United States District Court, D. Nebraska
MICHAEL A. SULLIVAN, Plaintiff,
JEFF DAVIS; GREG LONDON; and JUNE WESTLAND, Defendants.
MEMORANDUM AND ORDER
Richard G. Kopf Senior United States District Judge
This matter is before the court on four motions that have been filed with respect to the plaintiff’s pro se § 1983 action, including a motion for summary judgment in which the defendants claim qualified immunity. The plaintiff, Michael A. Sullivan (“Sullivan”) is currently incarcerated at the Tecumseh State Prison. The defendants, Jeff Davis (“Davis”), Greg London (“London”), and June Westland (“Westland”), who are sued in their individual capacities, are alleged to have been deliberately indifferent to Sullivan’s medical needs while he was being held in the Sarpy County Jail between November 24, 2009, and March 16, 2010. During this period of time, Davis was the county sheriff; London was a captain with the sheriff’s department who managed day-to-day general operations at the jail; and Westland was a nurse employed at the jail.
A. Plaintiff’s Motion for Reconsideration (Filing No. 19)
In a memorandum and order entered on September 1, 2015, the court denied the plaintiff’s request for appointment of counsel without prejudice to reassertion. Plaintiff thereafter filed a motion for reconsideration, stating that he is without financial resources to hire an attorney, is unable to conduct research on his own effectively, and has only limited access to the prison library.
Sullivan’s Fourteenth Amendment claim is not complex, either factually or legally, and he has displayed an ability to prepare understandable pleadings and motions in support of his civil action. Sullivan has not demonstrated that he is unable to investigate the facts. Consequently, his motion for reconsideration is denied. See Ward v. Smith, 721 F.3d 940, 942-43 (8th Cir. 2013) (discussing factors to consider in deciding whether to appoint counsel).
B. Defendants’ Motion to Strike (Filing No. 28)
The defendants filed their motion for summary judgment on September 18, 2015. In response, Sullivan filed four documents: (1) “Plaintiff’s Brief in Support of Opposition to Defendant’s [sic] Motion for Summary Judgment” (Filing No. 24); (2) “Plaintiff[’s] Reply, Answer and Objection to Defendants’ Summary” (Filing No. 25); and (3) “Declaration in Opposition to Defendants[’] Motion for Summary Judgment” (Filing No. 26); and (4) “Plaintiff’s Statement of Disputed Factual Issues” (Filing No. 27). On October 26, 2015, the defendants filed a motion to strike all four documents (Filing No. 28). Four basic objections are raised in the motion.
First, the defendants object that the filings are untimely. Sullivan’s response to the defendants’ summary judgment motion was due on October 13, 2015. See NECivR 7.1(b)(1)(B) (“A brief opposing a motion ... for summary judgment must be filed and served within 21 days after the motion and supporting brief are filed and served.”); NECivR 6.1 (3-day mailing rule applies); Fed.R.Civ.P. 6 (a)(1)(C) (when period ends on legal holiday, extend to next day). The filings were received and docketed by the clerk of the court on October 19, 2015, but a certificate of service indicates they were mailed to the court on October 14, 2015, which is the effective filing date if Sullivan is given the benefit of the “prison mailbox rule.” See Sulik v. Taney County, 316 F.3d 813, 815 (8th Cir. 2003) (holding that the prison mailbox rule governs the determination of when a prisoner’s civil complaint has been filed), rev’d in part on other grounds, 393 F.3d 765 (8th Cir. 2005). Although the filings are untimely, the defendants have not shown they were prejudiced by the short delay, regardless of whether the filings were 1 or 6 days late.
2. Prohibited Response
Second, the defendants object that Filing No. 25 (“Plaintiff’s Reply, Answer and Objection”) fails to comply with Nebraska Civil Rule 7.1(b)(1)(A), which provides in part:
The party opposing a motion must not file an “answer, ” “opposition, ” “objection, ” or “response, ” or any similarly titled responsive filing. Rather, the party must file a brief that concisely states the reasons for opposing the motion and cites to supporting authority.
NECivR7.1(b)(1)(A). The defendants contend this filing is superfluous and not a response permitted by the local rule. This is objection is well-taken. The filing is without substance, as Sullivan merely asserts in conclusory fashion that the defendants are not entitled to qualified immunity and requests that their motion for summary judgment be denied. Consequently, Filing No. 25 will be stricken.
3. Lack of Evidence
Third, the defendants object that Filing No. 24 (“Plaintiff’s Brief”) and Filing No. 27 (“Statement of Disputed Facts”) fail to comply with another provision of Nebraska Civil Rule 7.1(b)(1)(A), which states that “[t]he brief must not recite facts unless supported as stated in Nebraska Civil Rule 7.1(b)(2).” NECivR7.1(b)(1)(A). Rule 7.1(b)(2) requires the filing of supporting evidentiary materials and states that “[a] factual assertion in the opposing brief must cite to the pertinent page of the pleading, affidavit, deposition, discovery material, or other evidence on which the opposing party relies.” NECivR7.1(b)(2)(A). In addition, the defendants object that Filing Nos. 24 and 27 violate Nebraska Civil Rule 56.1(b)(1), which provides in part:
The party opposing a summary judgment motion must include in its brief a concise response to the moving party’s statement of material facts. Each material fact in the response must be set forth in a separate numbered paragraph, must include pinpoint references to affidavits, pleadings, discovery responses, deposition testimony (by page and line), or other materials upon which the opposing party relies, and, if applicable, must state the number of the paragraph in the movant’s statement of material facts that is disputed.
The defendants contend each of these filings “does not support recited facts with any evidence, [and] does not respond to the movant’s statement of facts” (Filing No. 28, ¶¶ 1, 4). While the defendants are correct in stating that the filings are non-compliant, they will not be stricken, but will only be given such consideration as they deserve under the local rules and under Federal Rule of Civil Procedure 56.
4. Inadmissible Evidence
Fourth, and finally, the defendants object that Filing No. 26 (“Plaintiff’s Declaration”) “contains improper legal argument, the opinions drawn therein are speculative, based on erroneous summaries of evidence, are asserted without personal knowledge, and/or are without foundation, and are therefore inadmissible under Fed.R.Civ.P. 56(c)(2), (c)(4) and (e), as well as NECivR 7.1(b)(2)(C)” (Filing No. 28, ¶ 3). The defendants further object that “Plaintiff is not competent to testify as an expert witness under Fed. R. Ev[i]d. 701 as to causation or medical diagnosis issues” (id.).
Sullivan’s declaration, which is made under penalty of perjury, contains 10 numbered paragraphs, which are set forth below without alteration. The defendants object to each and every paragraph. Their objections will be addressed below on a paragraph-by-paragraph basis.
1. I’am the plaintiff in the abouve entittled case matter. I make this declaration in opposition to defendants motion for summary judgement on my claims concerning deliberate indiffereance to my serious medical needs violated by defendants Davis, London, and Westland.
The defendants generally object to paragraph 1 as being a legal argument. The objection is overruled.
2. Defendants attempt to postulate, via affidavits, that they (1) were not involved in the decision-making process concerning my medical request, issues, and treatment decided by Head Nurse Pam Reinke; (2) never acted with any malice or ill will toward Plaintiff via medical needs for treatment; (3) did not have personal contact with plaintiff, nor communicated with him via his medical needs, issues, or treatment; (4) were not apprised of plaintiff’s Medical foot condition, plantar fascitis until later into his incarceration at Sarpy County Jail; (5) numerous times over denied plaintiff’s request for an extra blanket and special shoes based upon securty and safety reasons; (6) were not aware of the many request made by plaintiff for pain medication and the removal of his cam boot for proper healing of his injured foot; and (7) would have had the ability to correct Head Nurse Pamela Reinkes omission and error in failing to make an inquiry to the V.A. Hospital comporting to follow up for appointment date scheduling paintiff thereto, as admitted by Reinke. Such statements sworn to by defendants Davis, London, and Westland, are immensely disputed and embellished.
The defendants also interpose a general objection to paragraph 2 as being “nothing more than some legal argument of the doctrine of ‘respondeat superior, ’ ....” (Filing No. 29 at CM/ECF p. 4). The objection is sustained.
3. Defendants are not entittled to summary judgement, in that there does not exist genuine issues of material fact that should be resolved. The issues are identified in the accompanying Statement of Disputed Factual Issues filed be plaintiff. Facts are setout in this Declaration.
The defendants object that paragraph 3 “is not a factual statement supported by any citation to the record” (Filing No. 29 at CM/ECF p. 4). The objection is sustained.
4. Plaintiff was a pretrial detainee with the Sarpy County Jail from November 24, 2009, til March 16, 2010. Upon his inception on November/24/2009, Plaintiff apprised defendants Davis and London about his injury. Defendant Westland performed the initial screening on Plaintiff. The injuries wre detailed and expressed to Westland, inclusive of his plantar fascitis and on-going treatment yet to be endured with V.A. Hospital.
The defendants object that the second sentence of paragraph 4, which states that Sullivan apprised Davis and London of his injury, “is an unsupported conclusion and speculation, without a factual basis and without proper foundation” (Filing No. 29 at CM/ECF p. 5). The objection is sustained.
5. Defenadants Davis, and London were duly informed that there was an initial discrepancy regarding his cam boot during intake.
The defendants raise the same objection to paragraph 5 (Filing No. 29 at CM/ECF p. 5). The objection is sustained.
6. Plaintiff’s request for Sarpy County Jail Officials, particularly Westland, to contact V.A. Hospital to determine what medical needs he was being treated for and what Medication(s) and treatment was needed, Westland refused to contact V.A. Hospital initially during intake. So, Plaintiff was able to talk to London and apprise him of the information conveyed to Westland. Eventually, sometime later Head Nurse Reinke made contact with the V.A. Hospital (as directed to her by London, and required via standard opperating procedures promulgated by Davis).
The defendants object that paragraph 6 “is not specific as to the time of any such request, or any medical records corroborating such bare assertions made as to time, manner, or date of any such alleged contacts” (Filing No. 29 at CM/ECF p. 5). The objection is sustained with respect to the final second and third sentences, which will be stricken; the objection is overruled with respect to the first sentence.
7. Because of the delay in contacting V.A. Hospital palintiff was forced to endure pain for the first 7 days incarcerrated in Sarpy County Jail; not being able to comfortly walk in his cam boot, as swelling had started to incur.
The defendants object that “Plaintiff fails to cite to the record for his claims made in paragraph 7 ..., and his assertions therein are without foundation (Filing No. 29 at CM/ECF p. 6). The objection is sustained with respect to the introductory phrase, “Because of the delay in contacting V. A. Hospital, ” but otherwise is overruled.
8. The constant wear and use of cam boot worsen plaintiff’s injury, as walking became unbearable, where upon he made request to obtain crutches, the request was denied by London and Reinke; according to Sheriff’s (Davis) policy, as told to Plaintiff.
The defendants object that paragraph 8 is “unsupported by any medical evidence, and is without sufficient foundation” (Filing No. 29 at CM/ECF p. 6). The objection is sustained for lack of foundation with respect to all language following the word “unbearable, ” and such language will be stricken; in all other respects, the objection is overruled.
9. Pamels Reinke and Defendants London, Davis and Westland refused via request and via comminication, to allow plaintiff to acquire prescribed shoes (like the trustee’s wear) for ...