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Gillpatrick v. Frakes

United States District Court, D. Nebraska

April 17, 2018

SCOTT FRAKES, Director, in his official capacity; DENISE DAVIDSON, Warden, in her official capacity; and ROBERT MADSEN, Warden, in his official capacity, Defendants.



         This matter is before the Court on the Findings and Recommendation (Filing No. 12) of the magistrate judge[1] recommending the Court deny Paul Gillpatrick (“Gillpatrick”) and Niccole Wetherell's (“Wetherell” and collectively, “plaintiffs”) Motion to Remand (Filing No. 6). The plaintiffs have objected (Filing No. 15) to the Findings and Recommendation. For the reasons stated below, the Findings and Recommendation is accepted, and the Motion to Remand is denied.

         I. BACKGROUND

         Gillpatrick is currently incarcerated at the Nebraska State Penitentiary (“NSP”) in Lincoln, Nebraska, and Wetherell is incarcerated at the Nebraska Correctional Center for Women (“NCCW”) in York, Nebraska. The plaintiffs are over the age of eighteen, not related, and engaged to be married. The plaintiffs allege Scott Frakes (“Frakes”), in his official capacity as Director of the Nebraska Department of Correctional Services (“NDCS”), Denise Davidson (“Davidson”), in her official capacity as Warden of the NCCW, and Robert Madsen (“Madsen” and collectively, “defendants”), in his official capacity as Warden of the NSP, are preventing them from marrying.

         A. Application for Marriage

         At an unspecified point in time, each plaintiff submitted a Marriage Intention Form at their respective prisons. Diane Sabataka-Rine (“Sabatka-Rine”), the former Warden of the NSP, denied Gillpatrick's application, and Davidson, whose name at the time was Denise Skrobecki (“Skrobecki”), denied Wetherell's application.

         On August 12, 2012, Wetherell filed a grievance through the NDCS administrative process objecting to the denial of her application. The NDCS denied her grievance on September 14, 2012. On April 15, 2013, then-NDCS Director Robert Houston (“Houston”) stated that “legal and security concerns prohibit the NDCS from facilitating a marriage ceremony for inmates Gillpatrick and Wetherell.” On July 26, 2013, Gillpatrick filed a grievance objecting to the denial of his application, and the NDCS denied that grievance as well. On December 30, 2013, the plaintiffs informed then-NDCS Director Michael L. Kenney (“Kenney”), Houston's replacement, that prison administrators had twice denied their requests to marry. On January 14, 2014, Kenney refused to allow the marriage.

         B. Original Complaint

         On February 25, 2014, the plaintiffs filed a complaint in the District Court of Lancaster County, Nebraska (“state court”), against the NDCS, Sabatka-Rine, Skrobecki, and Kenney. The plaintiffs asserted a violation of their constitutional right to marry and sought a declaratory judgment and injunction allowing them to marry. The plaintiffs named the individual defendants in their official capacity but served them in their personal capacity. The individuals and the NDCS moved to dismiss, and the state court granted the motion and dismissed the complaint on May 20, 2014. The state court gave the plaintiffs twenty-one days to file an amended complaint.

         C. Amended Complaint

         On June 10, 2014, the plaintiffs filed an amended complaint naming Sabatka-Rine, Skrobecki, and Kenney as defendants, each in their personal capacity. On July 9, 2014, the Nebraska Attorney General (“AG”) filed an answer on behalf of the three individuals as well as the NDCS, even though the NDCS was not named as a party. The AG made filings in the case, purportedly to be on behalf of the NDCS and the individuals in their personal capacities.

         On October 1, 2015, the plaintiffs moved for summary judgment, which the state court granted on February 2, 2016. On September 29, 2017, the Nebraska Supreme Court reversed and remanded, ruling the individual defendants should have each been named in their official capacity. The Nebraska Supreme Court issued its mandate on October 23, 2017. On December 6, 2017, the plaintiffs moved for leave to amend their amended complaint. On December 19, 2017, the state court granted leave to amend.

         D. Second Amended Complaint

         On January 2, 2018, the plaintiffs filed their second amended complaint in state court naming the defendants as Frakes, Davidson, and Madsen in their official capacities. On January 23, 2018, the defendants removed (Filing No. 1) the second amended complaint to this Court, attaching only the second amended complaint and associated process (Filing No. 1-1).

         E. Findings and Recommendation

         On February 5, 2018, the plaintiffs moved to remand (Filing No. 6) the action to state court. The plaintiffs asserted the removal was untimely because it occurred either more than thirty days after the filing of the original complaint on February 25, 2014, or more than thirty days after the filing of the plaintiffs' motion for leave to amend on December 6, 2017. See 28 U.S.C. ยง 1446(b)(1) and (3). The plaintiffs also ...

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