United States District Court, D. Nebraska
MEMORANDUM AND ORDER
Richard G. Kopf, Senior United States District Judge.
matter is before the court on Defendants' motion to
restrict (Filing 16) and on Plaintiff's motion for
miscellaneous relief (Filing 19). For the reasons discussed
below, each motion will be granted in part and denied in
Defendants' Motion to Restrict
February 28, 2019, Defendants filed a motion for summary
judgment (Filing 15), together with a supporting brief
(Filing 17) and evidentiary materials (Filing 18).
Defendants' brief and index of evidence were filed as
provisionally restricted access documents pursuant to
Nebraska Civil Rule 5.3(c)(1). Only parties of record and
court users may routinely access such documents
electronically. See NECivR 5.3(c)(3).
Eighth Circuit has recognized there is a common-law right of
access to judicial records in a civil proceeding. See IDT
Corp. v. eBay, 709 F.3d 1220, 1222 (8th Cir. 2013);
Seidl v. Am. Century Companies, Inc., 799 F.3d 983,
994 (8th Cir. 2015); Flynt v. Lombardi, 885 F.3d
508, 511 (8th Cir. 2018). “This right of access
bolsters public confidence in the judicial system by allowing
citizens to evaluate the reasonableness and fairness of
judicial proceedings, and to keep a watchful eye on the
workings of public agencies. It also provides a measure of
accountability to the public at large, which pays for the
courts.” IDT Corp., 709 F.3d at1222
(quotations and citations omitted). “Where the
common-law right of access is implicated, the court must
consider the degree to which sealing a judicial record would
interfere with the interests served by the common-law right
of access and balance that interference against the salutary
interests served by maintaining confidentiality of the
information sought to be sealed.” Id. at 1223.
“The presumption of public access to judicial records
may be overcome if the party seeking to keep the records
under seal provides compelling reasons for doing so.”
Flynt, 885 F.3d at 511 (8th Cir. 2018) (citing
In re Neal, 461 F.3d 1048, 1053 (8th Cir. 2006)).
motion states that the brief and exhibits offered in support
of their motion for summary judgment “could be deemed
confidential in nature, including medical records with
protected health information as that term is used in the
Health Insurance Portability and Accountability Act (HIPAA)
and video footage from cameras within the Douglas County
Department of Corrections that could reveal the location of
said cameras and compromise the security within the
institution” (Filing 16). Under our local rules,
however, “[t]he motion must state why filing an
unredacted document is necessary and why redaction would not
reduce or eliminate the need for restriction.” NECivR
5.3(c)(1)(A). “In ruling on the motion, the assigned
judge may lift the restriction on the document, strike it, or
order the filing party to place a redacted copy of the
document on the public docket.” NECivR 5.3(c)(2).
Because Defendants have not shown that redaction would be
impractical or inadequate, I will exercise the third option.
extent Defendants have an interest in protecting
Plaintiff's medical records, because of HIPAA or other
concerns, they already possess the discretionary authority to
redact such records under Nebraska Civil Rule 5.3(b)(3)
(permitting redaction of “medical or psychological
records”). Regarding any information contained in the
documents that would reveal the location of security cameras
at the Douglas County Department of Corrections, I accept
Defendants' representation that disclosure of such
information could compromise security at the institution.
Defendants therefore are authorized to redact any such
information. See NECivR 5.3(b)(12) (permitting
redaction of “other data as the court orders”).
Plaintiff's Motion for Miscellaneous Relief
has requested that this case be held in abeyance for an
indefinite period because he recently had back surgery and is
still in pain, he has limited vision and is scheduled for
cataract surgery, and he has high blood pressure which may
require hospitalization. Plaintiff also requests that
Defendants' motion for summary judgment be denied.
Alternatively, Plaintiff requests that he be granted an
extension of time to respond to Defendants' motion,
stating that he needs to “send out Privacy Act and
Freedom of Information requests to the Social Security
Administration, Department of Health and Human Services,
along with Plaintiff's medical records ....”
(Filing 19, p. 2). Plaintiff asks that he not be required to
respond to the summary judgment motion until he “has
received all requests for medical files and records from the
SSA, Health and Human Services, Dr. Doran, Dr. Phillips, Dr.
Miller, Methodist Hospital, Bergan Mercy, Emmanuel, records
in other states, Bureau of Prisons, Tecumseh Prison and
elsewhere for verification of Plaintiff's
Complaint” (Filing 19, p. 4). As another alternative,
Plaintiff requests that counsel be appointed because he
“is not medically capable to proceed in this moment and
future” (Filing 19, p. 4). Plaintiff has filed a
declaration verifying that all statements made in his motion
for miscellaneous relief are true and correct (Filing 20).
object to Plaintiff's various requests, but indicate they
would not oppose a 30-day extension of time for Plaintiff to
respond to their summary judgment motion (Filing 21).
Defendants' objections are well-taken.
back surgery (lumbar decompressive laminectomy, foramintomy)
was performed on January 21, 2019 (Filing 19, p. 8).
Plaintiff states he is experiencing “insufferable
pain” because of “complications from the surgery,
” and “is presently being seen by a physical
therapist” (Filing 19, p. 1). Plaintiff also states he
“can hardly see at all” because of a cataract in
his right eye and blurriness in his left eye; Plaintiff
indicates cataract surgery is scheduled, but no date is
provided (Filing 19, p. 1). Finally, Plaintiff is being
monitored for hypertension (Filing 19, pp. 2, 12).
Plaintiff claims to be unable to proceed with this action at
the present time because of the foregoing health issues, the
court is not convinced. This was Plaintiff's fourth back
surgery, and it was performed because he “presented
with back pain and neurogenic claudication symptoms as well
as radiculopathy down his whole leg” (Filing 19, p. 9).
The surgery was performed more than 2 months ago, and there
is no evidence that Plaintiff's condition is worse now
than it was when he filed this action in October 2018.
Similarly, there is no evidence that Plaintiff's impaired
vision and high blood pressure are recent developments. In
any event, the court will not stay the action or hold
Defendants' motion for summary judgment in abeyance until
such time as Plaintiff's health improves. Cf. Radecki
v. Joura, 177 F.3d 694, 696 (8th Cir. 1999) (holding
that “the district court correctly stopped short of
granting [plaintiff's] request for ‘an indefinite
continuance of all matters'” on account of
plaintiff's alleged disability due to depression).
the court cannot routinely appoint counsel in civil cases. In
Davis v. Scott, 94 F.3d 444, 447 (8th Cir. 1996),
the Eighth Circuit 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. The court, having considered
these factors, and, in particular, Plaintiff's claimed
inability to proceed pro se because of ongoing health issues,
concludes that Plaintiff's request for appointment of
counsel should be denied without prejudice to reassertion.
Plaintiff's request for an extension of time is governed
by Rule 56(d) of the Federal Rules ...