United States District Court, D. Nebraska
MEMORANDUM AND ORDER
Richard G. Kopf Senior United States District Judge
matter is before the court on Defendant Jonathan Chan's
(“Chan”) Motion for Summary Judgment (filing no.
23), Plaintiff Jesus Brown's (“Brown”) Motion
to Amend to Change Defendant's Name (filing no. 26) and
Motion for Summons (filing no. 27), and Defendants'
Motion to Extend and Reset Progression Deadlines (filing no.
is an inmate currently incarcerated at the Lincoln
Correctional Center (“LCC”) in Lincoln, Nebraska.
(Filing No. 1.) Brown, pursuant to 42 U.S.C. § 1983,
brought the instant civil rights action against Defendants
Chan and Shawn Millikan (“Millikan”), as well as
against numerous other Defendants whom this court previously
dismissed after initial review of the Complaint.
(See Filing No. 11.) Brown's only remaining
claims in this suit are against Chan and Millikan in their
individual capacities for alleged failure to protect.
October 11, 2019, Chan, through counsel, filed his Motion for
Summary Judgment, with an accompanying Index of Evidence and
Brief, seeking to resolve only the claims asserted against
Chan. (Filing Nos. 23-25.) Liberally construed, Brown alleges
Chan is liable for failing to protect him from an assault by
two inmates at the Diagnostic & Evaluation Center
(“DEC”) on March 18, 2017, in violation of the
Eighth Amendment to the United States Constitution. (Filing
No. 1 at CM/ECF pp. 6-7.) However, Chan has offered evidence
demonstrating that he was not employed by the Nebraska
Department of Correctional Services (“NDCS”) at
the time of the alleged assault. (Filing No. 24-1; Filing No.
24-2.) Therefore, Chan asserts he is entitled to judgment as
a matter of law because Brown cannot offer any evidence
supporting his claim that Chan failed to protect him and no
such evidence exists.
response to Chan's summary judgment motion, Brown filed a
motion on October 31, 2019, acknowledging that Chan is not a
proper Defendant to the Complaint and seeking permission to
amend his Complaint to substitute “Tony Tran” for
Chan and additional time to conduct discovery. (Filing No.
26.) Brown also moved the court to issue summons on
“Tony Tran.” (Filing No. 27.) Defendants Chan and
Millikan filed a response to Brown's motion to amend in
which they indicated they have no objection to Brown being
granted leave to amend his Complaint to dismiss Jonathan Chan
as a defendant. (Filing No. 28.) However, Defendants
explained that they were unaware of any “Tony
Tran” having ever worked at the DEC or LCC but were
aware of a former NDCS employee named “Andy Tran”
who did work at the DEC during the time frame alleged in
Brown's Complaint. Thus, Defendants request that the
court allow Brown to amend his Complaint to name “Andy
Tran” (rather than “Tony Tran”) as a
defendant in this action. Upon filing of an Amended Complaint
naming “Andy Tran, ” counsel for Defendants
represented that she will file a waiver of service on his
behalf and file a responsive pleading within 21 days of the
date the Amended Complaint is filed as she has already
conferred with Andy Tran. (Id. at CM/ECF pp. 1-2.)
addition, Defendants asked the court to reset the progression
deadlines previously set by the court. (Id. at CM/ECF p.
2.) As the court had not addressed the foregoing
requests prior to now and due to the approaching dispositive
motions deadline, Defendants filed a Motion to Extend and
Reset Progression Deadlines on December 5, 2019, asking that
all progression deadlines be extended by 90 days from the
date Brown's Amended Complaint is filed. (Filing No. 29.)
the court addresses Chan's pending motion for summary
judgment. Summary judgment should be granted only “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). In passing upon a
motion for summary judgment, the district court must view the
facts in the light most favorable to the party opposing the
motion. Dancy v. Hyster Co., 127 F.3d 649, 652-53
(8th Cir. 1997). In order to withstand a motion for summary
judgment, the nonmoving party must substantiate allegations
with “‘sufficient probative evidence [that] would
permit a finding in [his] favor on more than mere
speculation, conjecture, or fantasy.'” Moody v.
St. Charles Cnty., 23 F.3d 1410, 1412 (8th Cir. 1994)
(quoting Gregory v. City of Rogers, 974 F.2d 1006,
1010 (8th Cir. 1992)). Essentially, the test is
“whether the evidence presents a sufficient
disagreement to require submission to a jury or whether it is
so one-sided that one party must prevail as a matter of
law.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 251-52 (1986).
the undisputed evidence conclusively establishes that Chan
was not employed by NDCS at the time of the alleged assault
of which Brown complains and, thus, could not have failed to
protect him. Brown concedes as much. Therefore, the court
will grant Chan's motion for summary judgment and dismiss
him from this matter with prejudice.
the court turns to Brown's motion to amend his Complaint.
Federal Rule of Civil Procedure 15(a)(2) provides that, where
a party may not amend its pleading as a matter of course,
“a party may amend its pleading only with the opposing
party's written consent or the court's leave. The
court should freely give leave when justice so
requires.” Here, Defendants do no object to Brown's
proposed amendment, and the court concludes such amendment is
in the interests of justice. Accordingly, the court will give
Brown 30 days to file an amended complaint naming “Andy
Tran” as a defendant in his individual capacity
only. To be clear, Brown must restate the
relevant allegations of his current Complaint against
Millikan and any new allegations related to Andy Tran.
Plaintiff is warned that his amended complaint will
supersede, not supplement, his prior pleading.
both Brown and Defendants have requested extensions of the
discovery and progression deadlines previously established by
the court. Upon consideration, the court will grant the
parties' requests and will enter a new progression order
upon the filing of Brown's amended complaint to extend
the progression deadlines to at least 90 days after the date
the amended complaint is filed. Given counsel's
representation that Andy Tran will waive service and enter a
responsive pleading within 21 days of the filing of an
amended complaint, the court will not wait for Tran's
responsive pleading before entering the new progression
order. Nor will the court grant Brown's motion for
summons (filing no. 27) at this time in light of
counsel's representations and because the motion seeks to
issue summons on “Tony Tran.”
THEREFORE ORDERED that:
Defendant Chan's Motion for Summary Judgment (filing no.
23) is granted. Chan is dismissed as a ...