Case: 7:07-cv-05004-JFB-TDT Document #: 1-1 Date Filed: 02/09/07 Page 1 of 11

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA

ARLYN J. EASTMAN, Personal

)

Representative of the Estate of

)

LINO LOWELL SPOTTED ELK, JR., )

Deceased,

)

)

Plaintiff,

)

)

vs.

)

)

COUNTY OF SHERIDAN, a Nebraska )

Political Subdivision,; LEVI MCKILLET, )

in his individual and official capacities; )

and DOES 1 - 5, in their individual

)

and official capacities,

)

)

Defendant.

)

Case No.
COMPLAINT, JURY DEMAND AND DESIGNATION OF PLACE OF TRIAL

Arlyn J. Eastman, Personal Representative of the Estate of Lino Lowell Spotted Elk, Jr.,

Deceased, Plaintiff in the above-captioned matter, by and through her counsel of record, for her

cause of action against Defendants, states as follows:

PARTIES, JURISDICTION AND VENUE

1.

Arlyn J. (LeRoy) Eastman (“EASTMAN”) is a resident of Rosebud, South Dakota.

Defendant County of Sheridan (“COUNTY”) is a Nebraska political subdivision. Defendant Levi

McKillet (“MCKILLET”) was employed by Defendant COUNTY as a correctional officer/jailer at

all relevant times, and is liable for his actions in his individual and official capacities. Defendants

DOES 1 - 5 are and were employed by Defendant COUNTY as correctional officers, jailers, and/or

law enforcement officers at all relevant times, and are liable for their actions in their individual and

official capacities. Any and all actions undertaken by any and all of the Defendants constituted

actions under color of state law.

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2. This action is brought pursuant to the provisions of 28 U.S.C. §§1331 and 1333 and 42 U.S.C. §1983. The proper venue for this action is the United States District Court for the District of Nebraska because the acts and omissions complained of herein occurred in Rushville, Sheridan County, Nebraska.
FACTUAL BACKGROUND 3.
On July 19, 2005, Lino Lowell Spotted Elk (“SPOTTED ELK”), then age 20, was arrested in Rushville, Sheridan County, Nebraska on an outstanding warrant, and was taken to the Sheridan County Jail in Rushville.
4. COUNTY agents and employees booked SPOTTED ELK into the jail, with the expectation that SPOTTED ELK would stay in the jail at least until a bond hearing could be convened and potentially until the disposition of the charge for which SPOTTED ELK had an outstanding warrant. Nevertheless, COUNTY agents and employees did not provide SPOTTED ELK with a jail uniform and remove SPOTTED ELK’s access to his own clothing, including his belt.
5. COUNTY agents and employees, including MCKILLET, failed to inquire regarding SPOTTED ELK’s mental health and suicidality during the intake/booking process in violation of the Nebraska Jail Standards, despite that SPOTTED ELK exhibited signs of mental illness and suicidality.
2

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6. COUNTY agents and employees thereafter disregarded and were deliberately indifferent to warning signs in SPOTTED ELK’s words and behavior of mental illness and suicidality.
7. Approximately one hour after his arrest, SPOTTED ELK was found hanging from his own belt in his cell. At the time of his death, SPOTTED ELK also had head contusions and visible injuries that he did not have before his arrest.
FIRST CAUSE OF ACTION 42 U.S.C. § 1983 – ALL DEFENDANTS
8. EASTMAN incorporates Paragraphs 1-7 above as if fully set forth herein.
9. SPOTTED ELK had a right under the Constitution of the United States to be free from excessive punishment and indifference to his medical needs, as well as a right to due process and equal protection, by employees of governmental entities.
10. At all times relevant to this Complaint, MCKILLET and DOES 1-10 were acting under color of law – under the constitutions, statutes, administrative rules, customs, policies and usages of the County of Sheridan, State of Nebraska and the United States – and had assumed the responsibilities, activities, and rights involved in exercising their roles as members of COUNTY’s professional staff.
3

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11. When SPOTTED ELK was under Defendants’ supervision and custody, Defendants acted with deliberate indifference to SPOTTED ELK’s known and recognized constitutional and legal rights to due process, equal protection and bodily integrity and to be free from excessive punishment and indifference to his medical needs. Defendants actively participated in the deprivation of SPOTTED ELK’s constitutional rights by causing SPOTTED ELK’s injuries and suicide.
12. Defendants’ conduct, within his duties as a member of COUNTY’s professional staff, under color of state law, deprived SPOTTED ELK of rights, privileges and immunities secured by the United States Constitution. Particularly, SPOTTED ELK was deprived of his constitutional liberty interest in due process, equal protection and bodily integrity and in freedom from excessive punishment and indifference to his medical needs.
13. As a result of Defendants’ deprivation of SPOTTED ELK’s constitutional liberty interests described above, EASTMAN has incurred damages.
SECOND CAUSE OF ACTION 42 U.S.C. § 1983 – DEFENDANT COUNTY
14. EASTMAN incorporates paragraphs 1-13 above as if fully set forth herein.
Count I – Policy or custom of ignoring reports 15.
4

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COUNTY had a special relationship with SPOTTED ELK by virtue of the fact that COUNTY had custody and control over SPOTTED ELK, such that SPOTTED ELK could not care for his own medical needs while incarcerated. In so doing, COUNTY had a duty to exercise reasonable care in the selection, training, assignment, supervision and retention of its professional staff, including MCKILLET and DOES.
16. By those failures set forth above, COUNTY acted with deliberate indifference to a known risk of constitutional deprivation to SPOTTED ELK and other detainees incarcerated in the Sheridan County Jail.
17. As a result of COUNTY’s deliberate indifference to the risk of deprivation of SPOTTED ELK’s constitutional liberty interests, EASTMAN incurred damages as set forth below.
18. SPOTTED ELK could not have reasonably discovered that COUNTY had a custom or practice of tolerating misconduct by employees, and of failing to provide adequate training and staffing to implement reasonable suicide prevention practices, because such knowledge was specifically held by officers and agents of COUNTY.
Count II – Failure to train 19.
At all times relevant to this Complaint, COUNTY had a custom or practice of failing to train its employees to be observant of and act upon signs and indications of suicidality in detainees.
5

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COUNTY failed to implement training materials and programs related to recognizing and understanding patterns of mental illness and suicide. In particular, COUNTY failed to train its employees to recognize the dangers and warning signs of suicide..
20. By failing to train its employees to recognize warning signs and dangers of mental illness and suicidality in detainees, COUNTY acted with deliberate indifference to a known risk of constitutional deprivation to SPOTTED ELK and other detainees.
21. As a result of COUNTY’s deliberate indifference to the risk of deprivation of SPOTTED ELK’s constitutional liberty interests set forth above, EASTMAN has incurred damages as set forth below.
THIRD CAUSE OF ACTION NEGLIGENT SUPERVISION AND RETENTION BY EPSD
22. Plaintiff incorporates paragraphs 1-21 above as if fully set forth herein.
23. The wrongful death of SPOTTED ELK was proximately caused by COUNTY in one or more of the following particulars: a. Failure to adequately assess SPOTTED ELK for mental illness and suicidality upon
booking SPOTTED ELK into the jail; b. Failure to adequately monitor and obtain mental health assistance for SPOTTED
ELK in the time between his admission to the jail and his death;
6

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c. Failure to train and supervise employees and agents in suicide assessment and suicide prevention, and to provide adequate staffing to carry out reasonable suicide assessment and prevention procedures;
d. Failure to follow Defendant’s own procedures for suicide prevention and assessment; e. Failure to respond reasonably to sounds and signs of distress by SPOTTED ELK in
his cell. f.
24. As a result of COUNTY’s negligent supervision and training of its professional staff and agents, EASTMAN has incurred damages as set forth below.
25. On July 17, 2006, EASTMAN submitted a Notice of Administrative Claim to the Sheridan County Commissioners, the Sheridan County Clerk, the Sheridan County Attorney, the Sheridan County Sheriff and the Sheridan County Jail Administrator. More than six months have passed with no response from Defendants. Accordingly, on February 8, 2007, Plaintiff withdrew her claim.
PUNITIVE DAMAGES 26.
Plaintiff incorporates by reference the allegations contained in paragraph 1-25 above as though fully set fourth herein.
27. In addition to compensatory damages, EASTMAN hereby makes a claim for punitive damages against defendants in an amount to be proven at trial for the willful and wanton acts and omissions of Defendants, to include violation of SPOTTED ELK’s civil rights, as alleged herein. The acts and omissions of Defendants in this case were so gross and culpable in nature that they
7

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constitute reckless indifference and wanton disregard for the law and for the lives and safety of others, including SPOTTED ELK. Defendants committed the acts and omissions alleged herein and subjected SPOTTED ELK to improper treatment that caused SPOTTED ELK to suffer psychological and psychiatric harm so severe that no person should be expected to endure it. Defendants’ actions should be punished, and an example should be made so that these actions and omissions are not repeated.
28. The recovery of punitive damages is permitted under the federal civil rights statutes for reckless and callous indifference to the federally protected rights of others, and is thus appropriate in this case. This instance of reckless and callous indifference to SPOTTED ELK’s safety and constitutional rights should be punished through the imposition of punitive damages so as to make an example of conduct that will not be tolerated.
ATTORNEY’S FEES 29.
Plaintiff incorporates by reference the allegations contained in 1-28 above as though fully set forth herein.
30. As a result of defendants’ actions as alleged herein, EASTMAN has been required to retain the services of attorneys and are entitled to a reasonable amount for attorney’s fee pursuant to 42 U.S.C. § 1988 for those violations covered by the Civil Rights Act.
8

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DAMAGES 31.
Plaintiff incorporates by reference the allegations contained in paragraph 1-30 above as though fully set forth herein.
32. The acts and omissions of defendants as set forth above have resulted in SPOTTED ELK’s death and damages to EASTMAN. By virtue of these damages, EASTMAN is entitled to the following damages:
A. Compensatory damages for the violation of SPOTTED ELK’s rights under the federal and state Constitutions;
B. Funeral expenses were incurred by EASTMAN following SPOTTED ELK’s death, which should have been absolutely unnecessary and needless, to the sum of not less than $5,000.00;
C. Loss of society and companionship in such amounts as are allowable by law;
D. Punitive damages to punish and deter the reprehensible conduct alleged in this Complaint;
E. Attorney’s fees; and F. The costs of this action and such other and further relief as this Court
deems equitable and proper. 33.
As a result of the negligent acts and omissions of Defendant described herein, SPOTTED ELK also sustained injuries that caused him pain, suffering, and mental anguish from the time that he was booked into the jail until his death.
9

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WHEREFORE, Plaintiff prays for judgment against the defendants as follows:
A. Plaintiff prays for damages in an amount which will fairly and justly compensate them
for the violation of their civil rights, their pain and suffering and other consequential
damages flowing from the violations and torts set forth herein;
B. Punitive damages in an amount sufficient to adequately punish defendants and to
deter future conduct of the type alleged in this Complaint;
C. For attorneys fees pursuant to 42 U.S.C. § 1988; and
D. For the costs of this action and for such other and further relief as this Court deems
equitable and proper.
JURY DEMAND AND DESIGNATION OF PLACE OF TRIAL
EASTMAN requests that this matter be tried to a jury in North Platte, Nebraska.
ARLYN J. EASTMAN, Personal Representative of the Estate of LINO LOWELL SPOTTED ELK, JR., Deceased, Plaintiff,
s/ Maren Lynn Chaloupka
By: Maren Lynn Chaloupka – NSBA # 20864
Chaloupka Holyoke Hofmeister Snyder & Chaloupka 1714 2nd Avenue P.O. Box 2424 Scottsbluff, Nebraska 69363-2424 (308) 635-5000 mlc@chhsclaw.net
AND
Robin L. Zephier – SDSBA # 1878 Abourezk Law Firm P.O. Box 9460
10

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11

 
 Case: 7:07-cv-05004-JFB-TDT Document #: 17 Date Filed: 04/24/07 Page 1 of 11

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA

ARLYN J. EASTMAN, Personal

)

Representative of the Estate of

)

LINO LOWELL SPOTTED ELK, JR., )

Deceased,

)

)

Plaintiff,

)

)

vs.

)

)

COUNTY OF SHERIDAN, a Nebraska )

Political Subdivision,; LEVI MCKILLET, )

in his individual and official capacities; )

and DOES 1 - 5, in their individual

)

and official capacities,

)

)

Defendant.

)

Case No. FIRST AMENDED COMPLAINT

Arlyn J. Eastman, Personal Representative of the Estate of Lino Lowell Spotted Elk, Jr.,

Deceased, Plaintiff in the above-captioned matter, by and through her counsel of record, for her

cause of action against Defendants, states as follows:

PARTIES, JURISDICTION AND VENUE

1.

Arlyn J. (LeRoy) Eastman (“EASTMAN”) is a resident of Rosebud, South Dakota.

Defendant County of Sheridan (“COUNTY”) is a Nebraska political subdivision. Defendant Levi

McKillet (“MCKILLET”) was employed by Defendant COUNTY as a correctional officer/jailer at

all relevant times, and is liable for his actions in his individual and official capacities. Defendants

DOES 1 - 5 are and were employed by Defendant COUNTY as correctional officers, jailers, and/or

law enforcement officers at all relevant times, and are liable for their actions in their individual and

official capacities. Any and all actions undertaken by any and all of the Defendants constituted

actions under color of state law. The damages in this case exceed $75,000.00 in value.

Case: 7:07-cv-05004-JFB-TDT Document #: 17 Date Filed: 04/24/07 Page 2 of 11
2. This action is brought pursuant to the provisions of 28 U.S.C. §§1331 and 1333 and 42 U.S.C. §1983. The proper venue for this action is the United States District Court for the District of Nebraska because the acts and omissions complained of herein occurred in Rushville, Sheridan County, Nebraska.
FACTUAL BACKGROUND 3.
On July 19, 2005, Lino Lowell Spotted Elk (“SPOTTED ELK”), then age 20, was arrested in Rushville, Sheridan County, Nebraska on an outstanding warrant, and was taken to the Sheridan County Jail in Rushville.
4. COUNTY agents and employees booked SPOTTED ELK into the jail, with the expectation that SPOTTED ELK would stay in the jail at least until a bond hearing could be convened and potentially until the disposition of the charge for which SPOTTED ELK had an outstanding warrant. Nevertheless, COUNTY agents and employees did not provide SPOTTED ELK with a jail uniform and remove SPOTTED ELK’s access to his own clothing, including his belt.
5. COUNTY agents and employees, including MCKILLET, failed to inquire regarding SPOTTED ELK’s mental health and suicidality during the intake/booking process in violation of the Nebraska Jail Standards, despite that SPOTTED ELK exhibited objective signs of clinicallydiagnosable and treatable mental illness and suicidality. SPOTTED ELK talked of suicide and was
2

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intoxicated to the point at which his reasoning and coping skills were impaired, which are indicators for mental health care triggering a civil and constitutional duty to protect SPOTTED ELK on the part of Defendants. From SPOTTED ELK’s statements and based on the Nebraska Jail Standards’ requirements for assessing mental health of prisoners upon intake, Defendants knew or should have known that SPOTTED ELK was mentally ill and suicidal.
6. COUNTY agents and employees thereafter disregarded and were deliberately indifferent to warning signs in SPOTTED ELK’s words and behavior of mental illness and suicidality. The need for medical care for SPOTTED ELK was so obvious that a trained jail person would or should recognize it.
7. Other inmates heard noise and struggling in SPOTTED ELK’s cell and called for help, but were ignored. Approximately one hour after his arrest, SPOTTED ELK was found hanging from his own belt in his cell. At the time of his death, SPOTTED ELK also had head contusions and visible injuries that he did not have before his arrest.
8. Suicide is a known risk to detainees in any detention center. The Nebraska Jail Standards require that jails train employees, and that employees follow such training, to assess detainees for mental health and suicidality upon booking into the jail. Notwithstanding, MCKILLET and DOES 1-5 did not assess SPOTTED ELK for mental health and suicidality and failed to respond to signs that he was mentally ill and suicidal, or to calls for help from other inmates who heard the noise and
3

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struggling in SPOTTED ELK’s cell. FIRST CAUSE OF ACTION
42 U.S.C. § 1983 – ALL DEFENDANTS 8.
EASTMAN incorporates Paragraphs 1-7 above as if fully set forth herein. 9.
SPOTTED ELK had a right under the Constitution of the United States to be free from excessive punishment, from all punishment (given that he was a pretrial detainee), and from indifference to his medical needs, as well as a right to due process and equal protection, by employees of governmental entities.
10. At all times relevant to this Complaint, MCKILLET and DOES 1-10 were acting under color of law – under the constitutions, statutes, administrative rules, customs, policies and usages of the County of Sheridan, State of Nebraska and the United States – and had assumed the responsibilities, activities, and rights involved in exercising their roles as members of COUNTY’s professional staff.
11. When SPOTTED ELK was under Defendants’ supervision and custody, Defendants acted with deliberate indifference to SPOTTED ELK’s known and recognized constitutional and legal rights to due process, equal protection and bodily integrity and to be free from excessive punishment and indifference to his medical needs. Defendants actively participated in the deprivation of
4

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SPOTTED ELK’s constitutional rights by causing SPOTTED ELK’s injuries and suicide. 12.
Defendants’ conduct, within his duties as a member of COUNTY’s professional staff, under color of state law, deprived SPOTTED ELK of rights, privileges and immunities secured by the United States Constitution. Particularly, SPOTTED ELK was deprived of his constitutional liberty interest in due process, equal protection and bodily integrity and in freedom from excessive punishment and indifference to his medical needs.
13. As a result of Defendants’ deprivation of SPOTTED ELK’s constitutional liberty interests described above, EASTMAN has incurred damages.
SECOND CAUSE OF ACTION 42 U.S.C. § 1983 – DEFENDANT COUNTY
14. EASTMAN incorporates paragraphs 1-13 above as if fully set forth herein.
Count I – Policy or custom of ignoring reports 15.
COUNTY had a special relationship with SPOTTED ELK by virtue of the fact that COUNTY had custody and control over SPOTTED ELK, such that SPOTTED ELK could not care for his own medical needs while incarcerated. In so doing, COUNTY had a duty to exercise reasonable care in the selection, training, assignment, supervision and retention of its professional staff, including MCKILLET and DOES.
5

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16. By those failures set forth above, COUNTY acted with deliberate indifference to a known risk of constitutional deprivation to SPOTTED ELK and other detainees incarcerated in the Sheridan County Jail. COUNTY thus acted according to a persistent, widespread practice of jail employees, which is so common and well-settled as to constitute a custom fairly representing municipal policy of providing inadequate assessment of and care for suicidal detainees.
17. As a result of COUNTY’s deliberate indifference to the risk of deprivation of SPOTTED ELK’s constitutional liberty interests, EASTMAN incurred damages as set forth below.
18. SPOTTED ELK could not have reasonably discovered that COUNTY had a custom or practice of tolerating misconduct by employees, and of failing to provide adequate training and staffing to implement reasonable suicide prevention practices, because such knowledge was specifically held by officers and agents of COUNTY.
Count II – Failure to train 19.
At all times relevant to this Complaint, COUNTY had a custom or practice of failing to train its employees to be observant of and act upon signs and indications of suicidality in detainees. COUNTY failed to implement training materials and programs related to recognizing and understanding patterns of mental illness and suicide. In particular, COUNTY failed to train its employees to recognize the dangers and warning signs of suicide..
6

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20. By failing to train its employees to recognize warning signs and dangers of mental illness and suicidality in detainees, COUNTY acted with deliberate indifference to a known risk of constitutional deprivation to SPOTTED ELK and other detainees.
21. As a result of COUNTY’s deliberate indifference to the risk of deprivation of SPOTTED ELK’s constitutional liberty interests set forth above, EASTMAN has incurred damages as set forth below.
THIRD CAUSE OF ACTION NEGLIGENT SUPERVISION AND RETENTION BY EPSD
22. Plaintiff incorporates paragraphs 1-21 above as if fully set forth herein.
23. The wrongful death of SPOTTED ELK was proximately caused by COUNTY in one or more of the following particulars: a. Failure to adequately assess SPOTTED ELK for mental illness and suicidality upon
booking SPOTTED ELK into the jail; b. Failure to adequately monitor and obtain mental health assistance for SPOTTED
ELK in the time between his admission to the jail and his death; c. Failure to train and supervise employees and agents in suicide assessment and suicide
prevention, and to provide adequate staffing to carry out reasonable suicide assessment and prevention procedures; d. Failure to follow Defendant’s own procedures for suicide prevention and assessment;
7

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e. Failure to respond reasonably to sounds and signs of distress by SPOTTED ELK in his cell.
f. 24.
As a result of COUNTY’s negligent supervision and training of its professional staff and agents, EASTMAN has incurred damages as set forth below.
25. On July 17, 2006, EASTMAN submitted a Notice of Administrative Claim to the Sheridan County Commissioners, the Sheridan County Clerk, the Sheridan County Attorney, the Sheridan County Sheriff and the Sheridan County Jail Administrator. More than six months have passed with no response from Defendants. Accordingly, on February 8, 2007, Plaintiff withdrew her claim.
PUNITIVE DAMAGES 26.
Plaintiff incorporates by reference the allegations contained in paragraph 1-25 above as though fully set fourth herein.
27. In addition to compensatory damages, EASTMAN hereby makes a claim for punitive damages against defendants in an amount to be proven at trial for the willful and wanton acts and omissions of Defendants, to include violation of SPOTTED ELK’s civil rights, as alleged herein. The acts and omissions of Defendants in this case were so gross and culpable in nature that they constitute reckless indifference and wanton disregard for the law and for the lives and safety of others, including SPOTTED ELK. Defendants committed the acts and omissions alleged herein and subjected SPOTTED ELK to improper treatment that caused SPOTTED ELK to suffer psychological
8

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and psychiatric harm so severe that no person should be expected to endure it. Defendants’ actions should be punished, and an example should be made so that these actions and omissions are not repeated.
28. The recovery of punitive damages is permitted under the federal civil rights statutes for reckless and callous indifference to the federally protected rights of others, and is thus appropriate in this case. This instance of reckless and callous indifference to SPOTTED ELK’s safety and constitutional rights should be punished through the imposition of punitive damages so as to make an example of conduct that will not be tolerated.
ATTORNEY’S FEES 29.
Plaintiff incorporates by reference the allegations contained in 1-28 above as though fully set forth herein.
30. As a result of defendants’ actions as alleged herein, EASTMAN has been required to retain the services of attorneys and are entitled to a reasonable amount for attorney’s fee pursuant to 42 U.S.C. § 1988 for those violations covered by the Civil Rights Act.
DAMAGES 31.
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Plaintiff incorporates by reference the allegations contained in paragraph 1-30 above as though fully set forth herein.
32. The acts and omissions of defendants as set forth above have resulted in SPOTTED ELK’s death and damages to EASTMAN. By virtue of these damages, EASTMAN is entitled to the following damages:
A. Compensatory damages for the violation of SPOTTED ELK’s rights under the federal and state Constitutions;
B. Funeral expenses were incurred by EASTMAN following SPOTTED ELK’s death, which should have been absolutely unnecessary and needless, to the sum of not less than $5,000.00;
C. Loss of society and companionship in such amounts as are allowable by law;
D. Punitive damages to punish and deter the reprehensible conduct alleged in this Complaint;
E. Attorney’s fees; and F. The costs of this action and such other and further relief as this Court
deems equitable and proper. 33.
As a result of the negligent acts and omissions of Defendant described herein, SPOTTED ELK also sustained injuries that caused him pain, suffering, and mental anguish from the time that he was booked into the jail until his death.
WHEREFORE, Plaintiff prays for judgment against the defendants as follows: A. Plaintiff prays for damages in an amount which will fairly and justly compensate them
10

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for the violation of their civil rights, their pain and suffering and other consequential
damages flowing from the violations and torts set forth herein;
B. Punitive damages in an amount sufficient to adequately punish defendants and to
deter future conduct of the type alleged in this Complaint;
C. For attorneys fees pursuant to 42 U.S.C. § 1988; and
D. For the costs of this action and for such other and further relief as this Court deems
equitable and proper.
JURY DEMAND AND DESIGNATION OF PLACE OF TRIAL
EASTMAN requests that this matter be tried to a jury in North Platte, Nebraska.
ARLYN J. EASTMAN, Personal Representative of the Estate of LINO LOWELL SPOTTED ELK, JR., Deceased, Plaintiff,
s/ Maren Lynn Chaloupka
By: Maren Lynn Chaloupka – NSBA # 20864
Chaloupka Holyoke Hofmeister Snyder & Chaloupka 1714 2nd Avenue P.O. Box 2424 Scottsbluff, Nebraska 69363-2424 (308) 635-5000 mlc@chhsclaw.net
AND
Robin L. Zephier – SDSBA # 1878 Abourezk Law Firm P.O. Box 9460 Rapid City, South Dakota 57709-9460 (605) 342-0097
11

 
 Case: 7:07-cv-05004-JFB-TDT Document #: 58 Date Filed: 10/22/07 Page 1 of 13

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA

ARLYN J. EASTMAN, Personal

Case No.07-cv 5004

Representative of the Estate of

)

LINO LOWELL SPOTTED ELK, JR., )

Deceased,

)

)

Plaintiff,

)

)

vs.

)

THIRD AMENDED COMPLAINT

)

COUNTY OF SHERIDAN, a

)

Nebraska Political Subdivision;

)

LEVI MCKILLET, in his individual

)

and official capacities; and

)

DOES 1-5, in their individual and

)

official capacities,

)

)

Defendants.

)

)

Arlyn J. Eastman, Personal Representative of the Estate of Lino Lowell Spotted Elk, Jr.,

Deceased, Plaintiff in the above-captioned matter, by and through her counsel of record, for her

cause of action against Defendants, states as follows:

PARTIES, JURISDICTION AND VENUE

1.

Arlyn J. (LeRoy) Eastman (“EASTMAN”) is a resident of Rosebud, South Dakota.

Defendant County of Sheridan (“COUNTY”) is a Nebraska political subdivision. Defendant

Levi McKillet (“MCKILLET”) was employed by Defendant COUNTY as a correctional

officer/jailer at all relevant times, and is liable for his actions in his individual and official

capacities. Defendants DOES 1 - 5 are and were employed by Defendant COUNTY as

correctional officers, jailers, and/or law enforcement officers at all relevant times, and are liable

1

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for their actions in their individual and official capacities. Any and all actions undertaken by any 2.
This action is brought pursuant to the provisions of U.S.C. §1983. The proper venue for this action is the United States District Court for the District of Nebraska because the acts and omissions complained of herein occurred in Rushville, Sheridan County, Nebraska.
FACTUAL BACKGROUND 3.
On July 19, 2005, Lino Lowell Spotted Elk (“SPOTTED ELK”), then age 20, was arrested in Rushville, Sheridan County, Nebraska on an outstanding warrant, and was taken to the Sheridan County Jail in Rushville.
4. COUNTY agents and employees booked SPOTTED ELK into the jail, with the expectation that SPOTTED ELK would stay in the jail at least until a bond hearing could be convened and potentially until the disposition of the charge for which SPOTTED ELK had an outstanding warrant. Nevertheless, COUNTY agents and employees did not provide SPOTTED ELK with a jail uniform and remove SPOTTED ELK’s access to his own clothing, including his belt.
5. COUNTY agents and employees, including MCKILLET, failed to inquire regarding SPOTTED ELK’s mental health and suicidality during the intake/booking process in violation of the Nebraska Jail Standards, despite that SPOTTED ELK exhibited objective signs of clinicallydiagnosable and treatable mental illness and suicidality. SPOTTED ELK talked of suicide and
2

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was intoxicated to the point at which his reasoning and coping skills were impaired, which are indicators for mental health care triggering a civil and constitutional duty to protect SPOTTED ELK on the part of Defendants. From SPOTTED ELK’s statements and based on the Nebraska Jail Standards’ requirements for assessing mental health of prisoners upon intake, Defendants knew or should have known that SPOTTED ELK was mentally ill and suicidal.
6. COUNTY agents and employees thereafter disregarded and were deliberately indifferent to warning signs in SPOTTED ELK’s words and behavior of mental illness and suicidality. The need for medical care for SPOTTED ELK was so obvious that a trained jail person would or should recognize it.
7. Other inmates heard noise and struggling in SPOTTED ELK’s cell and called for help, but were ignored. Approximately one hour after his arrest, SPOTTED ELK was found hanging from his own belt in his cell. At the time of his death, SPOTTED ELK also had head contusions and visible injuries that he did not have before his arrest
8. Suicide is a known risk to detainees in any detention center. The Nebraska Jail Standards require that jails train employees, and that employees follow such training, to assess detainees for mental health and suicidality upon booking into the jail. Notwithstanding, MCKILLET and DOES 1-5 did not assess SPOTTED ELK for mental health and suicidality and failed to respond to signs that he was mentally ill and suicidal, or to calls for help from other inmates who heard the noise and struggling in SPOTTED ELK’s cell.
3

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FIRST CAUSE OF ACTION 42 U.S.C. § 1983 – ALL DEFENDANTS
EASTMAN incorporates Paragraphs 1-8 above as if fully set forth herein. 9.
SPOTTED ELK had a right under the Constitution of the United States to be free from all punishment (given that he was a pretrial detainee), and from indifference to his medical needs, as well as a right to due process and equal protection, by employees of governmental entities.
10. At all times relevant to this Complaint, MCKILLET and DOES 1-10 were acting under color of law – under the constitutions, statutes, administrative rules, customs, policies and usages of the County of Sheridan, State of Nebraska and the United States – and had assumed the responsibilities, activities, and rights involved in exercising their roles as members of COUNTY’s professional staff.
11. When SPOTTED ELK was under Defendants’ supervision and custody, Defendants acted with deliberate indifference to SPOTTED ELK’s known and recognized constitutional and legal rights to due process, equal protection and bodily integrity (meaning, the right to life, to pursue his right to life and to have his body protected from harm to the extent that every human being has the same right to life and protection from harm), and to be free from indifference to his medical needs. To Plaintiff’s best knowledge or belief, SPOTTED ELK was a young Native
4

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American man and the named Defendants MCKILLET and the JOHN DOES, were white, and that part of the reason why Defendants were so callous and uncaring toward SPOTTED ELK and other Native American detainees was because of SPOTTED ELKS’ race. Defendants actively participated in the deprivation of SPOTTED ELK’s constitutional rights by causing SPOTTED ELK’s injuries and suicide. This includes subjecting SPOTTED ELK to disparate treatment based on the fact that SPOTTED ELK was Native American (Lakota), and COUNTY’s employees are Caucasian: Defendants made decisions based in racial animus regarding the need to follow jail procedures (including procedures for removal of prisoners’ belts), the need to assess SPOTTED ELK for mental illness/suicidality, and the need to provide SPOTTED ELK with adequate protection and medical care relative to mental illness/suicidality.
12. Defendants’ conduct, within his duties as a member of COUNTY’s professional staff, under color of state law, deprived SPOTTED ELK of rights, privileges and immunities secured by the United States Constitution. Particularly, SPOTTED ELK was deprived of his constitutional liberty interest in due process, equal protection and bodily integrity and in freedom from excessive punishment and indifference to his medical needs. This includes subjecting SPOTTED ELK to disparate treatment based on the fact that SPOTTED ELK was Native American (Lakota), and COUNTY’s employees are Caucasian: Defendants made decisions based in racial animus regarding the need to follow jail procedures (including procedures for removal of prisoners’ belts), the need to assess SPOTTED ELK for mental illness/suicidality, and the need to provide SPOTTED ELK with adequate protection and medical care relative to mental illness/suicidality. When Defendants assumed the role of guardians/custodians of certain
5

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prisoners, inmates, detainees or persons, Defendants are charged with the legal obligation to abide by at least the minimal protections of individual citizens’ constitutional rights, and not to subject any person within the Defendants’ care, custody, and control, and not to cause or prevent bodily harm or death to be had upon any detainee. Even an accused citizen in custody of Defendants, is entitled to be protected against the violation of even the most base constitutional protections while in custody, and not to be subject to negligent and/or intentional violations of Defendants own policies, procedures and protocol, which policies were likely designed to provide protection against the loss of a citizen’s bodily integrity through serious bodily injury, maiming or death, such as in the case of SPOTTED ELK.
13. As a result of Defendants’ deprivation of SPOTTED ELK’s constitutional liberty interests described above, EASTMAN has incurred damages.
SECOND CAUSE OF ACTION 42 U.S.C. § 1983 – DEFENDANT COUNTY
14. EASTMAN incorporates paragraphs 1-13 above as if fully set forth herein.
Count I – Policy or custom of ignoring reports 15.
COUNTY had a special relationship with SPOTTED ELK by virtue of the fact that COUNTY had custody and control over SPOTTED ELK, such that SPOTTED ELK could not care for his own medical needs while incarcerated. In so doing, COUNTY had a duty to exercise
6

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reasonable care in the selection, training, assignment, supervision and retention of its professional staff, including MCKILLET and DOES.
16. By those failures set forth above, COUNTY acted with deliberate indifference to a known risk of constitutional deprivation to SPOTTED ELK and other detainees incarcerated in the Sheridan County Jail. COUNTY thus acted according to a persistent, widespread practice of jail employees, which is so common and well-settled as to constitute a custom fairly representing municipal policy of providing inadequate assessment of and care for suicidal detainees.
17. As a result of COUNTY’s deliberate indifference to the risk of deprivation of SPOTTED ELK’s constitutional liberty interests, EASTMAN incurred damages as set forth below.
18. SPOTTED ELK could not have reasonably discovered that COUNTY had a custom or practice of tolerating misconduct by employees, and of failing to provide adequate training and staffing to implement reasonable suicide prevention practices, because such knowledge was specifically held by officers and agents of COUNTY.
Count II-Failure to Train 19.
At all times relevant to this Complaint, COUNTY had a custom or practice of failing to train its employees to be observant of and act upon signs and indications of suicidality in detainees. COUNTY failed to implement training materials and programs related to recognizing
7

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and understanding patterns of mental illness and suicide. In particular, COUNTY failed to train its employees to recognize the dangers and warning signs of suicide.
20. By failing to train its employees to recognize warning signs and dangers of mental illness and suicidality in detainees, COUNTY acted with deliberate indifference to a known risk of constitutional deprivation to SPOTTED ELK and other detainees.
21. As a result of COUNTY’s deliberate indifference to the risk of deprivation of SPOTTED ELK’s constitutional liberty interests set forth above, EASTMAN has incurred damages as set forth below.
THIRD CAUSE OF ACTION NEGLIGENT SUPERVISION AND RETENTION BY EPSD
22. Plaintiff incorporates paragraphs 1-21 above as if fully set forth herein.
23. The wrongful death of SPOTTED ELK was proximately caused by COUNTY in one or more of the following particulars: a. Failure to adequately assess SPOTTED ELK for mental illness and suicidality upon booking SPOTTED ELK into the jail; b. Failure to adequately monitor and obtain mental health assistance for SPOTTED ELK in the time between his admission to the jail and his death; c. Failure to train and supervise employees and agents in suicide assessment and suicide prevention, and to provide adequate staffing to carry out reasonable suicide assessment and prevention procedures;
8

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d. Failure to follow Defendant’s own procedures for suicide prevention and assessment; e. Failure to respond reasonably to sounds and signs of distress by SPOTTED ELK in his
cell. 24.
As a result of COUNTY’s negligent supervision and training of its professional staff and agents, EASTMAN has incurred damages as set forth below.
25. On July 17, 2006, EASTMAN submitted a Notice of Administrative Claim to the Sheridan County Commissioners, the Sheridan County Clerk, the Sheridan County Attorney, the Sheridan County Sheriff and the Sheridan County Jail Administrator. More than six months have passed with no response from Defendants. Accordingly, on February 8, 2007, Plaintiff withdrew her claim.
PUNITIVE DAMAGES 26.
Plaintiff incorporates by reference the allegations contained in paragraph 1-25 above as though fully set fourth herein.
27. In addition to compensatory damages, EASTMAN hereby makes a claim for punitive damages against defendants in an amount to be proven at trial for the willful and wanton acts and omissions of Defendants, to include violation of SPOTTED ELK’s civil rights, as alleged herein. The acts and omissions of Defendants in this case were so gross and culpable in nature that they constitute reckless indifference and wanton disregard for the law and for the lives and safety of
9

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others, including SPOTTED ELK. Defendants committed the acts and omissions alleged herein and subjected SPOTTED ELK to improper treatment that caused SPOTTED ELK to suffer psychological and psychiatric harm so severe that no person should be expected to endure it. Defendants’ actions should be punished, and an example should be made so that these actions and omissions are not repeated.
28. The recovery of punitive damages is permitted under the federal civil rights statutes for reckless and callous indifference to the federally protected rights of others, and is thus appropriate in this case. This instance of reckless and callous indifference to SPOTTED ELK’s safety and constitutional rights should be punished through the imposition of punitive damages so as to make an example of conduct that will not be tolerated.
29. Plaintiff incorporates by reference the allegations contained in 1-28 above as though fully set forth herein.
30. As a result of defendants’ actions as alleged herein, EASTMAN has been required to retain the services of attorneys and are entitled to a reasonable amount for attorney’s fee pursuant to 42 U.S.C. § 1988 for those violations covered by the Civil Rights Act.
DAMAGES 31.
Plaintiff incorporates by reference the allegations contained in paragraph 1-30 above as
10

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though fully set forth herein.
32.
The acts and omissions of defendants as set forth above have resulted in SPOTTED ELK’s death and damages to EASTMAN. By virtue of these damages, EASTMAN is entitled to the following damages:
A. Compensatory damages for the violation of SPOTTED ELK’s rights under the federal and state Constitutions;
B. Funeral expenses were incurred by EASTMAN following SPOTTED ELK’s death, which should have been absolutely unnecessary and needless, to the sum of not less than $5,000.00;
C. Loss of society and companionship in such amounts as are allowable by law; D. Punitive damages to punish and deter the reprehensible conduct alleged in this
Complaint; E. Attorney’s fees; and F. The costs of this action and such other and further relief as this Court deems equitable
and proper.
33.
As a result of the negligent acts and omissions of Defendant described herein, SPOTTED ELK also sustained injuries that caused him pain, suffering, and mental anguish from the time that he was booked into the jail until his death.
WHEREFORE, Plaintiff prays for judgment against the Defendants as follows:
A. Plaintiff prays for damages in an amount which will fairly and justly compensate them for the violation of their civil rights, their pain and suffering and other consequential damages flowing from the violations and torts set forth herein;
B. Punitive damages in an amount sufficient to adequately punish defendants and to deter future conduct of the type alleged in this Complaint;
11

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C. For attorneys fees pursuant to 42 U.S.C § 1988; and D. For the costs of this action and for such other and further relief as this Court deems
equitable and proper. JURY DEMAND AND DESIGNATION OF PLACE OF TRIAL
EASTMAN requests that this matter be tried to a jury in North Platte, Nebraska. ARLYN J. EASTMAN, Persona Representative of the Estate of LINO LOWELL SPOTTED ELK, JR., Deceased, Plaintiff, By: /s/ Robin L. Zephier Robin L. Zephier, SDSBA # 1878 Abourezk & Zephier P.C. 2020 West Omaha P.O. Box 9460 Rapid City, SD 57709 (605) 342-0097 AND Maren Lynn Chaloupka – NSBA # 20864 Chaloupka Holyoke Hofmeister Snyder & Chaloupka 1714 2nd Avenue P.O. Box 2424 Scottsbluff, Nebraska 69363-2424 (308) 635-5000
12

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CERTIFICATE OF SERVICE

I hereby certify that on this 18th day of October, 2007, I caused to be served, by electronic

filing, a true and correct copy of the Third Amended Complaint to:

Michael J. Javoronok JAVORONOK LAW FIRM 2425 Circle Drive, Suite 100 Scottsbluff, NE 69361 (308) 630-0202

By: /s/ Robin L. Zephier Robin L. Zephier

13

 
 7:07-cv-05004-JFB-TDT Doc # 92 Filed: 02/10/09 Page 1 of 11 - Page ID # 329

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA

ARLYN J. EASTMAN, Personal

)

Representative of the Estate of

)

LINO LOWELL SPOTTED ELK, JR., )

Deceased,

)

)

Plaintiff,

)

)

vs.

)

)

COUNTY OF SHERIDAN, a Nebraska )

Political Subdivision,; LEVI MCKILLIP, )

in his individual capacity;

)

and DOES 1 - 5, in their individual

)

capacities,

)

)

Defendant.

)

Case No. 7:07-cv-5004 FIFTH AMENDED COMPLAINT

Arlyn J. Eastman, Personal Representative of the Estate of Lino Lowell Spotted Elk, Jr.,

Deceased, Plaintiff in the above-captioned matter, by and through her counsel of record, for her

cause of action against Defendants, states as follows:

PARTIES, JURISDICTION AND VENUE

1.

Arlyn J. (LeRoy) Eastman (“EASTMAN”) is a resident of Rapid City, South Dakota.

Defendant County of Sheridan (“COUNTY”) is a Nebraska political subdivision. Defendant Levi

MCKILLIP (“MCKILLIP”) was employed by Defendant COUNTY as a correctional officer/jailer at

all relevant times, and is liable for his actions in his individual capacity. Defendants DOES 1 - 5 are

and were employed by Defendant COUNTY as correctional officers, jailers, and/or law enforcement

officers at all relevant times, and are liable for their actions in their individual capacities. Any and

all actions undertaken by any and all of the Defendants constituted actions under color of state law.

The damages in this case exceed $75,000.00 in value.

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2. This action is brought pursuant to the provisions of 28 U.S.C. §§1331 and 1333 and 42 U.S.C. §1983. The proper venue for this action is the United States District Court for the District of Nebraska because the acts and omissions complained of herein occurred in Rushville, Sheridan County, Nebraska.
FACTUAL BACKGROUND 3.
On July 19, 2005, Lino Lowell Spotted Elk (“SPOTTED ELK”), then age 20, was arrested in Rushville, Sheridan County, Nebraska on an outstanding warrant, and was taken to the Sheridan County Jail in Rushville.
4. COUNTY agents and employees booked SPOTTED ELK into the jail, with the expectation that SPOTTED ELK would stay in the jail at least until a bond hearing could be convened and potentially until the disposition of the charge for which SPOTTED ELK had an outstanding warrant. Nevertheless, COUNTY agents and employees did not provide SPOTTED ELK with a jail uniform and remove SPOTTED ELK’s access to his own clothing, including his belt.
5. COUNTY agents and employees who transported SPOTTED ELK to the jail failed to report that, during the drive from the site of SPOTTED ELK’s arrest to the jail, SPOTTED ELK exhibited objective signs of clinically-diagnosable and treatable mental illness and suicidality. This failure violated COUNTY policy, written or unwritten, requiring law enforcement to report to jailers any
2

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relevant information relating to risk of harm (including self-harm) to a prisoner. 6.
In violation of COUNTY policy, COUNTY agents and employees, including MCKILLIP, failed to inquire of the arresting officer regarding SPOTTED ELK’s mental health and suicidality during the intake/booking process in violation of the Nebraska Jail Standards, despite that SPOTTED ELK exhibited objective signs of clinically-diagnosable and treatable mental illness and suicidality. SPOTTED ELK talked of suicide and was intoxicated to the point at which his reasoning and coping skills were impaired, which are indicators for mental health care triggering a civil and constitutional duty to protect SPOTTED ELK on the part of Defendants. From SPOTTED ELK’s statements and based on the Nebraska Jail Standards’ requirements for assessing mental health of prisoners upon intake, Defendants knew or should have known that SPOTTED ELK was mentally ill and suicidal.
7. COUNTY agents, including but not limited to MCKILLIP, violated COUNTY policy by their failure to perform a reasonable pat search of SPOTTED ELK before committing him to a jail cell. A reasonable pat search would have revealed that SPOTTED ELK was wearing a belt, which should have been removed from him according to COUNTY policy.
8. COUNTY agents and employees thereafter disregarded and were deliberately indifferent to warning signs in SPOTTED ELK’s words and behavior of mental illness and suicidality. The need for medical care for SPOTTED ELK was so obvious that a trained jail person would or should
3

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recognize it. 9.
Other inmates heard noise and struggling in SPOTTED ELK’s cell and called for help, but were ignored. Approximately fifteen minutes after his arrest, SPOTTED ELK was found hanging from his own belt in his cell. At the time of his death, SPOTTED ELK also had head contusions and visible injuries that he did not have before his arrest.
10. Suicide is a known risk to detainees in any detention center. The Nebraska Jail Standards require that jails train employees, and that employees follow such training, to assess detainees for mental health and suicidality upon booking into the jail. Notwithstanding, MCKILLIP and DOES 1-5 did not assess SPOTTED ELK for mental health and suicidality and failed to respond to signs that he was mentally ill and suicidal, or to calls for help from other inmates who heard the noise and struggling in SPOTTED ELK’s cell.
FIRST CAUSE OF ACTION 42 U.S.C. § 1983 – ALL DEFENDANTS
11. EASTMAN incorporates Paragraphs 1-10 above as if fully set forth herein.
12. SPOTTED ELK had a right under the Constitution of the United States to be free from all punishment (given that he was a pretrial detainee), and from indifference to his medical needs, as well as a right to due process and equal protection, by employees of governmental entities.
4

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13. At all times relevant to this Complaint, MCKILLIP and DOES 1-5 were acting under color of law – under the constitutions, statutes, administrative rules, customs, policies and usages of the County of Sheridan, State of Nebraska and the United States – and had assumed the responsibilities, activities, and rights involved in exercising their roles as members of COUNTY’s professional staff.
14. When SPOTTED ELK was under Defendants’ supervision and custody, Defendants acted with deliberate indifference to SPOTTED ELK’s known and recognized constitutional and legal rights to due process, equal protection and bodily integrity and to be free from indifference to his medical needs. Defendants actively participated in the deprivation of SPOTTED ELK’s constitutional rights by causing SPOTTED ELK’s injuries and suicide. This includes subjecting SPOTTED ELK to disparate treatment based on the fact that SPOTTED ELK was Native American (Lakota), and COUNTY’s employees are Caucasian: Defendants made decisions based in racial animus regarding the need to follow jail procedures (including procedures for removal of prisoners’ belts), the need to assess SPOTTED ELK for mental illness/suicidality, and the need to provide SPOTTED ELK with adequate protection and medical care relative to mental illness/suicidality.
15. Defendants’ conduct, within his duties as a member of COUNTY’s professional staff, under color of state law, deprived SPOTTED ELK of rights, privileges and immunities secured by the United States Constitution. Particularly, SPOTTED ELK was deprived of his constitutional liberty interest in due process, equal protection and bodily integrity and in freedom from excessive
5

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punishment and indifference to his medical needs. This includes subjecting SPOTTED ELK to disparate treatment based on the fact that SPOTTED ELK was Native American (Lakota), and COUNTY’s employees are Caucasian: Defendants made decisions based in racial animus regarding the need to follow jail procedures (including procedures for removal of prisoners’ belts), the need to assess SPOTTED ELK for mental illness/suicidality, and the need to provide SPOTTED ELK with adequate protection and medical care relative to mental illness/suicidality.
16. As a result of Defendants’ deprivation of SPOTTED ELK’s constitutional liberty interests described above, EASTMAN has incurred damages.
SECOND CAUSE OF ACTION 42 U.S.C. § 1983 – DEFENDANT COUNTY
17. EASTMAN incorporates paragraphs 1-16 above as if fully set forth herein.
Count I – Policy or custom of ignoring reports 18.
COUNTY had a special relationship with SPOTTED ELK by virtue of the fact that COUNTY had custody and control over SPOTTED ELK, such that SPOTTED ELK could not care for his own medical needs while incarcerated. In so doing, COUNTY had a duty to exercise reasonable care in the selection, training, assignment, supervision and retention of its professional staff, including MCKILLIP and DOES.
19.
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By those failures set forth above, COUNTY acted with deliberate indifference to a known risk of constitutional deprivation to SPOTTED ELK and other detainees incarcerated in the Sheridan County Jail. COUNTY thus acted according to a persistent, widespread practice of jail employees, which is so common and well-settled as to constitute a custom fairly representing municipal policy of providing inadequate assessment of and care for suicidal detainees.
20. As a result of COUNTY’s deliberate indifference to the risk of deprivation of SPOTTED ELK’s constitutional liberty interests, EASTMAN incurred damages as set forth below.
21. SPOTTED ELK could not have reasonably discovered that COUNTY had a custom or practice of tolerating misconduct by employees, and of failing to provide adequate training and staffing to implement reasonable suicide prevention practices, because such knowledge was specifically held by officers and agents of COUNTY.
Count II – Failure to train 22.
At all times relevant to this Complaint, COUNTY had a custom or practice of failing to train its employees to be observant of and act upon signs and indications of suicidality in detainees. COUNTY failed to implement training materials and programs related to recognizing and understanding patterns of mental illness and suicide. In particular, COUNTY failed to train its employees to recognize the dangers and warning signs of suicide.
23.
7

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By failing to train its employees to recognize warning signs and dangers of mental illness and suicidality in detainees, COUNTY acted with deliberate indifference to a known risk of constitutional deprivation to SPOTTED ELK and other detainees.
24. As a result of COUNTY’s deliberate indifference to the risk of deprivation of SPOTTED ELK’s constitutional liberty interests set forth above, EASTMAN has incurred damages as set forth below.
THIRD CAUSE OF ACTION NEGLIGENT SUPERVISION AND RETENTION BY EPSD
25. Plaintiff incorporates paragraphs 1-21 above as if fully set forth herein.
26. The wrongful death of SPOTTED ELK was proximately caused by COUNTY in one or more of the following particulars: a. Failure to adequately assess SPOTTED ELK for mental illness and suicidality upon
booking SPOTTED ELK into the jail; b. Failure to adequately monitor and obtain mental health assistance for SPOTTED
ELK in the time between his admission to the jail and his death; c. Failure to train and supervise employees and agents in suicide assessment and suicide
prevention, and to provide adequate staffing to carry out reasonable suicide assessment and prevention procedures; d. Failure to follow Defendant’s own procedures for suicide prevention and assessment; e. Failure to respond reasonably to sounds and signs of distress by SPOTTED ELK in his cell.
8

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f. Failure to communicate with other COUNTY agents and employees regarding relevant information about SPOTTED ELK’s behavior during transportation from the site of his arrest to the jail;
g. Failure to detect and remove SPOTTED ELK’s belt before placing SPOTTED ELK in a jail cell. 27.
As a result of COUNTY’s negligent supervision and training of its professional staff and agents, EASTMAN has incurred damages as set forth below.
28. On July 17, 2006, EASTMAN submitted a Notice of Administrative Claim to the Sheridan County Commissioners, the Sheridan County Clerk, the Sheridan County Attorney, the Sheridan County Sheriff and the Sheridan County Jail Administrator. More than six months have passed with no response from Defendants. Accordingly, on February 8, 2007, Plaintiff withdrew her claim.
ATTORNEY’S FEES 29.
Plaintiff incorporates by reference the allegations contained in 1-28 above as though fully set forth herein.
30. As a result of defendants’ actions as alleged herein, EASTMAN has been required to retain the services of attorneys and are entitled to a reasonable amount for attorney’s fee pursuant to 42 U.S.C. § 1988 for those violations covered by the Civil Rights Act.
DAMAGES 31.
9

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Plaintiff incorporates by reference the allegations contained in paragraph 1-30 above as though fully set forth herein.
32. The acts and omissions of defendants as set forth above have resulted in SPOTTED ELK’s death and damages to EASTMAN. By virtue of these damages, EASTMAN is entitled to the following damages:
A. Compensatory damages for the violation of SPOTTED ELK’s rights under the federal and state Constitutions;
B. Funeral expenses were incurred by EASTMAN following SPOTTED ELK’s death, which should have been absolutely unnecessary and needless, to the sum of not less than $5,000.00;
C. Loss of society and companionship in such amounts as are allowable by law;
D. Punitive damages to punish and deter the reprehensible conduct alleged in this Complaint;
E. Attorney’s fees; and F. The costs of this action and such other and further relief as this Court
deems equitable and proper. 33.
As a result of the negligent acts and omissions of Defendant described herein, SPOTTED ELK also sustained injuries that caused him pain, suffering, and mental anguish from the time that he was booked into the jail until his death.
WHEREFORE, Plaintiff prays for judgment against the defendants as follows: A. Plaintiff prays for damages in an amount which will fairly and justly compensate them
10

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for the violation of their civil rights, their pain and suffering and other consequential
damages flowing from the violations and torts set forth herein;
B. Punitive damages in an amount sufficient to adequately punish defendants and to
deter future conduct of the type alleged in this Complaint;
C. For attorneys fees pursuant to 42 U.S.C. § 1988; and
D. For the costs of this action and for such other and further relief as this Court deems
equitable and proper.
JURY DEMAND AND DESIGNATION OF PLACE OF TRIAL
EASTMAN requests that this matter be tried to a jury in North Platte, Nebraska.
ARLYN J. EASTMAN, Personal Representative of the Estate of LINO LOWELL SPOTTED ELK, JR., Deceased, Plaintiff,
s/ Maren Lynn Chaloupka
By: Maren Lynn Chaloupka – NSBA # 20864
Chaloupka Holyoke Hofmeister Snyder & Chaloupka 1714 2nd Avenue P.O. Box 2424 Scottsbluff, Nebraska 69363-2424 (308) 635-5000 mlc@chhsclaw.net
AND
Robin L. Zephier – SDSBA # 1878 Abourezk Law Firm P.O. Box 9460 Rapid City, South Dakota 57709-9460 (605) 342-0097
11

 
 7:07-cv-05004-JFB-TDT Doc # 140 Filed: 05/06/10 Page 1 of 5 - Page ID # 561

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA

ARLYN J. EASTMAN, Personal

)

Representative of the Estate of

)

LINO LOWELL SPOTTED ELK, JR., )

Deceased,

)

)

Plaintiff,

)

)

vs.

)

)

COUNTY OF SHERIDAN, a Nebraska )

Political Subdivision,; LEVI MCKILLIP, )

in his individual and official capacities; )

and DOES 1 - 5, in their individual

)

and official capacities,

)

)

Defendant.

)

Case No. 7:07-cv-5004
PLAINTIFF’S MOTION TO ENFORCE SETTLEMENT

Arlyn J. Eastman, Personal Representative of the Estate of Lino Lowell Spotted Elk, Jr., Deceased, Plaintiff in the above-captioned matter, by and through her counsel of record, moves this Court for an order enforcing the settlement accepted by Plaintiff at 12:05 p.m. on May 6, 2010, in these particulars:
1. Exhibit “U” to the Evidence Index in support of this Motion is the undersigned’s May 6, 2010 e-mail to Mrs. Cecava, with an attachment to the e-mail containing the agreed-upon language and terms for changes to Sheridan County Department of Corrections Policies & Procedures. The attachment to that e-mail, contained in Exhibit “U,” constitutes the policy component of this settlement. That would be the component of the settlement that is at issue in this Motion. The payment of $100,000.00, allowance of Mrs. Eastman and a medicine man into the “drunk tank” to pray and return of Jay Spotted Elk’s belongings is not at issue in this Motion.

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2. Since we first made a settlement offer to the defense on January 15, 2010, we have asked for settlement to include both monetary and non-monetary components. The non-monetary components include changes to the suicide prevention policies for the Sheridan County Department of Corrections.
3. Over the preceding 48 hours, negotiation over the terms of the suicide prevention policies has focused primarily on (1) how the jail will agree to interface with the Suicide Prevention Programs of the Pine Ride Oglala and Rosebud tribes; and (2) how Plaintiff may enforce the settlement (to include COUNTY agreeing to provide an annual compliance report beginning February 2, 2011 until 2014). These negotiations took place via e-mail between the undersigned and defense counsel Kris Cecava. Policy language was drafted by the undersigned and provided in attachments to e-mails to Mrs. Cecava; Mrs. Cecava would write back and suggest changes, which the undersigned would incorporate into the draft and reattach revised drafts for Mrs. Cecava’s review.
4. Relative to the issue of how the jail would contact the area tribal Suicide Prevention Programs, on May 5, 2010, Mrs. Cecava had agreed that COUNTY “could have local numbers for both the Pine Ridge and Rosebud tribes as by far the majority [of Native American detainees in the Sheridan County jail] are from one of those two.” (Evidence Index, Exhibit “N.”) The undersigned incorporated that change into a draft proposal which provided that “the booking desk at the jail will keep the contact information for the Suicide Prevention Program for the Pine Ridge Oglala and
2

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Rosebud tribes” (Evidence Index, Exhibit “R” and attachment), and provided that to Mrs. Cecava. 5.
After reviewing the attachment to Exhibit “R” at 9:29 on the morning of May 6, Mrs. Cecava suggested changes, but no changes relative to the issue addressed in the immediately preceding paragraph – which, to the undersigned, signaled acceptance (particularly since the draft language accommodated the request Mrs. Cecava had made the day before).
6. The only change Mrs. Cecava proposed was to remove the enforcement provision of the proposed policy. (Evidence Index, Exhibit “S.”) The undersigned wrote back at 9:35 that removing the enforcement provision was not acceptable. (Evidence Index, Exhibit “T.”
7. At 11:37 a.m., Mrs. Cecava wrote that “the enforceability in the first part of the paragraph would remain the same [as what the undersigned had proposed earlier] with the words ‘Mrs. Eastman and her attorneys’ replaced with ‘plaintiff.’ If you really want an annual report for four years, I think it can be done. Let’s wrap this up.” (Evidence Index, Exhibit “T.”)
8. The undersigned made the change of substituting “plaintiff” for “Mrs. Eastman and her attorneys” in the enforcement provision of the proposed policy and sent it to Mrs. Cecava. (Evidence Index, Exhibit “U.”) The undersigned then contacted her client and confirmed that her client would accept this change (the undersigned had communicated all other negotiations over the terms of the policy changes over the preceding days). At 12:05, the undersigned advised Mrs. Cecava that Mrs.
3

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Eastman had approved the language. (Evidence Index, Exhibit “V.”) 9.
The undersigned heard nothing from Mrs. Cecava until approximately 4:45, when she was advised that Mrs. Cecava had called and said “there’s no settlement,” or something to that effect. At 5:15, Mrs. Cecava faxed correspondence to the undersigned that materially changed the terms of the policy-change component of the settlement. (Evidence Index, Exhibit “W.”)
10. The 5:15 fax proposed to eliminate the enforcement portion that had been offered and accepted on the morning of May 6. The 5:15 fax also materially changed the procedure by which the Sheridan County Jail would contact the tribe’s Suicide Prevention Program upon ascertaining whether a suicidal inmate were a member of a Native American tribe, which had been drafted by the undersigned on May 5 as an acceptance of Mrs. Cecava’s offer and which Mrs. Cecava never proposed to change (consistent with the language being in accordance with her May 5 offer). WHEREFORE, Plaintiff asks this Court to enforce the settlement as offered in these particulars: a. Changes to the Sheridan County Department of Corrections Policy &
Procedure Manual as set forth in the attachment to the undersigned’s 11:45 a.m. e-mail of May 6, 2010 (Evidence Index, Exhibit “U”); b. Payment of $100,000.00; c. Permission for Mrs. Eastman and a Lakota medicine man to pray in the “drunk tank” of the Sheridan County jail; and d. Return of any belongings retained by Sheridan County after Jay Spotted Elk’s death, to include his belt and any other personal property not yet returned to Mrs. Eastman.
4

7:07-cv-05004-JFB-TDT Doc # 140 Filed: 05/06/10 Page 5 of 5 - Page ID # 565
ARLYN J. EASTMAN, Personal Representative of the Estate of LINO LOWELL SPOTTED ELK, JR., Deceased, Plaintiff,
By: /s/ Maren Lynn Chaloupka Maren Lynn Chaloupka – NSBA # 20864
Chaloupka Holyoke Hofmeister Snyder & Chaloupka 1714 2nd Avenue P.O. Box 2424 Scottsbluff, Nebraska 69363-2424 (308) 635-5000 mlc@chhsclaw.net
AND Robin L. Zephier – SDSBA # 1878 Abourezk Law Firm P.O. Box 9460 Rapid City, South Dakota 57709-9460 (605) 342-0097 Attorneys for Plaintiff
CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the above and foregoing document was served via facsimile and CM/ECF filing on the 6th day of May, 2010 to the following: Kristine Cecava Attorney at Law 2425 Circle Drive, Suite 100 Scottsbluff, NE 69361
/s/ Maren Lynn Chaloupka
5

 
 7:07-cv-05004-JFB-TDT Doc # 143 Filed: 05/07/10 Page 1 of 7 - Page ID # 640

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA

ARLYN J. EASTMAN, Personal

)

Representative of the Estate of

)

LINO LOWELL SPOTTED ELK, JR., )

Deceased,

)

)

Plaintiff,

)

)

vs.

)

)

COUNTY OF SHERIDAN, a Nebraska )

Political Subdivision,; LEVI MCKILLIP, )

in his individual and official capacities; )

and DOES 1 - 5, in their individual

)

and official capacities,

)

)

Defendant.

)

Case No. 7:07-cv-5004
BRIEF IN SUPPORT OF PLAINTIFF’S MOTION TO ENFORCE SETTLEMENT

Arlyn J. Eastman, Personal Representative of the Estate of Lino Lowell Spotted Elk, Jr., Deceased, Plaintiff in the above-captioned matter, by and through her counsel of record,
ARGUMENT I.
Standard of Review One who attacks a settlement agreement must ear the burden of showing that the contract he made is tainted with invalidity, either by fraud practiced upon him or by a mutual mistake under which both parties acted. Brown v. Nationscredit Commercial, 2000 WL 888507 (D. Conn. 2000).
II. THE PARTIES HAD MUTUALLY ASSENTED TO ALL TERMS AND CONDITIONS BY 12:05 P.M., LEAVING NOTHING REMAINING EXCEPT PHRASING It is well-established that parties are bound to the terms of a contract even though it is not

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signed (or even written). Main Line Theatres, Inc. v. Paramount Film Dist. Corp., 298 F.2d 801, 802-04 (3d Cir. 1962). The only essential prerequisite for a valid settlement agreement is that the parties mutually assent to the terms and conditions of the settlement. Pugh v. Super Fresh Food Mkts., Inc., 640 F. Supp. 1306, 1308 (E.D. Pa. 1986). Moreover, a settlement is still binding even if a party has a change of heart between the time of the settlement ot the terms of the settlement and the time that those terms are reduced to writing. Brown v. Nationscredit Commercial, supra, 2000 WL 888507 at *2. Once a settlement is reached, the agreement may not be repudiated by either party. V’Soske v. Barwick, 404 F.2d 492 (2d Cir. 1968) (agreement enforced against defendant despite failure to agree on several significant terms). Rather, such an agreement will be summarily enforced by the court.
In Omega Engineering, Inc. v. Omega, SA, 2004 WL 2191588 (D. Conn. 2004), the United States District Court for the District of Connecticut reviewed a motion to enforce a settlement agreement from a trademark dispute: it was presented with the question of whether the parties had reached any agreement in the first place.
Several days before a court-ordered settlement conference, the parties had engaged in settlement discussions between themselves. The plaintiff had proposed language for a settlement agreement on a specific point, that being that the plaintiff would include a reference on its shipping boxes and its products to its corporation, for clarity of identification. The defense counsel had responded that the were “generally in accord on this point,” but suggested an alternative that the plaintiff declined to accept. Id. at *2. Later in the same day, the defense reformulated its proposal to more closely mirror what the plaintiff had originally suggested. As the court observed, no further
2

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discussions regarding the identification of the “Omega” mark on the plaintiff’s products occurred until the settlement conference.
At the settlement conference, counsel for both sides were accompanied by representatives with authority to settle the case. The parties came to an agreement that included all material terms, and specifically included a provision that related to how the plaintiff would identify itself on its products. The language was essentially the same as the language in the defendant’s second written proposal. The parties did not sign the agreement prepared during the settlement conference. Id. at *3. They did, however, agree that the case had been settled.
One day following the settlement conference, the plaintiff signed the settlement agreement. The defense counsel refused to sign it, and sent an e-mail to the plaintiff’s counsel, stating that the defendant wanted the parties to enter into a “side letter” which materially changed the provision of the agreement relating to how the plaintiff would identify its product – the same provision that had been successfully addressed in the parties’ pre-settlement conference discussions. Id. The plaintiff refused to agree to this change, and filed a motion to enforce the settlement.
The defense first claimed that the court did not even have jurisdiction to enforce any agreement – an argument that the court rejected: “One cannot dispute that the court retains jurisdiction, prior to the dismissal of a case, to enforce a settlement agreement in a case over which it provided.” Id. at *4. The court observed that the policy favoring the settlement of disputes, and the avoidance of costs and time-consuming trials, “preserves the integrity of settlement as a meaningful way to resolve legal disputes.” Id.
The defense then argued that there was no settlement because no stipulation of dismissal had
3

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been entered. The court dismissed this argument as well: [T]hat a party files a motion to enforce a settlement agreement means precisely that it believes an agreement has been reached and the other party seeks to renege on that agreement.
Id. at *5. The court observed that the plaintiff had sought a continuance to extend the dismissal case originally ordered under the local rules for submitting closing papers – which was more evidence to support a finding that the case had settled.1
The defense next argued that there was no settlement because the parties were not bound by an agreement that had not been signed by both parties. The court rejected defense’s characterization of the settlement as “hastily thrown together,” and observed that the parties had spent a day in chambers “meticulously working out the details of the agreement” (just as in this case, in which counsel spent two days “meticulously working out the details of [this] agreement”). Id. at *7. The defense had had “more than a reasonable opportunity” to review the terms – consistent with this case, in which Sheriff Robbins was actually in Mrs. Cecava’s office during a portion of the negotiations over language. (Evidence Index, Exhibit “N.”)
Finally, the defense argued that the motion to enforce the settlement should be denied because it had “identified and conveyed its disapproval of the agreement almost immediately.” On this point, the court observed that “the client was present during the negotiations” – as in this case – “and participated in the agreement’s development and reduction to writing.” Id. at *7. The fact
1Plaintiff herein would have filed a similar motion had things not “blown up” as quickly as they did. In fact, the undersigned proposed exactly that type of motion to Mrs. Cecava in her May 6, 2010 e-mail sent at 7:55 a.m. (Evidence Index, Exhibit “R”), another provision to which Mrs. Cecava never registered any objection.
4

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that the agreement now contained disputed terms was “not persuasive at all” – the court found that
the parties had manifested their mutual assent to the terms and conditions of the agreement; and
that the agreement was binding and enforceable.
The Omega court noted authority for the proposition that a court should refuse to enforce
a settlement agreement if a party fails to show that the parties “mutually assented to all of the
essential terms and conditions of settlement.” Id. at *6. That would apply here, if we failed to show
that Defendants and Mrs. Eastman “mutually assented to all of the essential terms and conditions
of settlement.” We have not so failed, however.
By 12:05 on May 6, the parties had mutually assented to these essential terms and conditions:
* That COUNTY would perform annual training, and after any future suicide attempt in the jail would debrief, investigate and document findings, and review suicide prevention policies with its employees. That provision was offered by the defense on May 5, 2010 at 10:51 a.m. (Evidence Index, Exhibit “N.”) and accepted by the undersigned on May 6, 2010 at 11:45 a.m. (Evidence Index, Exhibit “U,” attachment to e-mail.)
* That COUNTY would agree to communicate with the Pine Ridge Oglala and Rosebud tribal Suicide Prevention Programs, rather than just calling a 1-800 national hotline. That provision was offered by the defense on May 5, 2010 at 10:51 a.m. (Evidence Index, Exhibit “N”) and accepted by the undersigned on May 5, 2010 at 11:27 a.m. (Evidence Index, Exhibit “P.”)
* That COUNTY would agree to an enforcement provision that would include providing an annual compliance report to Mrs. Eastman. That provision was offered on May 6, 2010 at 11:37 a.m. (Evidence Index, Exhibit “T”) and accepted by the undersigned on May 6, 2010 at 12:06 p.m. (Evidence Index, Exhibit “V.”)
The parties had, many days before, agreed to other monetary (payment of $100,000.00) and
nonmonetary (return of Jay Spotted Elk’s belongings, permission for Mrs. Eastman to pray in the
“drunk tank”) provisions of settlement; these provisions came into agreement over the course of the
5

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e-mails submitted in the Evidence Index. If defense counsel had made these offers without authority from her client, that is not grounds
for reneging on the agreement and, at 5:15 (Evidence Index, Exhibit “W”), removing the enforcement provision and substituting “call an 800 number” for the requirement of contacting the local tribes. The finding of this Court should follow the Omega court’s finding:
Having taken itself out from “under the gun” of imminent trial, [the defense] broke its word, reneged on the contract and now attempts to use the contract it broke as a springboard from which to negotiate an even better deal. This is what happened here. It should not be countenanced by a United States court. Judges must not be blind to what others see. See, e.g., Omega Engineering, *10.
CONCLUSION For the above-stated reasons, Plaintiff asks this Court to enforce the settlement as offered in these particulars: a. Changes to the Sheridan County Department of Corrections Policy &
Procedure Manual as set forth in the attachment to the undersigned’s 11:45 a.m. e-mail of May 6, 2010 (Evidence Index, Exhibit “U”); b. Payment of $100,000.00; c. Permission for Mrs. Eastman and a Lakota medicine man to pray in the “drunk tank” of the Sheridan County jail; and d. Return of any belongings retained by Sheridan County after Jay Spotted Elk’s death, to include his belt and any other personal property not yet returned to Mrs. Eastman.
6

7:07-cv-05004-JFB-TDT Doc # 143 Filed: 05/07/10 Page 7 of 7 - Page ID # 646
ARLYN J. EASTMAN, Personal Representative of the Estate of LINO LOWELL SPOTTED ELK, JR., Deceased, Plaintiff,
By: /s/ Maren Lynn Chaloupka Maren Lynn Chaloupka – NSBA # 20864
Chaloupka Holyoke Hofmeister Snyder & Chaloupka 1714 2nd Avenue P.O. Box 2424 Scottsbluff, Nebraska 69363-2424 (308) 635-5000 mlc@chhsclaw.net
AND Robin L. Zephier – SDSBA # 1878 Abourezk Law Firm P.O. Box 9460 Rapid City, South Dakota 57709-9460 (605) 342-0097 Attorneys for Plaintiff
CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the above and foregoing document was served via facsimile and CM/ECF filing on the 7th day of May, 2010 to the following: Kristine Cecava Attorney at Law 2425 Circle Drive, Suite 100 Scottsbluff, NE 69361
/s/ Maren Lynn Chaloupka
7

 
 Case: 7:07-cv-05004-JFB-TDT As of: 01/04/2012 09:14 PM CST 1 of 12
CLOSED,TRIAL−NORTHPLATTE
U.S. District Court District of Nebraska (7 North Platte) CIVIL DOCKET FOR CASE #: 7:07−cv−05004−JFB−TDT

Eastman et al v. Sheridan, County of et al Assigned to: Judge Joseph F. Bataillon Referred to: Magistrate Judge Thomas D. Thalken Cause: 42:1983 Prisoner Civil Rights
Plaintiff

Date Filed: 02/09/2007 Date Terminated: 09/15/2010 Jury Demand: Plaintiff Nature of Suit: 550 Prisoner: Civil Rights Jurisdiction: Federal Question

Arlyn J. Eastman Personal Representative Of The Estate Of The Deceased − Lino Lowell Spotted Elk, Jr.

represented by Maren L. Chaloupka CHALOUPKA, HOLYOKE LAW FIRM P.O. Box 2424 Scottsbluff, NE 69363 (308) 635−5000 Fax: (308) 635−8000 Email: mlc@chhsclaw.net ATTORNEY TO BE NOTICED

Robin L. Zephier ABOUREZK, ZEPHIER LAW FIRM 2020 West Omaha Rapid City, SD 57702 (605) 342−0097 Fax: (605) 342−5170 Email: zephrl@rushmore.com ATTORNEY TO BE NOTICED

Plaintiff
Lino Lowell Spotted Elk, Jr. Deceased

represented by Maren L. Chaloupka (See above for address) ATTORNEY TO BE NOTICED

Robin L. Zephier (See above for address) ATTORNEY TO BE NOTICED

V.
Defendant
Sheridan, County of A Nebraska Political Subdivision

represented by Kristine R. Cecava JAVORONOK, NEILAN LAW FIRM 2425 Circle Drive Suite 100 Scottsbluff, NE 69361−1791 (308) 630−0808 Fax: (308) 630−0771 Email: cecava@usa.net ATTORNEY TO BE NOTICED
Michael J. Javoronok JAVORONOK, NEILAN LAW FIRM 2425 Circle Drive Suite 100 Scottsbluff, NE 69361−1791 (308) 630−0808 Fax: (308) 630−0771 Email: mjavoronok@mjjlaw.com ATTORNEY TO BE NOTICED

Case: 7:07-cv-05004-JFB-TDT As of: 01/04/2012 09:14 PM CST 2 of 12

Defendant Levi McKillet In His Individual And Official Capacities TERMINATED: 02/12/2009
Defendant Does 1−5 In Their Individual Capacities
Defendant Levi McKillip In His Individual Capacity

Monte L. Neilan JAVORONOK, NEILAN LAW FIRM 2425 Circle Drive Suite 100 Scottsbluff, NE 69361−1791 (308) 630−0808 Fax: (308) 630−0771 Email: mneilan@mjjlaw.com ATTORNEY TO BE NOTICED
represented by Kristine R. Cecava (See above for address) ATTORNEY TO BE NOTICED
Michael J. Javoronok (See above for address) ATTORNEY TO BE NOTICED
Monte L. Neilan (See above for address) ATTORNEY TO BE NOTICED
represented by Kristine R. Cecava (See above for address) ATTORNEY TO BE NOTICED
Michael J. Javoronok (See above for address) ATTORNEY TO BE NOTICED
Monte L. Neilan (See above for address) ATTORNEY TO BE NOTICED
represented by Kristine R. Cecava (See above for address) ATTORNEY TO BE NOTICED
Michael J. Javoronok (See above for address) ATTORNEY TO BE NOTICED
Monte L. Neilan (See above for address) ATTORNEY TO BE NOTICED

Date Filed 02/09/2007
02/12/2007

# Docket Text
1 COMPLAINT with Jury Demand against all defendants (Filing fee $ 350, receipt number 922034), by Attorney Maren L. Chaloupka on behalf of ARLYN J. EASTMAN (Attachments: #(1) Complaint)(Chaloupka, Maren) Modified on 2/12/2007 to indicate the complaint is actually attachment #1 (JSF). (Entered: 02/09/2007)
2 TEXT NOTICE OF JUDGES ASSIGNED: Judge Joseph F. Bataillon and Magistrate Judge Thomas D. Thalken assigned. (CS, ) (Entered: 02/12/2007)

Case: 7:07-cv-05004-JFB-TDT As of: 01/04/2012 09:14 PM CST 3 of 12

02/12/2007
02/12/2007 02/26/2007 03/09/2007 03/09/2007 03/09/2007 03/09/2007 03/09/2007
03/29/2007 03/29/2007 04/06/2007 04/11/2007 04/20/2007 04/20/2007 04/23/2007
04/24/2007 04/24/2007 04/30/2007

3 ATTORNEY LETTER by Clerk that Attorney Robin Zephier has not registered for admittance to practice, nor registered for the system. If the requested action is not taken within fifteen (15) days of the date of this letter, this matter will be referred to the assigned magistrate judge for the entry of a show cause order. (JSF) (Entered: 02/12/2007)
NOTICE of Docket Text Modification by Deputy Clerk regarding Complaint 1 ; Text modified on 2/12/2007 to indicate the complaint is actually attachment #1 (JSF) (Entered: 02/12/2007)
4 APPLICATION/ORDER admitting for full−time admission Attorney Robin L. Zephier for Plaintiffs Arlyn J. Eastman, Lino Lowell Spotted Elk, Jr. Ordered by Deputy Clerk. (ADB) (Entered: 02/27/2007)
5 Summons Requested as to defendant Sheridan, County of regarding Complaint, 1 . (Chaloupka, Maren) (Entered: 03/09/2007)
6 Summons Requested as to defendant Levi McKillet regarding Complaint, 1 . (Chaloupka, Maren) (Entered: 03/09/2007)
7 Summons Requested as to defendant Sheridan, County of regarding Complaint, 1 . (Chaloupka, Maren) (Entered: 03/09/2007)
8 Summons Requested as to defendant Sheridan, County of regarding Complaint, 1 . (Chaloupka, Maren) (Entered: 03/09/2007)
9 Summons Issued (COPY) as to defendant Sheridan, County of, Levi McKillet regarding Complaint, 1 . YOU MUST PRINT YOUR ISSUED SUMMONS, WHICH ARE ATTACHED TO THIS DOCUMENT. PAPER COPIES WILL NOT BE MAILED. (GJG, ) (Entered: 03/09/2007)
10 MOTION to Dismiss by Attorney Michael J. Javoronok on behalf of Defendants Sheridan, County of, Levi McKillet, Does 1−5.(Javoronok, Michael) (Entered: 03/29/2007)
11 BRIEF In Support Of MOTION to Dismiss 10 by Attorney Michael J. Javoronok on behalf of Defendants Sheridan, County of, Levi McKillet, Does 1−5.(Javoronok, Michael) (Entered: 03/29/2007)
12 MOTION to Extend time in which to respond to Defendants Motion to Dismiss by Attorney Maren L. Chaloupka on behalf of Plaintiff Arlyn J. Eastman.(Chaloupka, Maren) (Entered: 04/06/2007)
13 TEXT ORDER granting 12 Plaintiff's Motion to Extend Time until 4/20/2007 to respond to 10 Motion to Dismiss. Ordered by Judge Joseph F. Bataillon.(MGH, ) (Entered: 04/11/2007)
14 BRIEF In Opposition to Defendant's Motion to Dismiss by Attorney Maren L. Chaloupka on behalf of Plaintiff Arlyn J. Eastman.(Chaloupka, Maren) (Entered: 04/20/2007)
15 MOTION for Leave to File Amended Complaint by Attorney Maren L. Chaloupka on behalf of Plaintiff Arlyn J. Eastman. (Attachments: # 1)(Chaloupka, Maren) (Entered: 04/20/2007)
16 TEXT Order granting 15 MOTION to amend. The plaintiff is allowed to make the amendment as a matter of course pursuant to Fed. R. Civ. P. 15(a). The plaintiff shall have until May 7, 2007, to file the amended complaint. Ordered by Magistrate Judge Thomas D. Thalken. (PAV) (Entered: 04/23/2007)
17 AMENDED COMPLAINT against Defendant all defendants, by Attorney Maren L. Chaloupka on behalf of Arlyn J. Eastman(Chaloupka, Maren) (Entered: 04/24/2007)
18 TEXT ORDER denying as moot 10 Defendants' Motion to Dismiss per 17 . Ordered by Judge Joseph F. Bataillon.(SMS, ) (Entered: 04/24/2007)
19 SCHEDULING PACKET − Rule 26 Meeting Report Deadline set for 6/4/2007. Ordered by Magistrate Judge Thomas D. Thalken. (PAV) (Entered: 04/30/2007)

Case: 7:07-cv-05004-JFB-TDT As of: 01/04/2012 09:14 PM CST 4 of 12

05/02/2007 05/02/2007
05/11/2007 05/11/2007
05/11/2007 05/11/2007
05/14/2007
05/14/2007 05/14/2007 05/14/2007 05/25/2007 05/25/2007
05/25/2007 05/29/2007
05/29/2007 05/29/2007 05/30/2007

20 MOTION to Strike Make More Definite and Certain or Dismiss by Attorney Michael J. Javoronok on behalf of Defendants Sheridan, County of, Levi McKillet, Does 1−5.(Javoronok, Michael) (Entered: 05/02/2007)
21 BRIEF In Support of Defendants' Motion to Strike, Make More Definite and Certain or Dismiss by Attorney Michael J. Javoronok on behalf of Defendants Sheridan, County of, Levi McKillet, Does 1−5.(Javoronok, Michael) (Entered: 05/02/2007)
22 SUMMONS Returned Executed upon Tecumseh State Correctional Institution defendant Levi McKillet on 3/17/2007. (Chaloupka, Maren) (Entered: 05/11/2007)
23 STRICKEN − SUMMONS Returned Executed upon Sheridan County Commissioners −− Vernon Platt, Dan Kling, and Lewis Abold defendant Sheridan, County of on 3/13/2007. (Chaloupka, Maren) Modified on 5/14/2007; document incomplete and stricken per order 26 (ADB). (Entered: 05/11/2007)
24 MOTION to Extend Time to Respond to Defendant's Motion to Strike, Make More Definite and Certain, or Dismiss by Attorney Maren L. Chaloupka on behalf of Plaintiff Arlyn J. Eastman.(Chaloupka, Maren) (Entered: 05/11/2007)
25 TEXT ORDER granting 24 Motion to Extend. The plaintiffs shall have until May 21, 2007, to respond to the defendants' MOTION to Strike Make More Definite and Certain or Dismiss 20 . Ordered by Magistrate Judge Thomas D. Thalken. (TRL) (Entered: 05/11/2007)
26 TEXT STRIKE ORDER that Pursuant to General Order Number 2006−01, the Summons Returned Executed 23 is stricken for the following reason: document incomplete. The party is directed to re−file the document. Ordered by Deputy Clerk. (ADB) (Entered: 05/14/2007)
27 SUMMONS Returned Executed upon Lewis Abold, Sheridan County Commissioner, defendant Sheridan, County of on 3/14/2007. (Chaloupka, Maren) (Entered: 05/14/2007)
28 SUMMONS Returned Executed upon Dan Kling, Sheridan County Commissioner, defendant Sheridan, County of. (Chaloupka, Maren) (Entered: 05/14/2007)
29 SUMMONS Returned Executed upon Vernon Platt, Sheridan County Commissioner, defendant Sheridan, County of on 3/13/2007. (Chaloupka, Maren) (Entered: 05/14/2007)
30 MOTION to Extend by Attorney Maren L. Chaloupka on behalf of Plaintiff Arlyn J. Eastman.(Chaloupka, Maren) (Entered: 05/25/2007)
31 TEXT ORDER granting 30 Motion to Extend. The plaintiffs shall have until May 29, 2007, to respond to the defendants' MOTION to Strike Make More Definite and Certain or Dismiss 20 . Ordered by Magistrate Judge Thomas D. Thalken.(TRL) (Entered: 05/25/2007)
32 STRICKEN−REPORT of Rule 26(f) Planning Meeting by Attorney Maren L. Chaloupka on behalf of Plaintiff Arlyn J. Eastman.(Chaloupka, Maren) Modified on 5/29/2007 to strike per order 33 (TCL, ). (Entered: 05/25/2007)
33 TEXT STRIKE ORDER that Pursuant to General Order Number 2006−01, the Report of Rule 26(f) Planning Meeting 32 is stricken for the following reason(s): incorrect PDF document attached. The party is directed to re−file the document. Ordered by Deputy Clerk. (TCL, ) (Entered: 05/29/2007)
34 REPORT of Rule 26(f) Planning Meeting by Attorney Maren L. Chaloupka on behalf of Plaintiff Arlyn J. Eastman.(Chaloupka, Maren) (Entered: 05/29/2007)
35 BRIEF In Opposition to Defendant's Motion to Strike, to Make More Definite and Certain and to Dismiss 20 by Attorney Maren L. Chaloupka on behalf of Plaintiff Arlyn J. Eastman.(Chaloupka, Maren) (Entered: 05/29/2007)
36 ORDER SETTING SCHEDULE FOR INITIAL PROGRESSION OF A CIVIL CASE − Counsel for plaintiff shall initiate the planning conference call to the court at 10:00 a.m. (Central Time) on 10/29/07. Counsel shall notify the undersigned

Case: 7:07-cv-05004-JFB-TDT As of: 01/04/2012 09:14 PM CST 5 of 12

06/20/2007 06/21/2007
06/21/2007 06/21/2007
06/22/2007 06/22/2007
07/16/2007
08/15/2007 08/16/2007 08/28/2007 08/28/2007 08/28/2007 08/29/2007

magistrate judge by joint or separate letters by August 1, 2007 addressing mediation requirements. Trial is tentatively set for May 5, 2008, and is tentatively scheduled for 4 trialdays. Ordered by Magistrate Judge Thomas D. Thalken. (JAE, ) (Entered: 05/30/2007)
37 MOTION to Continue by Attorney Michael J. Javoronok on behalf of Defendants Sheridan, County of, Levi McKillet, Does 1−5. (Attachments: # 1 Affidavit of Michel J. Javoronok)(Javoronok, Michael) (Entered: 06/20/2007)
38 PART 1 OF 2 − ORDER AND REPORT AND RECOMMENDATION − IT IS ORDERED and/or recommended to Judge Bataillon that the defendants' Rule 12 Motion to Strike, Make More Definite and Certain, or Dismiss 20 be granted, in part, and denied, in part as set forth in this Order. The parties shall have ten (10) business days after being served with this Order, Report and Recommendation to file any objections. The brief in support of any appeal or objection shall be filed at the time of filing such appeal or objection. Failure to file a brief in support of any appeal or objection may be deemed an abandonment of the appeal or objection. Ordered by Magistrate Judge Thomas D. Thalken. (KBJ) (Entered: 06/21/2007)
REPORT AND RECOMMENDATION − That the MOTION to Strike Make More Definite and Certain or Dismiss 20 be granted in part and denied in part as set forth in the Order as Part 1. Ordered by Magistrate Judge Thomas D. Thalken. − PART 2 OF 2 (KBJ) (Entered: 06/21/2007)
39 ORDER granting 37 Motion to Reschedule the telephone planning conference; the telephone planning conference with the undersigned magistrate judge is rescheduled to November 5, 2007 at 10:00a.m. Central Standard Time. Plaintiff's counsel shall initiate the telephone conference. Ordered by Magistrate Judge Thomas D. Thalken.(PCV, ) (Entered: 06/21/2007)
40 TEXT ORAL MOTION − Joint motion to reschedule planning conference. (KBJ, ) (Entered: 06/22/2007)
41 ORDER − Upon the oral request of counsel for the parties 40 the telephone planning conference with the undersigned magistrate judge is rescheduled to November 2, 2007 at 10:00 a.m. Central Daylight Time. Plaintiff's counsel shall initiate the telephone conference. Ordered by Magistrate Judge Thomas D. Thalken.(KBJ) (Entered: 06/22/2007)
42 ORDER that the Report and Recommendation, Filing No. 38 , is adopted in its entirety; The defendants' Rule 12 Motion to Strike, Make More Definite andCertain, or Dismiss (Filing No. 20 ) is granted in part and denied in part asset forth in the magistrate's Report and Recommendation. Ordered by Judge Joseph F. Bataillon.(ADB) (Entered: 07/16/2007)
43 AMENDED COMPLAINT (Second Amended) against Defendant all defendants, by Attorney Maren L. Chaloupka on behalf of Arlyn J. Eastman(Chaloupka, Maren) (Entered: 08/15/2007)
44 MOTION to Extend for Enlargement of Time by Attorney Michael J. Javoronok on behalf of Defendants Sheridan, County of, Levi McKillet, Does 1−5.(Javoronok, Michael) (Entered: 08/16/2007)
45 MOTION to Extend Time by Attorney Michael J. Javoronok on behalf of Defendants Sheridan, County of, Levi McKillet, Does 1−5.(Javoronok, Michael) (Entered: 08/28/2007)
46 MOTION to Strike Make More Definite and Certain or Dismiss by Attorney Michael J. Javoronok on behalf of Defendants Sheridan, County of, Levi McKillet, Does 1−5.(Javoronok, Michael) (Entered: 08/28/2007)
47 BRIEF in support of Rule 12 Motion to Strike, Make More Definite and Certain or Dismiss by Attorney Michael J. Javoronok on behalf of Defendants Sheridan, County of, Levi McKillet, Does 1−5.(Javoronok, Michael) (Entered: 08/28/2007)
48 TEXT ORDER granting 45 Motion For Enlargement of Time. Ordered by Magistrate Judge Thomas D. Thalken.(AMS) Modified on 8/29/2007 (Added the word "TEXT")(AMS). (Entered: 08/29/2007)

Case: 7:07-cv-05004-JFB-TDT As of: 01/04/2012 09:14 PM CST 6 of 12

08/29/2007 09/10/2007 09/10/2007 09/11/2007
09/11/2007 09/11/2007 10/09/2007
10/18/2007 10/19/2007 10/22/2007 11/08/2007 11/08/2007 11/08/2007
11/28/2007 12/06/2007

49 TEXT ORDER denying as moot 44 Motion For Enlargement of Time. Ordered by Magistrate Judge Thomas D. Thalken.(AMS) Modified on 8/29/2007 (added the words "TEXT" &"of")(AMS). Modified on 8/29/2007 (AMS, ). (Entered: 08/29/2007)
50 MOTION to Amend Complaint by Attorney Robin L. Zephier on behalf of Plaintiff Arlyn J. Eastman.(Zephier, Robin) (Entered: 09/10/2007)
51 STRICKEN − AMENDED COMPLAINT against Defendant Arlyn J. Eastman, by Attorney Robin L. Zephier on behalf of Arlyn J. Eastman(Zephier, Robin) Modified on 10/10/2007 to reflect that this pleading is stricken from the record pursuant to the Order 55 (KBJ). (Entered: 09/10/2007)
52 TEXT NOTICE OF DEFICIENCY by Deputy Clerk that the Motion to Amend 50 has been filed and is considered deficient due to no certificate of service. The plaintiff shall correct the deficiency within 15 days of the date of this entry or the pleading may be stricken from the record of this case. See Administrative Procedure II.B.(ADB) (Entered: 09/11/2007)
53 MOTION to Amend Complaint by Attorney Robin L. Zephier on behalf of Plaintiff Arlyn J. Eastman.(Zephier, Robin) (Entered: 09/11/2007)
54 AMENDED COMPLAINT against Defendant Arlyn J. Eastman, by Attorney Robin L. Zephier on behalf of Arlyn J. Eastman(Zephier, Robin) (Entered: 09/11/2007)
55 ORDER − The Plaintiff's' Second Motion To Amend Complaint 53 is granted. The plaintiff shall have to on or before October 23, 2007, to file the third amended complaint. The Plaintiff's' Second Motion To Amend Complaint 50 is denied as moot and plaintiff's Third Amended Complaint 51 is stricken from the record in this case. Ordered by Magistrate Judge Thomas D. Thalken. (KBJ) (Entered: 10/10/2007)
56 STRICKEN−AMENDED COMPLAINT 3rd against Defendant all defendants, by Attorney Robin L. Zephier on behalf of Arlyn J. Eastman(Zephier, Robin) Modified on 10/19/2007 to strike per Order 57 (MKR, ). (Entered: 10/18/2007)
57 TEXT STRIKE ORDER that Pursuant to General Order Number 2006−01, the Amended Complaint 56 is stricken for the following reason: Incorrect PDF document attached. The party is directed to re−file the document. Ordered by Deputy Clerk. (MKR) (Entered: 10/19/2007)
58 AMENDED COMPLAINT Third against Defendant all defendants, by Attorney Robin L. Zephier on behalf of Arlyn J. Eastman, Lino Lowell Spotted Elk, Jr(Zephier, Robin) (Entered: 10/22/2007)
59 MOTION to Strike or Dismiss Plaintiff's Third Amended Complaint by Attorney Michael J. Javoronok on behalf of Defendants Sheridan, County of, Levi McKillet, Does 1−5.(Javoronok, Michael) (Entered: 11/08/2007)
60 BRIEF in support of Rule 12 Motoin to Strike or Dismiss Plaintiff's Third Amended Complaint by Attorney Michael J. Javoronok on behalf of Defendants Sheridan, County of, Levi McKillet, Does 1−5.(Javoronok, Michael) (Entered: 11/08/2007)
61 ORDER − A telephone conference with the undersigned magistrate judge will be held on April 18, 2008, at 10:00 a.m. Central Daylight Time for the purpose of reviewing the preparation of the case to date and the scheduling of the case to trial. Plaintiff's counsel shall initiate the call. Telephone Conference set for 4/18/2008 at 10:00 AM before Magistrate Judge Thomas D. Thalken. Ordered by Magistrate Judge Thomas D. Thalken. (JAE, ) (Entered: 11/08/2007)
62 ORDER denying as moot 46 Defendants' Motion to Strike/Dismiss. Ordered by Judge Joseph F. Bataillon. (SMS, ) (Entered: 11/28/2007)
63 ORDER granting in part and denying in part 59 Motion to Strike. The plaintiff shall have until December 20, 2007, to file a fourth amended complaint in compliance with the court's previous orders. Ordered by Magistrate Judge Thomas D. Thalken. (TRL) (Entered: 12/06/2007)

Case: 7:07-cv-05004-JFB-TDT As of: 01/04/2012 09:14 PM CST 7 of 12

12/19/2007 01/16/2008 01/28/2008 04/18/2008
04/23/2008
04/25/2008 05/09/2008 05/15/2008 06/10/2008 12/31/2008 12/31/2008 12/31/2008 12/31/2008 12/31/2008 01/05/2009 01/19/2009 01/22/2009 01/22/2009 01/23/2009

64 AMENDED COMPLAINT (Fourth Amended) against Defendant all defendants, by Attorney Maren L. Chaloupka on behalf of Arlyn J. Eastman(Chaloupka, Maren) (Entered: 12/19/2007)
65 MOTION to Dismiss by Attorney Michael J. Javoronok on behalf of Defendants Sheridan, County of, Levi McKillet, Does 1−5.(Javoronok, Michael) (Entered: 01/16/2008)
66 RESPONSE to Defendant's Fourth Motion to Dismiss by Attorney Maren L. Chaloupka on behalf of Plaintiff Arlyn J. Eastman.(Chaloupka, Maren) (Entered: 01/28/2008)
67 ORDER: Planning Conference set for 4/23/2008 at 10:00 AM by telephone before Magistrate Judge Thomas D. Thalken. Plaintiff's counsel shall initiate the telephone conference. Ordered by Magistrate Judge Thomas D. Thalken. (TRL) (Entered: 04/18/2008)
68 ORDER SETTING SCHEDULE FOR PROGRESSION OF A CIVIL CASE − Depositions due 2/27/2009. Pretrial Conference set for 4/13/2009 at 02:30 PM in North Platte Courtroom before Magistrate Judge Thomas D. Thalken. Jury Trial set for 5/11/2009 at 08:30 AM in North Platte Courtroom before Chief Judge Joseph F. Bataillon. Ordered by Magistrate Judge Thomas D. Thalken. (PAV) (Entered: 04/23/2008)
69 ORDER − The defendants' Motion to Dismiss 65 is denied. Ordered by Chief Judge Joseph F. Bataillon.(KBJ) (Entered: 04/25/2008)
70 Certificate of Service by Attorney Maren L. Chaloupka on behalf of Plaintiff Arlyn J. Eastman.(Chaloupka, Maren) (Entered: 05/09/2008)
71 ANSWER to Amended Complaint 64 by Attorney Michael J. Javoronok on behalf of Defendants Sheridan, County of, Levi McKillet, Does 1−5 Amended Complaint 64 filed by Arlyn J. Eastman (Javoronok, Michael) (Entered: 05/15/2008)
72 Certificate of Service by Attorney Maren L. Chaloupka on behalf of Plaintiff Arlyn J. Eastman.(Chaloupka, Maren) (Entered: 06/10/2008)
73 NOTICE to Take Deposition of Loren Wilson by Attorney Maren L. Chaloupka on behalf of Plaintiff Arlyn J. Eastman (Chaloupka, Maren) (Entered: 12/31/2008)
74 NOTICE to Take Deposition of Sandra Arthur by Attorney Maren L. Chaloupka on behalf of Plaintiff Arlyn J. Eastman (Chaloupka, Maren) (Entered: 12/31/2008)
75 NOTICE to Take Deposition of Deputy Sheriff Donald Ray Heath by Attorney Maren L. Chaloupka on behalf of Plaintiff Arlyn J. Eastman (Chaloupka, Maren) (Entered: 12/31/2008)
76 NOTICE to Take Deposition of Levi McKillip by Attorney Maren L. Chaloupka on behalf of Plaintiff Arlyn J. Eastman (Chaloupka, Maren) (Entered: 12/31/2008)
77 NOTICE to Take Deposition of Larry Holladay by Attorney Maren L. Chaloupka on behalf of Plaintiff Arlyn J. Eastman (Chaloupka, Maren) (Entered: 12/31/2008)
78 NOTICE to Take Deposition of Arlyn J. Eastman by Attorney Michael J. Javoronok on behalf of Defendants Sheridan, County of, Levi McKillet, Does 1−5 (Javoronok, Michael) (Entered: 01/05/2009)
79 Certificate of Service by Attorney Maren L. Chaloupka on behalf of Plaintiff Arlyn J. Eastman.(Chaloupka, Maren) (Entered: 01/19/2009)
80 MOTION for Leave to File Fifth Amended Complaint by Attorney Maren L. Chaloupka on behalf of Plaintiff Arlyn J. Eastman.(Chaloupka, Maren) (Entered: 01/22/2009)
81 Certificate of Service by Attorney Michael J. Javoronok on behalf of Defendants Sheridan, County of, Levi McKillet, Does 1−5.(Javoronok, Michael) (Entered: 01/22/2009)
82 MOTION for Summary Judgment by Attorney Michael J. Javoronok on behalf of Defendants Sheridan, County of, Levi McKillet, Does 1−5.(Javoronok, Michael)

Case: 7:07-cv-05004-JFB-TDT As of: 01/04/2012 09:14 PM CST 8 of 12

01/23/2009 01/23/2009 01/23/2009 02/02/2009 02/05/2009 02/05/2009 02/05/2009 02/06/2009 02/10/2009 02/10/2009 02/17/2009 02/18/2009 03/02/2009
03/11/2009 03/12/2009
03/13/2009

(Entered: 01/23/2009)
83 BRIEF in support of MOTION for Summary Judgment 82 by Attorney Michael J. Javoronok on behalf of Defendants Sheridan, County of, Levi McKillet, Does 1−5.(Javoronok, Michael) (Entered: 01/23/2009)
84 INDEX in support of MOTION for Summary Judgment 82 by Attorney Michael J. Javoronok on behalf of Defendants Sheridan, County of, Levi McKillet, Does 1−5.(Javoronok, Michael) (Entered: 01/23/2009)
85 INDEX − CONTINUED Amended by Attorney Michael J. Javoronok on behalf of Defendants Sheridan, County of, Levi McKillet, Does 1−5. (Attachments: # 1 Exhibit 1−4)(Javoronok, Michael) (Entered: 01/23/2009)
86 BRIEF in opposition to MOTION for Summary Judgment 82 by Attorney Maren L. Chaloupka on behalf of Plaintiff Arlyn J. Eastman.(Chaloupka, Maren) (Entered: 02/02/2009)
87 Certificate of Service by Attorney Maren L. Chaloupka on behalf of Plaintiff Arlyn J. Eastman.(Chaloupka, Maren) (Entered: 02/05/2009)
88 Certificate of Service by Attorney Maren L. Chaloupka on behalf of Plaintiff Arlyn J. Eastman.(Chaloupka, Maren) (Entered: 02/05/2009)
89 NOTICE to Take Deposition of Sheriff Terry Robbins by Attorney Maren L. Chaloupka on behalf of Plaintiff Arlyn J. Eastman (Chaloupka, Maren) (Entered: 02/05/2009)
90 NOTICE to Take Deposition of Charles Canaday by Attorney Michael J. Javoronok on behalf of Defendants Sheridan, County of, Levi McKillet, Does 1−5 (Javoronok, Michael) (Entered: 02/06/2009)
91 TEXT ORDER granting 80 Motion for Leave. Amended Complaint due by 2/17/2009. Ordered by Magistrate Judge Thomas D. Thalken. (TRL) (Entered: 02/10/2009)
92 AMENDED COMPLAINT (Fifth Amended) against Defendant all defendants, by Attorney Maren L. Chaloupka on behalf of Arlyn J. Eastman(Chaloupka, Maren) (Entered: 02/10/2009)
93 Unopposed MOTION to Continue Deposition Settings and Discovery Deadline by Attorney Maren L. Chaloupka on behalf of Plaintiff Arlyn J. Eastman.(Chaloupka, Maren) (Entered: 02/17/2009)
94 TEXT ORDER granting 93 Motion to Continue. The deadline for the parties to complete discovery is hereby extended to March 27, 2009. Ordered by Magistrate Judge Thomas D. Thalken. (TRL) (Entered: 02/18/2009)
95 Defendants' ANSWER to Amended Complaint 92 by Attorney Michael J. Javoronok on behalf of Defendants Levi McKillip, Sheridan, County of, Levi McKillet, Does 1−5 Answer to Amended Complaint 71 filed by Does 1−5, Sheridan, County of, Levi McKillet (Javoronok, Michael) (Entered: 03/02/2009)
96 MOTION for Hearing − Telephonic Status Conference by Attorney Maren L. Chaloupka on behalf of Plaintiff Arlyn J. Eastman.(Chaloupka, Maren) (Entered: 03/11/2009)
97 ORDER granting 96 Motion for Hearing; A telephone status conference with the undersigned magistrate judge is scheduled to March 13, 2009, at 10:00 a.m. Plaintiff's counsel shall initiate the telephone conference. Ordered by Magistrate Judge Thomas D. Thalken. (ADB, ) (Entered: 03/12/2009)
98 AMENDED ORDER SETTING FINAL SCHEDULE FOR PROGRESSION OF A CIVIL CASE − Depositions due June 30, 2009. Final Pretrial Conference set for 4/12/2010 at 01:30 PM with a magistrate judge, in chambers, Federal Building, 3rd Floor, 300 East 3rd Street, North Platte, Nebraska. Jury Trial set for 5/10/2010 in North Platte, Nebraska before Chief Judge Joseph F. Bataillon and a jury. Ordered by Magistrate Judge Thomas D. Thalken. (MKR) Modified on 3/18/2009 to correct pretrial conference information(TJS). Modified on 2/26/2010 to correct trial

Case: 7:07-cv-05004-JFB-TDT As of: 01/04/2012 09:14 PM CST 9 of 12

03/30/2009 04/01/2009 04/21/2009
09/29/2009 10/13/2009 10/22/2009 10/28/2009 02/12/2010 03/11/2010 03/22/2010 03/22/2010 03/26/2010 03/26/2010 03/26/2010
03/26/2010 03/29/2010
03/30/2010 03/30/2010

location(MKR). (Entered: 03/13/2009)
99 ORDER that defendants' motion for summary judgment 82 is denied as moot. Ordered by Chief Judge Joseph F. Bataillon. (CJP) (Entered: 03/30/2009)
100 MOTION to Substitute Party by Attorney Maren L. Chaloupka on behalf of Plaintiff Arlyn J. Eastman.(Chaloupka, Maren) (Entered: 04/01/2009)
101 TEXT ORDER granting 100 Motion to Substitute Party. The plaintiff shall have until April 29, 2009, to file an amended complaint substituting Deputy Sheriff Ray Heath in place of Doe 1 and voluntarily dismissing Does 2−5. Ordered by Magistrate Judge Thomas D. Thalken. (TRL) (Entered: 04/21/2009)
102 Certificate of Service by Attorney Michael J. Javoronok on behalf of Defendants Levi McKillip, Sheridan, County of, Levi McKillet, Does 1−5.(Javoronok, Michael) (Entered: 09/29/2009)
103 Certificate of Service by Attorney Maren L. Chaloupka on behalf of Plaintiff Arlyn J. Eastman.(Chaloupka, Maren) (Entered: 10/13/2009)
104 Certificate of Service by Attorney Maren L. Chaloupka on behalf of Plaintiff Arlyn J. Eastman.(Chaloupka, Maren) (Entered: 10/22/2009)
105 Certificate of Service by Attorney Maren L. Chaloupka on behalf of Plaintiff Arlyn J. Eastman.(Chaloupka, Maren) (Entered: 10/28/2009)
106 Certificate of Service by Attorney Michael J. Javoronok on behalf of Defendants Does 1−5, Levi McKillet, Levi McKillip, Sheridan, County of.(Javoronok, Michael) (Entered: 02/12/2010)
107 LETTER regarding Pretrial Conference − set for April 12, 2010, at 1:30 p.m. Signed by Magistrate Judge Thomas D. Thalken. (WMB) (Entered: 03/11/2010)
108 MOTION for Reasonable Time for Voir Dire and Opening Statement by Attorney Maren L. Chaloupka on behalf of Plaintiff Lino Lowell Spotted Elk, Jr.(Chaloupka, Maren) (Entered: 03/22/2010)
109 BRIEF in support of MOTION for Reasonable Time for Voir Dire and Opening Statement 108 by Attorney Maren L. Chaloupka on behalf of Plaintiff Arlyn J. Eastman.(Chaloupka, Maren) (Entered: 03/22/2010)
110 MOTION for Summary Judgment Of Defendants by Attorney Michael J. Javoronok on behalf of Defendants Does 1−5, Levi McKillet, Levi McKillip, Sheridan, County of.(Javoronok, Michael) (Entered: 03/26/2010)
111 BRIEF in support of MOTION for Summary Judgment Of Defendants 110 by Attorney Michael J. Javoronok on behalf of Defendants Does 1−5, Levi McKillet, Levi McKillip, Sheridan, County of.(Javoronok, Michael) (Entered: 03/26/2010)
112 INDEX in support of MOTION for Summary Judgment Of Defendants 110 by Attorney Michael J. Javoronok on behalf of Defendants Does 1−5, Levi McKillet, Levi McKillip, Sheridan, County of. (Attachments: # 1 Exhibit Exhibits 1 − 5)(Javoronok, Michael) (Entered: 03/26/2010)
113 MOTION to Dismiss Rule 12 by Attorney Michael J. Javoronok on behalf of Defendants Does 1−5, Levi McKillet, Levi McKillip, Sheridan, County of.(Javoronok, Michael) (Entered: 03/26/2010)
114 TEXT NOTICE REGARDING ELECTRONIC SIGNATURE re Motion to Dismiss 113 by Deputy Clerk. The attorney login does not match the s/signature on this document. This notice is for your information for future filings. (SED) (Entered: 03/29/2010)
115 MOTION to Strike MOTION to Dismiss Rule 12 113 , MOTION for Summary Judgment Of Defendants 110 by Attorney Maren L. Chaloupka on behalf of Plaintiff Arlyn J. Eastman.(Chaloupka, Maren) (Entered: 03/30/2010)
116 LETTER regarding Pretrial Conference − The time of the conference is changed to 10:30 A.M. on April 12, 2010. Plaintiff's counsel shall initiate the telephone

Case: 7:07-cv-05004-JFB-TDT As of: 01/04/2012 09:14 PM CST 10 of 12

04/01/2010 04/01/2010 04/01/2010 04/02/2010
04/06/2010 04/08/2010 04/08/2010
04/08/2010 04/09/2010 04/12/2010
04/12/2010 04/12/2010 04/12/2010 04/12/2010

conference. (JAE) (Entered: 03/30/2010)
117 EXHIBIT LIST of Defendants by Attorney Michael J. Javoronok on behalf of Defendants Does 1−5, Levi McKillet, Levi McKillip, Sheridan, County of. (Javoronok, Michael) (Entered: 04/01/2010)
118 EXHIBIT LIST Defendants' Amended by Attorney Michael J. Javoronok on behalf of Defendants Does 1−5, Levi McKillet, Levi McKillip, Sheridan, County of. (Javoronok, Michael) (Entered: 04/01/2010)
119 EXHIBIT LIST by Attorney Maren L. Chaloupka on behalf of Plaintiff Arlyn J. Eastman. (Chaloupka, Maren) (Entered: 04/01/2010)
120 TEXT NOTICE REGARDING ELECTRONIC SIGNATURE re Exhibit List 117 , Exhibit List 118 by Deputy Clerk. This document does not comply with NECivR 11.1(a) regarding signatures or The attorney login does not match the s/signature on this document. This notice is for your information for future filings.(KBJ) (Entered: 04/02/2010)
121 BRIEF in opposition to MOTION to Strike MOTION to Dismiss Rule 12 113 , MOTION for Summary Judgment Of Defendants 110 115 by Attorney Kristine R. Cecava on behalf of Defendants Does 1−5, Levi McKillet, Levi McKillip, Sheridan, County of.(Cecava, Kristine) (Entered: 04/06/2010)
122 ORDER − Defendants' motion for summary judgment, Filing No. 110 , and defendants' motion to dismiss, Filing No. 113 , are both denied as untimely. It is further ordered that plaintiff's motion to strike, Filing No. 115 , is granted. Ordered by Chief Judge Joseph F. Bataillon. (JAE) (Entered: 04/08/2010)
123 STRICKEN − ORDER − On or before April 19, 2010, the defendant shall comply with Fed. R. Civ. P. 7.1 or show cause by written affidavit why it cannot comply with the rules of the court. Show Cause Deadline set for 4/19/2010. Ordered by Magistrate Judge Thomas D. Thalken. (JAE) Modified on 4/8/2010 to indicate stricken per Order 124 (JAE). (Entered: 04/08/2010)
124 TEXT STRIKE ORDER that Pursuant to General Order Number 2006−01, the Order to Show Cause 123 is stricken for the following reason : document filed in incorrect case. Ordered by Deputy Clerk. (JAE) (Entered: 04/08/2010)
125 MOTION in Limine by Attorney Kristine R. Cecava on behalf of Defendants Does 1−5, Levi McKillet, Levi McKillip, Sheridan, County of. (Attachments: # 1 Exhibit Article 1, # 2 Exhibit Article pg 2)(Cecava, Kristine) (Entered: 04/09/2010)
126 TEXT NOTICE OF INDEX OF EVIDENCE 125 by Deputy Clerk. Pursuant to NECivR 7.0.1(a)(2) and (b)(2), evidence in support of a motion or brief shall be identified on an electronically−filed index of evidence. The index of evidence must identify the motion or brief to which it relates. Attachments to the index must be described using the System−generated prompt box. This notice is for your information for future filings.(KBJ) (Entered: 04/12/2010)
127 INDEX in support of MOTION in Limine 125 by Attorney Kristine R. Cecava on behalf of Defendants Does 1−5, Levi McKillet, Levi McKillip, Sheridan, County of. (Attachments: # 1 Exhibit Article page 1, # 2 Exhibit Article page 2)(Cecava, Kristine) (Entered: 04/12/2010)
128 PRETRIAL ORDER − estimated length of trial is 4 days. Jury Trial set for 5/10/2010 at 9:00 AM in North Platte Courtroom, Federal Building, 300 East 3rd Street, North Platte, NE before Chief Judge Joseph F. Bataillon.Ordered by Magistrate Judge Thomas D. Thalken. (JAE) (Entered: 04/12/2010)
129 RESPONSE regarding MOTION in Limine 125 by Attorney Maren L. Chaloupka on behalf of Plaintiff Arlyn J. Eastman.(Chaloupka, Maren) (Entered: 04/12/2010)
130 INDEX in opposition to MOTION in Limine 125 by Attorney Maren L. Chaloupka on behalf of Plaintiff Arlyn J. Eastman. (Attachments: # 1 Exhibit, # 2 Exhibit)(Chaloupka, Maren) (Entered: 04/12/2010)

Case: 7:07-cv-05004-JFB-TDT As of: 01/04/2012 09:14 PM CST 11 of 12

04/13/2010 04/13/2010 04/14/2010 04/19/2010 04/21/2010 05/03/2010 05/03/2010 05/03/2010 05/06/2010
05/06/2010 05/06/2010
05/07/2010 05/07/2010 05/07/2010 05/07/2010 05/07/2010

131 ORDER denying at this time 108 the Plaintiffs' Motion for additional time for voir dire, but such motion will be reconsidered during the pretrial meeting with counsel prior to trial. Ordered by Chief Judge Joseph F. Bataillon. (MKR) (Entered: 04/13/2010)
132 REPLY regarding MOTION in Limine 125 Plaintiff's Response by Attorney Kristine R. Cecava on behalf of Defendants Does 1−5, Levi McKillet, Levi McKillip, Sheridan, County of.(Cecava, Kristine) (Entered: 04/13/2010)
133 RESPONSE regarding MOTION in Limine 125 (Supplemental) by Attorney Maren L. Chaloupka on behalf of Plaintiff Arlyn J. Eastman.(Chaloupka, Maren) (Entered: 04/14/2010)
134 ORDER that defendants' motion in limine 125 is denied in part at this time, but such motion will be reconsidered during the pretrial meeting with counsel prior to trial as set forth herein. Ordered by Chief Judge Joseph F. Bataillon. (JSF) (Entered: 04/19/2010)
135 PROPOSED JURY INSTRUCTIONS by Arlyn J. Eastman. (Chaloupka, Maren) (Entered: 04/21/2010)
136 BRIEF for Trial by Attorney Maren L. Chaloupka on behalf of Plaintiff Arlyn J. Eastman.(Chaloupka, Maren) (Entered: 05/03/2010)
137 BRIEF OF TRIAL OF DEFENDANTS by Attorney Kristine R. Cecava on behalf of Defendants Does 1−5, Levi McKillet, Levi McKillip, Sheridan, County of, Plaintiff Lino Lowell Spotted Elk, Jr.(Cecava, Kristine) (Entered: 05/03/2010)
138 PROPOSED JURY INSTRUCTIONS of DEFENDANTS by Does 1−5, Levi McKillet, Levi McKillip, Sheridan, County of. (Cecava, Kristine) (Entered: 05/03/2010)
139 ORDER − Upon notice of settlement given to the court, on or before June 7, 2010, the parties shall electronically file a joint stipulation for dismissal. The trial previously scheduled is cancelled upon the representation that this case is settled. (Dismissal Papers Deadline due by 6/7/2010.) Ordered by Magistrate Judge Thomas D. Thalken. (JAE) (Entered: 05/06/2010)
140 MOTION to Enforce Settlement by Attorney Maren L. Chaloupka on behalf of Plaintiff Lino Lowell Spotted Elk, Jr.(Chaloupka, Maren) (Entered: 05/06/2010)
141 INDEX in support of MOTION to Enforce Settlement 140 by Attorney Maren L. Chaloupka on behalf of Plaintiff Arlyn J. Eastman. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit, # 10 Exhibit, # 11 Exhibit, # 12 Exhibit, # 13 Exhibit, # 14 Exhibit, # 15 Exhibit, # 16 Exhibit, # 17 Exhibit, # 18 Exhibit, # 19 Exhibit, # 20 Exhibit, # 21 Exhibit, # 22 Exhibit, # 23 Exhibit)(Chaloupka, Maren) (Entered: 05/06/2010)
142 INDEX in support of MOTION to Enforce Settlement 140 (Supplemental) by Attorney Maren L. Chaloupka on behalf of Plaintiff Arlyn J. Eastman. (Attachments: # 1 Affidavit)(Chaloupka, Maren) (Entered: 05/07/2010)
143 BRIEF in support of MOTION to Enforce Settlement 140 by Attorney Maren L. Chaloupka on behalf of Plaintiff Arlyn J. Eastman.(Chaloupka, Maren) (Entered: 05/07/2010)
144 INDEX in opposition to MOTION to Enforce Settlement 140 by Attorney Kristine R. Cecava on behalf of Defendants Does 1−5, Levi McKillet, Levi McKillip, Sheridan, County of.(Cecava, Kristine) (Entered: 05/07/2010)
145 AFFIDAVIT of Kristine R. Cecava regarding Index 144 by Attorney Kristine R. Cecava on behalf of Defendants Does 1−5, Levi McKillet, Levi McKillip, Sheridan, County of, Plaintiff Arlyn J. Eastman.(Cecava, Kristine) (Entered: 05/07/2010)
146 TEXT MINUTE ENTRY for proceedings held before Magistrate Judge Thomas D. Thalken; Motion Hearing held on 5/7/2010 regarding MOTION to Enforce Settlement 140 ; Settlement reached. Terms stated on the record. Hearing held in Omaha. Courtroom Deputy: Ed Champion; Reporter: Digital Recorder; Telephonic

Case: 7:07-cv-05004-JFB-TDT As of: 01/04/2012 09:14 PM CST 12 of 12

05/07/2010
08/18/2010 09/15/2010

Appearance for Plaintiff: Maren Chaloupka: Telephonic Appearance for Defendant: Kristine Cecava; Parties given until August 2, 2010 to file settlement documents; Written order forthcoming. Time Start: 11:03 a.m. Time Stop: 11:39 a.m. (ETC) (Entered: 05/07/2010)
147 ORDER upon notice of settlement by all parties on all issues in this case. Accordingly, on or before August 2, 2010, the parties shall electronically file a joint stipulation for dismissal and shall submit to Chief Judge Joseph F. Bataillon, a draft order which will fully dispose of the case. The plaintiff's Motion to Enforce Settlement 140 is denied as moot. ***Set All Deadlines: ( Dismissal Papers Deadline due by 8/2/2010.) Ordered by Magistrate Judge Thomas D. Thalken. (MKR) (Entered: 05/07/2010)
149 MOTION to Dismiss by Attorney Maren L. Chaloupka on behalf of Plaintiff Arlyn J. Eastman.(Chaloupka, Maren) (Entered: 08/18/2010)
150 ORDER − The Court sustains Plaintiff's Motion to Dismiss 149 , subject to the preservation of claims contained in the settlement agreement between the parties. This Order shall not act to bar future claims relative to enforcement of/compliance with the settlement agreement. Ordered by Chief Judge Joseph F. Bataillon. (JAE) (Entered: 09/15/2010)