CLOSED,NEBRASKA−DEFENDANT,NEBRASKADOCKET,PROTECTIVEORDER,TRIAL−OMAHA
U.S. District Court District of Nebraska (8 Omaha) CIVIL DOCKET FOR CASE #: 8:16−cv−00524−RFR−CRZ

Wilson v. Geerdes et al Assigned to: Judge Robert F. Rossiter, Jr. Referred to: Magistrate Judge Cheryl R. Zwart Cause: 42:1983 Prisoner Civil Rights
Plaintiff
Harold Bryan Wilson

Date Filed: 11/30/2016 Date Terminated: 04/10/2020 Jury Demand: None Nature of Suit: 550 Prisoner: Civil Rights Jurisdiction: Federal Question
represented by Elizabeth A. Govaerts POWERS LAW FIRM 411 South 13th Street Suite 300 Lincoln, NE 68508 (402) 474−8000 Fax: (402) 474−5006 Email: Elizabeth@vpowerslaw.com ATTORNEY TO BE NOTICED

Michael D. Gooch MICHAEL GOOCH 7215 North 162nd Street Bennington, NE 68007 (402) 333−0722 Email: mdgooch@cox.net TERMINATED: 01/14/2019

Vincent M. Powers POWERS LAW FIRM 411 South 13th Street Suite 300 Lincoln, NE 68508 (402) 474−8000 Fax: (402) 474−5006 Email: Vince@Vpowerslaw.com ATTORNEY TO BE NOTICED

Plaintiff
Riley Nicole Shadle TERMINATED: 01/17/2019

represented by Riley Nicole Shadle 82297 NEBRASKA DEPARTMENT OF CORRECTIONS − LINCOLN P.O Box 22800 Lincoln, NE 68542−2800 PRO SE

Michael D. Gooch (See above for address) ATTORNEY TO BE NOTICED

Vincent M. Powers (See above for address) ATTORNEY TO BE NOTICED

V. Defendant

represented by

Jason Geerdes in their Official Capacity
Defendant Fred Britten in their Official and Personal Capacities TERMINATED: 10/18/2017 Defendant Cathy Sheair in their Official and Personal Capacities TERMINATED: 08/21/2017 Defendant Scott Frakes Director, in their Official Capacity

Benjamin M. Goins ATTORNEY GENERAL'S OFFICE − NEBRASKA 2115 State Capitol Lincoln, NE 68509 (402) 471−2682 Fax: (402) 471−4725 Email: ben.goins@nebraska.gov ATTORNEY TO BE NOTICED
Danielle L. Rowley ATTORNEY GENERAL'S OFFICE − NEBRASKA 2115 State Capitol Building P.O. Box 98920 Lincoln, NE 68509−8920 (402) 471−2683 Fax: (402) 471−4725 Email: danielle.rowley@nebraska.gov ATTORNEY TO BE NOTICED
David A. Lopez HUSCH, BLACKWELL LAW FIRM − OMAHA 13330 California Street Suite 200 Omaha, NE 68154 402−964−5097 Email: dave.lopez@huschblackwell.com TERMINATED: 07/31/2019
Ryan S. Post ATTORNEY GENERAL'S OFFICE − NEBRASKA 2115 State Capitol Building P.O. Box 98920 Lincoln, NE 68509−8920 (402) 471−1814 Fax: (402) 471−3297 Email: ryan.post@nebraska.gov ATTORNEY TO BE NOTICED
represented by David A. Lopez (See above for address) TERMINATED: 07/31/2019
represented by David A. Lopez (See above for address) TERMINATED: 07/31/2019
represented by Benjamin M. Goins (See above for address) ATTORNEY TO BE NOTICED
Danielle L. Rowley (See above for address) ATTORNEY TO BE NOTICED
David A. Lopez (See above for address)

Defendant Brad Exstrom TERMINATED: 01/26/2017 Defendant Troy Hawk TERMINATED: 01/26/2017 Defendant Richard Cruickshank in their Official and Personal Capacities TERMINATED: 10/18/2017 Defendant Diane Sabatka−Rine in their Official and Personal Capacities TERMINATED: 10/18/2017 Defendant Michelle Cupps in their Official and Personal Capacities TERMINATED: 10/18/2017 Defendant Brad Exstrom in their Official and Personal Capacities TERMINATED: 10/18/2017 Defendant Tom Pfieffer in their Official and Personal Capacities TERMINATED: 10/18/2017 Defendant Taggart Boyd Warden, in their Official Capacity
Defendant Robert Madsen Warden, in their Official Capacity

TERMINATED: 07/31/2019 Ryan S. Post (See above for address) ATTORNEY TO BE NOTICED
represented by Benjamin M. Goins (See above for address) ATTORNEY TO BE NOTICED Danielle L. Rowley (See above for address) ATTORNEY TO BE NOTICED David A. Lopez (See above for address) TERMINATED: 07/31/2019 Ryan S. Post (See above for address) ATTORNEY TO BE NOTICED
represented by Benjamin M. Goins (See above for address)

TERMINATED: 12/14/2018
Defendant Michele Capps in her official capacity as Warden of the Nebraska State Penitentiary

ATTORNEY TO BE NOTICED
David A. Lopez (See above for address) TERMINATED: 07/31/2019
Ryan S. Post (See above for address) ATTORNEY TO BE NOTICED
represented by Benjamin M. Goins (See above for address) ATTORNEY TO BE NOTICED
Danielle L. Rowley (See above for address) ATTORNEY TO BE NOTICED
David A. Lopez (See above for address) TERMINATED: 07/31/2019

Date Filed 11/30/2016 11/30/2016 11/30/2016
12/02/2016 12/02/2016
12/07/2016

# Docket Text
1 COMPLAINT against Fred Britten, Scott Frakes, Jason Geerdes, and Cathy Sheair. No summons issued, filed on behalf of Harold Bryan Wilson and Riley Nicole Shadle. (LAC) (Entered: 12/02/2016)
2 MOTION for Leave to Proceed in forma pauperis on behalf of Plaintiffs Riley Nicole Shadle and Harold Bryan Wilson. (LAC) Modified on 12/2/2016 to correct file date (LAC). (Entered: 12/02/2016)
3 PRISONER ACCOUNT STATEMENT by Plaintiff Harold Bryan Wilson. ACCESS TO THE PDF DOCUMENT IS RESTRICTED TO CASE PARTICIPANTS AND THE COURT PURSUANT TO THE E−GOVERNMENT ACT AND FEDERAL RULE OF CIVIL PROCEDURE 5.2(a). (LAC) Modified on 12/2/2016 to correct file date (LAC). (Entered: 12/02/2016)
4 NOTICE by Clerk acknowledging receipt of complaint filed by a pro se party. (LAC) (Entered: 12/02/2016)
5 GENERAL ORDER NO. 2016−02: This general order provides for the management and assignment of cases filed by a plaintiff or petitioner without counsel. This general order also includes the definition of the pro se docket, responsibilities of the pro se law clerks and scheduling and discovery requirements in pro se cases. Ordered by Chief Judge Laurie Smith Camp. (Copy mailed to pro se party) (LAC) (Entered: 12/02/2016)
6 MEMORANDUM AND ORDER that the non−lead Plaintiff, Riley Nicole Shadle, shall have 30 days from the date of entry of this order in which to advise the court whether he wishes to continue as a Plaintiff in this group action. If, by that deadline, Shadle advises the court that he does not wish to participate in the action, he will be dismissed from the lawsuit and will not be charged a filing fee for this action. This is the only way to avoid the obligation to pay a filing fee for this action. Alternatively, if any Plaintiff (including Harold Wilson) wants to pursue his claims individually in a separate lawsuit, he shall so advise the court in writing, and his claims shall be severed into a new action where a filing fee will be assessed. Each non−lead Plaintiff who chooses to continue as a Plaintiff, either in this action or in a severed individual case, is hereby ORDERED to pay the court's filing fee or file a properly completed motion for leave to proceed in forma pauperis (IFP) within 30 days from the date of this Memorandum and Order. The clerk's office is directed to send the Form AO240 to Riley Nicole Shadle. Failure to submit a properly completed IFP motion does not relieve a non−lead Plaintiff of the obligation to pay a filing fee, unless he also submits timely written notice that he does not intend to proceed with the action. Any non−lead Plaintiff who simply does not respond to this Memorandum and Order within 30 days

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will be obligated to pay the full filing fee and will also be dismissed from this action for want of prosecution and/or for failure to comply with a court order under Federal Rule of Civil Procedure 41(b). Plaintiffs are again WARNED that future group motions or pleadings that do not comply with the group pleading requirements discussed herein shall be stricken pursuant to Rule 11(a). Plaintiffs are further ADVISED that each of them is under a continuing obligation to keep the court informed of any change in his address. The clerk of court is directed to set a pro se case management deadline using the following text: January 6, 2017: Check for Response to Memorandum and Order. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party) (LAC) (Entered: 12/07/2016)
7 MOTION for Leave to Proceed in forma pauperis on behalf of Plaintiff Riley Nicole Shadle. (LAC) (Entered: 12/07/2016)
8 PRISONER ACCOUNT CERTIFICATE by Plaintiff Riley Nicole Shadle ACCESS TO THE PDF DOCUMENT IS RESTRICTED TO CASE PARTICIPANTS AND THE COURT PURSUANT TO THE E−GOVERNMENT ACT AND FEDERAL RULE OF CIVIL PROCEDURE 5.2(a). (LAC) (Entered: 12/07/2016)
9 MOTION on behalf of Plaintiff Harold Bryan Wilson. (LAC) (Entered: 12/09/2016)
29 RESPONSE regarding Memorandum and Order 6 on behalf of Plaintiff Riley Nicole Shadle. (LAC) (Entered: 02/02/2017)
10 MOTION for Leave to Proceed in forma pauperis on behalf of Plaintiff Riley Nicole Shadle. (LAC) (Entered: 12/27/2016)
11 PRISONER ACCOUNT CERTIFICATE by Plaintiff Riley Nicole Shadle. ACCESS TO THE PDF DOCUMENT IS RESTRICTED TO CASE PARTICIPANTS AND THE COURT PURSUANT TO THE E−GOVERNMENT ACT AND FEDERAL RULE OF CIVIL PROCEDURE 5.2(a). (LAC) (Entered: 12/27/2016)
12 MOTION for Preliminary Injunction and/or Temporary Restraining Order on behalf of Plaintiff Harold Bryan Wilson. (LAC) (Entered: 12/27/2016)
13 MEMORANDUM AND ORDER that Wilson's Motion for Leave to Proceed IFP (Filing No. 2 ) is granted. Wilson must pay an initial partial filing fee of $35.79 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, Wilson'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 clerk's office is directed to send a copy of this order to the appropriate official at Wilson's institution. The clerk's office is directed to set a pro se case management deadline in this case using the following text: January 28, 2017: initial partial filing fee payment due. Wilson is advised that, following payment of the initial partial filing fee, the next step in this case will be for the court to conduct an initial review of the 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. Wilson's Motion to Amend (Filing No. 9 ) is denied without prejudice to him filing a proper motion to amend which complies with the local rules of this court. Wilson's Motion for Preliminary Injunction and/or Temporary Restraining Order (Filing No. 12 ) is denied without prejudice to reassertion. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party and as directed)(LAC) (Entered: 12/29/2016)
14 MEMORANDUM AND ORDER that Shadle's Motion for Leave to Proceed IFP (Filing No. 10 ) is granted. Shadle must pay an initial partial filing fee of $22.70 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, Shadle'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 clerk's office is directed to send a copy of this order to the appropriate official at Shadle's institution. The clerk's office is directed to set a pro se case management deadline in this case using the following text: January 28, 2017: initial partial filing fee payment due. Shadle is advised that, following payment of the initial partial filing fee, the next step in this case will be for the court to conduct an initial review of the 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. Shadle's initial Motion

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for Leave to Proceed In Forma Pauperis (Filing No. 7 ) is denied as moot. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party and as directed) (LAC) (Entered: 12/29/2016)
15 MOTION for Preliminary Injunction and/or temporary restraining order, and motion to add additional defendant on behalf of Plaintiff Harold Bryan Wilson.(CCB) (Entered: 01/03/2017)
16 MOTION for status on behalf of Plaintiff Harold Bryan Wilson.(CCB) (Entered: 01/03/2017)
17 MOTION to Compel presence of inmate advisor at teleconference hearings or other proceedings on behalf of Plaintiff Harold Bryan Wilson.(CCB) (Entered: 01/03/2017)
20 RESTRICTED SUPPLEMENT regarding Complaint 1 on behalf of Plaintiff Riley Nicole Shadle. ACCESS TO THE PDF DOCUMENT IS RESTRICTED TO CASE PARTICIPANTS AND THE COURT PURSUANT TO THE E−GOVERNMENT ACT AND FEDERAL RULE OF CIVIL PROCEDURE 5.2(a). (LAC) Modified on 4/13/2017 to add restricted language pursuant to order 50 (CS). (Entered: 01/10/2017)
18 MOTION to Amend to add defendants and facts on behalf of Plaintiff Harold Bryan Wilson. (LAC) (Entered: 01/10/2017)
19 AMENDED COMPLAINT against Defendant Fred Britten, Richard Cruickshank, Brad Exstrom, Scott Frakes, Jason Geerdes, Troy Hawks, Cathy Sheair filed by Plaintiff Harold Bryan Wilson. (LAC) (Entered: 01/10/2017)
21 MOTION to Extend on behalf of Plaintiff Riley Nicole Shadle. (LAC) (Entered: 01/17/2017)
TEXT ENTRY THAT INITIAL PARTIAL FILING fee paid on behalf of Harold B. Wilson on 01/19/2017. Receipt number 8041085, in the amount of $35.79. (KLF) (Entered: 01/19/2017)
22 MOTION on behalf of Plaintiff Harold Bryan Wilson. (LAC) (Entered: 01/19/2017)
TEXT ENTRY THAT PARTIAL FILING fee paid on behalf of Riley Nicole Shadle on 1/20/2017. Receipt number 8041101, in the amount of $ 22.70. (TCL) (Entered: 01/20/2017)
23 LETTER on behalf of Plaintiff Riley Nicole Shadle.(TCL) (Entered: 01/20/2017)
24 MOTION for Reconsideration regarding Memorandum and Order on Motion for Preliminary Injunction 13 filed by Plaintiff Riley Nicole Shadle. (JAB) (Entered: 01/20/2017)
25 MEMORANDUM AND ORDER − This 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. 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 Plaintiffs' Complaint. 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. All 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 Wilsons Motion to Amend (Filing No. 18 ). The clerk's office shall set a pro se case management deadline using the following text: February 15, 2017: check for Defendants' response. (Pro Se Case Management Deadline set for 2/15/2017.) Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party and USM with

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summons) (CS) (Entered: 01/26/2017)
26 Summons Issued (COPY) with USM 285 forms as to defendants Fred Britten, Scott Frakes, Jason Geerdes, Cathy Sheair with copy of Memorandum and Order 25 , Complaint − Pro Se 1 , and Amended Complaint 19 . (CS) (Entered: 01/26/2017)
27 MOTION for Temporary Restraining Order and Preliminary Injunction on behalf of Plaintiff Harold Bryan Wilson. (LAC) (Entered: 01/30/2017)
28 MEMORANDUM AND ORDER − With regard to this court's order dated January 26, 2017 (Filing No. 25 ), the United States Marshal shall serve all process in this case without prepayment of fees from Plaintiff. The clerk's office provide a copy of this order to the United States Marshal. Ordered by Senior Judge Richard G. Kopf. (1 Certified copy to USM and Copy mailed to pro se party )(LAC) Modified on 2/1/2017 to include mailed to pro se party (LAC). (Entered: 02/01/2017)
30 MEMORANDUM AND ORDER that Wilson's motion (Filing No. 27 ) will be stayed in abeyance with all other pending motions in this matter until Defendants respond to Plaintiffs' Complaint. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party) (LAC) (Entered: 02/07/2017)
31 SUMMONS Returned Executed upon defendant Cathy Sheair on 2/6/2017. (LAC) (Entered: 02/07/2017)
32 SUMMONS Returned Executed upon defendant Jason Geerdes on 2/6/2017. (LAC) (Entered: 02/07/2017)
33 SUMMONS Returned Executed upon defendant Scott Frakes on 2/6/2017. (LAC) (Entered: 02/07/2017)
34 SUMMONS Returned Executed upon defendant Fred Britten on 2/6/2017. (LAC) (Entered: 02/07/2017)
35 MOTION for Extension of Time to File a Responsive Pleading (30 days to 3/29/17), MOTION to Continue Stay of all Pending Motions by Attorney David A. Lopez on behalf of Defendants Fred Britten, Scott Frakes, Jason Geerdes, Cathy Sheair.(Lopez, David) (Entered: 02/22/2017)
36 TEXT ORDER: Defendants' Motion for Extension of Time to file a Responsive Pleading (Filing No. 35 ) is granted. The clerk's office shall set a pro se case management deadline using the following text: March 29, 2017: check for Defendants' responsive pleading. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party) (LAC) (Entered: 02/23/2017)
37 MOTION for Judgment on the Pleadings on behalf of Plaintiff Harold Bryan Wilson. (LAC) (Entered: 03/01/2017)
38 TEXT ORDER − Plaintiff Wilson's Motion for Judgment on the Pleadings (Filing No. 37 ) is denied. Defendants were given until March 29, 2017, to file a responsive pleading (Filing No. 36 ). Plaintiff Wilson was given notice of Defendants' March 29, 2017, deadline to file a responsive pleading (Filing No. 36 Display Receipt). Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party) (LAC) (Entered: 03/02/2017)
39 OBJECTION on behalf of Plaintiff Harold Bryan Wilson. (LAC) (Entered: 03/08/2017)
40 TEXT ORDER − Plaintiff Wilson's Objection (Filing No. 39 ) is denied. The court will address any motions for extension of time to respond to Defendants' responsive pleading at the time that Plaintiffs file them. All pending motions continue to be stayed pending Defendants' response. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party) (LAC) (Entered: 03/09/2017)
41 MOTION on behalf of Plaintiff Riley Nicole Shadle. (LAC) (Entered: 03/29/2017)
42 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM by Attorney David A. Lopez on behalf of Defendants Fred Britten, Scott Frakes, Jason Geerdes, Cathy Sheair.(Lopez, David) (Entered: 03/29/2017)

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43 BRIEF in support of MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM 42 by Attorney David A. Lopez on behalf of Defendants Fred Britten, Scott Frakes, Jason Geerdes, Cathy Sheair.(Lopez, David) (Entered: 03/29/2017)
44 BRIEF in opposition to MOTION for Preliminary Injunction 15 , MOTION for Reconsideration regarding Memorandum and Order on Motion for Leave to Proceed in forma pauperis,,,,,,, Order on Motion for Miscellaneous Relief,,,,,,, Order on Motion for Preliminary Injunction,,,,,, 13 24 , MOTION to Amend 18 , MOTION 22 , MOTION to Compel 17 , MOTION for Temporary Restraining Order 27 by Attorney David A. Lopez on behalf of Defendants Fred Britten, Scott Frakes, Jason Geerdes, Cathy Sheair.(Lopez, David) (Entered: 03/29/2017)
45 MOTION to Strike Supplement 20 (Privacy Violations) by Attorney David A. Lopez on behalf of Defendants Fred Britten, Scott Frakes, Jason Geerdes, Cathy Sheair.(Lopez, David) (Entered: 03/29/2017)
46 MEMORANDUM AND ORDER that with thanks for accepting the appointment, Michael D. Gooch is hereby appointed to represent Plaintiff Wilson and Plaintiff Shadle. The clerk of the court shall provide Mr. Gooch with a copy of this Memorandum and Order. Mr. Gooch is directed to promptly enter his appearance as counsel in this case. Upon entry of Mr. Gooch's appearance in CM/ECF, the clerk of the court shall immediately pay from the Federal Practice Fund the sum of $1,000 to Mr. Gooch. A second and the last installment of $1,000 shall become due and payable to Mr. Gooch upon the entry of judgment or other closing documents in the case. Mr. Gooch may incur reasonable expenses when representing Plaintiffs in accordance with parts III(A), VI(C), and VI(E) of the Amended Plans for Administration of the Federal Practice Fund and Federal Practice Committee.1 See also NEGenR 1.7(g) and NECivR 54.3−54.4. Should Plaintiffs succeed and Mr. Gooch is awarded attorney fees and expenses that exceed $2,000 plus expenses, he shall reimburse the Federal Practice Fund for the fees and expenses paid from the fund. At the direction of the court, this case is removed from the pro se docket. The clerk's office shall randomly assign new judges to this case and shall request a reassignment order from the Chief Judge. All pending motions, including Defendants' Motion to Dismiss (Filing No. 42 ), will be stayed until the assigned judges enter an order progressing the matter. The undersigned recommends to the judges, who are ultimately assigned, to consider issuing a progression order after consultation with counsel. The clerk's office shall provide Plaintiffs, counsel for Defendants, and Chief Judge Smith Camp with a copy of this Memorandum and Order. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party and as directed)(LAC) (Entered: 03/31/2017)
47 NOTICE of Appearance by Attorney Michael D. Gooch on behalf of Plaintiff Harold Bryan Wilson (Gooch, Michael) (Entered: 03/31/2017)
48 NOTICE of Appearance by Attorney Michael D. Gooch on behalf of Plaintiff Riley Nicole Shadle (Gooch, Michael) (Entered: 03/31/2017)
49 REASSIGNMENT ORDER − This case is reassigned to District Judge Robert F. Rossiter, Jr. for disposition and to Magistrate Judge Cheryl R. Zwart for judicial supervision and processing of all pretrial matters. Ordered by Chief Judge Laurie Smith Camp. (Copy mailed to pro se party) (LAC) (Entered: 04/03/2017)
TEXT ENTRY THAT FILING fee paid on behalf of Dillon Shadle on 4/10/2017. Receipt number 8042210, in the amount of $ 15.08. (GJG) (Entered: 04/11/2017)
50 ORDER − Plaintiff Wilsons motion to amend the complaint to add additional defendants 18 is denied without prejudice to re−filing, if appropriate, through his court−appointed counsel. Plaintiff Wilson's motion to permit the presence of an inmate advisor at teleconference hearings 17 is denied. Plaintiff Wilson's motion to pay the full filing fee for co−plaintiff Shadle 22 is denied. Plaintiff Shadle's motion to make filing fee payments directly to the court rather than through the penal institution 41 is denied. Defendants' motion to restrict access to Wilson's 20 (which includes Shadle's date of birth and social security number) 45 is granted. Filing 20 is now a restricted access filing. Ordered by Magistrate Judge Cheryl R. Zwart. (CS) (Entered: 04/12/2017)
51 ORDER that plaintiff Harold Bryan Wilson's Motion for Preliminary Injunction and/or Temporary Restraining Order and Motion to Add Additional Defendant (Filing No. 15

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) is denied without prejudice to refiling, if appropriate, through court−appointed counsel. Plaintiff Riley Nicole Shadle's Motion for Reconsideration (Filing No. 24 ) is denied without prejudice to refiling, if appropriate, through court−appointed counsel. Wilson's Motion for Temporary Restraining Order and Preliminary Injunction (Filing No. 27 ) is denied without prejudice to refiling, if appropriate, through court−appointed counsel. The stay is lifted. The plaintiffs shall have until May 26, 2017, to respond to the defendants' Motion to Dismiss. Ordered by Judge Robert F. Rossiter, Jr. (JSF) (Entered: 04/26/2017)
TEXT ENTRY THAT PARTIAL FILING fee paid on behalf of Dillon Shadle on 5/10/2017. Receipt number 8042569, in the amount of $22.36. (SLP) (Entered: 05/11/2017)
TEXT ENTRY THAT PARTIAL FILING fee paid on behalf of Harold B. Wilson on 5/10/2017. Receipt number 8042577, in the amount of $45.57. (SLP) (Entered: 05/12/2017)
52 UNOPPOSED MOTION to Extend Filing Deadline Order,,,, Terminate Motion and R&R Deadlines/Hearings,,,, Set/Reset Motion and R&R Deadlines/Hearings,,, 51 by Attorney Michael D. Gooch on behalf of Plaintiffs Riley Nicole Shadle, Harold Bryan Wilson.(Gooch, Michael) (Entered: 05/15/2017)
53 CASE CONFERENCING INSTRUCTIONS: RESTRICTED ORDER. ACCESS TO THE PDF DOCUMENT IS RESTRICTED TO CASE PARTICIPANTS AND THE COURT PURSUANT TO THE E−GOVERNMENT ACT AND FEDERAL RULE OF CIVIL PROCEDURE 5.2(a). Ordered by Magistrate Judge Cheryl R. Zwart. (Zwart, Cheryl) (Entered: 05/15/2017)
54 TEXT ORDER granting 52 Motion to Extend. 1) Plaintiffs' Amended Complaint shall be filed on or before August 1, 2017. 2) A telephonic conference will the undersigned magistrate judge will be held on August 8, 2017 at 10:00 a.m. to discuss further case scheduling. Counsel shall use the conferencing information assigned to this case, (Filing No. 53), to participate in the conference. 3) Plaintiffs' deadline for responding to Defendants' motion to dismiss 42 is stayed pending further order of the court. Ordered by Magistrate Judge Cheryl R. Zwart. Ordered by Magistrate Judge Cheryl R. Zwart. (Zwart, Cheryl) (Entered: 05/15/2017)
TEXT ENTRY THAT PARTIAL FILING fee paid on behalf of Dillon Shadle on 6/14/2017. Receipt number 8043010, in the amount of $ 32.00. (TCL) (Entered: 06/15/2017)
TEXT ENTRY THAT PARTIAL FILING fee paid on behalf of Harold B. Wilson on 6/14/2017. Receipt number 8043019, in the amount of $ 45.24. (TCL) (Entered: 06/15/2017)
TEXT ENTRY THAT PARTIAL FILING fee paid on behalf of Dillon Shadle on 07/10/2017. Receipt number 8043339, in the amount of $ 25.32. (MBM) (Entered: 07/11/2017)
TEXT ENTRY THAT PARTIAL FILING fee paid on behalf of Harold B. Wilson on 07/10/2017. Receipt number 8043350, in the amount of $ 45.57. (MBM) (Entered: 07/11/2017)
55 TEXT ORDER CONTINUING HEARING: On the court's own motion Telephone Conference is continued to 8/10/2017 at 10:30 AM before Magistrate Judge Cheryl R. Zwart. Counsel shall participate using the conferencing instructions assigned to the case (see filing no. 53 ). Ordered by Magistrate Judge Cheryl R. Zwart. (TLSS) (Entered: 07/28/2017)
56 MOTION to Amend Without Showing Changes and to Add Defendants by Attorney Michael D. Gooch on behalf of Plaintiffs Riley Nicole Shadle, Harold Bryan Wilson. (Attachments: # 1 Amended Complaint)(Gooch, Michael) (Entered: 08/01/2017)
57 AMENDED COMPLAINT against Defendant All Defendants, by Attorney Michael D. Gooch on behalf of Riley Nicole Shadle, Harold Bryan Wilson(Gooch, Michael)

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(Entered: 08/01/2017)
58 ORDER that Plaintiffs' anticipated motion to strike the amended complaint (Filing No. 57 ), and to file a new amended complaint shall be filed on or before August 18, 2017. Plaintiff need not outline or otherwise identify the changes in the amended complaint. Defendants' response to Plaintiff's amended complaint shall be filed on or before 30 days after the last defendant is served. Ordered by Magistrate Judge Cheryl R. Zwart. (LAC) (Entered: 08/10/2017)
59 AMENDED COMPLAINT against Defendant All Defendants, by Attorney Michael D. Gooch on behalf of Riley Nicole Shadle, Harold Bryan Wilson(Gooch, Michael) (Entered: 08/18/2017)
60 TEXT ORDER. Plaintiffs' amended complaint has been filed. Their motion to amend, filing 56 , is denied as moot. Ordered by Magistrate Judge Cheryl R. Zwart. (Zwart, Cheryl) (Entered: 08/21/2017)
61 TEXT ORDER. Plaintiffs have filed an amended complaint. Accordingly, Defendants' Motion to Dismiss for Failure to State a Claim 42 is denied as moot. However, as to all defendants, this order is entered without prejudice to Defendants re−filing a motion to dismiss on or before 30 days after all the newly added defendants have been served. Ordered by Magistrate Judge Cheryl R. Zwart. (Zwart, Cheryl) (Entered: 08/21/2017)
TEXT ENTRY THAT PARTIAL FILING fee paid on behalf of Dillon Shadle on 8/21/2017. Receipt number 8043838, in the amount of $ 23.15. (TCL) (Entered: 08/22/2017)
TEXT ENTRY THAT PARTIAL FILING fee paid on behalf of Harold B. Wilson on 8/21/2017. Receipt number 8043847, in the amount of $ 45.32. (TCL) (Entered: 08/22/2017)
TEXT ENTRY THAT PARTIAL FILING fee paid on behalf of Riley Nicole Shadle also known as Dillon Shadle on 09/18/2017. Receipt number 8044170, in the amount of $20.00. (KLF) (Entered: 09/19/2017)
TEXT ENTRY THAT PARTIAL FILING fee paid on behalf of Harold Bryan Wilson on 09/18/2017. Receipt number 8044188, in the amount of $45.08. (KLF) (Entered: 09/19/2017)
62 UNOPPOSED MOTION to Amend Complaint by Attorney Michael D. Gooch on behalf of Plaintiffs Riley Nicole Shadle, Harold Bryan Wilson. (Attachments: # 1 Second Amended Complaint)(Gooch, Michael) (Entered: 10/14/2017)
63 TEXT ORDER granting 62 Motion to Amend. Plaintiffs' Second Amended Complaint shall be filed on or before October 20, 2017. Defendants' response to the Second Amended Complaint shall be filed within 21 days after all new defendants have been deemed served by either actual service or by waiver of service. Ordered by Magistrate Judge Cheryl R. Zwart. (Zwart, Cheryl) (Entered: 10/17/2017)
TEXT ENTRY THAT PARTIAL FILING fee paid on behalf of Riley Nicole Shadle also known as Dillon Shadle on 10/16/2017. Receipt number 8044557, in the amount of $36.00. (KLF) (Entered: 10/17/2017)
TEXT ENTRY THAT PARTIAL FILING fee paid on behalf of Harold Bryan Wilson on 10/16/2017. Receipt number 8044567, in the amount of $45.57. (KLF) (Entered: 10/17/2017)
64 SECOND AMENDED COMPLAINT against Defendant Scott Frakes, Jason Geerdes, Jeff Wooten, Robert Madsen, by Attorney Michael D. Gooch on behalf of Riley Nicole Shadle, Harold Bryan Wilson(Gooch, Michael) Modified on 12/27/2017 to add "second". (JAB) (Entered: 10/17/2017)
65 ANSWER to Amended Complaint 64 by Scott Frakes, Jason Geerdes, Robert Madsen, Jeff Wooten (Lopez, David) (Entered: 11/07/2017)

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TEXT ENTRY THAT PARTIAL FILING fee paid on behalf of Dillon Shadle on 11/13/17. Receipt number 8044958, in the amount of $ 38.49. (LAC) (Entered: 11/14/2017)
TEXT ENTRY THAT PARTIAL FILING fee paid on behalf of Harold B. Wilson on 11/13/17. Receipt number 8044970, in the amount of $ 41.86. (LAC) (Entered: 11/14/2017)
TEXT ENTRY THAT PARTIAL FILING fee paid on behalf of Riley Nicole Shadle on 11/30/2017. Receipt number 8045170, in the amount of $16.91. (SLP) (Entered: 12/01/2017)
TEXT ENTRY THAT PARTIAL FILING fee paid on behalf of Riley Nicole Shadle on 12/18/17. Receipt number 8045437, in the amount of $ 20.57. (LAC) (Entered: 12/19/2017)
TEXT ENTRY THAT FILING fee paid on behalf of Riley Shadle in case 8:16CV546 on 12/18/2017, Receipt number 8045440, in the amount of $ 20.57 has been moved to this case. (SCR, ) (Entered: 12/19/2017)
66 ORDER that the parties shall review the undersigned magistrate judge's practices posted at Civil Case Management Practices. Counsel for the parties shall confer and, on or before January 26, 2018, they shall jointly file a Form 35 (Rule 26 (f)) Report, a copy of which can be found at http://www.ned.uscourts.gov/forms in Word and WordPerfect format. If one or more of the parties believes a planning conference is needed to complete the Rule 26(f) Report, or if the parties cannot agree on one or more of the deadlines identified or case progression issues raised in the Rule 26(f) Report, on or before January 17, 2018 a party shall contact my chambers at (402) 437−1670, or by email addressed to zwart@ned.uscourts.gov, to arrange a conference call. Ordered by Magistrate Judge Cheryl R. Zwart. (LAC) (Entered: 12/27/2017)
67 MOTION for refund on behalf of Plaintiff Riley Nicole Shadle. (MBM) (Entered: 01/02/2018)
68 LETTER from Clerk's Office regarding # 67 Motion for refund on behalf of Plaintiff Riley Nicole Shadle.(LAC) (Entered: 01/03/2018)
TEXT ENTRY THAT PARTIAL FILING fee paid on behalf of Dillon Shadle on 1/22/18. Receipt number 8045842, in the amount of $ 23.35. (LAC) (Entered: 01/23/2018)
TEXT ENTRY THAT FILING fee paid on behalf of Riley Shadle in case 8:16CV546 on 01/22/2018, Receipt number 8045843, in the amount of $ 22.00 has been moved to this case. (SCR, ) (Entered: 01/24/2018)
69 MOTION to Consolidate Case(s) 8:16−CV−524 and 4:18−CV−3011 by Attorney Ryan S. Post on behalf of Defendants Scott Frakes, Jason Geerdes, Robert Madsen, Jeff Wooten.(Post, Ryan) (Entered: 01/23/2018)
70 BRIEF in support of MOTION to Consolidate Case(s) 8:16−CV−524 and 4:18−CV−3011 69 by Attorney Ryan S. Post on behalf of Defendants Scott Frakes, Jason Geerdes, Robert Madsen, Jeff Wooten.(Post, Ryan) (Entered: 01/23/2018)
71 UNOPPOSED MOTION to Extend or Suspend the Parties' Deadline to Submit Rule 26(f) Report Pending Decision on the Motion to Consolidate by Attorney David A. Lopez on behalf of Defendants Scott Frakes, Jason Geerdes, Robert Madsen, Jeff Wooten.(Lopez, David) (Entered: 01/26/2018)
72 TEXT ORDER granting 71 Motion to Extend. The Rule 26(f) report deadline is stayed pending a ruling on the motion to consolidate. Ordered by Magistrate Judge Cheryl R. Zwart. (Zwart, Cheryl) (Entered: 01/26/2018)
TEXT ENTRY THAT FINAL FILING fee paid on behalf of Riley Nicole Shadle on 1/30/18. Receipt number 4−7163, in the amount of $ 11.50. (CCB) (Entered: 01/30/2018)
Remark − The plaintiff's institution, LINCOLN CORRECTIONAL CENTER, is notified that the case is paid in full for Riley N Shadle. The institution is directed to cease collection of payments in this case. (SCR, ) (Entered: 01/30/2018)

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73 ORDER − Rule 26 Meeting Report Deadline set for 3/30/2018. Ordered by Magistrate Judge Cheryl R. Zwart. (LAC) (Entered: 02/26/2018)
TEXT ENTRY THAT PARTIAL FILING fee paid on behalf of Riley Shadle on 2/26/2018. Receipt number 8046322, in the amount of $ 25.00. (TCL) (Entered: 02/26/2018)
74 LETTER with Clerk's response on behalf of Plaintiff Riley Nicole Shadle.(TCL) (Entered: 02/27/2018)
Remark − Prisoner Overpayment (Public)− The plaintiff's institution, LINCOLN CORRECTIONAL CENTER, is notified that an overpayment has been received in this case for RILEY SHADLE. A refund check in the amount of $25.00 will be forthcoming. The institution is directed to cease collection of payments in this case. (SCR) (Entered: 02/27/2018)
75 TEXT ORDER: Plaintiffs' brief in response to Defendants' motion to consolidate (Filing No. 69 ) shall be filed on or before March 8, 2018, with any reply filed on or before March 15, 2018. Ordered by Magistrate Judge Cheryl R. Zwart. (Zwart, Cheryl) (Entered: 03/01/2018)
76 UNOPPOSED MOTION to Extend Filing Deadline Set/Reset Motion and R&R Deadlines/Hearings,, Order, 75 by Attorney Michael D. Gooch on behalf of Plaintiffs Riley Nicole Shadle, Harold Bryan Wilson.(Gooch, Michael) (Entered: 03/08/2018)
77 TEXT ORDER granting 76 Motion to Extend. Plaintiffs' response and/or objection to Defendants' motion to consolidate shall be filed on or before March 15, 2018. Ordered by Magistrate Judge Cheryl R. Zwart. (Zwart, Cheryl) (Entered: 03/08/2018)
78 ORDER denying 69 Motion to Consolidate Cases. Ordered by Magistrate Judge Cheryl R. Zwart. (Zwart, Cheryl) (Entered: 03/23/2018)
79 UNOPPOSED MOTION to Extend Rule 26(f) Filing Date Order on Motion to Consolidate Cases 78 by Attorney Michael D. Gooch on behalf of Plaintiffs Riley Nicole Shadle, Harold Bryan Wilson.(Gooch, Michael) (Entered: 03/26/2018)
80 ORDER granting 79 Motion to Extend deadline for filing the parties' Rule 26(f) Report. Ordered by Magistrate Judge Cheryl R. Zwart. (Zwart, Cheryl) (Entered: 03/28/2018)
81 UNOPPOSED MOTION to Extend Rule 26(f) Deadline Order on Motion to Extend 80 , Order on Motion to Extend 77 by Attorney Michael D. Gooch on behalf of Plaintiffs Riley Nicole Shadle, Harold Bryan Wilson.(Gooch, Michael) (Entered: 05/11/2018)
82 TEXT ORDER granting 81 Motion to Extend − Rule 26 Meeting Report Deadline is extended to 5/21/2018. Ordered by Magistrate Judge Cheryl R. Zwart. (TLSS) (Entered: 05/14/2018)
83 REPORT of Rule 26(f) Planning Meeting by Attorney Michael D. Gooch on behalf of Plaintiffs Riley Nicole Shadle, Harold Bryan Wilson.(Gooch, Michael) (Entered: 05/21/2018)
84 FINAL PROGRESSION ORDER− Depositions due September 7, 2018. Non−Jury Trial set for 1/14/2019 at 09:00 AM in Courtroom 4, Roman L. Hruska Federal Courthouse, 111 South 18th Plaza, Omaha, NE before Judge Robert F. Rossiter Jr.. Pretrial Conference set for 12/18/2018 at 10:00 AM Internet/Telephonic Conferencing before Magistrate Judge Cheryl R. Zwart. Status Conference set for 8/7/2018 at 10:30 AM by Telephone before Magistrate Judge Cheryl R. Zwart.Ordered by Magistrate Judge Cheryl R. Zwart. (LAC) (Entered: 06/04/2018)
85 CASE CONFERENCE INSTRUCTIONS. ACCESS TO THE PDF DOCUMENT IS RESTRICTED TO CASE PARTICIPANTS AND THE COURT PURSUANT TO THE E−GOVERNMENT ACT AND FEDERAL RULE OF CIVIL PROCEDURE 5.2(a). Ordered by Magistrate Judge Cheryl R. Zwart. (LAC) (Entered: 06/04/2018)
86 MOTION to Substitute Party (Taggart Boyd, in his official capacity as Warden of the Lincoln Correctional Center, for Jeff Wooten) by Attorney David A. Lopez on behalf of Defendants Scott Frakes, Jason Geerdes, Robert Madsen, Jeff Wooten.(Lopez,

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David) (Entered: 06/12/2018)
87 Certificate of Service of the Defendants' Rule 26(a)(1) Initial Disclosures by Attorney David A. Lopez on behalf of Defendants Scott Frakes, Jason Geerdes, Robert Madsen, Jeff Wooten.(Lopez, David) (Entered: 06/12/2018)
88 ORDER − Taggart Boyd, in his official capacity as the Warden of the Lincoln Correctional Center, is substituted for Jeff Wooten, in his official capacity as the Warden of the Lincoln Correctional Center. The caption on all docket filings hereafter shall reflect this substitution of parties. The clerk shall correct the court's docket accordingly. Ordered by Magistrate Judge Cheryl R. Zwart. (KLF) (Entered: 06/13/2018)
89 TEXT EMAIL MOTION − Joint Motion for Stipulated Protective Order. (TLSS) (Entered: 06/13/2018)
90 STIPULATED PROTECTIVE ORDER − granting TEXT EMAIL MOTION 89 . Ordered by Magistrate Judge Cheryl R. Zwart. (KLF) (Entered: 06/13/2018)
91 DISCLOSURE Pursuant to Rule26(a)(1) by Attorney Michael D. Gooch on behalf of Plaintiffs Riley Nicole Shadle, Harold Bryan Wilson.(Gooch, Michael) (Entered: 06/13/2018)
92 Certificate of Service of Discovery for Both Plaintiffs by Attorney Michael D. Gooch on behalf of Plaintiff Riley Nicole Shadle.(Gooch, Michael) (Entered: 08/02/2018)
93 Certificate of Service of Discovery for Both Plaintiffs by Attorney Michael D. Gooch on behalf of Plaintiff Harold Bryan Wilson.(Gooch, Michael) (Entered: 08/02/2018)
94 AMENDED PROGRESSION ORDER − The trial and pretrial conference settings are vacated. The deposition deadline is November 30, 2018. The clerk shall set an internal case management deadline of January 18, 2019: Confirm that cross−motions were timely filed. Ordered by Magistrate Judge Cheryl R. Zwart. (KLF) (Entered: 08/07/2018)
95 NOTICE of Appearance by Attorney Benjamin M. Goins on behalf of Defendants Taggart Boyd, Scott Frakes, Jason Geerdes, Robert Madsen (Goins, Benjamin) (Entered: 09/11/2018)
96 Certificate of Service of the Defendants' Rule 26(a)(2)(C) Non−retained Expert Witness Disclosure and Partial Responses to Request for Production (First Set) by Attorney David A. Lopez on behalf of Defendants Taggart Boyd, Scott Frakes, Jason Geerdes, Robert Madsen.(Lopez, David) (Entered: 09/23/2018)
97 Certificate of Service of the Defendants' Responses to the Plaintiffs First Set of Interrogatories and Supplemental Responses to the Plaintiffs' First Set of Requests for Production by Attorney David A. Lopez on behalf of Defendants Taggart Boyd, Scott Frakes, Jason Geerdes, Robert Madsen.(Lopez, David) (Entered: 09/29/2018)
98 MOTION to Substitute Party (Michele Capps in place of Robert Madsen) by Attorney David A. Lopez on behalf of Defendants Taggart Boyd, Scott Frakes, Jason Geerdes, Robert Madsen.(Lopez, David) (Entered: 12/13/2018)
99 ORDER granting 98 Motion to Substitute Party. Michele Capps in her official capacity as Warden of the Nebraska State Penitentiary is substituted for Robert Madsen, Warden, in his Official Capacity. Ordered by Magistrate Judge Cheryl R. Zwart. (ADB) (Entered: 12/17/2018)
100 JOINT MOTION to Extend Progression Deadlines and to Amend Order Order Setting Schedule for Progression of a Civil Case,, Terminate Deadlines and Hearings,, Set/Reset All Deadlines, 94 by Attorney Michael D. Gooch on behalf of Plaintiff Harold Bryan Wilson.(Gooch, Michael) (Entered: 12/28/2018)
101 AMENDED PROGRESSION ORDER − The deposition deadline is now January 31, 2019. Cross−motions for summary judgment based on stipulated facts shall be filed on or before March 14, 2019, with any response due on or before April 15, 2019. No reply shall be filed absent leave of the court for good cause shown. The deadline for filing motions to exclude testimony on Daubert and related grounds is now March 14, 2019. The clerk shall set an internal case management deadline of March 18, 2019:

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Confirm that cross−motions were timely filed. Ordered by Magistrate Judge Cheryl R. Zwart. (KLF) (Entered: 12/28/2018)
102 MOTION to file under Seal by Attorney Michael D. Gooch on behalf of Plaintiffs Riley Nicole Shadle, Harold Bryan Wilson.(Gooch, Michael) (Entered: 01/10/2019)
105 ORDER granting 102 Motion to Seal; granting 103 SEALED MOTION. Ordered by Magistrate Judge Cheryl R. Zwart. (Zwart, Cheryl) Modified on 1/14/2019−−Order unsealed and NEF regenerated by CRZ (Zwart, Cheryl). Modified on 1/14/2019 copy mailed to pro se party. (JAB) (Entered: 01/14/2019)
106 UNOPPOSED MOTION to Dismiss Party Riley Nicole Shadle by Attorney Michael D. Gooch on behalf of Plaintiff Riley Nicole Shadle. (Attachments: # 1 Settlement Agreement)(Gooch, Michael) (Entered: 01/15/2019)
107 ORDER that plaintiff Riley Nicole Shadle's Voluntary Motion to Dismiss (Filing No. 106 ) is granted. Shadle's claims against defendants Jason Geerdes, Scott Frakes, Taggart Boyd, and Michelle Capps are dismissed with prejudice. Plaintiff Harold Bryan Wilson's claims against the defendants remain pending. Ordered by Judge Robert F. Rossiter, Jr. (Copy mailed to Harold Bryan Wilson) (JSF) (Entered: 01/17/2019)
108 MOTION for replacement counsel and for possible return of filing fees in the event of a settlement on behalf of Plaintiff Harold Bryan Wilson.(TCL) (Entered: 01/22/2019)
109 MOTION for Reimbursement from Federal Practice Fund by Attorney Michael D. Gooch on behalf of Plaintiff Riley Nicole Shadle. (Attachments: # 1 Supplement Expense Worksheet, # 2 Exhibit Receipts)(Gooch, Michael) (Entered: 01/23/2019)
110 ORDER denying 108 Motion to Appoint Counsel. On or before February 11, 2019, Plaintiff Wilson shall either: (a) obtain the services of counsel and have that attorney file an appearance in this case; or (b) file a statement notifying the court of his intent to litigate this case without the assistance of counsel. The failure to do so may result in a dismissal of Plaintiff Wilsons claims without further notice. Ordered by Magistrate Judge Cheryl R. Zwart. (Copy mailed to pro se party) (ADB) (Entered: 01/29/2019)
111 ORDER that attorney Michael D. Gooch's Motion for Payment of the Remaining Fee for Reimbursement of Actual Expenses (Filing No. 109 ) is granted. The Clerk of Court shall pay to attorney Michael D. Gooch from the Federal Practice Fund, the amount of $1,000 for his remaining attorney fees and $500 for expenses. Ordered by Judge Robert F. Rossiter, Jr. (Copy mailed to pro se party; copy given to Finance) (JSF) (Entered: 01/29/2019)
112 OBJECTION to dismissal on behalf of Plaintiff Harold Bryan Wilson. (ADB) (Entered: 02/12/2019)
113 ORDER on 112 Wilson's Objection to Dismissal. 1) Wilson's objection to Shadle's settlement and voluntary dismissal of her claims with prejudice is overruled. 2) Wilson's request for appointed counsel is denied. 3) Wilson will be litigating this action pro se. Ordered by Magistrate Judge Cheryl R. Zwart. (Zwart, Cheryl) Modified on 2/19/2019 to reflect copy mailed to pro se party on 2/14/2019. (JAB) (Entered: 02/14/2019)
114 ORDER − IT IS ORDERED: The deadline for cross−motions for summary judgment remains in effect. Such motions shall be filed on or before March 14, 2019, with any response due on or before April 15, 2019. No reply shall be filed absent leave of the court for good cause shown. (See Filing No. 101 )) Ordered by Magistrate Judge Cheryl R. Zwart. (Copy mailed to pro se party)(TCL) (Entered: 02/15/2019)
115 MOTION for Summary Judgment (with Suggestion of Mootness) by Attorney David A. Lopez on behalf of Defendants Taggart Boyd, Michele Capps, Scott Frakes, Jason Geerdes.(Lopez, David) (Entered: 03/14/2019)
116 BRIEF in support of MOTION for Summary Judgment (with Suggestion of Mootness) 115 by Attorney David A. Lopez on behalf of Defendants Taggart Boyd, Michele Capps, Scott Frakes, Jason Geerdes.(Lopez, David) (Entered: 03/14/2019)

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117 MOTION for Summary Judgment on behalf of Plaintiff Harold Bryan Wilson. (TCL) (Entered: 03/14/2019)
118 CROSS MOTION for Summary Judgment on behalf of Plaintiff Harold Bryan Wilson.(TCL) (Entered: 03/14/2019)
119 PRISONER ACCOUNT STATEMENT by Plaintiff Harold Bryan Wilson. ACCESS TO THE PDF DOCUMENT IS RESTRICTED TO CASE PARTICIPANTS AND THE COURT PURSUANT TO THE E−GOVERNMENT ACT AND FEDERAL RULE OF CIVIL PROCEDURE 5.2(a). (TCL) (Entered: 03/14/2019)
120 BRIEF in opposition to MOTION for Summary Judgment 118 , MOTION for Summary Judgment 117 by Attorney David A. Lopez on behalf of Defendants Taggart Boyd, Michele Capps, Scott Frakes, Jason Geerdes.(Lopez, David) (Entered: 03/29/2019)
121 REPLY to MOTION for Summary Judgment (with Suggestion of Mootness) 115 on behalf of Plaintiff Harold Bryan Wilson.(TCL) (Entered: 04/03/2019)
122 MEMORANDUM AND ORDER that defendants Jason Geerdes, Scott Frakes, Taggart Boyd, and Michelle Capps's Suggestion of Mootness and Motion for Summary Judgment (Filing No. 115 ) is denied. Plaintiff Harold Bryan Wilson's pro se Motion for Summary Judgment (Filing No. 117 ) and Cross Motion for Summary Judgment (Filing No. 118 ) are denied. Ordered by Judge Robert F. Rossiter, Jr. (Copy mailed to pro se party) (JSF) (Entered: 05/13/2019)
123 FINAL PROGRESSION ORDER − Non−Jury Trial set for 9/9/2019 at 09:00 AM in Courtroom 4, Roman L. Hruska Federal Courthouse, 111 South 18th Plaza, Omaha, NE before Judge Robert F. Rossiter Jr.. Pretrial Conference set for 8/20/2019 at 11:00 AM by Telephone before Magistrate Judge Cheryl R. Zwart. 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. Ordered by Magistrate Judge Cheryl R. Zwart. (Copy mailed to pro se party)(ADB) (Entered: 05/17/2019)
124 MEMORANDUM regarding pretrial conference and non−jury trial and MOTION to Appoint Counsel on behalf of Plaintiff Harold Bryan Wilson. (ADB) (Entered: 05/29/2019)
125 RESPONSE regarding MOTION to Appoint Counsel 124 by Attorney David A. Lopez on behalf of Defendants Taggart Boyd, Michele Capps, Scott Frakes, Jason Geerdes.(Lopez, David) (Entered: 06/07/2019)
126 MOTION for Leave to Depose a Confined Person, MOTION to Extend Time to Take Deposition by Attorney David A. Lopez on behalf of Defendants Taggart Boyd, Michele Capps, Scott Frakes, Jason Geerdes.(Lopez, David) (Entered: 06/11/2019)
127 BRIEF in support of MOTION for Leave to Depose a Confined Person MOTION to Extend Time to Take Deposition 126 by Attorney David A. Lopez on behalf of Defendants Taggart Boyd, Michele Capps, Scott Frakes, Jason Geerdes.(Lopez, David) (Entered: 06/11/2019)
128 OBJECTION to request for dipositon out of time and reason Plaintiff cannot present a proper response on behalf of Plaintiff Harold Bryan Wilson.(TCL) (Entered: 06/19/2019)
130 AFFIDAVIT of Plaintiff Riley Nicole Shadle. (JSF) (Entered: 06/25/2019)
129 REPLY BRIEF in support of MOTION for Leave to Depose a Confined Person MOTION to Extend Time to Take Deposition 126 by Attorney David A. Lopez on behalf of Defendants Taggart Boyd, Michele Capps, Scott Frakes, Jason Geerdes.(Lopez, David) (Entered: 06/21/2019)
131 OBJECTION to use of telephone during deposition on behalf of Plaintiff Harold Bryan Wilson.(ADB) (Entered: 07/01/2019)
132 REQUEST to depose attorney Michael Gooch on behalf of Plaintiff Harold Bryan Wilson. (ADB) (Entered: 07/01/2019)

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133 MEMORANDUM AND ORDER − IT IS ORDERED: The Motion to Appoint Counsel filed by Plaintiff Harold Wilson, (Filing No. 124 ), is denied without prejudice to re−filing if the substantive merits of the right to marry claim must be decided by the court, either by motion or at trial. Plaintiff's objections, (Filing Nos. 128 and 131 ), are overruled, and Defendants' Motion to Depose a Confined Person and to extend the deposition deadline, (Filing No. 126 ), is granted as follows: a. Defendants' deposition of Riley Shadle will commence at a date and time agreeable to the penal facilities where Shadle and Plaintiff Harold Wilson are housed. The location of the deposition shall be a place agreeable to the administration of that penal facility. b. Riley Shadle is ordered to attend the deposition as scheduled, and Shadle shall cooperate fully with the deposition process to the extent required by law. c. Shadle is reminded that failing to attend and fully cooperate in the deposition process will be deemed a violation of this court's order, which may result in civil or criminal contempt proceedings, and may also impact the calculation of earned and unearned good time credit. d. A copy of this order shall be attached to the notice of deposition served on Riley Shadle. If the notice is served on counsel for Shadle, the deponent's counsel shall forward the notice with this order to Shadle and shall file a certificate of service stating the date and manner of service. e. If Harold Wilson chooses to participate in the deposition of Shadle, he shall do so telephonically. f. Wilson's participation will be limited to the objection and cross−examination purposes provided under Fed. R. Civ. P. 30(c). Defendants may suspend the deposition and contact the Court if Wilson attempts to use the deposition for any other communicative purpose. g. Wilson is reminded that absent a showing of good cause, his failure to attend the deposition of Shadle as scheduled will be deemed a waiver of any right to attend, and to cross−examine or question Shadle prior to trial. h. Wilson is further reminded that any failure to fully cooperate in the deposition process, or any attempt to use this deposition for any purpose other than securing testimony relevant to this lawsuit, will be deemed a violation of this court's order, which may result in civil or criminal contempt proceedings, and may also impact the calculation of earned and unearned good time credit. Wilson's Motion to Depose Michael Gooch, his former court−appointed counsel, (Filing No. 132 ), is denied. Ordered by Magistrate Judge Cheryl R. Zwart. (Copy mailed to pro se party)(TCL) (Entered: 07/10/2019)
134 MOTION to Stay Deadline to Submit Draft of Pretrial Conference Order to Plaintiff by Attorney David A. Lopez on behalf of Defendants Taggart Boyd, Michele Capps, Scott Frakes, Jason Geerdes.(Lopez, David) (Entered: 07/16/2019)
135 MOTION for Copies and MOTION for Reconsideration on behalf of Plaintiff Harold Bryan Wilson. (ADB) (Entered: 07/17/2019)
136 MOTION to Appoint Counsel on behalf of Plaintiff Riley Nicole Shadle. (ADB) (Entered: 07/18/2019)
137 ORDER that Defendant's motion, (Filing No. 134), is granted, and the deadline for submitting a proposed pretrial conference order is extended to August 13, 2019. As to Wilson's request, (Filing No. 135), a. The request to reconsider the court's denial of appointed counsel is denied. b. Wilson's request for a copy of Shadle's affidavit, (Filing No. 130), is granted. A copy of the affidavit is attached. Ordered by Magistrate Judge Cheryl R. Zwart. (Copy mailed to pro se party)(ADB) (Entered: 07/18/2019)
138 ORDER that the request for appointed counsel filed by former Plaintiff and now witness Riley Shadle, (Filing No. 136), is denied. In addition to providing copies to the parties, the clerk shall mail a copy of this order to Riley Shadle #82297, P.O. Box 22800, Lincoln, NE 68542. Ordered by Magistrate Judge Cheryl R. Zwart. (Copy mailed to pro se party and as directed)(ADB) (Entered: 07/18/2019)
139 NOTICE of Appearance by Attorney Danielle L. Rowley on behalf of Defendants Taggart Boyd, Michele Capps, Scott Frakes, Jason Geerdes (Rowley, Danielle) (Entered: 07/19/2019)
140 MOTION for Video Conference Call on behalf of Plaintiff Harold Bryan Wilson.(TCL) (Entered: 07/25/2019)
141 ORDER − Plaintiff's motion for video conference deposition, (Filing No. 140 ), is denied. Ordered by Magistrate Judge Cheryl R. Zwart. (Copy mailed to pro se party)(TCL) (Entered: 07/25/2019)

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142 Certificate of Service by Attorney Danielle L. Rowley on behalf of Defendants Taggart Boyd, Michele Capps, Scott Frakes, Jason Geerdes.(Rowley, Danielle) (Entered: 07/26/2019)
143 MOTION to Withdraw as Attorney by Attorney David A. Lopez on behalf of Defendants Taggart Boyd, Michele Capps, Scott Frakes, Jason Geerdes.(Lopez, David) (Entered: 07/30/2019)
144 ORDER granting 143 Motion to Withdraw Attorney David A. Lopez as counsel of record for Defendants. Ordered by Magistrate Judge Cheryl R. Zwart. (ADB) (Entered: 07/31/2019)
145 Certificate of Service by Attorney Danielle L. Rowley on behalf of Defendants Taggart Boyd, Michele Capps, Scott Frakes, Jason Geerdes.(Rowley, Danielle) (Entered: 08/07/2019)
146 ORDER − A telephone conference is scheduled for 4:00 p.m. on August 9, 2019, before the undersigned magistrate judge. The parties shall use the case conference instructions assigned to this case to participate in the call. (Filing No. 85 ). The clerk shall mail a copy of this order and a copy of Filing 85 to Plaintiff's address of record. Ordered by Magistrate Judge Cheryl R. Zwart. (Copy mailed as directed to pro se party)(TCL) (Entered: 08/07/2019)
147 Objection to Deposition and MOTION to Appoint Counsel on behalf of Plaintiff Harold Bryan Wilson.(TCL) (Entered: 08/09/2019)
148 ORDER denying 147 Motion to Appoint Counsel. 1) Wilson's renewed motion for appointment of counsel is denied; and 2) Wilson's objection to completing Shadle's deposition following a recess to accommodate his medical needs is overruled. 3) Defense counsel shall read this order to Wilson, on the record, at the start of the reconvened deposition today. 4) The clerk shall mail a copy of this order to Wilson at his address of record. Ordered by Magistrate Judge Cheryl R. Zwart. (Copy mailed to pro se party)(JAB) (Entered: 08/09/2019)
149 TEXT MINUTE ENTRY for proceedings held before Magistrate Judge Cheryl R. Zwart in Lincoln on 8/9/2019. Telephone Conference held. Defendant's to file a second motion for summary judgment by August 23, 2019. Plaintiff may file a response in accordance with the Local Rules. Pretrial and Trial dates are set aside. Order forthcoming. Appearance for Plaintiff: Harold Bryan Wilson, pro se; For Defendants: Danielle L. Rowley and Benjamin M. Goins, retained. Courtroom Deputy: Jeri A. Bierbower. Reporter: Digital Recorder. Time Start: 3:57 PM; Time Stop: 4:06 PM; Time in Court: 9 Minutes. (JAB) (Entered: 08/09/2019)
150 AUDIO FILE. Court Date & Time [ 08/09/2019 3:57:31 PM ]. File Size [ 1834 KB ]. Run Time [ 00:07:38 ]. (Telephone Conference). (auto−docket). (Entered: 08/09/2019)
151 ORDER − IT IS ORDERED: The trial and pretrial conference setting are set aside. The deadline for filing motions for summary judgment is now August23, 2019. The clerk shall set an internal case management deadline for October 9, 2019. The clerk shall mail a copy of this order to Wilson at his address of record. Ordered by Magistrate Judge Cheryl R. Zwart. (Copy mailed to pro se party)(TCL) (Entered: 08/09/2019)
152 MOTION to Exclude and request for discover on behalf of Plaintiff Harold Bryan Wilson.(TCL) (Entered: 08/14/2019)
153 MOTION to Extend by Attorney Danielle L. Rowley on behalf of Defendants Taggart Boyd, Michele Capps, Scott Frakes, Jason Geerdes.(Rowley, Danielle) (Entered: 08/23/2019)
154 TEXT ORDER granting 153 Motion to Extend. The summary judgment deadline is extended to August 26, 2019. Ordered by Magistrate Judge Cheryl R. Zwart. (Zwart, Cheryl) (Entered: 08/23/2019)

08/26/2019 08/26/2019
08/27/2019 09/09/2019 09/11/2019
09/11/2019 10/08/2019 10/22/2019 10/22/2019

155 MOTION for Summary Judgment by Attorney Danielle L. Rowley on behalf of Defendants Taggart Boyd, Michele Capps, Scott Frakes, Jason Geerdes.(Rowley, Danielle) (Entered: 08/26/2019)
156 INDEX in support of MOTION for Summary Judgment 155 by Attorney Danielle L. Rowley on behalf of Defendants Taggart Boyd, Michele Capps, Scott Frakes, Jason Geerdes. (Attachments: # 1 Affidavit Mickie Baum−Dietz, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Affidavit Ben Goins, # 5 Exhibit 3, # 6 Exhibit 4, # 7 Exhibit 5, # 8 Exhibit 6, # 9 Exhibit 7, # 10 Exhibit 8, # 11 Exhibit 9, # 12 Exhibit 10, # 13 Exhibit 11, # 14 Exhibit 12, # 15 Exhibit 13)(Rowley, Danielle) (Entered: 08/26/2019)
157 BRIEF in support of MOTION for Summary Judgment 155 by Attorney Danielle L. Rowley on behalf of Defendants Taggart Boyd, Michele Capps, Scott Frakes, Jason Geerdes.(Rowley, Danielle) (Entered: 08/27/2019)
158 MOTION to Extend time to respond to defendants' summary judgment motion and MOTION to Appoint Counsel on behalf of Plaintiff Harold Bryan Wilson. (ADB) (Entered: 09/09/2019)
159 ORDER granting 158 Motion to Appoint Counsel. Elizabeth A. Govaerts is appointed as counsel for Mr. Wilson. Regarding 158 Motion to Extend, the deadline for responding to Defendants' motion for summary judgment is stayed pending further order of the court. As to Plaintiff's 152 Motion to Exclude, Ms. Govaerts shall confer with Plaintiff's former counsel, Michael Gooch, regarding receiving copies of Plaintiff's discovery gathered prior to Mr. Gooch's withdrawal. In all other respects, that motion is denied. A telephonic conference with the undersigned magistrate judge will be held on October 2, 2019 at 4:00 p.m. to discuss further case progression. Counsel shall use the conferencing instructions which will be filed after this order is entered to participate in the call. Ordered by Magistrate Judge Cheryl R. Zwart. (E−mailed to Mr. Gooch, Ms. Govaerts, and Finance (Pat Williamson, Jeremy Reece, Marissa Ortiz) Copy mailed to Mr. Wilson as directed) (ADB) (Entered: 09/11/2019)
160 NOTICE of Appearance by Elizabeth A. Govaerts by Attorney Vincent M. Powers on behalf of Plaintiff Harold Bryan Wilson (Powers, Vincent) (Entered: 09/11/2019)
161 TEXT ORDER: After conferring with counsel, Plaintiff's dealine for responding to Defendants' summary judgment motion, 155 , is extended to November 4, 2019. Ordered by Magistrate Judge Cheryl R. Zwart. (Zwart, Cheryl) (Entered: 10/08/2019)
162 MOTION for Leave to File Supplement to Brief in Support of Motion for Summary Judgment by Attorney Danielle L. Rowley on behalf of Defendants Taggart Boyd, Michele Capps, Scott Frakes, Jason Geerdes. (Attachments: # 1 Supplement Index, # 2 Affidavit Sean Banks, # 3 Exhibit 14, # 4 Supplement Brief)(Rowley, Danielle) (Entered: 10/22/2019)
163 TEXT ORDER granting 162 Motion for Leave. Defendants' supplemental brief and evidence in support of their summary judgment motion, a copy of which is attached to their motion, shall be filed on or before October 25, 2019. Plaintiff's deadline for responding to the summary judgment motion is extended to November 25, 2019, with any reply due on or before December 9, 2019. Ordered by Magistrate Judge Cheryl R. Zwart. (Zwart, Cheryl) (Entered: 10/22/2019)

10/23/2019
10/23/2019 11/20/2019 11/20/2019 12/16/2019
12/16/2019 12/30/2019 12/30/2019 01/06/2020 04/10/2020
04/10/2020

164 SUPPLEMENT regarding MOTION for Summary Judgment 155 by Attorney Danielle L. Rowley on behalf of Defendants Taggart Boyd, Michele Capps, Scott Frakes, Jason Geerdes. (Attachments: # 1 Affidavit Sean Banks, # 2 Exhibit 14)(Rowley, Danielle) (Entered: 10/23/2019)
165 SUPPLEMENT regarding MOTION for Summary Judgment 155 by Attorney Danielle L. Rowley on behalf of Defendants Taggart Boyd, Michele Capps, Scott Frakes, Jason Geerdes.(Rowley, Danielle) (Entered: 10/23/2019)
166 MOTION for Extension of Time to File a Responsive Pleading by Attorney Vincent M. Powers on behalf of Plaintiff Harold Bryan Wilson.(Powers, Vincent) Modified to correct event type on 11/20/2019 (CEW). (Entered: 11/20/2019)
167 TEXT ORDER granting 166 Plaintiff's Unopposed Motion to Extend the deadline to file a response to Defendants' MOTION for Summary Judgment 155 . Plaintiff shall file his response on or before December 16, 2019. Ordered by Magistrate Judge Cheryl R. Zwart. (CEW) (Entered: 11/20/2019)
168 INDEX in opposition to MOTION for Summary Judgment 155 Filed by Elizabeth Govaerts by Attorney Vincent M. Powers on behalf of Plaintiffs Riley Nicole Shadle, Harold Bryan Wilson. (Attachments: # 1 Declaration, # 2 Exhibit 15, # 3 Exhibit 16)(Powers, Vincent) (Entered: 12/16/2019)
169 BRIEF in opposition to MOTION for Summary Judgment 155 Filed by Elizabeth Govaerts by Attorney Vincent M. Powers on behalf of Plaintiffs Riley Nicole Shadle, Harold Bryan Wilson.(Powers, Vincent) (Entered: 12/16/2019)
170 UNOPPOSED MOTION to Extend MOTION for Summary Judgment 155 by Attorney Danielle L. Rowley on behalf of Defendants Taggart Boyd, Michele Capps, Scott Frakes, Jason Geerdes.(Rowley, Danielle) (Entered: 12/30/2019)
171 TEXT ORDER granting 170 Defendants Unopposed Motion to Extend. Defendant shall file a response to Filing No. 169 on or before January 6, 2020. Ordered by Magistrate Judge Cheryl R. Zwart. (ALW) (Entered: 12/30/2019)
172 REPLY BRIEF in support of MOTION for Summary Judgment 155 by Attorney Danielle L. Rowley on behalf of Defendants Taggart Boyd, Michele Capps, Scott Frakes, Jason Geerdes.(Rowley, Danielle) (Entered: 01/06/2020)
173 MEMORANDUM AND ORDER that defendants Jason Geerdes, Scott Frakes, Taggart Boyd, and Michele Capps's Motion for Summary Judgment (Filing No. 155 ) is granted as it relates to the issue of exhaustion. This case is dismissed without prejudice for failure to exhaust administrative remedies. A separate judgment will issue. Ordered by Judge Robert F. Rossiter, Jr. (JSF) (Entered: 04/10/2020)
174 JUDGMENT − In accordance with the Memorandum and Order (Filing No. 173 ) entered today, this case is dismissed without prejudice for failure to exhaust administrative remedies prior to filing suit. See 42 U.S.C. §1997e(a). Ordered by Judge Robert F. Rossiter, Jr. (JSF) (Entered: 04/10/2020)

 
 8:16-cv-00524-IRNFRTH-CE RUZNITDEDocS#TA1TESFilDeIdS:T1R1C/I3T0/C1O6URTPage 1 of 7 - Page ID # 1 DISTRICT OF NEBRASKA

HAROLD BRYAN WILSON

RILEY NICOLE SHADLEi

r~·1m l r.:-. D

US DISTRICT COURT

DISTRICT OF NEBRASKA

v

JASON GEERDES

NOV 3 0 2016

FRED BRITTEN

CATHY SHEAIR

OFFICE OF THE CLERK

SCOTT FRAKES

COMPLAINT

I. A. Place,,·,of confinement: Lincoln Correctional Center.

RECE\\liD
NO\J S 0 2Q'G
o.s. 0\~~~ QOU¥\T

B. Parties to this civil Complaint:

(1) Plainitff Harold B Wilson # 37418 and Riley Nicole Shadle a.k. Dillon

Address; Box 22800 Lincoln, NE 68542-2800

(2) Defendants: Jason Geerdes is employed as a Unit Manger at the

Lincoln Correctional Center (LCC)

All Defendants are employees of the Nebraska Dept of Corrections.

II Previous Civil Actions

A. Have you begun other lawsuits in state or federal Court dealing with the same facts involved in this action? Yes No X (1-~Not applicable
III Grievance Procedure

A. Does your insititution have a greivance procedure~___!Yes No

B. Dgridievvaonuceorpersoecnetduthree.?Yfeasctxs xNoelating to your complaint through the administrative

c. What was the result? Presmission to get married was denied by the parties.

1 D.
E.

IPf leyoa:lsi.e:~~ta.9_a~-ttnra/J~_ct~hi.fatinl~ey;trae\sgp5~~ov~no~sff-el~..lst~lutl$la1-sS>71ie~tx1~~Lh8.ei.l-,b1--i,r,t,J,si-,cHEt'Jfo~A,~.P{t1..h~e,ii~,ms·i13JL"c"~o

lflJ<,N,_A~k,

f.vVtl/f
d,M1d

mplaint.

1fatUW

F. If there is noi: prisoner grievance process at your institution, did you complain to prison authories? X Yes No

G. If your answer to F ms yes, A. What steps did you take and what was the result? We sought permission to marry
as soon as it was evident that the defedl(.i}ts were taking illegal di~imantory steps to keep us from being together in any meaningful way and yet allowed
other evidenced couples to remain in relationships openly in general population. IV Jurisdiction
A. Is this complaint brought for a violation of your flederal constitutional rights by a person employed by the state, county, or municipal government or acting with such government officals? Yes X No---

8H:16"-ycevs-0" 0p5l2&4J-eRasFeRs-CtaRteZ

Doc # 1 Filed: 11/30/16 the agency the oHicals

Page 2 of 7 - Page ID # 2 are employed by or why you

believe the defendants were acting in conjunction with government officals:

All Defendants are employed by the Nebraska Dept. Of Corrections. Jason Geerdes is the Unit Manager for Unit A-1.
Fred Britten is the War~\an of LCC Cathy Sheair is the acting Deputy Warden of LCC Scott Frakes is the Director of Corrections for the Neb DCS

B. Is this complaint brought for a violstion of state or local law? Yes X No

If so, please specifiy (without alleging any supporting facts) the state law
you beleive was viBlated: The Constituional right of free association and the new~ cn';Jt
right to marry anyone of ones choice

Are the Defendants residents of the same state as you? Yes_!_NO~-

V. Statement of Claim On October 31. Plaintiff Shadle was removed from LCC Housing Unit A 1 on an
unsubtaniated charge of solitation for sexual favors. B~airlniff Shad~e is a transgender female residing in a male facility. Prior to this the Plaintiffs had been both harrassing and charged with misconduct for "sitting to Close" on the prison yeard and for non-sexual casual physcial contact in one having his arm around the other. The plainitffs were often harrassed by numerous staff under the orders and direction of the Defendants and unknown others to ensure that the Plaintiffs were not allowed to sit too close or display any openly affectionate acts as the Plaintiffs are currently both considered to be male.
On November 2;., 2016, after Plaintiff Wilson was informed by Defedm>eft Geerdes that either him or Shadle "had to go" that they would never be allowed to be in the same institution becuase they had formed a non sexual relaitonship of romantic nature. Even though the Plaintiffs have never engaged in any sexual behaviour or any act that would constitute a threat to the safety and security of the institution. As a result Plaintiff Wilson has been reclassed for transner to a more violent institution, the state penitentiary simply becuse the Plainitffs wish to formalize their relationship and excercise their right to marry. They wish to have equal treatment to the similarly situated couple of MR & Mrs Paul Gilpatrick, both inmates of the Deparment of Corrections who were legally married earily this year, in 2016. Plaintiffs also wish to be given equal tteatment to other known couples in openly amourous realtionships that are allowed to remain in the same institution.

B. State briefly your legal theory or cite appropiate authority: Plainitffs state that the First Amemdment right to freely associaote with others has been violated and that their 14th Amendment rights to equal protection has been vi8lated :i: "The United States Supreme Court makes it abundantly clear that the right to
marry iliRderlies the purpose of the constitution altho~gh not mentinoned therein, and is a fundamental right afforded by the First, Fifth and 14th A1'1fe Amendments of the Untied States Constitution." Volchahoska v Grand Island 194 Neb 175
We cite Allurado v Kim 2012 U.S. Dist Lexis 108118 in which the court granted a preliminary injanction allowing the couple to marry. Additionally we cite Zablocki v Redhail 434 U.S. 374, 383, 98 S..Ct 673 and Loving v Virginia 388 U.S. 1 and Reed v Kemper 2015 U.S. Dist Lexis 68898.

"The tu:rmer Court held that the right to marry and many important attributes of '."'.o.r:cc~i5~e

marriage survive incarceration such as expectations of emotional support and

the excercise of religious faith ••• the court plainly envisions that while

the intangible and emotional aspects of marri~ge survive incarceration,

q

the physical aspects do not see Herenadez 18 F.3rd at 137."

Gerber v Johnson 291 F.3d 617

2

8:16-cv-00524-RFR-CRZ Doc # 1 Filed: 11/30/16 Page 3 of 7 - Page ID # 3
In UNited States v Harvy 1991 U.S. App. Lexis 27270 two inmates were allowed to marry each other Also the U.S Supreme Court has established the criteri on marriage as:
1. Is there a valid, rat±mnal nexus between the restriction and the ligitimate interest the government alleges to justify it? 2. Do prisoners have an alternate means of excerizing the restricted constitutional right? 3. What impact will allowing prisoners to excercise the restricted constitutional right have on guards, inmates and prison resources. 4. Are there readily available alternatives to restricting the contituional rightZ

In the Instant case: 1. There is no legitimste pen$Al.ogica1linterest in banning such a marriage as
it has already been allowed in the Gilpatrick case. 2. Thereris no alternate way to legally marry, but to marry. 3. There would be only a negliable impact on guards and prisoners as the Plaintiffs do no share a living location and one plaintiff is physically incapable of sexual aetivity due to medication for kidney failure ~nd diabetes. 4. There are no readily availliable alternative to this restriction of the right
to legally marry. /Jr1 ~ (e lt(J/.e aJ P Jc, "1 Ii ff'. S"hd '-' ~ ~ f>"efa hft1
VI Relief A. Douyou request damages YES NO X

B. Do you request a jury Trial? YES~_·NO X

C. State briefly exactly what you want the court to do for you Make no legal arguments. Cite no cases or statutes. We ask the court for an injunction allow~ng the Plaintiffs to marry and squashing the impending transfers of either Plaintiff as being retalitory in nature and a component of denying the plaintiffs the right to marry. Plaintiffs seek no extrodinary reli~(or rights but simply want the right to marry and to freely associate with each other as other similaly situated same gender couples are being allowed to do. VII Request for Apptoinment of Counsel

We request no apppointment of counsel.

I declare under penalty of perjury that the frogoing is true and correct.

Sig~</' day o~016

Marold :Bryar~ tJ,b211/ )79M1

I Declare under penalty of perjury that the forgoing is true and correct.

Si~ed th~ll\iay of

2016

1:17('! . / ~

Lt -

Rley

Shadle ti· ~2.2.<fr

!)D\/; 'LZ, '(uo

l-i1vl(c\11 l\J~

~;z,~u'o

Ct," r~ i

8:16-cv-00524-RFR-CRZ Doc # 1 Filed: 11/30/16 Page 4 of 7 - Page ID # 4

IN THE UNITED STATES DISTRICT COURT

DISTRICT OF NEBRASKA

HAROLD WILSON

)

RILEY NICOLE SHADLE

)

Plaintiffs

)

)

v

)

JASON GEERDES

)

FRED BRITTEN

)

CATHEY SHEAIR

)

SCOTT FRAKES

)O

Defendants

CASE NUMBER CI l~- - - - -
MOTION FOR TEMPORARY RESTRAINING ORDER AND10R PRELIMINARY INJUNCTION

Plaintiffs Harold Wilson and R~ley Nicole Shadle pursuant to Rule 65 of the

Federal Rules of Civil Procedure request this court to grant them a temporary

restraining order and/or Preliminary Injunction denoting defendants gason Geerdes

et al to immediaitely qrder and be restrained from the following actions:

1. Immediately grant the Plaintiffs request to marry aft$.er the tradition of Quakers. 2. Restrain the defendants from the retalatory act of transfering either Plaintiff to any other facility other than Lincoln Correction Center (LCC) until the Plaintiffs are able to marry, or return either to the LCC for this purp~ purpose 3. Immediately release Plainitff Shadle from Segregation and return her to General Population in A-1 Unit. The defendaats have acted in retalation for Plaintiff Shadle's successful civil lawsuit 9:15-cv-3132 by falsely acusssing her of soliciting for sexual favors and holding her in isolation in an effort to illegally deny her the constitutional right to marry Plaintiff Wilson.

STATEMENT OF CASE This motion seeks a temporary restraining order and/or Preliminary injunction for

immediate restraint of any transfer of either Plainitff to any other facility

until such time as the Plainitffs legelly marry under the care of the local

Society of Friends local Meeting and for the court to have time to act

upon the merits of their case.

There is no written policy regarding marriage of inmates residing in the

same facility. There is no rule banning non-intimate contact between two

inmates. If two females of the same custody were married they would likely both

remain at the only women's facility for maximum custody inmates. The Plainitffs have

been discriminated.against because they are the same gender, seeking to legally

marry. They have been treated differently because one of them is transgender and has

8:16-cv-00524-RFR-CRZ Doc # 1 Filed: 11/30/16 Page 5 of 7 - Page ID # 5

successfully sued the Dept of Corrections in the past, and been itreated differently,

unconsitutitmonally than other known same gender couples at LCC because they openly

display affection via non-intimate contact with each other, which LCC st~ff find

offensive.

Other known couples have been allowed to co-habitate and move into the

same Housing Units in order to maintain their realtionships, while the Plainitffs have been illegally separated and are :f\:1nding being trans~ered.

They have also been harrassed and humilated for simply sitting close to each other nnd s:tnc

and since October 31, 2016, been separated by the placing of inmate Shadle into

Segregation for alledged conduct that has not been documented nor proven.

The defendants will suffer no harm by allowing the Plainitffs to marry and

to remain at LCC. Plaintiffs liklihood of winning final judgment on the merits of

their case is overwhelming as cited by the case law below:

c SU

SUMMATION

Plaintiifs seek only to be treated equally under the provisions of the

Constitution and legal precedet. We wish to be able to remain at LCC and to ~1

smlemize our realtionship in marriage as provided by the tenents of the Quaker

Faith which require a meeting in person with the Marriage committee and to engage in
exchange of in person vows at a reg~hller Meeting for Worship conducted at LCC

by the Members of the local Frieµds Meeting~ Members of the Meeting serve as both

officants and witnesses of any marraige under the care of the local Meeting Group.

CASE CITES

!. Tuner v Safely 482 U.S. 78, 107 S.Ct 2254, First establishment of the
right ?f inmates to marry while incarcerated.
2. Lo.)igor~v Couglin 712 F.Supp 1061 Lifers have the right to marry. 3. Engel v Ricci U.S. Dist Lexis 40978, "The right to marry is part of the fundamental right of privacy implicite in the 14th Amendment, Duec P Process clause"- Thus individuals (prisoners) are entitled to make decisions related to marriage without unjustified governmental interference. 4. Zabloki v Redhail 434 U.S. 374, 385-86, Prisoners allowed to marry without undue governemnt interferance. 5. Gerber v Johnson 291 F.3d 617, marriage is an expression of religious faith and to marry under the Quaker faith, both parties need to be physically present/ 6. Reed v Lemmon 798 F.3d 546, The right to marry includes the right to
choose ones spouse. 7. Deleon v Perry, 975 F. Supp 2d 632, Marriage is central part of the liberty
2

8:16-cv-00524-RFR-CRZ Doc # 1 Filed: 11/30/16 Page 6 of 7 - Page ID # 6
protected by the Due Process Clause. 8. Uninted States v Harvy 1991 U.S. App Lexis 28377, Two inmates allowed to marry while in custody. 9. Jones v Perry 2016 U.S. Lexis 143987, Clerk ordered to issue a marriage license with out appearing at the clerks office in person. 10. Volchahoske v Grand Island 149 Neb 175 (Marraige) is a fundamental right afforded by the First, Fifth, Ninth and Fourteentth Amendments. 11. Reiche v Howards 132 S.Ct 2088 at 2093, Qualified Immu~ity does not shield officals when they have violated a clearly established right such as marriage. 12. Lopez v City of New York 2004 U.S. Dist Lexis 2645, Supervisorary offical liable if grossly negligent in managing subordinates who caused the un1n unlawful consitutruonal event.
Plainitffs have been separated while other known same gender couples
at LCC are allowed to mainttain their relationships and encoitaged to remain
in contact with each other by being able to move to other living locations ~ \[)1tv0--
afford them contact with their partner. Additionally Plaintiffs have been
humilated and falsley acussed of un-proved actions while all they have done
is sit close to each other and express their constitutional r~jth of freedom of
association with each other in protected ways that do not vi@iliate the safety
and security of the institution, in the same ways that other couples openly
do, yet they are being separated in an effort by the defednats to deny them the
r
opportuntty to marry under the care of the Local Friends Meeting or any other way
because they are of the same gender, While in 2016 Pailil Gilpatrick of NSP
was allowed to'marry a female inmate of the same custody level at York. We ask
all other couples in the control of the Dept of Correctiosn.
Riley Shadle Palintiff pro se :P <f l,,7 tf7
Btt 1;ir-e;u
z, 1VL & ln ~J~ ~ v)){fx)
iir~ yv

Inmate Name Inmate #

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Li P.O. Box 22800

-

Notice· 111· ncoln, NE 68542-2800

c~~~n~:~:Ska Oepa~ri;,~tnof lnsn' ut·1.on oispecroartreedspbondence was mailed f

Corrections. Its

uncensored.

Doc # 1

Filed: 11/30/16

Page 7 of 7 - Page ID # 7

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 8:16-cv-00524-RFR-CRZ Doc # 64 Filed: 10/17/17 Page 1 of 16 - Page ID # 249

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA

HAROLD BRYAN WILSON, and RILEY NICOLE SHADLE,
Plaintiffs,
vs.
SCOTT FRAKES, Director, JEFF WOOTEN, Warden, JASON GEERDES, ROBERT MADSEN, WARDEN,
in their Official Capacity,
Defendants.

) CASE NO. 8:16CV524

)

)

)

)

SECOND

) AMENDED COMPLAINT

)

)

)

)

)

)

)

)

COMES NOW Harold Bryan Wilson and Riley Nicole Shadle,

Plaintiffs and brings this suit against Scott Frakes, Director, Jeff Wooten,

Warden, Jason Geerdes, and Robert Madsen, Warden, in their official

capacities based upon their violation of the Constitutional rights of these

plaintiffs. Plaintiffs allege a violation of their right to marry. They allege a

violation of their right to petition for redress of grievances. They allege

interference with their right of access to the Courts. Plaintiffs allege that

each of these Defendants was acting under color of state law and in their

official capacity.

JURISDICTION

1. This Court has jurisdiction over this suit under 28 U.S.C. § 1983.

1

8:16-cv-00524-RFR-CRZ Doc # 64 Filed: 10/17/17 Page 2 of 16 - Page ID # 250
2. These claims arise under the Fourteenth Amendment’s Due Process Clause and the Fourteenth Amendment’s Equal Protection Clause. This suit alleges that each Defendant was acting under color of state law and in their official capacity. At the same time, Plaintiffs deny that these Defendants were acting under official policy of the State of Nebraska or the Nebraska Department of Correctional Services since what policy that had existed allowed inmate marriages until revoked by Defendant Frakes, leaving the Defendants free to make up whatever standardless response to the Plaintiffs marriage request they wished.
3. Wilson has complied with the requirements of the Prisoner’s Litigation Reform Act. He filed a marriage request form. It was denied by defendant Jason Geerdes. Wilson has properly exhausted available administrative steps.
4. Riley Nicole Shadle has also complied with the requirements of the Prisoner’s Litigation Reform Act. She filed a marriage request form which was denied. Shadle has properly exhausted available administrative steps.
PARTIES 5. Plaintiff Harold Bryan Wilson is an unmarried adult inmate currently in the custody of the Nebraska Department of Correctional Services (hereinafter NDCS). At the time he originally filed this suit, he was
2

8:16-cv-00524-RFR-CRZ Doc # 64 Filed: 10/17/17 Page 3 of 16 - Page ID # 251
confined at the Lincoln Correctional Center (hereinafter LCC), in Lincoln, Lancaster County, Nebraska. He is now confined at the Nebraska State Penitentiary (hereinafter NSP), also located in Lincoln, Lancaster County, Nebraska.
Plaintiff Wilson was married according to the law of Nebraska. This marriage was dissolved according to the law of Nebraska.
Subsequently, Harold Wilson participated in a “handfasting” ceremony which according to his Wiccan religious beliefs was the equivalent of a marriage. However, this union was not licensed by the state of Nebraska. Moreover, at the time of the ceremony Nebraska did “not recognize same-sex marriages.” Wilson v. Hopkins, 8:13-cv-00130, filing # 39, p. 6. Wilson dissolved this union under the tenets of the Wiccan religion, although without using the procedures set forth in Nebraska law.
6. Plaintiff Riley Nicole Shadle is an unmarried adult inmate currently in the custody of the NDCS. She was and remains confined at LCC.
7. Scott Frakes is the Director of NDCS. He possesses the ultimate authority within the NDCS to authorize the marriage sought by Plaintiffs.
8. Jeff Wooten is the Warden of the LCC. 9. Jason Geerdes is a unit manager at LCC. 10. Robert Madsen is the Warden of the NSP.
3

8:16-cv-00524-RFR-CRZ Doc # 64 Filed: 10/17/17 Page 4 of 16 - Page ID # 252
FACTUAL ALLEGATIONS I. MARRIAGE REQUESTS 11. On November 15, 2016, Wilson submitted a marriage intention form through administrative channels seeking permission to marry Riley Nicole Shadle. Geerdes denied Wilson’s marriage intention form without dating his signature. 12. Shadle signed a copy of the Wilson marriage intention form, indicating that she wished to marry Harold Wilson. She submitted it on December 7, 2016. This form was also denied. Subsequently, she submitted another marriage intention form, which has also been denied. 13. Geerdes referred Wilson to the procedure by which a “sensitive nature” grievance can be filed with the Director of NDCS on December 9, 2016. 14. Harold Wilson filed a “sensitive nature” grievance with the Director of NDCS. This grievance sought permission for Wilson and Shadle to be married. The grievance was rejected on December 9, 2016. II. INTERFERENCE WITH PETITIONING FOR REDRESS 15. Wilson sought to obtain a marriage license. In doing so, he corresponded with the Lancaster County Clerk. The Clerk provided a form affidavit which needed to be signed and notarized before it could be
4

8:16-cv-00524-RFR-CRZ Doc # 64 Filed: 10/17/17 Page 5 of 16 - Page ID # 253
submitted and without which a marriage license could not be issued by the Clerk. Wilson asked NSP to provide notary services, but Brad Exstrom, an NSP notary, refused to notarize the application.
16. Tom Pfieffer, an NSP notary, also refused to notarize the form. 17. On January 4, 2017, Wilson filed an inmate interview request asking for notary services. 18. On January 6, 2017, this request was denied. The denial said, “Mr. Wilson! You cannot marry another inmate so this marriage license will not be notarized.” 19. NDCS employees knew that the purpose for which Wilson sought authentication of his signature was to seek access to the government to obtain a marriage license. 20. The NDCS staff routinely and without consideration of the content of the document to be notarized provide notarial services to many inmates. They denied similar service to Wilson solely based on the content of the document he sought to have authenticated. 21. The refusals to notarize Wilson’s signature, done under color of state law and in their official capacity, were intended to prevent or interfere with Wilson’s effort to seek redress from the government. The refusals were intended to prevent or interfere with Wilson’s right to marry. The refusals
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were not done in good faith or with a reasonable belief that the refusals were lawful. The refusals were done in the absence of any penological purpose or justification.
III. RETALIATORY TRANSFER 22. At some point, both Plaintiffs were housed at the LCC. 23. After their desire to marry became known, Wilson was transferred to NSP. He was not provided with an “official” justification for the transfer. 24. On November 15, 2016, Geerdes personally denied Wilson’s marriage intention form. He told Wilson that either Shadle or Wilson “had to go.” He also said it would be easier to transfer Wilson than Shadle. When confronted by Wilson, Geerdes admitted that he is responsible for the transfer. 25. Wilson alleges, based upon the timing of Wilson’s transfer and contemporaneous statements made by Geerdes, that the transfer was in retaliation for Wilson’s efforts to obtain permission to marry and was done under color of state law and in his official capacity. 26. Wilson agrees that prisoners can be transferred even when free people cannot. He accepts that the prison may transfer him for any legal reason or for no reason at all. He disputes that the NDCS and these
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defendants can transfer him in retaliation for the exercise or attempted exercise of a constitutional right.
27. Wilson’s transfer was intended to prevent or interfere with Wilson’s effort to marry. The transfer was not done in good faith or with a reasonable belief that the transfer was lawful. The transfer served no lawful penological purpose.
28. Shadle was removed from her cell and placed in segregation on October 31, 2016.
29. Shadle was not provided with a reason for her being placed in segregation.
30, Shadle was released from segregation on December 5, 2016, only after Wilson had been transferred from LCC to NSP.
31. Shadle alleges, based on the timing, duration and purposelessness of her prolonged segregation that it was done under color of state law and in their official capacity and done in retaliation for her efforts to obtain permission to marry.
32. Shadle’s prolonged segregation was intended to prevent or interfere with her effort to marry Wilson. Placing Shadle in segregation was not done in good faith or with a reasonable belief that the segregation was justified, lawful or for a legitimate penological purpose.
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33. Persons who are not confined in Nebraska’s prisons are entitled to be free from unreasonable seizures. Inmates have far less freedom. However, even within a prison, inmates are subject only to those conditions of confinement which are foreseeable and necessary to ensure the safe functioning of the institution and the carrying out of their sentence.
34. Free unmarried people of sufficient age may select whomever they wish to marry. They may obtain a notarization of their application and they may in fact marry any other eligible consenting person.
35. Plaintiffs assert that none of the named defendants have any penological reason to deny their marriage intention forms.
36. The formerly applicable agency regulations used to unambiguously authorize inmate weddings and expressly limited the discretion of the Director. Nebraska Department of Correctional Services Admin Reg. § 208.01 (II)(D)(3)(a) provided that “Inmates in the Department’s custody will be allowed to marry unless the Warden finds that the marriage presents a threat to security or order of the institution or to public safety.”(Emphasis supplied)
37. And Nebraska Department of Correctional Services Admin Reg. § 208.01 (II)(D)(3)(b) reinforced the claim that Wilson and Shadle were at one time authorized by regulation to seek permission to marry. It provided, in
8

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part, that “if both parties to the marriage are inmates, each inmate must submit a Marriage Intention Form to the Religious Coordinator at their facility.”
38. These administrative regulations may have been repealed and to have been replaced with an unwritten policy of granting facility wardens and the director of the NDCS with unfettered discretion to grant or deny marriage without the exercise of professional discretion or the application or consideration of any penological purpose.
39. There is no reason to believe that Plaintiffs’ marriage would present a threat to security or order of either institution.
40. There is no reason to believe that Plaintiffs’ marriage would present a threat to public safety.
41. Throughout the process of each Plaintiff applying for permission to marry no defendant has claimed or even suggested that there was any institutional or penological concern with the proposed marriage.
42. Geerdes explained his denial by writing “Denied.” 43. Another prison official, whose signature is illegible, typed: “In accordance to A.R. 205.04 which is available to you during approved Law Library time.(sic) Inmates will normally not be permitted to marry other inmates due to potential risks to the safety, security or good order of the
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facility. If an inmate wants to marry another inmate, he or she may file a grievance of a sensitive nature to the Director outlining special circumstances which may warrant an exception. The director reserves the right to approve inmate-to-inmate marriages in the case of special circumstances.”
44. Defendants, or their predecessors in office, acting in bad faith, under color of state law, in their official capacity and for the purpose of preventing the exercise of Plaintiff’s constitutional rights, transferred Wilson from LCC to NSP.
45. Moreover, defendants have access to technology which would permit the marriage of these plaintiffs without transporting them at all. Plaintiffs could participate in a marriage ceremony using in-place skype-like video conferencing equipment at no cost to the defendants or the state of Nebraska.
CLAIMS I. MARRIAGE REQUESTS 46. Wilson and Shadle assert that they have a basic, substantive due process based constitutional right to marry that survives a conviction and an order of incarceration. Plaintiffs have asked these named Defendants for permission to marry. Acting under color of state law and in their official
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capacities, these Defendants have deliberately denied Plaintiffs’ application to marry with no penological basis.
47. Plaintiffs acknowledge that the right to marry is NOT absolute. 48. Where, as here, a state agency has abandoned the opportunity to self-regulate through the implementation of administrative regulations, a prison administrator or actor cannot claim a unilateral, arbitrary, and unlimited power to deny the Marriage Intention Forms without any justification, or to affirmatively, as these defendants have done, erect barriers to interfere with the right of Plaintiffs to marry. 49. Plaintiffs assert that there is no reasonable alternative means by which they may exercise their constitutional right to marry. 50. Plaintiffs assert that their marriage would cause no adverse impact on prison personnel or resources. 51. Plaintiffs assert that their marriage would have no adverse impact on public safety. 52. Plaintiffs deny that there are any legitimate and not exaggerated penological interests impacted by this proposed marriage. Even if some hypothetical interests might exist, which Plaintiffs deny, those interests can be protected at de minimis cost and inconvenience without obstructing or interfering with the marriage.
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53. Plaintiffs are being denied the Equal Protection of the law when the institutional Defendants, acting under color of state law, in their official capacity and for the purpose of obstructing and interfering with Plaintiffs’ efforts to marry and without a reasonable penological purpose, erect barriers which do not exist between people who are not confined.
II. INTERFERENCE WITH PETITIONING FOR REDRESS OF GRIEVANCES
54. Staff, including Brad Exstrom and Tom Pfieffer, acting under color of state law and in their official capacity, intentionally and for the illegal purpose of obstructing or interfering with Wilson’s effort to obtain a marriage license refused to authenticate and notarize his signature on a required government affidavit.
55. The refusals to notarize Wilson’s signature were intended to prevent or interfere with Wilson’s effort to seek redress from the government. The refusals were not done in good faith or with a reasonable belief that the refusals were lawful or based on any legitimate penological interest.
56. The failure to authenticate and notarize Wilson’s signature on the application and affidavit needed to obtain a marriage license caused delay and unnecessary expense without justification or reason.
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57. Wilson was denied the Equal Protection of the law when, based solely upon the content of the document and for the purpose of obstructing and interfering with his efforts to seek redress of grievances, he was denied the authentication of his signature required by the Lancaster County Clerk because free people can obtain notary services without having their documents censored for content.
58. Censoring content in the provision of notary services serves no valid penological purpose especially where the purpose for refusing notary services in this case was to interfere with Wilson’s communication with the government.
III. RETALIATORY TRANSFER AND PROLONGED, UNNECESSARY SEGREGATION
59. Wilson was transferred from LCC to NSP without any legitimate penological justification and solely for the purpose of obstructing and interfering with his efforts to marry.
60. The effect of the transfer of Wilson has been (1) to increase the difficulty of coordinating the efforts of both Plaintiffs to obtain permission to marry, (2) to obstruct and interfere with the filing of court documents, (3) to drive a wedge into the relationship between Plaintiffs, (4) cause emotional harm to both Plaintiffs, (5) to manufacture the illusion of a transportation
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issue surrounding the marriage ceremony, (6) to prevent Wilson from providing love and support to Shadle during her medical situation.1
61. The effect of the prolonged and unnecessary segregation of Shadle has been (1) to increase the difficulty of coordinating the efforts of both Plaintiffs to obtain permission to marry, (2) to obstruct and interfere with the filing of court documents, (3) to drive a wedge into the relationship between Plaintiffs, (4) to cause emotional harm to both Plaintiffs, (5) to manufacture the illusion of a transportation issue surrounding the marriage ceremony and (6) to prevent Shadle from providing love and support to Wilson during his medical situation.
PRAYER FOR RELIEF 62. The Plaintiffs seek declaratory relief finding that whatever institutional or departmental policy, if any there be, which infringes upon the Constitutional right of these Plaintiffs to marry is unconstitutional. 63. The Plaintiffs seek injunctive relief preventing these Defendants, their agents and officers, from implementing or relying upon whatever unconstitutional policy there may be to prevent these Plaintiffs from marrying.
1 The specifics of the medical situations referred to in ¶ ¶ 60 and 61 have been omitted pursuant to the privacy redaction rules of this Court. Details will be provided to Defendants and the Court upon request.
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64. Wilson and Shadle bring these claims under the Due Process Clause of the Fourteenth Amendment and under the Equal Protection Clause of the Fourteenth Amendment. The Plaintiffs bring this suit under 42 U.S.C. § 1983.
65. Plaintiffs ask this Court to grant an injunction allowing them to complete the application process without obstruction or interference by these Defendants, their successors or subordinates.
66. Plaintiffs ask this Court to grant an injunction preventing these Defendants from obstructing or interfering with their efforts to marry.
67. Plaintiffs ask for any further relief to which they may be entitled, including but not limited to costs, filing fees, necessary expenses, expert witness and discovery costs, reimbursement to the Federal Practice Fund, and a reasonable attorney fee.
68. Plaintiffs seek trial in Lincoln, Nebraska. Plaintiffs are not asking for a trial by jury.
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/s/ Michael D. Gooch _________________________ Michael D. Gooch #15273 Attorney at Law 7215 North 162nd Street Bennington, NE 68007 (402) 333-0722 mdgooch22@gmail.com CERTIFICATE OF SERVICE I hereby certify that the foregoing Second Amended Complaint has been served upon Dave Lopez, Assistant Attorney General, by electronic filing using CM/ECF this 17th day of October 2017. /s/ Michael D. Gooch _________________________ Michael D. Gooch
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 8:16-cv-00524-RFR-CRZ Doc # 106 Filed: 01/15/19 Page 1 of 2 - Page ID # 354

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA

HAROLD BRYAN WILSON, and RILEY NICOLE SHADLE,
Plaintiffs,
vs.
JASON GEERDES, FRED BRITTEN, CATHY SHEAR, and SCOTT FRAKES,
Defendants.

) CASE NO. 8:16CV524 ) ) ) ) VOLUNTARY ) MOTION TO DISMISS ) PURSUANT TO ) F.R.C.P. 41(a)(2) ) AS TO RILEY SHADLE ) ) )

Comes Now Michael D. Gooch, attorney for Plaintiff Riley Nicole

Shadle and moves this Court, pursuant to F.R.C.P. 41(a)(2) to dismiss Riley

Nicole Shadle as a plaintiff to this action WITH PREJUDICE. In support of

this motion, Ms. Shadle submits a settlement agreement and mutual release

which establishes good cause for this action. Plaintiff Shadle reports that her

counsel has consulted with counsel for the defendants who do not oppose

this motion. As to Ms. Shadle, she asks that the Court grant this motion

forthwith.

/s/ Michael D. Gooch _________________________ Michael D. Gooch #15273 Attorney at Law 7215 North 162nd Street Bennington, NE 68007 (402) 333-0722 mdgooch22@gmail.com

8:16-cv-00524-RFR-CRZ Doc # 106 Filed: 01/15/19 Page 2 of 2 - Page ID # 355
CERTIFICATE OF SERVICE I hereby certify that the foregoing Motion has been served upon Dave Lopez, Assistant Attorney General, by electronic filing using CM/ECF and
upon Harold Wilson, # 37418, P. O. Box 22500, Lincoln, NE 685422500 by United States mail postage prepaid this15th day of January 2019.
/s/ Michael D. Gooch _________________________ Michael D. Gooch

 
 8:16-cv-00524-RFR-CRZ Doc # 110 Filed: 01/29/19 Page 1 of 3 - Page ID # 376

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA

HAROLD BRYAN WILSON, Plaintiffs,
vs. JASON GEERDES, in his Official Capacity;
Defendant.

8:16CV524 ORDER

Plaintiff Wilson has moved for new counsel and for reimbursement of filing fees he paid on behalf of co-plaintiff Riley Shadle. (Filing No. 108).

Shadle and the defendants have settled, with the State of Nebraska agreeing to pay $400.00 to Plaintiff Shadle. From this amount, Wilson claims he is entitled to reimbursement of the filing fee he advanced to Shadle.

Any claim over Wilson’s payment of Shadle’s filing fees is a contract or equity action between Wilson and Shadle, and it is wholly separate from the merits of the above-captioned lawsuit. This court lacks subject matter jurisdiction to determine whether Wilson has a potential claim for recovery of a $400.00 filing fee he allegedly paid on Shadle’s behalf. (Filing No. 106-1).

As to Wilson’s request for a new court-appointed attorney, a civil litigant has no constitutional or statutory right to a court-appointed counsel. The court may, however, make such an appointment at its discretion. Davis v. Scott, 94 F.3d 444, 447 (8th Cir. 1996). A trial court decides whether both the pro se party and the court will benefit from the appointment of counsel, taking into account the issues presented, the factual and legal complexity of the case, the presence or absence

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of conflicting testimony, the pro se party’s ability to investigate the facts and present or defend the claim, the party’s ability to hire an attorney, and whether and to what extent the unrepresented party made any effort to retain counsel before seeking court-appointed counsel. See, Id.
The complaint filed by Wilson and Shadle asks the court to enjoin the defendants from hindering or obstructing Wilson’s and Shadle’s right to marry each other and to award damages for impeding their marriage and for retaliating against Wilson for pursuing his right to marry. This court appointed counsel to assist Wilson and Shadle with litigating their claims asserting a constitutional right to marriage. Now that Shadle has settled, Wilson may no longer have a justiciable marriage claim; that is, if Shadle no longer wants to marry Wilson, Wilson’s right to marriage claims may be moot. As to Wilson’s damage claims for alleged retaliation, those claims are neither legally nor factually complex and it is unlikely this court would appoint counsel to assist Wilson in litigating those claims.
Moreover, Wilson was the recipient of a $75,000 settlement in 2014, such settlement to be made by payments over years. 4:12-cv-03061-LSC-PRSE, (Filing No. 84).1 Wilson’s motion to proceed in forma pauperis does not mention that money or potential source of revenue. (Filing No. 2). Finally, Wilson has not explained what attempts, if any, he has made to retain counsel to represent his interests. Accordingly,
IT IS ORDERED:
1) Plaintiff Wilson's motion for appointed counsel, (Filing No. 108), is denied.
1 Gracy Sedlak served as Wilson’s power of attorney during this prior case. (Filing No. 71, at CM/ECF p. 5, ¶ 3).
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2) On or before February 11, 2019, Plaintiff Wilson shall either: (a) obtain the services of counsel and have that attorney file an appearance in this case; or (b) file a statement notifying the court of his intent to litigate this case without the assistance of counsel. The failure to do so may result in a dismissal of Plaintiff Wilson’s claims without further notice.

January 29, 2019.

BY THE COURT:
s/ Cheryl R. Zwart United States Magistrate Judge

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 8:16-cv-00524-RFR-CRZ Doc # 111 Filed: 01/29/19 Page 1 of 2 - Page ID # 379

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA

HAROLD BRYAN WILSON and RILEY NICOLE SHADLE,
Plaintiffs,
v.
JASON GEERDES, SCOTT FRAKES, TAGGART BOYD, and MICHELE CAPPS, all in their official capacities,
Defendants.

8:16CV524 ORDER

This matter is before the Court on the Motion for Payment of the Remaining Fee for Reimbursement of Actual Expenses (Filing No. 109), filed by attorney Michael D. Gooch (“Gooch”).
On March 31, 2017, Gooch was appointed to represent both plaintiffs in this matter by order of Senior United States District Judge Richard G. Kopf. In his order (Filing No. 46), Judge Kopf, consistent with Rule II(A)(1)(a) of the Amended Plans for the Administration of the Federal Practice Fund and Federal Practice Committee (“Plan”), ordered that Gooch be paid $2,000 for his representation. Gooch was paid $1,000 from the Federal Practice Fund at the outset of his appointment. The matter was reassigned to the undersigned on April 3, 2017.
Gooch has completed his appointment (Filing No. 105)1 and seeks payment of the remaining $1,000 of his reimbursement as well as $500 in expenses, as contemplated by the March 31, 2017 Order, and is in accordance with the Plan. After reviewing the expenses submitted, the Court consulted with and obtained the approval of Chief United

1A stipulation for dismissal was filed as to plaintiff Riley Nicole Shadle, and Gooch withdrew from his representation of the remaining named plaintiff, Harold Bryan Wilson.

8:16-cv-00524-RFR-CRZ Doc # 111 Filed: 01/29/19 Page 2 of 2 - Page ID # 380
States District Judge John M. Gerrard (Plan, at VI(C)) to reimburse $500 to Gooch for his expenses. This Court again notes its appreciation of Gooch’s willingness to handle this matter.
In light of the foregoing, IT IS ORDERED: 1. Attorney Michael D. Gooch’s Motion for Payment of the Remaining Fee for
Reimbursement of Actual Expenses (Filing No. 109) is granted. 2. The Clerk of Court shall pay to attorney Michael D. Gooch from the Federal
Practice Fund, the amount of $1,000 for his remaining attorney fees and $500 for expenses. Dated this 29th day of January 2019.
BY THE COURT:
Robert F. Rossiter, Jr. United States District Judge
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 8:16-cv-00524-RFR-CRZ Doc # 133 Filed: 07/09/19 Page 1 of 7 - Page ID # 457

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA

HAROLD BRYAN WILSON, Plaintiff,
vs. JASON GEERDES, in his Official Capacity; et. al;
Defendants.

8:16CV524 MEMORANDUM AND ORDER

The following filings are pending before me:
• The Motion to Appoint Counsel filed by Plaintiff Harold Wilson, (“Wilson”) (Filing No. 124);
• Defendants’ Motion to Depose a Confined Person, (Filing No. 126), and to extend the deposition deadline, (Filing No. 126), and Plaintiff’s associated objections, (Filing Nos. 128 and 131); and
• Wilson’s Motion to Depose Michael Gooch, his former court-appointed counsel, (Filing No. 132).

For the reasons stated below, Plaintiff’s motions will be denied, and Defendants’ motion will be granted.

As summarized by Judge Rossiter:

The crux of Wilson’s suit is that he wants to marry fellow prisoner Riley Nicole Shadle (“Shadle”), but the officials will not let him, in violation of his constitutional rights. On October 17, 2017, Wilson and Shadle, with the assistance of court-appointed counsel, Michael D. Gooch (“Gooch”), filed a Second Amended Complaint (Filing No. 64), alleging the officials (or their predecessors) (1) denied their right

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to marry without any penological interest (2) refused to notarize Wilson’s signature on an application and affidavit required to obtain a marriage license, and (3) placed Shadle in segregation and transferred Wilson to another facility in retaliation for attempting to exercise their rights to marry and to obstruct and interfere with those rights. Relying on 42 U.S.C. § 1983, Wilson and Shadle asked the Court to (1) declare that any NDCS policy infringing on their right to marry is unconstitutional and (2) enjoin the officials “from obstructing or interfering with their efforts to marry.”
(Filing No. 122, at CM/ECF pp. 1-2). After the Second Amended Complaint was filed, Gooch moved to withdraw due to a conflict of interest. That motion was granted and the following day, Shadle moved to voluntarily dismiss her claims. (Filing No. 106).
Defendants’ moved for summary judgment, arguing that if Shadle no longer wants to marry Wilson, then Wilson’s right to marriage claim must be denied as moot. On May 13, 2019, Judge Rossiter denied Defendants’ motion, noting no evidence indicating whether Shadle remains willing to marry Wilson. “That Shadle settled her own § 1983 claims against the officials does not definitively establish that Shadle does not want to marry Wilson or render Wilson’s claims moot.” (Filing No. 122, at CM/ECF p. 5). Judge Rossiter reasoned that Shadle may still be “willing to marry Wilson if he successfully removes all the obstacles in their way,”. . . and “[t]hat reasonable possibility presents a live controversy.”
In response to Judge Rossiter’s reasoning, Defendants now request leave to depose Shadle to secure her testimony on the pivotal issue of whether she still wants to marry Wilson. (Filing No. 126). Federal Rule of Civil Procedure Rule 30(a)(2)(B) states that a party must obtain leave of court to depose a person confined in prison. Leave shall be granted to the extent consistent with the
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principles stated in Rule 26(b)(2). Fed.R.Civ.P. 30(a)(2). Wilson objects to Defendants’ motion to depose Shadle because the deposition deadline has passed. (Filing No. 128). He further objects to Defendants’ suggestion that Wilson be allowed to attend and participate in the deposition telephonically. (Filing No. 131). Wilson also moves for an order allowing him to depose his former attorney, Michael Gooch, (Filing No. 132), and he requests appointment of counsel. (Filing No. 124).
The deposition deadline was January 31, 2019. (Filing No. 101). Defendants’ motion for leave to depose Shadle was not filed until June 11, 2019. Pursuant to Rule 16(b)(4), a case management order “may be modified only for good cause and with the judge's consent.” Fed. R. Civ. P. 16(b)(4). The movant's level of diligence and the degree of prejudice to the parties are both factors to consider when assessing if good cause warrants extending a case management deadline, with the movant’s diligence being the first consideration and the extent of prejudice to either party considered only after the movant makes a showing of due diligence. Sherman v. Winco Fireworks, Inc., 532 F.3d 709, 716-17 (8th Cir. 2008); Marmo v. Tyson Fresh Meats, Inc., 457 F.3d 748, 759 (8th Cir. 2006).
The court finds that as to the focus of Defendants’ requested deposition, Shadle’s interest in marrying Wilson, new and previously unforeseen circumstances arose when Shadle moved to dismiss in return for payment of the federal filing fee. And during the four weeks thereafter, to a date after the deposition deadline, deposing Shadle was not feasible because no one knew whether Wilson would be represented by counsel or appearing pro se. Wilson had moved for appointment of counsel on two occasions after January 17, 2019, with the later motion denied on February 12, 2019—after the deposition deadline.
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Under the circumstances presented, the court finds that Defendants were diligent in pursuing discovery herein, the need for Shadle’s deposition was not apparent until she filed her motion for dismissal, and Defendants acted appropriately in not noticing Shadle’s deposition while the issue of Wilson’s representation remained unresolved. The court further finds that Defendants will be prejudiced if they are not permitted to secure testimonial evidence from Shadle on the issue of whether she wants to marry Wilson.1
The court therefore finds the defendants have shown good cause for modifying the case progression order to permit Defendants to depose Shadle. Wilson’s objection based on timeliness, (Filing No. 128), will be overruled.
Defendants propose that Wilson be allowed to attend Shadle’s deposition telephonically. While Wilson objects, telephonic depositions—by counsel and pro se parties alike—are common and permitted under the Federal Rules. Wilson has not explained how his due process rights will be violated if he is not permitted to attend Shadle’s deposition in person. Moreover, the court finds no prejudice will arise from telephonic attendance, particularly given the limited scope of Defendants’ anticipated questioning. Defendants’ motion to depose Shadle will be granted, and Wilson’s objection to attending that deposition telephonically will be overruled.
Wilson moves to depose his former attorney, Michael Gooch. Gooch was granted leave to withdraw as counsel for Wilson when a conflict arose between Wilson and Shadle. Wilson has not explained how the deposition of his former
1 The court notes that after Defendants’ motion was filed, Shadle filed an affidavit stating she still wants to marry Wilson. (Filing No. 130). But Defendants are entitled to examine Shadle to determine the veracity of her written statements and the reason she filed the affidavit.
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attorney could reveal any information relevant to the claims alleged within the operative and governing pleadings for this lawsuit. Rather, it appears Wilson is again attempting to litigate a claim for reimbursement of the filing fee he paid on Shadle’s behalf. (See Filing No. 132). As the court has already explained, if such a claim exists, it is a breach of contract or equity claim separate and apart from the claims being litigated in this lawsuit. (Filing No. 110, at CM/ECF p. 1). Moreover, Wilson has not shown that any information Gooch may have cannot be obtained from another source; in this case, Shadle. See e.g., Pamida, Inc. v. E.S. Originals, Inc., 281 F.3d 726, 729 (8th Cir. 2002) (holding a party cannot depose opposing counsel absent showing the attorney’s testimony is relevant, that the information he or she has is critical to the deponent’s case, and no other information source exists). The practice of deposing attorneys who represent a party “does nothing for the administration of justice but rather prolongs and increases the costs of litigation, demeans the profession, and constitutes an abuse of the discovery process.” Shelton v. American Motors Corp., 805 F.2d 1323, 1330 (8th Cir. 1986). Wilson’ motion to depose Gooch will be denied.
Wilson has again moved for appointment of counsel. And he has again failed to explain with any specificity his own efforts at retaining counsel. Moreover, if the viability of this case hinges on the question of whether Shadle still wants to marry Wilson, the remaining discovery is minimal and not complex—it hinges on a “yes” or “no” question posed to Shadle and independent of the discovery was previously exchanged between the parties or whether Wilson has access to all such documents. Provided the penal institution housing can accommodate Wilson’s telephonic attendance at Shadle’s deposition, Wilson need not have counsel at this time. If attending the deposition by telephone cannot be accommodated and/or if the issue of Wilson’s right to marry remains after Shadle’s deposition is taken, the court will again review any request for
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appointment of counsel. But for now, Wilson’ renewed motion for appointment of counsel will be denied.
Accordingly,
IT IS ORDERED:
1) The Motion to Appoint Counsel filed by Plaintiff Harold Wilson, (Filing No. 124), is denied without prejudice to re-filing if the substantive merits of the right to marry claim must be decided by the court, either by motion or at trial.
2) Plaintiff’s objections, (Filing Nos. 128 and 131), are overruled, and Defendants’ Motion to Depose a Confined Person and to extend the deposition deadline, (Filing No. 126), is granted as follows:
a. Defendants' deposition of Riley Shadle will commence at a date and time agreeable to the penal facilities where Shadle and Plaintiff Harold Wilson are housed. The location of the deposition shall be a place agreeable to the administration of that penal facility.
b. Riley Shadle is ordered to attend the deposition as scheduled, and Shadle shall cooperate fully with the deposition process to the extent required by law.
c. Shadle is reminded that failing to attend and fully cooperate in the deposition process will be deemed a violation of this court’s order, which may result in civil or criminal contempt proceedings, and may also impact the calculation of earned and unearned good time credit.
d. A copy of this order shall be attached to the notice of deposition served on Riley Shadle. If the notice is served on counsel for Shadle, the deponent’s counsel shall forward the notice with this order to Shadle and shall file a certificate of service stating the date and manner of service.
e. If Harold Wilson chooses to participate in the deposition of Shadle, he shall do so telephonically.
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f. Wilson’s participation will be limited to the objection and crossexamination purposes provided under Fed. R. Civ. P. 30(c). Defendants may suspend the deposition and contact the Court if Wilson attempts to use the deposition for any other communicative purpose.
g. Wilson is reminded that absent a showing of good cause, his failure to attend the deposition of Shadle as scheduled will be deemed a waiver of any right to attend, and to cross-examine or question Shadle prior to trial.
h. Wilson is further reminded that any failure to fully cooperate in the deposition process, or any attempt to use this deposition for any purpose other than securing testimony relevant to this lawsuit, will be deemed a violation of this court’s order, which may result in civil or criminal contempt proceedings, and may also impact the calculation of earned and unearned good time credit.

3) Wilson’s Motion to Depose Michael Gooch, his former courtappointed counsel, (Filing No. 132), is denied.

July 9, 2019.

BY THE COURT:
s/ Cheryl R. Zwart United States Magistrate Judge

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 8:16-cv-00524-RFR-CRZ Doc # 173 Filed: 04/10/20 Page 1 of 6 - Page ID # 1001

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA

HAROLD BRYAN WILSON,

Plaintiff,

8:16CV524

v.
JASON GEERDES, SCOTT FRAKES, TAGGART BOYD, and MICHELE CAPPS, all in their official capacities,

MEMORANDUM AND ORDER

Defendants.

Plaintiff Harold Bryan Wilson (“Wilson”) is an inmate in the custody of the Nebraska Department of Correctional Services (“NDCS”). Defendants Jason Geerdes, Scott Frakes (“Frakes”), Taggart Boyd, and Michele Capps (collectively, “officials”) are all NDCS officials sued in their official capacities for allegedly violating Wilson’s constitutional right to marry and retaliating against him for even trying. Now pending before the Court is the officials’ Motion for Summary Judgment (Filing No. 155) for failure to exhaust administrative remedies as required by the Prison Litigation Reform Act of 1995 (“PLRA”), 42 U.S.C. § 1997e(a).1 For the reasons stated below, the motion is granted, and the case is dismissed without prejudice.
I. BACKGROUND On November 25, 2016, Wilson submitted Grievance No. 2016-10998 to NDCS in
which he requested permission to marry fellow Lincoln Correctional Center (“LCC”) inmate Riley Nicole Shadle (“Shadle”). He later submitted Grievance No. 2016-11220 related to his request to marry. Inmate marriages are governed by the NDCS Inmate

1The officials alternatively seek summary judgment on the merits, arguing legitimate penological interests justified their actions. The Court expresses no opinion on the merits of Wilson’s claims.

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Marriage Policy, Administrative Regulation 205.04 (“marriage regulation”), which was made effective June 30, 2016 and was most recently revised on August 31, 2019.
On November 30, 2016, Wilson and Shadle filed a pro se complaint (Filing No. 1) in this Court. After they filed suit, Wilson was transferred to the Nebraska State Penitentiary (“NSP”), what he describes as a more violent institution. Based on their “allegations and the state of the law on the right to marry, and to facilitate” joint filings from Wilson and Shadle under difficult circumstances, the Court appointed counsel to represent them.
NDCS policy requires inmates to follow a three-step grievance process prior to filing suit. To fully exhaust grievances, inmates must file an informal grievance, a stepone grievance, and a step-two grievance on the proper forms within specified timeframes. Wilson did not fully exhaust Grievance Nos. 2016-10998 and 2016-11220 until December 2016. That month, Wilson also submitted Grievance No. 2017-752 related to NDCS’s refusal to notarize Wilson’s marriage license. Wilson filed a step-two grievance, but it was returned unanswered for failure to follow proper procedure.
As Director of NDCS, Frakes was the ultimate decision maker regarding inmate marriages. NDCS Chief of Operations Diane Sabatka-Rine (“Sabatka-Rine”) denied both marriage grievances as Frakes’s designee. She explained that under the version of the marriage regulation in place at the time, inmates are not normally permitted to marry because of “potential risks to safety, security, or good order of facility,” and in this case, “an exception to this policy [was] not warranted.”
Wilson also appealed his institutional placement classification, arguing he was transferred in retaliation for exercising his right to marry. On January 17, 2017, the warden at LCC advised Wilson his appeal was denied because Wilson was “appropriately classified at Maximum custody and assigned to the [NSP].”
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On October 17, 2017, Wilson and Shadle filed a Second Amended Complaint (Filing No. 64) with the assistance of court-appointed counsel. The Second Amended Complaint alleged that the officials or their predecessors (Filing Nos. 88 and 99) (1) deliberately denied Wilson’s marriage application with no penological basis in violation of their “substantive due process based constitutional right to marry,” (2) refused to notarize Wilson’s signature on a required government affidavit to prevent or interfere with his effort to seek redress from the government, and (3) transferred Wilson from LCC to NSP in retaliation for him asking to marry Shadle and to obstruct and interfere with his efforts. Suing under 42 U.S.C § 1983, Wilson and Shadle asked the Court to grant an injunction allowing them to complete the application process and marry without interference by the NDCS officials and their successors.
On January 15, 2019, Shadle voluntarily moved (Filing No. 106) to dismiss her claims with prejudice. The Court granted (Filing No. 107) the motion, noting Wilson’s claims against the officials remained pending. On March 14, 2019, the officials moved (Filing No. 115) for summary judgment with a suggestion of mootness. The officials argued that if Shadle no longer wanted to marry Wilson, then the marriage claim should be denied as moot. In response, Wilson filed a motion for summary judgment (Filing No. 117) and cross motion for summary judgment (Filing No. 118). The Court denied (Filing No. 122) all three motions, finding the case was not moot because it was possible Shadle was willing to marry Wilson if the obstacles in their way were removed. Courtappointed counsel then withdrew.
On August 26, 2019, the officials again moved for summary judgment (Filing No. 155), primarily arguing Wilson had failed to exhaust his administrative remedies. Alternatively, the officials argued they “had a legitimate penological interest in denying Wilson’s request to marry Shadle due to the predatory nature of their relationship as well as the safety, security and good order of the institutions.” The officials further argued they “had a legitimate penological justification to transfer Wilson to NSP, given his sexual activities with Shadle.” Given the complexity of the issues raised in the officials’
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motion and the short time frame for Wilson to respond, the Court again appointed counsel (Filing No. 159) to assist Wilson in preparing a response.
On December 16, 2019, Wilson filed his response (Filing No. 169). Wilson contends he exhausted his administrative remedies, and that if he did not, the officials waived that defense by not raising it until their motion for summary judgment. Wilson further argues summary judgment is improper because the officials “have failed to articulate a legitimate penological interest in denying Wilson’s marriage to Shadle and there is evidence contradicting the [officials’] stated justifications for their decision.” With the officials’ reply (Filing No. 172), this matter is now fully briefed and ready for decision.
II. DISCUSSION A. Standard of Review Summary judgment is required when 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 deciding the officials’ motion for summary judgment, the Court views the facts in the light most favorable to Wilson and gives him the benefit of all reasonable inferences. See Crawford v. Van Buren County, 678 F.3d 666, 669 (8th Cir. 2012).
B. Exhaustion Section 1997e(a) of the PLRA requires prisoners to exhaust all available administrative remedies before filing suit. The exhaustion requirement is an attempt to “eliminate unwarranted federal-court interference with the administration of prisons.” Woodford v. Ngo, 548 U.S. 81, 93 (2006). The provision is also intended to reduce the number of suits, improve their quality, and promote efficiency in the court system. See Porter v. Nussle, 534 U.S. 516, 524-25 (2002).
The officials argue that Wilson’s claims must be dismissed because he did not exhaust his administrative remedies before filing suit on November 30, 2016. Wilson
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seems to suggest that he has met the PLRA exhaustion requirement because by the time he filed his Second Amended Complaint on October 17, 2017, he had exhausted his administrative remedies with respect to his marriage and retaliation claims. To the extent he makes such an argument, Wilson is mistaken.
Exhaustion is a prerequisite to filing suit. See 42 U.S.C. § 1997e(a) (“No action shall be brought with respect to prison conditions under section 1983 . . . until such administrative remedies as are available are exhausted.”). A prisoner cannot exhaust as he moves through the subsequent stages of the judicial process. See Johnson v. Jones, 340 F.3d 624 (8th Cir. 2003) (explaining courts must look to the time of filing to determine exhaustion). Therefore, dismissal is required under 1997e(a), unless the officials waived their exhaustion defense. See, e.g., Foulk v. Charrier, 262 F.3d 687, 697 (8th Cir. 2001) (recognizing the affirmative defense of exhaustion “can be waived”). Wilson says the officials did just that.
Federal Rule of Civil Procedure 8(b) requires a party responding to a pleading to “state in short and plain terms its defenses to each claim asserted against it.” Rule 8(c) further requires them to “affirmatively state any avoidance or affirmative defense” like exhaustion. In the officials’ answer (Filing No. 65), they did not specifically plead the exhaustion defense. Instead, they reserved “the right to assert, as an affirmative defense, that [Wilson has] failed to exhaust [his] available administrative remedies.” The officials then raised the failure to exhaust as an affirmative defense in the motion for summary judgment, which was after the second amended complaint.
Wilson argues the officials’ reservation of “the right to assert said defense in a later pleading” followed by a motion for summary judgment is inadequate to preserve their exhaustion defense. Wilson may be right, but the Court need not answer that question in this case.
Rule 8(c)’s “pleading requirement is intended to give the opposing party both notice of the affirmative defense and an opportunity to rebut it.” First Union Nat’l Bank
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v. Pictet Overseas Tr. Corp., 477 F.3d 616, 622 (8th Cir. 2007). The Eighth Circuit has held that a “technical failure to comply with Rule 8(c) is not fatal” as long as the “affirmative defense is raised in the trial court in a manner that does not result in unfair surprise.” Id. (quoting Fin. Timing Publ’ns, Inc. v. Compugraphic Corp., 893 F.2d 936, 944 n.9 (8th Cir. 1990)); see also Sherman v. Winco Fireworks, Inc., 532 F.3d 709, 71415 (8th Cir. 2008) (deciding “Rule 8(c) [wa]s not an absolute bar to a party’s belated attempt to plead an affirmative [preemption] defense”). Although Wilson argues that the officials failed to properly preserve their affirmative defense, this resulted in no “unfair surprise” to Wilson because he was on notice and had the opportunity to rebut the defense. See First Union, 477 F.3d at 622 (eschewing “a literal interpretation of the Rule that places form over substance”).

Since Wilson did not exhaust all three claims before filing suit and suffered no unfair surprise from the manner in which the officials raised the exhaustion defense, the Court finds this case should be dismissed without prejudice for failure to exhaust administrative remedies.

Accordingly,

IT IS ORDERED:
1. Defendants Jason Geerdes, Scott Frakes, Taggart Boyd, and Michele Capps’s Motion for Summary Judgment (Filing No. 155) is granted as it relates to the issue of exhaustion.
2. This case is dismissed without prejudice for failure to exhaust administrative remedies.
3. A separate judgment will issue.

Dated this 10th day of April 2020.

BY THE COURT:

Robert F. Rossiter, Jr. United States District Judge
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