O'Keefe v. Beatrice Police Department et al
| Billy O'Keefe |
| Beatrice Police Department, City of Beatrice, Gage County, Nebraska, Jay Murphy, Nebraska State Police, Jeffrey Rutan, Rob Sandersfeld, Robert Soldo and State of Nebraska |
| 8:2016cv00029 |
| January 21, 2016 |
| U.S. District Court for the District of Nebraska |
| 8 Omaha Office |
| Pro Se Docket |
| Richard G. Kopf |
| Prisoner: Civil Rights |
| 42 U.S.C. ยง 1983 Civil Rights Act |
| Plaintiff |
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Filing
56
MEMORANDUM AND ORDER - Plaintiff shall have 20 days from the date of this Memorandum and Order to apprise the court of his current address, in the absence of which this matter will be dismissed without prejudice and without further notice. The clerk of the court is directed to set a pro se case management deadline in this case using the following text: September 4, 2017: deadline for informing court of address. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party) (KLF)
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Filing
45
AMENDED PROGRESSION ORDER - All depositions, whether or not they are intended to be used at trial, shall be completed by July 31, 2017. All interrogatories, requests for admission and requests for production or inspection, whether or not they are int ended to be used at trial, shall be served on or before May 22, 2017. All motions to amend the pleadings shall be filed on or before July 3, 2017. The parties must comply with the provisions of NECivR 15.1 when moving to amend the pleadings. Motions to compel discovery shall be filed on or before August 14, 2017. The parties must comply with the provisions of NECivR 7.1(i) before filing a motion to compel. Dispositive Motions. All dispositive motions shall be filed on or before August 28, 2017. The parties must comply with the provisions of NECivR 7.1 and NECivR 56.1 when filing summary judgment motions. Defense counsel will have the primary responsibility for drafting the Order on Final Pretrial Conference, pursuant to the format and requi rements set out in NECivR 16.2(a)(2). The plaintiff will be responsible for cooperating in the preparation and signing of the final version of the Order. The Order should be submitted to the plaintiff and to any other parties by October 30, 2017. The plaintiff shall provide additions and/or proposed deletions to Defense counsel by November 13, 2017. Defense counsel shall submit the Proposed Order on Final Pretrial Conference to the court by no later than November 27, 2017. If a party proposes an addition or deletion which is not agreed to by all the other parties, that fact should be noted in the text of the document. The Proposed Order on Final Pretrial Conference must be signed by all pro se parties and by counsel for all represented part ies. The Final Pretrial Conference will be held before the Magistrate Judge on December 5, 2017, at 10 a.m. Prior to the pretrial conference, all items as directed in NECivR 16.2 and full preparation shall have been completed so that trial may begin at any time following the Pretrial Conference. If a plaintiff is held in an institution, the pretrial conference will be by telephone. In that case, Defense counsel shall contact the plaintiff's institution in advance and arrange to initiate and place the conference call. The trial date will be set by the Magistrate Judge at the time of the Final Pretrial Conference. The clerk of the court is directed to set a pro se case management deadline in this case using the following text: Pretrial conference before Magistrate Judge Cheryl Zwart to be held on December 5, 2017. Ordered by Magistrate Judge Cheryl R. Zwart. (Copy mailed to pro se party) (KLF)
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Filing
32
ORDER - The Motion for Extension of Time to Move or Answer Plaintiff's Complaint filed by defendant Jeffrey Rutan (Filing No. 23 ) is granted; the Motion for Extension of Time to File Responsive Pleading filed by defendant Gage County, Nebraska , (Filing No. 25 ) is granted; and these defendants' responsive pleadings shall be filed on or before August 5, 2016. The Motion to Strike (Filing No. 28 ) filed by defendants City of Beatrice, Robert Soldo, and Jay Murphy is granted; Filing N o. 26 is hereby stricken as erroneously filed; and Filing No. 27 is deemed the operative and pending Motion to Dismiss & Motion for a More Definite Statement filed by defendants City of Beatrice, Robert Soldo, and Jay Murphy. The Clerk of Court s hall set a pro se case management deadline as follows: August 8, 2016: check for responsive pleadings by defendants Rutan and Gage County and consider progression order. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party) (KLF)
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Filing
15
ORDER that Plaintiff's Motion for Appointment of Counsel (Filing No. 13 ) is denied. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party) (KLF)
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Filing
14
MEMORANDUM AND ORDER - IT IS ORDERED: Plaintiff's Motion for Leave to Amend Complaint (Filing No. 11 ) is granted. Plaintiff's First Supplemental Amended Complaint (Filing No. 12 ) is accepted as supplemental to Plaintiff's original Complaint and is deemed filed. Plaintiff's Fourth Amendment claim that subjecting an arrestee to a blood-alcohol test via blood draw constitutes an unreasonable search and seizure is reinstated as against defendant Jeffrey Rutan1 in his indivi dual capacity. This matter may proceed to service of process as to Plaintiff's 42 U.S.C. § 1983 claims based on the Fourth and Fourteenth Amendments as follows: (a) excessive-force claims against defendants Rutan and Soldo in their individ ual capacities; (b) claims against defendants Sandersfeld and Murphy in their individual capacities for failure to prevent the use of such force; (c) claim against defendant Jeffrey Rutan in his individual capacity that subjecting Plaintiff to a b lood-alcohol test via blood draw constituted an unreasonable search and seizure; and (d) claims against the City of Beatrice and Gage County for inadequate training of its defendant employees related to the use of force. However, at this time, the c ourt makes no finding with respect to its jurisdiction over these claims or whether they state a claim on which relief may be granted. The clerk of the court is directed to send to Plaintiff a copy of the Complaint (Filing No. 1 ), the First Supp lemental Amended Complaint (Filing No. 12 ), a copy of the two Memoranda and Orders addressing Plaintiff's Complaints (Filing No. 10 & this Memorandum and Order), 6 summons forms, and 6 USM 285 Forms for service on defendants Robert Soldo, Ja y Murphy, Jeffrey Rutan, and Rob Sandersfeld in their individual capacities; the City of Beatrice, Nebraska; and Gage County, Nebraska. (See attached Notice Regarding Service.) Federal Rule of Civil Procedure 4(m) requires service of the complaint on a defendant within 90 days of filing the complaint. However, Plaintiff is granted, on the court's own motion, an extension of time until 120 days from the date of this order to complete service of process. (See this court's General Ord er No. 2015-06.) The clerk of the court is directed to set the following pro se case management deadline: October 3, 2016: check for completion of service of process. The previously-set case management deadline of September 13, 2016, shall be terminated.Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party with Complaint, First Supplemental Amended Complaint, Memoranda and Orders, Summons and USM 285 Forms)(TCL)
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Filing
10
MEMORANDUM AND ORDER - Plaintiff's claims against the State of Nebraska, the Nebraska State Police, and Officer Rutan in his official capacity are dismissed from this suit as barred by Eleventh Amendment sovereign immunity. Plaintiff's Four th Amendment claim that subjecting an arrestee to a blood-alcohol test via blood draw constitutes an unreasonable search and seizure is dismissed for Plaintiff's lack of standing. Plaintiff's 42 U.S.C. § 1983 claim asserted on the basi s that some or all of the individual defendants violated Nebraska criminal-assault statutes during the incident at issue is dismissed for failure to state a claim. Defendant City of Beatrice Police Department is dismissed as a defendant because it is not a suable entity under 42 U.S.C. § 1983. Plaintiff's claims against defendants Soldo, Murphy, and Sandersfeld in their official capacities are dismissed as duplicative of claims asserted against the municipalities they serve-that is, th e City of Beatrice and Gage County. Plaintiff shall not be granted leave to amend his Complaint to assert the above dismissed claims, as such amendment would be futile. This matter may proceed to service of process as to Plaintiff's 42 U.S.C. &# 167; 1983 claims based on the Fourth and Fourteenth Amendments as follows: (a) excessive-force claims against defendants Rutan and Soldo in their individual capacities; (b) claims against defendants Sandersfeld and Murphy in their individual capaciti es for failure to prevent the use of such force; and (c) claims against the City of Beatrice and Gage County for inadequate training of its defendant employees related to the use of force. However, at this time, the court makes no finding with respec t to its jurisdiction over these claims or whether they state a claim on which relief may be granted. The clerk of the court is directed to send to Plaintiff a copy of the Complaint, a copy of this Memorandum and Order, 6 summons forms, and 6 USM 285 Forms for service on defendants Robert Soldo, Jay Murphy, Jeffrey Rutan, and Rob Sandersfeld in their individual capacities; the City of Beatrice, Nebraska; and Gage County, Nebraska. (See attached Notice Regarding Service.) Federal Rule of Civil Pr ocedure 4(m) requires service of the complaint on a defendant within 90 days of filing the complaint. However, Plaintiff is granted, on the court's own motion, an extension of time until 120 days from the date of this order to complete service o f process. (See this court's General Order No. 2015-06.) If requested to do so in this matter, the United States Marshal will serve all process in this case without prepayment of fees from Plaintiff. In making such a request, Plaintiff must comp lete the USM 285 forms to be submitted to the clerk of the court with the completed summons forms. Without these documents, the United States Marshal will not serve process. Upon receipt of the completed forms, the clerk of the court will sign the su mmons forms and forward them to the United States Marshal for service on the defendants, together with a copy of the Complaint. The clerk of the court is directed to set the following pro se case management deadline: September 13, 2016: check for completion of service of process. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party along with forms as directed) (KLF)
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Filing
6
MEMORANDUM AND ORDER - Plaintiff's Motion for Leave to Proceed IFP 2 is granted. Plaintiff must pay an initial partial filing fee of $12.20 within 30 days, unless the court extends the time in which he has to pay in response to a written motion. After payment of the initial partial filing fee, Plaintiff's institution must collect the additional monthly payments in the manner set forth in 28 U.S.C. § 1915(b)(2), quoted above, and forward those payments to the court. The cler k of the court is directed to send a copy of this order to the appropriate official at Plaintiff's institution. The clerk of the court is directed to set a pro se case management deadline in this case using the following text: March 2, 2016: ini tial partial filing fee payment due. Plaintiff is advised that, following payment of the initial partial filing fee,the next step in Plaintiff's case will be for the court to conduct an initial review of Plaintiff's claims to determine whether summary dismissal is appropriate under 28 U.S.C. § 1915(e)(2). The court will conduct this initial review in its normal course of business. Ordered by Judge John M. Gerrard. (Copy mailed to pro se party) (KLF)
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