United States District Court, D. Nebraska
MEMORANDUM AND ORDER
Richard G. Kopf Senior United States District Judge.
This matter is before the court on a motion for summary judgment filed by the defendants, Lori Strong and Dianna Mastny, and on a cross-motion for summary judgment filed by the pro se plaintiff, Cornelius Brown. Brown claims in his amended complaint that the defendants, who were employed as nurses at the Norfolk Regional Center where Brown was committed for inpatient sex offender treatment, retaliated against him for complaining to the State Ombudsman’s Office and, in Strong’s case, for filing this lawsuit. The retaliatory conduct allegedly consisted of Strong giving Brown negative checks for rule violations and Mastny giving Brown negative marks on his treatment program, suspending privileges, and forwarding negative comments to the mental health board.
For the reasons discussed below, the defendants’ motion for summary judgment will be granted, Brown’s cross-motion will be denied, and a final judgment will be entered dismissing the action.
I. PRELIMINARY MATTERS
Before addressing the competing motions for summary judgments, several non-dispositive motions must first be resolved.
A. Plaintiff’s Motion to Compel Discovery (Filing No. 89)
After the defendants filed their motion for summary judgment on February 19, 2016, Brown filed a motion to compel discovery. The motion indicates a request for production of documents was served by Brown on November 11, 2015, and responded to by the defendants on January 29, 2016, but certain documents, including “Nursing Notes From December 20, 2014 to March 10, 2015, ” and “Plaintiff’s requests via appointment requests Dated October 7, 2014 through October10, 2014, ” were not produced as requested. A copy of the defendants’ response, without any attached documents, has been filed by Brown as part of his evidence in opposition to the defendants’ motion for summary judgment (Filing No. 92-7). Also filed by Brown as an exhibit is a copy of a letter that was sent to Brown on February 17, 2016, from Assistant Attorney General Ryan C. Gilbride, advising that these documents would not be produced because they were beyond the scope of Brown’s request (Filing No. 92-8). The court agrees with defense counsel’s assessment, and will deny Brown’s motion to compel. To the extent that Brown’s motion might be construed as a motion filed pursuant to Federal Rule of Civil Procedure 56(d), it will also be denied because Brown has not shown by affidavit or declaration that without these documents he cannot present facts essential to justify his opposition to the defendants’ motion for summary judgment.
B. Defendants’ Motion to Strike (Filing No. 93)
The defendants have moved to strike one paragraph each in four declarations of non-parties and two paragraphs of Brown’s affidavit filed in opposition to the defendants’ motion for summary judgment. The motion will be granted because it has not been shown that the non-party declarants or Brown have personal knowledge of the matters stated by them. See Fed.R.Civ.P. 56(c)(4); Fed. R. Evid. 602. Brown’s objection to the motion to strike (Filing No. 99) will be denied.
C. Plaintiff’s Motion for Appointment of Counsel (Filing No. 100)
Brown has renewed his request for appointment of counsel. The court cannot routinely appoint counsel in civil cases. In Davis v. Scott, 94 F.3d 444, 447 (8th Cir. 1996), the Eighth Circuit Court of Appeals explained that “[i]ndigent civil litigants do not have a constitutional or statutory right to appointed counsel.” Trial courts have “broad discretion to decide whether both the plaintiff and the court will benefit from the appointment of counsel, taking into account the factual and legal complexity of the case, the presence or absence of conflicting testimony, and the plaintiff’s ability to investigate the facts and present his claim.” Id. Having considered these factors, the renewed request for the appointment of counsel will be denied.
D. Plaintiff’s Motion for Depositions (Filing No. 101)
In a filing captioned “Memorandum, ” the plaintiff asks the court to authorize funds for him to depose the defendants. Treated as a motion, this filing will be denied.
The statutory right to proceed in forma pauperis does not include the right to receive funds from the court to pay discovery or other costs relating to a pro se litigant’s case. 28 U.S.C. § 1915; see also Haymes v. Smith, 73 F.R.D. 572, 574 (W.D.N.Y. 1976) (“The generally recognized rule is that a court may not authorize the commitment of federal funds to underwrite the necessary expenditures of an indigent civil litigant's action.”) (citing Tyler v. Lark, 472 F.2d 1077 (8th Cir. 1973), other citations omitted). To the extent that Brown’s motion might be construed as a motion filed pursuant to Federal Rule of Civil Procedure 56(d), it will also be denied because Brown has not shown by affidavit or declaration that without these depositions he cannot present facts essential to justify his opposition to the defendants’ motion for summary judgment.
E. Defendant’s (Second) Motion to Strike (Filing No. 104)
Finally, the defendants have moved to strike paragraphs 9 and 11 of Brown’s affidavit submitted in support of his motion for summary judgment. This is the same affidavit that was filed in opposition to the defendants’ motion for summary judgment. For the reasons stated above, the motion to strike will be granted.
II. SUMMARY JUDGMENT MOTIONS
In a memorandum and order entered on September 29, 2015, the court dismissed all claims alleged in Brown’s amended complaint except First Amendment retaliation claims alleged against Strong and Mastny in their individual capacities. Regarding the non-dismissed claims, the court stated:
Brown alleged a § 1983 retaliation claim against Strong and Mastny. With respect to Strong, he alleged she began retaliating against him after she learned he had complained to the Ombudsman’s Office and filed a civil action against her. He alleged she gave him negative marks that resulted in his inability to progress in his treatment. He also alleged Strong made the following statements: (1) “‘I am being sued by Cornelius and that is why he’s still Level 2, ’” and (2) “‘People want to sue staff don’t move forward.’” (Filing No. 37 at CM/ECF p. 6.) With respect to Mastny, Brown alleged she gave him negative scores on his treatment plan, placed him on privilege suspension, and forwarded negative comments about him to the mental health board after she learned he met with members of the Ombudsman’s Office about racial discrimination at the NRC. (Filing No. 37 at CM/ECF pp. 7-8.)
To establish a First Amendment retaliation claim under 42 U.S.C. § 1983, the plaintiff must show (1) he engaged in protected activity; (2) the government official took adverse action against him that would chill a person of ordinary firmness from continuing in the activity, and (3) the adverse action was motivated at least in part by the exercise of the protected activity. Revels v. Vincenz,
382 F.3d 870 (2004) (citing Naucke v. City of Park Hills, 284 F.3d 923, 927-28 (8th Cir. 2002)). Further, “[t]o prevail in an action for First Amendment retaliation, [a plaintiff] must show a causal connection between [the defendant’s] retaliatory animus and [the plaintiff’s] subsequent injury.”
Kilpatrick v. King, 499 F.3d 759, 767 (8th Cir. 2007) (citing Hartman v. Moore, 547 U.S. 250 (2006)).
Brown’s allegations of retaliation are plausible. They suggest Strong and Mastny reacted to Brown’s complaints to the Ombudsman’s Office and his filing of a civil lawsuit by taking steps to prevent him from advancing in his treatment program. Therefore, Brown’s retaliation claims against Strong and Mastny in their individual capacities will not be dismissed at this time. The court notes here that Brown’s claims for preliminary injunctive relief against Strong and Mastny are now moot in light of Brown’s transfer to the Lincoln Regional Center.
(Filing No. 49 at CM/ECF pp. 7-8).
Because admissible evidence filed by the defendants in support of their motion for summary judgment disproves Brown’s allegations and conclusively establishes that neither defendant engaged in any retaliatory conduct, the defendants’ motion will be granted and all claims alleged against them will be dismissed with prejudice. Brown’s cross-motion for summary judgment will be denied.
A. Standard of Review
“The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A material fact is one that “might affect the outcome of the suit under the governing law, ” and a genuine issue of material fact exists when “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In determining whether a genuine issue of material fact exists, the evidence is to be taken in the light most favorable to the nonmoving party, Adickes v. S.H.
Kress & Co., 398 U.S. 144, 157 (1970), and the court must not weigh evidence or make credibility determinations,
Anderson, 477 U.S. at 249. However, the nonmoving party “may not rest upon mere allegation or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial.” Id. at 256.
“A mere scintilla of evidence is insufficient to defeat summary judgment and if a nonmoving party who has the burden of persuasion at trial does not present sufficient evidence as to any element of the cause of action, then summary judgment is appropriate.” Brunsting v. Lutsen
Mountains Corp., 601 F.3d 813, 820 (8th Cir. 2010) (internal quotation marks and citations omitted). “‘Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial.’” Torgerson
v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc) (quoting Ricci v. DeStefano, 557 U.S. 557, 586 (2009)).
“The doctrine of qualified immunity protects government officials from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Qualified immunity gives government officials breathing room to make reasonable but mistaken judgments, and protects all but the plainly incompetent or those who knowingly violate the law. Whether an official protected by qualified immunity may be held personally liable for an allegedly unlawful official action generally turns on the objective legal reasonableness of the action, assessed in light of the legal rules that were clearly established at the time it was taken.” Messerschmidt v. Millender, 132 S.Ct. 1235, 1244-45 (2012) (internal quotes and citations omitted).
“Determining the question of qualified immunity involves the following two-step inquiry: (1) whether the facts shown by the plaintiff make out a violation of a constitutional or statutory right; and (2) whether that right was clearly established at the time of the defendant’s alleged misconduct.” Santiago v. Blair, 707 F.3d 984, 989 (8th Cir. 2013). Courts may address either prong of the analysis first,
Pearson v. Callahan, 555 U.S. 223, 236 (2009), and “the defendants are entitled to qualified immunity unless the answer to both of these questions is yes.” McCaster v. Clausen, 684 F.3d 740, 746 (8th Cir. 2012).
B. Undisputed Facts
Under the court’s local rules, “[t]he moving party must include in the brief in support of the summary judgment motion a separate statement of material facts about which the moving party contends there is no genuine issue to be tried and that entitles the moving party to judgment as a matter of law.” NECivR 56.1(a)(1). “The statement of facts should consist of short numbered paragraphs, each containing pinpoint references to affidavits, pleadings, discovery responses, deposition testimony (by page and line), or other materials that support the material facts stated in the paragraph.” NECivR 56.1(a)(2) (underlining in original). “Properly referenced material facts in the movant’s statement are considered admitted unless controverted in the opposing party’s response.” NECivR 56.1(b)(1) (underlining in original).
Upon careful review, the court finds that the following material facts, as stated in defendants’ brief, are fully supported by the evidence cited and have not been controverted by the plaintiff with admissible evidence of his own. Consequently, they are deemed admitted for purposes of summary judgment. See id.; Fed. R. Civ. P. 56(e)(2).
1. The state hospital for the mentally ill established in Madison County, Nebraska is known as the Norfolk Regional Center (NRC). Neb. Rev. Stat. § 83-305.
2. Brown was a patient at NRC from December 30, 2013 through September 9, 2015. (Ex. 1 (Filing No. 87-1), ¶ 4; Ex. 2, ¶ 5)
3. Brown was committed to NRC for inpatient sex offender treatment by the Douglas County Mental Health Board (MHB) after being identified as a dangerous, untreated sex offender ...