that no force was used during his arrest, and Plaintiff has failed to exhaust his administrative remedies with regard to claims against them under the Federal Tort Claims Act ("FTCA"). (Filing No. 66.) Plaintiff filed a response (filing no. 68) and Jarzynka and Jones replied (filing no. 71).
After Jarzynka and Jones filed their Reply, Plaintiff filed an additional Response, a "Motion to Show Part of Defendants Contract/Special Deputation, " and a Request for Discovery. (Filing Nos. 72, 73 and 74.) Jarzynka and Jones moved to strike these filings because Plaintiff failed to comply with the court's Local Rules. (Filing No. 76.) Plaintiff subsequently filed an Objection to the Motion to Strike, another Motion for Discovery, and a Motion stating that "Defendants are not immune." (Filing Nos. 80, 82 and 83.) Again, Jarzynka and Jones moved to strike Plaintiff's filings for failure to comply with the Local Rules. (Filing No. 84.) Also pending is Plaintiff's request for a hearing. (Filing No. 85.)
II. MOTIONS TO STRIKE AND REQUESTS FOR DISCOVERY
Before I address the pending dispositive Motions, I will briefly address Jarzynka and Jones' Motions to Strike and Plaintiff's requests.
A. Motions to Strike
As discussed above, Jarzynka and Jones have filed two Motions to Strike. (Filing Nos. 76 and 84.) In these Motions, Jarzynka and Jones argue that the court should strike the documents Plaintiff filed after his first Response to their pending Motion for Summary Judgment because Plaintiff did not comply with the court's local rules, namely NECivR 7.0.1(c). (Filing Nos. 76 and 84.) See NECivR 7.0.1(c) (providing that a moving party may reply to an opposing brief, however neither party may "file further briefs or evidence without the court's leave").
I have carefully considered the Motions to Strike and I agree with Jarzynka and Jones that Plaintiff failed to request leave to file additional documents in response to their Motion for Summary Judgment in accordance with NECivR 7.0.1(c). Nevertheless, motions to strike are viewed with disfavor and infrequently granted. Lunsford v. United States, 570 F.2d 221, 229 (8th Cir. 1977). In light of this, and Plaintiff's pro se status, I will not strike Plaintiff's filings. Accordingly, Jarzynka and Jones' Motions to Strike (filing nos. 76 and 84) are denied. Plaintiff's Objection to ...