United States District Court, D. Nebraska
MEMORANDUM AND ORDER
Richard G. Kopf Senior United States District Judge.
Harold Bryan Wilson (“Wilson”) and Riley Nicole
Shadle (“Shadle”) (or “Plaintiffs”)
filed a Complaint on November 30, 2016. (Filing No.
1.) They have each been given leave to proceed in forma
pauperis. (Filing Nos. 13, 14.) Plaintiffs
have various motions pending before this court. (Filing Nos.
and Shadle are incarcerated with the Nebraska Department of
Corrections. They seek to get married and to remain in the
same facility. (Filing No. 1 at CM/ECF p. 3.) Wilson
is male and Shadle is “a transgender female residing in
a male facility.” (Id. at CM/ECF p. 2.) They
contend that staff have harassed them at the direction of
Defendants for sitting too close together and displaying
non-sexual, physical contact with each other because they are
both considered male. (Id.) They allege that Wilson
was “reclassed for transfer” to the state
penitentiary from the Lincoln Correctional Center because
they wish to marry. (Id.) They maintain that another
incarcerated couple, Mr. and Mrs. Paul Gilpatrick, were
allowed to marry in 2016, and that other couples are allowed
to remain together in the same facility. (Id.) They
allege that they are prohibited from having contact with one
another and therefore cannot comply with this court's
order that each of them sign any document filed in this case.
(See Filing Nos. 6, 12.) Wilson
and Shadle seek injunctive relief. (Filing No. 1 at
CM/ECF p. 3.)
construed, Wilson and Shadle allege federal constitutional
claims of due process, equal protection, and retaliation
against Defendants Jason Geerdes, Fred Britten, Cathy Sheair,
and Scott Frakes in their official capacities. See Turner
v. Safley, 482 U.S. 78 (1987) (invalidating a regulation
that restricted marriage access for prison inmates). See
also, Obergefell v. Hodges, 135 S.Ct. 2584 (2015)
(recognizing fundamental right to marry for same-sex
couples). Given the nature of their allegations and the state
of the law, the court will allow this case to proceed to
service of process.
THEREFORE ORDERED that:
matter may proceed to service of process as to
Plaintiffs' 42 U.S.C. § 1983 claims based on due
process, equal protection, and retaliation against Defendants
Jason Geerdes, Fred Britten, Cathy Sheair, and Scott Frakes
in their official capacities only.
Because Defendants are sued only in their official
capacities, they shall be served at the office of the
Nebraska Attorney General. See Federal Rule of Civil
Procedure 4(j)(2); Neb. Rev. Stat. § 25-510.02 (Reissue
2016). The clerk of the court is directed to complete summons
forms and USM-285 forms for each of the Defendants using the
address “Office of the Nebraska Attorney General, 2115
State Capitol, Lincoln, NE 68509, ” and forward them
together with a copy of the Complaint and a copy of this
Memorandum and Order to the Marshals Service for service of
process on Defendants.
Defendants shall have 21 days from the date they are served
to file an answer or other responsive pleading to
Wilson's Motion for Status is granted. (Filing No.
16.) Shadle has been given leave to proceed in forma
pauperis. (Filing No. 14.)
Shadle's Motion (Filing No. 21) seeking an
extension of time to file his initial partial filing fee is
denied as moot. The court received Shadle's initial
partial filing fee on January 20, 2017.
other pending motions (Filing Nos. 15, 17,
18, 22, and 24) will be stayed in
abeyance pending a response from Defendants. The clerk's
office shall terminate Defendants Brad Exstrom, Troy Hawk,
and Richard Cruickshank from the case until the court acts on
Wilson's Motion to Amend (Filing No. 18).
clerk's office shall set a pro se case management
deadline using the following text: February 15, 2017: check
for Defendants' response.