8:13-cv-00130-RGK-PRSE Doc # 1 Filed: 04/22/13 Page 1 of 13 - Page ID # 1

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FIL~
OIS1R\C1

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COUR

OISiRICi OF NEBRASKA

-

'Iii!~ DISTRICT COURT 13 ~PR 22 Pt1 \: 03

FOR THE DISTRICT OF NEBRASKA

Off\CE Of THE CLERK

PROSECDnLCO~LMNT

Case No. 3: {301/:iJ (the court will assign a number)

I. CASE CAPTION: Parties to this Civil Action:
Pursuant to Fed. R. Civ. P. lO(a), the names of all parties must appear in the case caption. The court will not consider a claim against any defendant who is not listed in the caption.

A. Plaintiff(s) Name(s):
Harold B. Wilson

#37418

Address( es):

Telephone No. (only if

you are NOT a prisoner)
Box22800 Lincoln, NE 68542-2800 NiA

Gracy S. Sedlak 1035 Hartley, Lincoln, NE 68503 471-4107

B. Defendant(s) Name(s):

Address(es) Ifknown:

Jon Bruning Attoney Genercl 2115 State Capitol, Lincoln, NE 68509
Robert Houston Dir of Corrections Box 94561, Lincol9,Ne68509-4551 Robert Madsen Associate Warden LCC, Box 22800 Lincon,NE 68542-2800
ft£~~~ ~2R~inwar~~fitLBtrB~£x2~fta51~i~eB!g 1F.e g~;g~:~§a6
State of Nebraska Dept of Corrections All in their individual and professional Capacities

(Attach extra sheets ifnecessary.)

Page 1 of 6

~?R 2 2 '2J)\3
U.S. Q\CSLJE~R~~AcoUR1

8:13-cv-00130-RGK-PRSE Doc # 1 Filed: 04/22/13 Page 2 of 13 - Page ID # 2
II. STATEMENT OF CLAIM(S) State briefly the facts ofyour claim. Describe how each defendant is involved. You do not need to give legal arguments or cite cases or statutes. Use as much space as you need to state the facts. (Attach extra sheets if necessary.)
A. When did the events occur?
Nov

B. What happened?
I rerequested and was denied the right to marry the person Gracy S Sedlak o~ my choosing. Ms Sedlak is a mmale ~emale transgender pre-op female. She is undergoing treatment by ·Planned Parenthood via hormones, toward transition from male

to female. She suffers from Gender Identity Disorder (GID). She is a former Inmate in the Dept of Correctioni, discharged successfully

from parole on 3/23/2012. On 11/30/2012 I was denied permission

to meet with Ms Sedlak and members of the Quaker Meeeting ofLincoln

Cleardt:<=>S Cou!tul t te to oota1n oerm1ss ion frotl! tltem, b.s a l!Iember of the Meeting to Marry Ms Se~lak Such a union is allowed by the

Tenets of the Quaker Meeting and governing Body of the Iowa Yearly

Meeting.

-

The Dept of Corrections has a three year waiting period bfore

former jnm::ltP<: WhO are pot j!""morHat-e:> f~mil~T ~,;dll ht:> conc:inr.:>r for

Visiting. If we are alloed to marry then she would be considered

Page 2 of 6

8:13-cv-00130-RGK-PRSE Doc # 13 Filed: 04/22/13 Page 3 of 13 - Page ID # 3 immediate family and allowed to visit as my spouse.
Same sex marriages like this are legal in Iowa and many other states. We are being treated differently because we reside in Nebraska, and are not afforded the same rights as those in the Iowa dept of Corrections and other states where same sex unions are recognized. I am not being allowed to follow the sincerely held tenets of my riligion. Ms Sedlak and I also practice the religion of Wicca, as does Ms Sedlak which also allows same sex marriages called uhandfastings 11 ~vhich we have had accomplished by an authorized Member of the Clergy of the Wiccan faith. He wish to be married after the practice of Quakers and that Gracy Sedlak be recognized legally as a female, or that Nebraska Initiative Measure 416 be over-ruled and declared UnConsitituional as it violated the Equal protection clause of the US and State constittutions. Transge~r individuals shald not be discriminated against h~ceuse they do not conform to gender stereo typical roles in appearance and dress. For Gracy Sedlak to not be recognized as her true self per her GID diagnoisis violates title VII cf the Civil rights act.
Because the Plaintiff s are a transgender counle they are treated unequally to Hetrosexua1 coup1es •~-7-'no would be allmv-ed to legally marry and be approved to visit as immediate family members. Also Once Plaintiff W1·1son 1· s paro 1ea~ , th--P- only way he can be approved to co-habitate with t1s Sedlak would be if the couple are le•gally married. The Plaintiffs should not be treated as second class
. citizedarl because they resirle in Nebraska which has yet to. approve
this right for all couples. We believe that Judge Battal1ons ruling on Measure 416 was correct, t h_at l•t v1"olates the Constitution of the United States and State of Nebraska. We ask the court to
over turn Measore 416 on a violation of Equal Protection of our righ;ts,

8:13-cv-00130-RGK-PRSE Doc # 1 Filed: 04/22/13 Page 4 of 13 - Page ID # 4

3A

He further ask injune.tive relief and request t~at the courtov-d.-e;-

the Defendants to approve Gracy Sedlak as a visitor for Plaintiff Wilson

and order that the plaintiffs be allowed to meet together with e

the members of t~h Clearness Committee of the Lincoln Friends Meeting

for the Meetings approval of a Marriage ceremony to take place

under the Care of the Meeting after the fasbion of Friends under

the tenets of the Iowa Yearly Meeting.

Plaintiff Wilson further asks the court to order the Defendants

to allow him to wear a cap/hat after the tradition and believs

of Quakers who believe that they should not remove their hat fo

any man, save God Himself. This is a well established Quaker belief.
The ~- of Corrections only at LCC has a rule that forces]

inmates to remove headgear, except religious headgear, while

indoors. Inmates at NSP and other institutions like York do have such a rule 'vhich staff use as a way~() harrass and emBarrass

inmates and issue petty misconduct reports for violation of this

rule which effect parole and custo~y issues. Plaintiffs ask for

injunction suspending enforcment of this rule until such time as

the court may rule upon it. Other faith groups are allowed to

wear religious head gear at all times, Plaintiff Wilson requ~stdd

equal treatment but was denied such by the LCC staff and Religious

Studies Committee of the DCS.
M• easure 416 does not ban de~th
the right of marraige and they have

row and lifer inmates from enjoying no way to procreate as H 416

mandates as the main motivation for limiting marriage only to Hetro-

sexual couples. This violwtes the equal Protection of the U.S. and

00

State Constitutions.

8:13-cv-00130-RGK-PRSE Doc # 1 Filed: 04/22/13 Page 5 of 13 - Page ID # 5
III. STATEMENT OF JURISDICTION Check any of the following that apply to this case (you may check more than one): ___United States or a federal official or agency is a party
X Claim arises under the Constitution, laws or treaties of the United States X Violation of civil rights ___Employment discrimination ___Diversity of Citizenship (a matter between citizens of different states in which the
amount in controversy exceeds $75,000) X Other basis for jurisdiction in federal court (explain below)
of Hetrosexuals are allowed to marry in other states and the Plaintiffs are not allowed this right. Plaintiffs are unable to move to a different state tvhich allows such mar.n'{).~ because one of the Plaintiffs is incarcerated.
IV. STATEMENTOFVENUE State briefly the connection between this case and Nebraska. For example, does a party reside or do business in Nebraska? Is a party incorporated in Nebraska? Did an injury occur in Nebraska? Did the claim arise in Nebraska?
All parties reside in and are residents of the state of NeBraska
Page 4 of 6

8:13-cv-00130-RGK-PRSE Doc # 1 Filed: 04/22/13 Page 6 of 13 - Page ID # 6

V. RELIEF
State briefly what you want the court to do for you.
Issue an order t~at the Plaintiffs may legally marryand be allowed to meet with the Clearness Comm. of the local Friends Meeting, and that Gracy E Sedlak be approve to visit Harold Wilson on his approved visiting list as imme~iate family, and order the DCS to allmv all Oua~-::ers to equally "\vear ha~.,

VI. EXHAUSTION OF ADMINISTRATIVE PROCEDURES

Some claims, but not all, require exhaustion of administrative procedures. Answer the questions below to the best of your ability.

A. Have the claims which you make in this civil action been presented through any type of administrative procedure within any state or federal government agency?

Yes ---ft.---

No - - - - - -

B. Ifyou answered yes, state the date your claims were so presented, how they were presented, and the result of that procedure:

Clearness Command Gracy Sedlak wc.s on 1/18/13.IsSB-of Hearing
a hat indoors was grieved on 1/11/13. In both cases the DeS refused requested relief.
C. Ifyou answered no, give the reasons, if applicable, why the claims made in this action have not been presented through administrative procedures:
N/A

Page 5 of 6

8:13-cv-00130-RGK-PRSE Doc # 1 Filed: 04/22/13 Page 7 of 13 - Page ID # 7

Vll. ARE YOU REQUESTING TRIAL BY A JURY OR BY A JUDGE? (check one):

JURY _ _ _ __

JUDGE _ _X_ X __

Vlll. VERIFICATION

I (we) declare under penalty of perjury that the foregoing is true and correct.

Date(s) Executed:
3=30=2013
4-2-2013

Signature(s) ofPlaintiff(s):

Harold Hilson Gracy Sedlak

Note: IF YOU CANNOT AFFORD TO PAY THE COURT'S FILING FEE UPON THE FILING OF YOUR COMPLAINT, THERE IS A SEPARATE FORM TO BE USED FOR APPLYING TO PROCEED IN FORMA PAUPERIS. Also, if there is more than one plaintiff in the case who wishes to proceed in forma pauperis, each such plaintiff must submit a separate application to proceed in forma pauperis.
Page 6 of 6

8:13-cv-00130-RGK-PRSE Doc # 1 Filed: 04/22/13 Page 8 of 13 - Page ID # 8
• making new members and attenders welcome, introducing them to other Friends, and offering them means of deepening their knowledge of Friends' beliefs;
• encouraging membership for those in harmony with Friends' principles and who are willing to share in the service and responsibility of the Meeting;
• developing activities, programs, study groups, and retreats to assist members and attenders in deepening the life of the Spirit.
In some cases, Iovin~ care can be carried out to better advantage by Friends who are not on M&C. The resources of the yearly meeting may be used where the action could not appropriately be performed by any monthly meeting members. The committee members may need to discern whether professional help from other resources is rteeded in care and counseling. In some cases, a clearness committee may be useful.
The committee may help the meeting maintain good order in the following ways: • encouraging Friends to attend meeting faithfully and to settle into the meeting for worship in a quiet, reverent, and timely manner; • reminding Friends of the value of conducting committee meetings and meeting for business as meetings for worship; • eldering (nurturing, supporting, and helping members and attenders grow spiritually;) • encouraging private worship and meditation, devotional readings, and religious study;· • encouraging those who give evidence of particular gifts and concerns and help Friends discern and respond to divine promptings; • helping meeting find a balance of vocal ministry and quiet worship since both vocal ministry and the opportunity for silent communion with God are fundamental to our religious practice. Undue invasion of silent worship is to be lovingly discouraged.
MARRIAGE PROCEDURE A Quaker wedding is a form of marriage available to members and those who, while not being in formal membership, are in unity with the religious nature and witness of Friends. It is usually expected that the couple have an ongoing relationship with Friends.
A couple intending marriage writes a fetter to the monthly meeting under whose care they wish to marry, stating their intention and requesting the approva,l and oversight of the meeting. The letter is signed by both partners and may be accompanied by the written consent of the parents or guardians. If either partner is a minor, statement(s} of consent (or a statement explaining why consent cannot be obtained} must accompany the proposal. Should the consent be withheld on grounds that seem to the monthly meeting to be insufficient, the meeting may per~ it the marriage to proceed under its care.
A meeting may take under its care a marriage in which one or both of the partners has been divorced, subject to the same careful consideration by a committee on clearness as any other marriage.
Marriage Clearness Committee A committee to establish clearness is appointed by the meeting to make sure that no obstructions exist. The committee meets with the couple to offer guidance and counsel and establishes insofar as it can be determined that there is nothing to interfere with the permanence and happiness of the union. The clearness committee reports as soon as possible to the monthly meeting with a recommendation as to whether the proposed marriage should proceed under the care of the meeting.
32

8:13-cv-00130-RGK-PRSE Doc # 1 Filed: 04/22/13 Page 9 of 13 - Page ID # 9
following may be chosen to sign: 1) the couple (as they say the vows and marry each other;) 2) the clerk of the monthly meeting; 3) the clerk of the committee which oversees the wedding. Some couples choose to forego licensing and the privileges it brings because they feel marriage is a personal spiritual matter in which the state has no part. Others choose not to seek licensure because, in many states, not all committed couples (specifically, same-gender couples) are allowed to share the opportunities it affords. The wedding committee meets with the couple to discuss plans for the wedding and reception, taking thought in this planning for the simplicity, reverence, and dignity befitting the occasion. The committee is also responsible for seeing that the certificate of marriage and-other necessary documents are properly completed. Two example wedding certificates are provided below. Variations on these examples may be created by the couple in consultation with the wedding committee. It is also the committee's responsibility to see that the marriage is properly recorded in the monthly meeting records and, if the couple so desires, in the county records. The committee reports to the first meeting for business following the wedding on the accomplishment of its task. The marriage having been authorized and the meeting for worship at which it is to be solemnized having gathered, it is recommended that a substantial period of unprogrammed worship precede the exchange of vows. At a suitable time in the meeting, the couple rises and exchanges their vows. Promptly after exchanging their vows, the couple signs the marriage certificate, the certificate is read aloud by a person designated in advance, and the meeting returns to worship. At the rise of meeting, the wedding committee and all in attendance are invited to sign the certificate as witnesses.
34

8:13-cv-00130-RGK-PRSE Doc # 1 ' F.. ,ilIed: 04/22/13 Page 10 of 13 - Page ID # 10

NEBRASKA DEPARTMENT OF CORRECTIONAL SERVICES
GRIEVANCE FORM Step One
CHIEF EXECUTIVE OFFICER

INSTRUCTIONS: TYPE OR USE BALL POINT PEN. IF MORE SPACE IS NEEDED, USE ATTACHMENT SHEET IN TRIPLICATE.

From: -...L..;Lv-:-1;;t;/.=~~i1;:::------±t:::t!f~:-'-'-"-U~B:-:-:-:-:-::::-:-:----

LAST NAME,

~lAST,

MIDDLE INITIAL

NO.

FACILITY/HOUSING UNIT

Part B - RESPONSE AND REASONS FOR DECISION REACHED
I support the response on the informal grievance resolution form. Per policy, AR 205.02, Visiting, ex-felons cannot visit or enter the facility for three years after discharge date. This person is not immediate family, will not be considered for visit until March 23, 2015.
'ECir"'.

8:13-cv-00130-RGK-PRSE Doc # 1 Filed: 04/22/13 Page 11 of 13 - P~ag/e Id D #-11 gc~(50

NEBRASKA DEPARTMENT OF CORRECTIONAL SERVICES

GRIEVANCE FORM Step Two
CENTRAL OFFICE APPEAL

INSTRUCTIONS: TYPE OR USE BALL POINT PEN. IF MORE SPACE IS NEEDED, USE ATTACHMENT SHEET IN TRIPLICATE.

/:;.:;·&!~"·~1~-tJi+=v=· ~f-~:j=-:-:--- From: ----""\#-'-:·;-':-;:'

..=-'.I_J-;=-·

LAST NAME,

' FIRST,

MIDDLE INITIAL

~ 74/,,{
NOJGROUP

l.c:..L {;.. {j / '-f - INSTITUTION

SIGNATURE
*THE COMPLETED INSTITUTIONAL GRIEVANCE FORM, INCLUDING THE CHIEF EXECUTIVE OFFICER'S/SUPERINTENDENrS RESPONSE, MUST ACCOMPANY THIS APPEAL.
Part B - RESPONSE AND REASONS FOR DECISION REACHED
ORIGINAL: TO BE RETURNED TO INMATE/STUDENT AFTER COMPLETION.

8:13-cv-00130-RGK-PRSE Doc # 1 Filed: 04/22/13 Page 12 of 13 - Page ID # 12

WILSON HAROLD B. #37418 2012-8550

NEBRASKA DEPARTMENT OF CORRECTIONAL SERVICES
GRIEVANCE FORM Step Two
Central Office Appeal
RESPONSE AND REASONS FOR DECISION REACHED

Inmate Name:

WILSON HAROLD B.

Inmate Number:

37418

Date Received:

1/2/2013

Grievance Number: 2012-8550

Subject:

Visitation

Response:

.f!J ~ltevr'r..~
You are g,rilURg tfie denial of your request to have Gracy Sedlak aka John Jorvocky
visit you. This person is an ex-felon who was released from the Department's custody
on March 23, 2012. Therefore, he will not be allowed to visit someone in the
o-.t Department's custody for three years( )r~. L<n\ k c6n,s; ~ .f/...t fi )f'lC.).
?·

Date

Director

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8:13-cv-00130-RGK-PRSE Doc # 1 Filed: 04/22/13 Page 13 of 13 - Page ID # 13

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 8:13-cv-00130-RGK-PRSE Doc # 21 Filed: 12/10/13 Page 1 of 14 - Page ID # 62

IN THE UNITED STATES DISTRICT COURT DISTRICT OF NEBRASKA

FILED U. S. DISTRICT COUrn J!S fRICl OF NEBf\,..\Sr\/;
,.
l ~·

HAROLD B WILSON and GRACY SEDLAK
Plaintiffs
v.
JON BRUNING et al Defendants

)

Case No 8 13 CV 130

)

)

)

AMENDED COMPLAINT

)

)

)

)

Comes now the Plaintiffs and ask the Court for leave to file this Amended Compliant per the Courts order. The Plaintiffs reassert all claims asserted in their original complaint
BACKGROUND
Plaintiff Wilson was raised in and is currently a member the Society of Friends (Quakers), which is his family's religious tradition. Wilson's sincerely held religious belief and practice also includes the religion of Wicca. His official religious preference, as filed with the Dept. of Corrections includes Quaker, Wicca and Buddhist. The U.S. and State Constitutions guarantee freedom of religious practice and preference and guarantees that a person can hold religious beliefs from different religious sects...
Ms. Sedlak has practiced the religion of Wicca since 2007. She is a transsexual, male to female, who has attended Quaker Services at the local Lincoln Friends Meeting.
On March 19, 2011 the Plaintiffs were joined in a Wiccan Hand fasting marriage ceremony by High Priestess Cynthia Blodgett-Griffin at the Religious Center in the Nebraska State Penitentiary (NSP). Blodgett-Griffin issued a certificate of marriage to the couple.
The Plaintiff couple have combined all their property and finances and issued Durable Powers of Attorney for each other. Plaintiffs are co-Plaintiffs in four other legal actions involving financial investments and discrimination against Transsexuals because of their non-conforming stereotype.
Because the Dept. of Corrections (DCS) has a three year waiting period policy for visitation consideration of former inmates, the Plaintiffs are unable to have confidential communication in preparation of these legal matters in state and federal court as both mail and telephone calls are monitored by DCS staff. These are the case numbers for those actions: Cl12-2031, Cl12-1513, Cl13-1225, A-13-000967, and a-13-000787 and 4-12-CV-3061.
On 11-30-2012 the Plaintiffs were denied permission by Defendant Peart to meet with the Members of the Lincoln Friends Clearness Committee on Marriage who wished to meet with the Plaintiffs following their request to be married under the Care of the Lincoln Friends Meeting. The following is a tenet of the Friends Religion as recorded in their book of Faith and Practice regarding marriages under the care of the Meeting:

1

8:13-cv-00130-RGK-PRSE Doc # 21 Filed: 12/10/13 Page 2 of 14 - Page ID # 63
"Some couples choose to forego licensing and the privileges it brings because they feel marriage is a personal spiritual matter in which the state has no part. Others choose not to seek licensure because in many states not all committed couples (specifically come same-gender couples) are allowed to share the opportunities it affords.
The wedding Committee meets with the couple to discuss plans for the wedding and reception ...The committee is also responsible for seeing that the certificate of marriage and other necessary documents are properly completed,...It is also the committees responsibility to see that the marriage is properly recorded in the Monthly meeting records and , if the couple desires, in the County records"
Constitution of Nebraska Article I section 3 Revised Statute 42-115:
It shall be lawful for every religious society to join together in marriage such persons as the society, according to the rites and customs of the society to which they belong.
On 12-21-2012 Robert Madsen signed a Step I Grievance for Mario Peart which denied the Plaintiffs request to meet together with the Friend's Wedding Committee.
On 1-18-2013 Frank Hopkins signed a Step II grievance for Director Houston, again denying the Plaintiffs request to meet with the Friend's Wedding Committee and denying consideration of Ms. Sedlak visiting Mr. Wilson until three years after March 23, 2012
On 12-20-212 Plaintiff Wilson requested by kite to wear a hat indoors after the tradition of Quakers. The Religious Coordinator and later Religious Study Committee of the DCS denied this request. On 12-21-2012 Wilson filed an informal Grievance and was denied by UM Cruz. On 1-3-2013 Wilson filed a Step II Grievance which was refused to be answered by Frank Hopkins. Wilson filed follow up grievances on this refusal which were still denied even though the rules only limit the number of Step I Grievances an inmate can file in a given week. These were replied to and denied by UM Cruz, Frank Hopkins and Diane Sabbatka-Rine for Director Houston.
The state of Nebraska and the DCS rules and policies violate the Plaintiffs Constitutional rights of association and religious practice. There is no justifiable penological reason for a blanket denial of visitation by former inmates for three years after their release from custody, especially in view of the fact that Ms. Sedlak is approved and has visited an inmate currently in the custody of the Lancaster County Jail.
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8:13-cv-00130-RGK-PRSE Doc # 21 Filed: 12/10/13 Page 3 of 14 - Page ID # 64
Questions of Law 1. Is Nebraska's marriage law section 29 of the Nebraska State Constitution narrowly drawn to
avoid unnecessarily violating the Plaintiffs rights to Equal protection, freedom of religious practice and right of association?
2. Is procreation truly a state interest when those in capable of procreation, such as the elderly and those incapable of child bearing and prisoners serving life in prison or a death sentence are allowed to marry freely?
3. Are the compelling interests of tax incentives, Heritance and access to the courts by coPlaintiffs of more compelling constitutional interest then limiting or banning marriage for a large group of the population?
4. Is the three year waiting period for visitation consideration in violation of the First Amendment freedom of association?
5. Should section 29 of the State constitution be given strict scrutiny or a rational basis test in considering if it is constitutional?
3

8:13-cv-00130-RGK-PRSE Doc # 21 Filed: 12/10/13 Page 4 of 14 - Page ID # 65
ARUGUMENT
In Baehr v Lewin 74 Haw 530, Hawaii's marriage statute discriminated on the basis of sex by limiting marriage licenses to male-female couples. In that case the Plaintiffs were entitled to an evidentiary hearing to determine if it furthered a compelling state interest and was narrowly drawn to avoid unnecessarily violating the plaintiff's equal protection rights under Hawaii's state constitution.
A complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the Plaintiff can prove no set of facts in support of his or her claims that would entitle them to relief. A court must therefore view a Plaintiff's complaint in a light most favorable to him or her in order to determine whether the allegations contained therein could warrant relief under
any Alternative Theory. For this reason. In reviewing a lower court's order dismissing a
complaint, an Appellate courts consideration is strictly limited to the allegations of the complaint, and it must deem those allegations to be true. Baehr v Lewin 74 Haw 530
The right to marry is part of the fundamental right of privacy implicit in the Due Process clause of the U.S. Constitution Amendment XIV Baehr v Lewin 74 Haw.530
Plaintiffs believe section 29 of the Nebraska State Constitution mandates "strict scrutiny" review as to whether it is constitutional or not.
Whenever a denial of equal protection of the is alleged, as a rule the courts initial inquiry is whether the legislation in question should be subjected to 'strict scrutiny' or to a 'rational basis' test. The strict scrutiny analysis is applied to laws classifying on the basis of suspect categories or impinging upon fundamental rights expressly or impliedly granted by the Constitution in which case the laws are presumed to be unconstitutional unless the state shows compelling state interests which justify such classifications and the laws are narrowly drawn to avoid unnecessary abridgement of Constitutional rights. Baehr v Lewin 74 Haw.530
The recent ruling in the Windsor case declares that the right to marry someone of ones choosing is a Constitutional right; "The right to marry is part of the fundamental right of privacy inherit in the Due Process Clause of the U.S. Constitution Amendment XIV" U.S. v. Windsor 133 S.Ct. 2675. Plaintiffs claim that the right of a person who is declared to be transsexual to marry a person of the opposite gender to their gender dysphonic gender is a new area of law. It is medically established that s Sedlak is mentally a female and undergoing hormone treatment required for this condition. Transsexuals should not be forced to only legally marry someone of the same gender to their presented gender identity, but should be granted the right protected by the U. S. and state constitution's to marry someone of the opposite gender to the gender they present themselves to be.
4

8:13-cv-00130-RGK-PRSE Doc # 21 Filed: 12/10/13 Page 5 of 14 - Page ID # 66
In 2007 Gracy Sara Sedlak had a name change filed with the lancaster County District Court from her birth name of John Francis Jirousky. If Ms. Sedlak was not in reality a woman mentally then she would not have selected a female name to call herself. A person self-nomenclature is indicative of their actual gender.
When an individual's gender or sex Identity is incongruous with the name given them at birth, they may want to change it. Any citizen of Nebraska under current state statute is permitted to alter their name. The statute requires that the applicant appear before the court and give cause as to why they are requesting a name change. At that time, people can object and present cause as to why the court should deny the change or the court can do so on its own motion. It is fully within the court's discretion to deny the name change. No one not even the court objected to Ms. Sedlak's name change. Thus the Lancaster county District Court has already legitimately recognized her as a female.
The statute does not require a finding of fraud or intention to commit an alleged act in order to deny the name change. Instead, it is within the discretion of the court to deny a transsexual or gender non-conforming applicant based on a policy concern about gender change and gender identity to deny this change if they desired to do so. No case exists that has been appealed to either the Nebraska Supreme court or the Nebraska Court of Appeals. Thus there exists prominence that Ms. Sedlak's gender is female or the District Court should have denied this name change.
Ms. Sedlak is diagnosed with Gender Dysphoria
The word 'sex', male' and 'female' in everyday understanding does not encompass transsexual. The plain ordinary meaning of 'persons of the opposite sex' contemplates a biological man and a biological woman and not persons who are experiencing gender Dysphoria. A male-to-female post-operative transsexual does not fit the definition of a female. The male organs have been removed, but the ability to produce ova and bear offspring does not and never did exist. There is no woman's cervix or ovaries, not is there any change in his chromosomes. 49 Idaho l. Rev 587.
Yet such an individual in Nebraska is eligible for a birth certificate correction to female. So too should Ms. Sedlak be afforded this kind of correction of her birth certificate and status as a woman and be allowed to marry Mr. Wilson as an opposite sex spouse.
Currently 47 states and the District of Columbia will allow transgender and gender nonconforming individuals to amend their birth certificate to accurately reflect their sex. ..Furthermore, the statute defines gender identity expression as: "a person's actual or perceived gender, as well as a person's gender identity, gender- related self-image, gender-related appearance or gender-related expression, regardless of whether that gender identity, genderrelated self-image, gender-related appearance or gender-related expression is different from that traditionally associated with the person's sex at birth 49 Idaho l. Rev 587.
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The term transgender or transsexual is defined as: A person who experiences a mismatch of the sex they were born as and the sex they identify as. A transsexual sometimes undergoes medical treatment to change his/her physical sex to match his/her identity through hormone treatment and/or surgery. Not all transsexuals can have or desire surgery. In the instant case, Ms. Sedlak cannot afford the cost of such surgery. Would the court punish and condemn her to never be afforded the benefits and privileges of being legally married to someone of opposite sex to her perceived and expressed gender if her gender cannot truly be either male nor female?
In Nebraska a post-operative trans-woman could marry another woman and have the Court, and consequently the state, validate and protect the marriage. While this would normally violate much state's prohibition against same-sex marriages, under essentialist system currently in place, this would be completely legal as a trans-woman is often assigned a male sex at birth. However, if the couple moves to a jurisdiction that also bans same-sex marriage, but does not construe sex and gender based on biology, their marriage would not be legal as the trans-woman is now a woman for the purpose of the law. See 49 Idaho L. Rev 587 supra.
Heightened Scrutiny verses Rational Review
To evaluate Equal Protection claims under the Nebraska State Constitution, the Court must follow a three-part framework set out by the U.S. Supreme Court. First the Court must identify the Classification that is being challenged. Second, the Court must determine the standard under which the classification will be judicially reviewed, and finally, the court must determine whether the appropriate standard was satisfied. No case on point exists from either the Nebraska Supreme court or Nebraska Court of Appeals, which addresses the interpretation of the Equal Protection Clause of the Nebraska State Constitution in light of transgender/transsexual or gender nonconforming individuals.
The Nature of discrimination is the same, it may differ in degree, but not in kind, and discrimination on the basis of conforming or failing to conform to gender stereotypes] is a form of sex based discrimination that is subject to heightened scrutiny under the Equal Protection Clause. Ever since the Supreme Court began to apply heightened scrutiny to sex-based classification, its' consistent purpose has been to eliminate discrimination on the basis of gender stereotypes. Glen v. Brumby 663 F.3d 1312, 1316, and 1319.
The Windsor Case
Several Courts have read the Supreme Courts recent cases in this area to suggest that rational basis review should be more demanding when there are historic patterns of disadvantage suffered by the group adversely affected by the statute U.S. vs. Winsor 133 S.Ct 2675
In this case, transgender/transsexual individuals and gender nonconforming stereotypes and herein the Plaintiffs. From the Windsor case supra there are seven A Quasi-suspect class requirements :
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Historically subjected to discrimination Class has a defining characteristic that often bears a relation to ability to perform or contribute to society Obvious characteristics that define them as a discrete group Whether class is a minority or politically powerless
Obviously transgender/transsexual individuals such as the Plaintiffs meet these four requirements to be denoted as a quasi-suspect class which has suffered historic discrimination.
Due Process Just as currently in the state of Michigan, which has a similar state constitutional amendment to Nebraska's Section 29 the court has determined sufficient cause to hold a hearing. In Deborer v. Synder 2013 U.S. Dist. Lexis 98382. The Federal court has said those Plaintiffs should have their day in court.
Due Process of Law means that a party shall have his day in court. Brisbin v. E.L. Oliver Lodge No 335124 Neb 517; 279 N.W. 277.
Procreation as a compelling state interest The reach of Section 29 is at once too broad and two narrow to satisfy its purported purpose of
defining marriage, preserving marriage or fostering procreation and family life. Citizens for Equal Protection v. Bruning 368 F. Supp. 2d 987 at 1002.
In the State of Nebraska a majority of Nebraska citizens have decided that Section 29 is the will of the people. In most instances, the peoples vote carries much weight and should be afforded great deference, however, "ones right to life, liberty and property and other fundamental rights may not be submitted to vote. They depend on the outcome of no elections." 319 U.S. 624. 638
See Romer v. Evans 517 U.S. at 632, 670. The notion that a ban on same sex marriage encourages procreation to take place within the socially recognized that is best situated for raising children is just a notion.. There is no plausible evidence that this traditional notion that two committed heterosexuals are the optimal partnership for raising children. Is it constitutional that the state mandate that couples must procreate in order to be legally married? If that is the state's compelling interest then the elderly and sterile couples and also prisoners serving a life or death sentence should not be allowed to legally marry.
The focus is not so broad as the render Nebraska's reasons for its enactment inexplicable by anything but animus toward same-sex couple Romer v Evans supra at 632
The court noted that a statute infringing first Amendment Rights is subject to strict scrutiny. Citizens for Equal Protection v Bruning 368 F. Supp. 2d 989
(The purpose of the Bill of Rights) ones right to life, liberty and property, to free speech, a free press, freedom of worship and association and other fundamental rights may not be
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submitted to vote, they depend on the outcome of no elections. W.Va. Bd. Of Ed. V Barnette 34
u.s. 624.
In Nebraska Transgenders/transsexuals are allowed to legally use the restroom of the gender they believe themselves to be. Also, recently the High School Athletic Association has mandated that transsexuals can participate on athletic teams of the gender they present themselves to be-not forced to be limited to only athletic teams of their biological gender. Yet the same transgender individuals cannot marry an opposite gender spouse if their physical gender is one and the same as their intended spouse. Does that make any kind of logic or sense, or Equal treatment?
If procreation is a compelling state interest why are abortions legal in Nebraska? They are contrary to procreation. What is the state's plausible evidence that procreation is a compelling state interest in a state burdened by child support arrearages and child welfare shortages.
It was not that many years ago that persons suffering from mental retardation where not allowed to procreate and were sterilized by the state. Yet they were still allowed to marry. Not allowing transgender individuals to marry someone of a different gender then the one they present themselves to be is just as wrong as that was. Should the state now revert to banning interracial marriages too? If procreation is of such compelling interest to the state why are birth control pills readily, legally available in Nebraska?
Are Transgenders treated as Second Class Citizens by Section 29?
Forcing a transgender woman such as Ms. Sedlak to only legally marry someone of the same gender as she presents herself to be makes the Plaintiff into a second class citizen.
It is clear that the government can regulate conduct e.g. criminal activity, but the government may not create classes among its' citizens on the basis of who they are, rather than what they do. Citizens for Equal Protection v Bruning 368 F. Supp. 2d 980.
State laws defining and regulating marriage must respect the Constitutional Rights of persons.... Defense of Marriage Act which denied recognition of same-sex marriages is unconstitutional as deprivation of liberty of persons protected by the Fifth Amendment of the U.S. Constitution. U.S. v Windsor 133 S.Ct 2675
Violation of First Amendment
Plaintiffs have been denied freedom of association by not being allowed visitation with each other. There is no plausible penological reason to deny Plaintiffs to associate by visiting when until Ms. Sedlak was paroled the defendants allowed the Plaintiffs daily unlimited association, even though transgender inmates are often isolated from General Population, Ms. Sedlak was not.
Plaintiffs First Amendment Rights have been violated by defendants arbitrary three year ban on visitation consideration. Especially considering that Ms. Sedlak has been approved to and has visited a
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non-immediate family member inmate currently incarcerated in the Lancaster County Jail. How can the DCS claim a justifiable penological reason to deny her visitation at the lincoln Correctional Center (LCC)
Expressive association-the right to associate for the purpose of engaging in those activities protected by the First Amendment speech, assembly, Petition for redress of grievances and the exercise of religion is governed by the First Amendment principles... Noting that the Constitution guarantees freedom of association of this kind as an indispensible means of preserving other individual liberties. Intimate associations characterized as choices to enter into and maintain certain intimate human relationships receives protection as a fundamental of personal liberty under the Due Process Cia use 435 U.S. 778.
Stating the liberty of speech and of the press which the First Amendment guarantees against abridgment by the Federal government is within the liberty safeguarded by the Due Process Clause of the 14th Amendment. These two constitutionally protected freedoms can coincide particularly when the state interferes with an individual's selection of those whom they wish to join in a common endeavor. Roberts v. U.S. Jaycees 468 U.S. 609, 618
The First Amendment, applicable to the states through the 14th Amendment provides that congress shall make no law abridging the freedom of speech...the hallmark of the protection of free speech is to allow free trade in ideas...even ideas that the overwhelming majority of people might find distasteful or discomforting. Virginia v. Black 538 U.S. 343, 357
An individual's interest in self-expression is a concern of the First Amendment separate from the concern for open and informal discussion, although the two often converge. Boston v Beliotti
475 u.s. 765
The Court never clarified whether it was holding that Section 29 violates the First Amendment as applied to the states. Citizens for Equal Protection v Bruning 368 F. Supp. 2d 989
It does not directly and substantially interfere with the ability to associate in lawful pursuit of a common goal...exceedingly unlikely it will prevent person from continuing to associate Lyna v. International Union 485 U.S. 360, 364-66.
In this current case the Plaintiffs ability to associate in lawful pursuit of common goals of happiness and of legal endeavors has been more than substantially interfered with by the defendants.
The Court noted that a statute infringing on First Amendment Rights is subject to strict scrutiny. Citizens for Equal Protection v Bruning 368 F. Supp. 2d 989. The Windsor case is applicable to Section 29, "The U.S. Constitution's guarantee of equality must, at the very least, mean that a bare congressional desire to harm a politically unpopular group cannot justify disparate treatment of that group. In determing whether a law is motivated by an
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improper animus or purpose, discriminations of an unusual character especially require careful consideration.
The power of the U.S. Constitution grants, it also restrains and, though Congress has great authority to design laws to fit its own conception of sound national policy, it cannot deny the liberty protected by the Due Process Clause of the Fifth Amendment.
The defense of Marriage Act I U.S.C.S. section 7 is unconstitutional as a deprivation of the liberty
of the person protected by the sth Amendment of the U.S. Constitution. U.S. v. Windsor supra
Logic would dictate that if the Federal Defense of marriage Act is unconstitutional so too is Section 29 of the Nebraska State Constitution.
... most cases treat an abridgement of the right to marry as a Due Process issue under the 5th or 14th Amendments. In Windsor a majority of Supreme Court Justices struck down the Federal Defense of Marriage Act as a deprivation of the liberty of the person protected by the 5th Amendment. And in Conway v. Deane 401 Md. 219, 932 A.2d 571, a majority of the Court of Appeals, in considering a ban on same-sex marriage, similarly noted that "it is beyond doubt that the right to marry is a federal liberty interest protected by the Constitution. ld at 292 n. 63. Never the less, Roberts v. U.S. Jaycees 968 U.S. 609, 617-8; 104 S.Ct 3244 does recognize that the right to marry and to enter into intimate relationships may be protected by the First Amendment freedom of Association. Cross v Baltimore City Police Dept. 213 Md. App. 294.
Freedom of intimate association as the Plaintiffs desire is protected by the Bill of rights which is designed to serve individual liberty. It affords the formation and preservation of highly personal relationships and affords a substantial measure of sanctuary from unjustified interference by the state (Roberts Supra) The Constitutional shelter afforded such relationships reflects the realization that individuals draw much of their emotional enrichment from close ties with others and protects those relationships from unwarranted state interference and therefore safeguards the ability independently to define identity that is central to any kind of liberty. The First Amendment protects those relationships that by the other individuals with whom one shares not only a special community of thoughts, experiences and beliefs, but also distinctively personal aspects of one's life. These protected relationships are distinguished by such attributes as relative smallness, high degree of selectively in decisions to begin and maintain the affiliation and seclusion from others in critical aspects of their relationship and generally only relationships with these sort of qualities are likely to reflect the consideration that have led to an understanding of freedom of association as an intrinsic element of personalliberty(See Roberts 468 U.S. at 620). The Equal Protection Clause necessarily limits the authority of a state to draw such "legal Lines" as it chooses.
The Court need not decide whether and to what extent the state can define or limit the statutory definition of marriage. The Court can only hold that the prohibition of any relationship similar to marriage is both exceedingly rogue and overly broad.
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Benefits being denied the Plaintiffs
Joint Social Security Benefits Protected leave under the Family Medical leave Act Joint Retiree health insurance benefits Joint Survivor Benefits and Death Benefits Ability of incarcerated spouse to send family support to spouse
A taxpayer has standing to challenge the collection of a specific assessment as unconstitutional; being forced to pay such a tax causes real and immediate economic injury to the individual taxpayer ...
The requirement of the U.S. Constitution Article Ill standing are familiar. First the Plaintiffs must have suffered an injury in fact. An invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical, second, there must be a causal connection between the injury and the conduct complained of...The injury has to be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court. Third, it must be likely as opposed to merely speculative that the injury will be readdressed by a favorable decision U.S. v Windsor Supra.
Ms. Sedlak has been harmed by not being able to avail herself of filing a joint tax return as a married person and from realizing the other benefits above as a married person.
8th Amendment Violation
In addition to the above denial of marital Benefits and privileges the Plaintiffs are suffering the cruel and unusual punishment of not being able to visit with each other as immediate family members.
A serious medical need may mental or physical. Therefore deliberate indifference to an inmate's serious mental health needs violate U.S. Constitution Amendment VIII Kosilk v Spencer 889 F.Supp 2d 190; 2013 U.S. Dist. Lexis 75921.
Plaintiffs both have suffered severe depression and Ms. Sedlak has attempted suicidal actions because of the denial of visitation as immediate family. Plaintiff Sedlak has been hospitalized for depression and a suicide attempt and has undergone extensive counseling of which the cause is directly attributable to the forced separation and denial of visitation. There can be no justifiable penological reason to deny Ms. Sedlak from immediate visitation when the defendant's policy allows former inmates to become volunteers for religious and club functions after only 18 months of release from custody, which Ms. Sedlak has already surpassed. She is eligible for approval as a volunteer, but is not
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allowed to visit Plaintiff Wilson. She is not being treated to equal consideration as a visitor to those approved to become volunteers after only 18 months of release from the DCS.
Absent legitimate countervailing penological consideration, adequate medical care typically requires addressing the causes of the inmate's serious medical need rather than merely providing treatment to reduce the pain it causes. Kosilek v Spencer supra.
Plaintiffs submit that the direct cause of their depression and suicide attempt and thoughts is the denial of visits which marriage and approval to visit as immediate family members would eliminate.
The very purpose of a Bill of rights is to withdraw certain subjects from the vicissitudes of political contraversary. To place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. The Right to be free of cruel and unusual punishments like other guarantees of the Bill of Rights, may not be submitted to vote, it depends on the outcome of no elections. The whole point of the U.S. Constitution Amendment VIII is to protect persons convicted of crimes. Eighth Amendment protections are not forfeited by ones prior acts. Kosilek Supra.
It is obvious that the facts of the Plaintiffs damages and distress meet all Constitutional criteria for violation of their right to association and cruel and unusual punishment simply because Ms. Sedlak is a transgender female and former inmate. Plaintiffs are being punished for falling in love with each other. The Plaintiffs have demonstrated their commitment to each other as spouses and wish to have their commitment to each other in a common purpose on an equal status to any other hetro-sexual married couple who are citizens of Nebraska and the United States. The Plaintiffs are only allowed nonconfidential communication by phone or mail, which makes it impossible for them to confidentially discuss legal matters in the several lawsuits they have pending in state and federal courts.
Many important attributes of marriage remain, however, after taking into account the limitations imposed by prison life. These incidents of marriage; like the religious and personal aspects of marriage commitment are unaffected by the fact of confinement in the pursuit of legitimate goals. Turner v Safely 482 U.S. 78; 107 S.Ct 2754.
The assumed sex of an individual at birth is based only on observation of anatomy at birth, which itself may change when the individual reaches puberty. The U.S. Supreme court has noted that the construction of Title VII was meant to broadly help people . Penalizing someone for conforming or failing to conform to gender expectations is unacceptable. If it is truly a new right, [Judges] will have to go beyond the technical legal materials of decision and consider moral, political, empirical, prudential and instructional issues including public acceptability of a decision recognizing the new right...Constitutional Rights are, after all, rights against the democratic majority. 49 Idaho L. Rev 587
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Some states require a genital reconstructive surgery, while others just require a showing that the sex of an individual has changed. Only three states do not allow Birth Certificate Corrections.

CONCLUSION

Ms. Sedlak has demonstrated that her gender has changed by taking hormones and

testosterone blockers which have changed her physical appearance to female and has presented herself

in mode of dress and actions for over 30 months as a female.

The Plaintiffs aver that it is Ms. Sedlak's Right as a transgender female to be declared as such legally and have her birth certificate corrected to reflect her change of gender, and to marry Mr. Wilson

who is of the opposite gender to her under care of the Lincoln Friends Meeting and to be approved to

visit her spouse who is incarcerated at LCC. Plaintiff Wilson declares that as a member of the Society of Friends and the Lincoln Friends

Meeting that his religious practice of not removing his hat while indoors should be honored by the

defendants as any other religious headgear that is allowed to be worn indoors by the DCS and points out to the court that no other institution of the DCS has such a rule and that hats are allowed outdoors even

at LCC. That being so there is no justifiable security concern since they are allowed to be worn outdoors

and that religious head gear is authorized by the LCC for wearing indoors. This is his sincerely held

religious belief to not remove his hat for any person, as has been Quaker practice for hundreds of years

asad~~self.

·-/1~

Harold Wilson #37418 Box22800 Lincoln, Ne 685642-2800

Gracy Sedlak. 1035 Hartley Lincoln, Ne 68521

13

 
 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA

HAROLD B. WILSON, and GRACY )

S. SEDLAK,

)

)

Plaintiffs,

)

)

v.

)

)

JON BRUNING, et al.,

)

)

Defendants.

)

8:13CV130
MEMORANDUM AND ORDER

This matter is before the court on its own motion. On November 7, 2013, the court entered a Memorandum and Order allowing Plaintiffs to file an amended complaint that states a claim upon which relief may be granted. (Filing No. 20.) Plaintiffs filed an Amended Complaint on December 10, 2013. (Filing No. 21.) The court considers Plaintiffs’ Amended Complaint as supplemental to their original Complaint. NECivR 15.1(b) (stating that in pro se cases, the court may consider an amended pleading as supplemental to the original pleading, rather than as superseding).

The court has carefully reviewed Plaintiffs’ Complaint and Amended Complaint and finds that Plaintiffs’ claim that prison regulations violate their First Amendment right to freedom of association may proceed to service of process. Plaintiffs’ factual allegations with respect to this claim are lodged against Frank Hopkins only. (See Filing No. 21 at CM/ECF p. 2 (“On 1-18-2013 Frank Hopkins signed a Step II grievance for Director Houston . . . denying consideration of Ms. Sedlack visiting Mr. Wilson until three years after March 23, 2012.”).) The court cautions Plaintiff that this is only a preliminary determination based on the allegations of the Complaint and Amended Complaint, and is not a determination of the merits of Plaintiff’s claims or potential defenses thereto.

All other claims against all other Defendants will be dismissed. As the court discussed in its previous order, Plaintiffs’ arguments that they are being denied the right to marry are foreclosed by the Eighth Circuit Court of Appeals’ opinion in Citizens for Equal Protection v. Bruning, 455 F.3d 859 (8th Cir. 2006). (Filing No. 20.) Plaintiff Harold Wilson’s request that the court order the prison to allow him to wear a hat is unrelated to the claims alleged in the Complaint and Amended Complaint. To the extent Wilson wishes to sue the prison for a violation of his religious rights because he is not allowed to wear a hat, he must do so in a separate action.
IT IS THEREFORE ORDERED that:
1. Plaintiffs’ First Amendment claim against Frank Hopkins in his individual and official capacities may proceed to service of process. All other claims against all other Defendants are dismissed.
2. To obtain service of process on Defendant Frank Hopkins, Plaintiffs must complete and return the summons forms that the Clerk of the court will provide. The Clerk of the court shall send two summons forms and two USM-285 forms to Plaintiff, together with a copy of this Memorandum and Order for service on Frank Hopkins in his individual and official capacities. Plaintiff shall, as soon as possible, complete the forms and send the completed forms back to the Clerk of the court. In the absence of the forms, service of process cannot occur.
3. Upon receipt of the completed forms, the Clerk of the court will sign the summons forms, to be forwarded with a copy of the Complaint and Amended Complaint to the U.S. Marshal for service of process. The Marshal shall serve the summons and the Complaint and Amended Complaint without payment of costs or fees. Service may be by certified mail pursuant to Federal Rule of Civil Procedure 4 and Nebraska law in the discretion of the Marshal. The Clerk of the court will copy the Complaint and Amended Complaint, and Plaintiff does not need to do so.
2

4. Federal Rule of Civil Procedure 4 requires service of the complaint on a defendant within 120 days of filing the complaint. However, because in this order Plaintiffs are informed for the first time of these requirements, Plaintiffs are granted, on the court’s own motion, an extension of time until 120 days from the date of this order to complete service of process.
5. Plaintiffs are hereby notified that failure to obtain service of process on a defendant within 120 days of the date of this order may result in dismissal of this matter without further notice as to such defendant. A defendant has 21 days after receipt of the summons to answer or otherwise respond to a complaint.
6. The Clerk of Court is directed to set a pro se case management deadline in this case with the following text: “August 15, 2014: Check for completion of service of summons.”
7. The parties are bound by the Federal Rules of Civil Procedure and by the Local Rules of this court. Plaintiffs shall keep the court informed of their current address at all times while this case is pending. Failure to do so may result in dismissal.
DATED this 17th day of April, 2014.
BY THE COURT:
Richard G. Kopf Senior United States District Judge
*This opinion may contain hyperlinks to other documents or Web sites. The U.S. District Court for the District of Nebraska does not endorse, recommend, approve, or guarantee any third parties or the services or products they provide on their Web sites. Likewise, the court has no agreements with any of these third parties or their Web sites. The court accepts no responsibility for the availability or functionality of any hyperlink. Thus, the fact that a hyperlink ceases to work or directs the user to some other site does not affect the opinion of the court.
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 8:13-cv-00130-RGK-PRSE Doc # 39 Filed: 11/03/14 Page 1 of 9 - Page ID # 143

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA

HAROLD B. WILSON, and GRACY )

S. SEDLAK,

)

)

Plaintiffs,

)

)

v.

)

)

FRANK HOPKINS, Asst Dir, All in )

their individual and professional

)

capacities,

)

)

Defendant.

)

8:13CV130
MEMORANDUM AND ORDER

This matter is before the court on Defendant’s Motion to Dismiss (Filing No. 28). Defendant moved to dismiss the only issue remaining in this case: whether Defendant violated Harold Wilson and Gracy Sedlak’s First Amendment right to freedom of association. Defendant argues Wilson and Sedlak failed to allege facts sufficient to infer their constitutional right to freedom of association has been violated. Defendant’s motion to dismiss calls upon the court to revisit the question of whether Wilson and Sedlak’s Complaint and Amended Complaint fail to state a claim upon which relief may be granted. Upon further review of Plaintiffs’ pleadings and the relevant law, the court agrees with Defendant that the Complaint and Amended Complaint fail to state a claim upon which relief may be granted.

I. DEFENDANT’S MOTION TO DISMISS

A. Factual Allegations

Wilson is incarcerated at the Lincoln Correctional Center in Lincoln, Nebraska, a facility within the Nebraska Department of Correctional Services (“NDCS”). Sedlak is a former inmate with the NDCS who was paroled on March 23, 2012. Sedlak is undergoing hormone treatment in order to “transition from male to female.” Sedlak

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and Wilson are in a “committed relationship.” However, Sedlak is not allowed to visit Wilson in prison because NDCS rules state that ex-felons may not visit NDCS facilities for three years after expiration of their sentences. (Filing No. 1 at CM/ECF pp. 2-4.)
Wilson filed grievances objecting to prison officials’ decision not to allow Sedlak to visit him. (See Filing No. 1 at CM/ECF pp. 10-12.) On January 18, 2013, Defendant responded to Wilson’s grievance as follows:
You are grieving the denial of your request to have Gracy Sedlak aka John Jorvocky visit you. This person is an ex-felon who was released from the Department’s custody on March 23, 2012. Therefore, he will not be allowed to visit someone in the Department’s custody for three years (he can be considered at that time).
(Filing No. 1 at CM/ECF p. 12.) Plaintiffs allege they have exhausted all administrative procedures.
B. Motion to Dismiss Standard
Defendant’s motion to dismiss is brought pursuant to the provisions of Federal Rule of Civil Procedure 12(b)(6). In order to survive a motion to dismiss under Rule 12(b)(6), “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do.’” Id. (quoting Twombly, 550 U.S. at 555). “Nor does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Id. (quoting Twombly, 550 U.S. at 557). Although a court must accept as true all factual allegations when analyzing a Rule 12(b)(6) motion, it is not bound to accept as true legal conclusions that have been framed as factual allegations.
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Id. (“[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.”).
C. Analysis
Plaintiffs challenge Nebraska Department of Correctional Services’ Administrative Regulation 205.02 (“AR 205.02”), which sets forth the rules regarding visitation by parolees. AR 205.02 states, in relevant part:
There is no limit to the number of visitors an inmate may have on his/her authorized visiting list, however all visitors must be approved by the Warden/designee for visiting. Specific visiting policies limiting visitation are as follows:
. . . .
[E]x-felons will not be granted permission to visit for three years after expiration of sentence, except for immediate family who may be considered at the end of one year.
In Overton v. Bazzetta, 539 U.S. 126 (2003), the Supreme Court addressed whether restrictions on inmates’ visitation privileges violated their constitutional rights. The court examined, in part, whether a Michigan Department of Corrections (“MDOC”) policy that prohibited inmates from visiting with former inmates violated the First Amendment right to freedom of association. The policy at issue in Overton prevented inmates from ever placing former prisoners on their visitation lists unless the former prisoner was a member of the inmate’s immediate family and the warden had given prior approval. Overton, 539 U.S. at 130. The Court applied the four factor test set forth in Turner v. Safley, 482 U.S. 78 (1987) to analyze the claims:
In Turner we held that four factors are relevant in deciding whether a prison regulation affecting a constitutional right that survives incarceration withstands constitutional challenge: whether the regulation has a “valid, rational connection” to a legitimate governmental interest;
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whether alternative means are open to inmates to exercise the asserted right; what impact an accommodation of the right would have on guards and inmates and prison resources; and whether there are “ready alternatives” to the regulation.
Overton, 539 U.S. at 132 (quoting Turner, 482 U.S. at 89-91).
With respect to the first Turner factor, the Supreme Court stated:
MDOC’s regulation prohibiting visitation by former inmates bears a self-evident connection to the State’s interest in maintaining prison security and preventing future crimes. We have recognized that “communication with other felons is a potential spur to criminal behavior.”
Id. at 133-134 (quoting Turner, 482 U.S. at 91-92).
With respect to the second Turner factor, the Court stated:
[W]e consider whether inmates have alternative means of exercising the constitutional right they seek to assert. Were it shown that no alternative means of communication existed, though it would not be conclusive, it would be some evidence that the regulations were unreasonable. That showing, however, cannot be made. Respondents here do have alternative means of associating with those prohibited from visiting. . . . [I]nmates can communicate with those who may not visit by sending messages through those who are allowed to visit. . . . [T]hey may communicate with persons outside the prison by letter and telephone. Respondents protest that letter writing is inadequate for illiterate inmates and for communications with young children. They say, too, that phone calls are brief and expensive, so that these alternatives are not sufficient. Alternatives to visitation need not be ideal, however; they need only be available.
Id. at 135 (internal citation omitted).
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In addressing the third Turner factor, the Court explained that:
Another relevant consideration is the impact that accommodation of the asserted associational right would have on guards, other inmates, the allocation of prison resources, and the safety of visitors. Accommodating respondents’ demands would cause a significant reallocation of the prison system’s financial resources and would impair the ability of corrections officers to protect all who are inside a prison’s walls. When such consequences are present, we are “particularly deferential” to prison administrators’ regulatory judgments.
Id. at 135 (internal citation omitted).
Finally, with respect to the fourth Turner factor, the court explained:
[W]e consider whether the presence of ready alternatives undermines the reasonableness of the regulations. Turner does not impose a least-restrictive-alternative test, but asks instead whether the prisoner has pointed to some obvious regulatory alternative that fully accommodates the asserted right while not imposing more than a de minimis cost to the valid penological goal. Respondents have not suggested alternatives meeting this high standard for any of the regulations at issue. . . As to the limitation on visitation by former inmates, respondents argue the restriction could be time limited, but we defer to MDOC’s judgment that a longer restriction better serves its interest in preventing the criminal activity that can result from these interactions.
Id. at 136 (internal citation omitted).
Applying the analysis of the Turner factors in Overton to this case, it is apparent that Plaintiffs’ Complaint and Amended Complaint fail to state a claim upon which relief may be granted. First, there are obvious legitimate penological interests in requiring former inmates to wait three years before being allowed to visit current
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inmates; specifically the NDCS’s interest in maintaining prison security and preventing future crimes. See Overton, 539 U.S. at 134.
Wilson and Sedlak argue the visitation policy at issue is not rational because there is no evidence it prevents crimes. However, this argument ignores the substantial deference due “‘to the professional judgment of prison administrators, who bear a significant responsibility for defining the legitimate goals of a corrections system and for determining the most appropriate means to accomplish them.’” Wirsching v. Colorado, 360 F.3d 1191, 1199 (10th Cir. 2004) (quoting Overton, 539 U.S. at 132). Moreover, Defendant correctly notes that the NDCS regulation at issue here is “markedly less stringent” than the one found constitutional in Overton. (Filing No. 29 at CM/EF p. 5.)
Second, the visitation policy at issue does not prevent Wilson and Sedlak from communicating by letter or telephone. (See Plaintiffs’ opposition brief acknowledging they communicate by telephone and letter at Filing No. 31 at CM/ECF p. 4.) Indeed, the records in this case provide no shortage of evidence that Wilson and Sedlak are able to effectively communicate with one another, as the parties’ pleadings are signed by both Wilson and Sedlak and delivered to the court by Wilson. (See, e.g., Filing Nos. 1, 5, 19, 21, 22, 23, 24, and 31; see also Wilson and Sedlak’s joint litigation in Wilson v. Fletcher, 4:12CV3061.)
Wilson and Sedlak argue they should be allowed visitation privileges because Sedlak is, essentially, Wilson’s immediate family. Plaintiffs claim they were married in a “handfastings” ceremony while they were both incarcerated at the Nebraska State Penitentiary. (See Filing No. 1 at CM/ECF p. 3 and Filing No. 31 at CM/ECF p. 1.) While this may be true, Wilson and Sedlak are not legally married, as the laws of the State of Nebraska do not recognize same-sex marriages.
Wilson and Sedlak also argue they should be allowed visitation privileges because Sedlak may, at some point, donate a kidney to Wilson who is “in the final
6

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stage of kidney failure.” (Filing No. 31 at CM/ECF p. 2.) They argue that “[a]ny rational[] person would understand that [they] will have to be in the same room for this surgery to be completed, and under this total ban of contact of a personal nature this surgery can not be accomplished or successful.” (Filing No. 31 at CM/ECF p. 4.) The visitation policy at issue bans Sedlak from visiting Wilson in prison for a threeyear period. It says nothing about barring former inmates from donating their kidneys to current inmates.
Third, accommodating Plaintiffs’ demands to lift the three-year visitation ban would, for obvious reasons, impair the corrections officers’ ability to maintain prison security. As set forth by the Court in Overton, “prohibiting visitation by former inmates bears a self-evident connection to the State’s interest in maintaining prison security and preventing future crimes.” Overton, 539 U.S. at 134. Likewise, it is selfevident that lifting the three-year ban in this case “would cause a significant reallocation of the prison system’s financial resources and would impair the ability of corrections officers to protect all who are inside a prison’s walls.” Id. at 135. When such considerations exist, courts are “particularly deferential” to prison administrators’ regulatory judgments. Id.
Finally, Wilson and Sedlak have not pointed to any obvious regulatory alternative that fully accommodates their asserted right. Rather, their argument appears to be that they should be excepted from the visitation policy because they are in a committed relationship and because Wilson is ill. However, the limitation on visitation in this case is time limited, as opposed to the regulation at issue in Overton, which supports a finding that the regulation is reasonable and not excessive when balanced against the legitimate safety concerns of the NDCS. In addition, it bears mentioning that Sedlak will be eligible to apply for visitation in only a few short months, on March 23, 2015. (See Filing No. 1 at CM/ECF p. 12.)
7

8:13-cv-00130-RGK-PRSE Doc # 39 Filed: 11/03/14 Page 8 of 9 - Page ID # 150
Based on the foregoing discussion, the court finds Plaintiffs have failed to set forth a constitutional claim upon which relief may be granted. As a result, the court will grant Defendant’s motion to dismiss.
II. PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT
Plaintiffs have filed a Motion for Summary Judgment (Filing No. 23) in this matter. They ask the court to find that Nebraska’s marriage laws violate their rights under the Equal Protection Clause of the Fourteenth Amendment. However, as already explained to them in this matter (see Filing No. 20), their claim is foreclosed by the Eighth Circuit Court of Appeals’ opinion in Citizens for Equal Protection v. Bruning, 455 F.3d 859 (8th Cir. 2006). Accordingly, they are not entitled to summary judgment.
III. PLAINTIFFS’ MOTION FOR INJUNCTIVE RELIEF
Plaintiffs also filed a motion seeking injunctive relief in this matter. (Filing No. 24.) They ask for an order from the court directing prison officials to allow them to “marry” and also “visit as spouses.” To determine whether to grant preliminary injunctive relief, the court evaluates (1) the probability of petitioner’s success on the merits; (2) the threat of irreparable harm to the petitioner; (3) the threat of harm to the respondent balanced against the harm to the petitioner; and (4) the public interest. Dataphase Sys., Inc. v. CL Sys., Inc., 640 F.2d 109, 113 (8th Cir. 1981).
Based on the foregoing discussion, Plaintiffs cannot show a probability of success on the merits of their claims. Therefore, they are not entitled to injunctive relief.
8

8:13-cv-00130-RGK-PRSE Doc # 39 Filed: 11/03/14 Page 9 of 9 - Page ID # 151
IT IS THEREFORE ORDERED that: 1. Defendant’s Motion to Dismiss (Filing No. 28) is granted. Accordingly, Plaintiffs’ Complaint is dismissed with prejudice for failure to state a claim upon which relief may be granted. 2. Plaintiffs’ Motion for Summary Judgment (Filing No. 23) is denied. 3. Plaintiffs’ Motion for Preliminary Injunction (Filing No. 24) is denied. 4. A separate judgment will be entered in accordance with this Memorandum and Order. DATED this 3rd day of November, 2014.
BY THE COURT: Richard G. Kopf Senior United States District Judge
*This opinion may contain hyperlinks to other documents or Web sites. The U.S. District Court for the District of Nebraska does not endorse, recommend, approve, or guarantee any third parties or the services or products they provide on their Web sites. Likewise, the court has no agreements with any of these third parties or their Web sites. The court accepts no responsibility for the availability or functionality of any hyperlink. Thus, the fact that a hyperlink ceases to work or directs the user to some other site does not affect the opinion of the court.
9

 
 8:13-cv-00130-RGK-PRSE Doc # 40 Filed: 11/03/14 Page 1 of 1 - Page ID # 152

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA

HAROLD B. WILSON, and GRACY )

S. SEDLAK,

)

)

Plaintiffs,

)

)

v.

)

)

FRANK HOPKINS, Asst Dir, All in )

their individual and professional

)

capacities,

)

)

Defendant.

)

8:13CV130 JUDGMENT

Plaintiffs’ Complaint and Amended Complaint are dismissed with prejudice for failure to state a claim upon which relief may be granted. Pursuant to the Prison
Litigation Reform Act, Plaintiff Harold Wilson is hereby notified that the filing of a notice of appeal by a prisoner makes the prisoner liable for payment of the full $505.00 appellate filing fee regardless of the outcome of the appeal. An incarcerated civil appellant is required to pay the full amount of the filing fee by making monthly payments to the court, even if he or she is proceeding in forma pauperis. 28 U.S.C. § 1915(b). By filing a notice of appeal, the prisoner consents to the deduction of the $505.00 filing fee from the prisoner’s prison account by prison officials. The prisoner must submit to the clerk of the district court a certified copy of the prisoner’s prison account for the last six months within 30 days of filing the notice of appeal. Failure to file the prison account information will result in the assessment of an initial appellate partial fee of $35 or such other amount that is reasonable, based on whatever information the court has about the prisoner’s finances.

DATED this 3rd day of November, 2014.
BY THE COURT:
Richard G. Kopf Senior United States District Judge

 
 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA

HAROLD B. WILSON, and GRACY )

S. SEDLAK,

)

)

Plaintiffs,

)

)

v.

)

)

FRANK HOPKINS, Asst Dir, All in )

their individual and professional

)

capacities,

)

)

Defendant.

)

8:13CV130
MEMORANDUM AND ORDER

This matter is before the court on Plaintiff Gracy Sedlak’s notice of appeal (Filing No. 41). The notice of appeal was filed 42 days after the court entered judgment in this matter.

Federal Rule of Appellate Procedure 4(a)(1)(A) sets forth that a notice of appeal in a civil case must be filed within 30 days of the entry of judgment. This requirement is both “mandatory and jurisdictional.” Burgs v. Johnson Cnty., Iowa, 79 F.3d 701, 702 (8th Cir. 1996). A district court may extend the time to file a notice of appeal if a party moves for an extension of time and shows excusable neglect or good cause, provided that the party moves for the extension of time within 30 days of the expiration of the 30-day period set out in Rule 4(a)(1)(A). Fed. R. App. P. 4(a)(5)(A)(ii). In addition, if a party files one of the post-judgment motions listed in Rule (a)(4)(A), the time to file the appeal runs from the entry of the order disposing of the motion. Fed. R. App. P. 4(a)(4)(A). An untimely notice of appeal cannot serve as a motion for extension of time to file an appeal. Burgs, 79 F.3d at 702.

Here, the court entered a final judgment dismissing this case on November 3, 2014. Plaintiff filed her notice of appeal 42 days later. She did not file any postjudgment motions that would extend the time to file a notice of appeal. In addition,

she did not move to extend the time to file a notice of appeal. Accordingly, the court finds Plaintiff did not file a timely notice of appeal.
IT IS ORDERED that: 1. Plaintiff’s notice of appeal was not timely filed. 2. The clerk’s office is directed to send a copy of this order to the Eighth Circuit Court of Appeals. DATED this 15th day of January, 2015.
BY THE COURT: Richard G. Kopf Senior United States District Judge
*This opinion may contain hyperlinks to other documents or Web sites. The U.S. District Court for the District of Nebraska does not endorse, recommend, approve, or guarantee any third parties or the services or products they provide on their Web sites. Likewise, the court has no agreements with any of these third parties or their Web sites. The court accepts no responsibility for the availability or functionality of any hyperlink. Thus, the fact that a hyperlink ceases to work or directs the user to some other site does not affect the opinion of the court.
2

 
 Case: 8:13-cv-130 As of: 10/31/2017 10:38 AM CDT 1 of 7
CLOSED,NEBRASKA−DEFENDANT,NEBRASKADOCKET,PROSEDOCKET,TRIAL−OMAHA
U.S. District Court District of Nebraska (8 Omaha) CIVIL DOCKET FOR CASE #: 8:13−cv−00130−RGK−PRSE

Wilson et al v. Hopkins Assigned to: Senior Judge Richard G. Kopf Referred to: Pro Se Docket Cause: 42:1983 Prisoner Civil Rights Plaintiff Harold B. Wilson
Plaintiff Gracy S. Sedlak

Date Filed: 04/22/2013 Date Terminated: 11/03/2014 Jury Demand: None Nature of Suit: 550 Prisoner: Civil Rights Jurisdiction: Federal Question
represented by Harold B. Wilson 37418 SPR−LINC CORR CTR, Lincoln Correctional Center Address Updated 4/2/2012 P.O. Box 22800 Lincoln, NE 68542−2800 PRO SE
represented by Gracy S. Sedlak 1035 Hartley Lincoln, NE 68503 471−4107 PRO SE

V. Defendant Jon Bruning Attorney General, All in their individual and professional capacities TERMINATED: 04/17/2014
Defendant Robert Houston Dir of Corrections, All in their individual and professional capacities TERMINATED: 04/17/2014
Defendant Robert Madsen Associate Warden LCC, All in their individual and professional capacities TERMINATED: 04/17/2014
Defendant Frank Hopkins Asst Dir, All in their individual and professional capacities
Defendant

represented by Kyle J. Citta ATTORNEY GENERAL'S OFFICE − NEBRASKA 2115 State Capitol Lincoln, NE 68509 (402) 471−1917 Fax: (402) 471−4725 Email: kyle.citta@nebraska.gov ATTORNEY TO BE NOTICED

Case: 8:13-cv-130 As of: 10/31/2017 10:38 AM CDT 2 of 7
Mario Peart Warden LCC, All in their individual and professional capacities TERMINATED: 04/17/2014
Defendant
State of Nebraska All in their individual and professional capacities TERMINATED: 04/17/2014
Defendant
Dept of Corrections All in their individual and professional capacities TERMINATED: 04/17/2014

Date Filed 04/22/2013 04/22/2013 04/22/2013 04/22/2013 04/22/2013 04/24/2013
04/24/2013 04/24/2013
06/11/2013

# Docket Text
1 COMPLAINT against Jon Bruning, Dept of Corrections, Frank Hopkins, Robert Houston, Robert Madsen, Mario Peart, State of Nebraska filed by Gracy S. Sedlak, Harold B. Wilson. No Summons(es) issued.(AOA) (Entered: 04/24/2013)
2 MOTION for Leave to Proceed in forma pauperis, MOTION for Injunctive Relief filed by Plaintiff Harold B. Wilson. (AOA) (Entered: 04/24/2013)
3 PRISONER ACCOUNT STATEMENT by Plaintiff Harold B. Wilson. ACCESS TO THE PDF DOCUMENT IS RESTRICTED TO CASE PARTICIPANTS AND THE COURT PURSUANT TO THE E−GOVERNMENT ACT AND FEDERAL RULE OF CIVIL PROCEDURE 5.2(a). (AOA) (Entered: 04/24/2013)
4 DECLARATION in Support of MOTIONS for Leave to Proceed in forma pauperis 2 filed by Plaintiff Gracy S. Sedlak.(AOA) (Entered: 04/24/2013)
5 REQUEST for Class Action Status Certification filed by Plaintiffs Gracy S. Sedlak, Harold B. Wilson. (AOA) (Additional attachment(s) added on 4/30/2013: # 1 Corrected Request with signature) (AOA). (Entered: 04/24/2013)
6 TEXT NOTICE OF DEFICIENCY by Deputy Clerk that the Request 5 has been filed and is considered deficient because the document is not signed. 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 NECivR 11.1.(AOA) Satisfied on 4/30/2013 (AOA). (Entered: 04/24/2013)
7 NOTICE by Clerk acknowledging receipt of complaint filed by a pro se party. (AOA) (Entered: 04/24/2013)
8 ORDER pursuant to General Order No. 2007−12: All pro se civil cases that are assigned to a district judge for trial, whether filed by a prisoner or not, are herewith exempted from the disclosure and conference requirements of F.R.Civ.P. 26, except in pending cases where a scheduling order (or packet) or progression order has been previously issued, the parties shall abide by such scheduling or progression orders. In the future, it will not be the practice of the court to issue scheduling packets in pro se civil cases assigned to district judges. Instead, it will be the practice to issue a progression order, addressing discovery and other issues, approximately 30 days after the last defendant has answered. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party)(AOA) (Entered: 04/24/2013)
9 MEMORANDUM AND ORDER − Plaintiffs Wilson and Sedlak shall respond in accordance with this Memorandum and Order within 21 days of the date of this order. The clerk's office is directed to enter a case management deadline in this matter using the following text: July 1, 2013: Deadline for plaintiffs to show cause. No further action shall be taken in this case until the court receives such responses. Failure to respond the courts order will result in dismissal of this matter without further notice and, as set forth above, may also result in the imposition of other sanctions. Ordered

Case: 8:13-cv-130 As of: 10/31/2017 10:38 AM CDT 3 of 7

06/27/2013 06/28/2013 07/22/2013 07/31/2013
08/07/2013 08/13/2013
08/13/2013 08/20/2013 08/20/2013 08/27/2013 10/07/2013 10/23/2013 11/06/2013

by Senior Judge Richard G. Kopf. (Copy mailed to pro se parties)(AOA) (Entered: 06/11/2013)
10 AFFIDAVIT of Harold B. Wilson on behalf of Plaintiff Harold B. Wilson.(AOA) (Entered: 06/27/2013)
11 PAGE 2 STRICKEN − AFFIDAVIT and Response filed by Plaintiff Gracy Sedlak .(AOA) Modified on 7/22/2013 to reflect document filed by plaintiff Gracy Sedlak and page 2 stricken per strike order 12 (CCB). (Entered: 06/28/2013)
12 TEXT STRIKE ORDER that Pursuant to NEGenR 1.3(a)(4), Page 2 of the Affidavit and Response 11 is stricken for the following reason: page two of document filed in incorrect case. Document will be re−filed in the correct case 4:12cv3061. Ordered by Deputy Clerk. (Copy mailed to pro se plaintiffs)(CCB) (Entered: 07/22/2013)
13 MEMORANDUM AND ORDER − Sedlak is directed to correct the above−listed technical defect in the Complaint within 30 days of the date of this Memorandum and Order. Accordingly, Sedlak must pay the $400.00 fees to the Clerk of the court, or submit a request to proceed in forma pauperis and an affidavit of poverty in support thereof. Sedlak is reminded that Rule 11(a) requires that she sign every pleading, written motion, and other paper that she submits to the court, and that it is improper for Plaintiff Harold Wilson to sign papers in place of, or to otherwise represent, her. (See court's orderfrom June 11, 2013 (Filing No. 9 ).) Failure to comply with this Memorandum and Order will result in dismissal of this matter as to Sedlak without further notice. The Clerk of the court is directed to send to Sedlak the Form AO240, Application to Proceed Without Prepayment of Fees and Affidavit. The Clerk of the court is directed to set a pro se case management deadline in this matter with the following text: September 1, 2013: Check for MIFP or payment. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party with form)(GJG) (Entered: 07/31/2013)
14 MOTION for Leave to Proceed in forma pauperis filed by Plaintiff Gracy S. Sedlak.(AOA) (Entered: 08/08/2013)
15 ORDER granting 2 Motion for Leave to Proceed in forma pauperis. Plaintiff Harold Wilson shall pay an initial partial filing fee of $15.94 by September 12, 2013, unless an enlargement of time is granted in response to a written motion. The clerk's office is directed to send a copy of this order to the appropriate official at Plaintiff's institution. The clerk's office is directed to set a pro se case management deadline in this case using the following text: September 13, 2013: initial partial filing fee payment due. Pro Se Case Management Deadline set for 9/13/2013. Ordered by Senior Judge Richard G. Kopf. (Copies mailed as directed and to pro se party)(AOA) (Entered: 08/13/2013)
16 MEMORANDUM AND ORDER − Leave to proceed in forma pauperis 14 isprovisionally granted, and the Complaint shall be filed as to Plaintiff Gracy Sedlak without payment of fees. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party)(AOA) (Entered: 08/13/2013)
17 Mail Returned as Undeliverable addressed to Harold B. Wilson regarding Memorandum and Order on Motion for Leave to Proceed in forma pauperis filing 15 . Mail was not resent as there is no forwarding address. (GJG) (Entered: 08/20/2013)
18 NOTICE of refused mail regarding Mail Returned 17 on behalf of Plaintiff Harold B. Wilson. (GJG) (Entered: 08/23/2013)
TEXT ENTRY THAT INITIAL FILING fee paid on behalf of Harold B. Wilson on 8/27/13. Receipt number 8025511, in the amount of $ 15.94. (JSF) (Entered: 08/27/2013)
TEXT ENTRY THAT PARTIAL FILING fee paid on behalf of Harold B. Wilson on 10/7/2013. Receipt number 8026031, in the amount of $ 19.18. (TCL) (Entered: 10/07/2013)
19 REQUEST for Injunction & Restraining order filed by Plaintiffs Gracy S. Sedlak, Harold B. Wilson. (AOA) (Entered: 10/23/2013)
TEXT ENTRY THAT FILING fee paid on behalf of HAROLD WILSON on 11/06/2013. Receipt number 8−26366, in the amount of $ 20.15. (SCR, ) (Entered:

Case: 8:13-cv-130 As of: 10/31/2017 10:38 AM CDT 4 of 7

11/07/2013
12/04/2013 12/10/2013 01/02/2014 01/06/2014 02/07/2014 03/03/2014 03/06/2014 03/27/2014 04/03/2014 04/17/2014
05/09/2014 05/15/2014

11/08/2013)
20 MEMORANDUM AND ORDER − Plaintiffs' claim that they are being "denied the right to marry the personof [their] choosing" in violation of the Equal Protection Clause of the United States Constitution fails to state a claim upon which relief may be granted, and is dismissed. Plaintiffs shall have until 45 days from the date of this Memorandum and Order to amend their Complaint to clearly state a claim upon which relief may be granted against Defendants in accordance with this Memorandum and Order. If Plaintiffs fail to file an amended complaint, their claims against Defendants will be dismissed without further notice. The Clerk of the court is directed to set a pro se case management deadline in this case using the following text: Check for amended complaint on December 20, 2013. Plaintiffs' Motion for Preliminary Injunction (Filing No. 19 ) is denied. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se parties) (AOA) (Entered: 11/07/2013)
TEXT ENTRY THAT FILING fee paid on behalf of HAROLD WILSON on 12/04/2013. Receipt number 80266701, in the amount of $ 19.17. (SCR, ) (Entered: 12/05/2013)
21 AMENDED COMPLAINT filed by Gracy S. Sedlak, and Harold B. Wilson against Defendant Jon Bruning, Dept of Corrections, Frank Hopkins, Robert Houston, Robert Madsen, Mario Peart, State of Nebraska. (GJG) (Entered: 12/10/2013)
22 SUPPLEMENT BRIEF to the Amended Complaint filed by Plaintiffs Gracy S. Sedlak, Harold B. Wilson.. (AOA) (Entered: 01/02/2014)
TEXT ENTRY THAT FILING fee paid on behalf of HAROLD WILSON on 01/06/2014. Receipt number 8027068, in the amount of $ 17.10. (SCR, ) (Entered: 01/07/2014)
TEXT ENTRY THAT FILING fee paid on behalf of HAROLD WILSON on 02/07/2014. Receipt number 8027435, in the amount of $ 20.17. (SCR, ) (Entered: 02/10/2014)
23 MOTION for Summary Judgment filed by Plaintiffs Gracy S. Sedlak, Harold B. Wilson. (AOA) (Entered: 03/03/2014)
TEXT ENTRY THAT FILING fee paid on behalf of HAROLD WILSON on 03/06/2014. Receipt number 8027786, in the amount of $ 16.02. (SCR, ) (Entered: 03/07/2014)
24 MOTION for Status and Preliminary Injunction filed by Plaintiffs Gracy S. Sedlak, Harold B. Wilson. (AOA) (Entered: 03/27/2014)
TEXT ENTRY THAT FILING fee paid on behalf of HAROLD WILSON on 04/03/2014. Receipt number 8028134, in the amount of $ 73.63. (SCR, ) (Entered: 04/07/2014)
25 MEMORANDUM AND ORDER − Plaintiffs' First Amendment claim against Frank Hopkins in his individual and official capacities may proceed to service of process. All other claims against all other Defendants are dismissed. To obtain service of process on Defendant Frank Hopkins, Plaintiffs must complete and return the summons forms that the Clerk of the court will provide. The Clerk of the court shall send two summons forms and two USM−285 forms to Plaintiff, together with a copy of this Memorandum and Order for service on Frank Hopkins in his individual and official capacities. Plaintiff shall, as soon as possible, complete the forms and send the completed forms back to the Clerk of the court. In the absence of the forms, service of process cannot occur. The Clerk of Court is directed to set a pro se case management deadlinein this case with the following text: "August 15, 2014: Check for completion ofservice of summons."Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party with summonses) (AOA) (Entered: 04/17/2014)
TEXT ENTRY THAT FILING fee paid on behalf of HAROLD WILSON on 05/09/2014. Receipt number 8028550, in the amount of $ 5.08. (SCR, ) (Entered: 05/12/2014)
26 Summons Issued (COPY) as to defendant Frank Hopkins regarding Supplement 22 , and Amended Complaint 21 . (GJG) (Entered: 05/16/2014)

Case: 8:13-cv-130 As of: 10/31/2017 10:38 AM CDT 5 of 7

05/29/2014 06/05/2014 06/12/2014 06/12/2014 06/12/2014
06/27/2014 07/11/2014 07/11/2014 07/11/2014 07/14/2014 07/15/2014
07/15/2014 07/17/2014
08/08/2014 08/19/2014

27 SUMMONS Returned Executed upon defendant Frank Hopkins on 5/21/2014. (GJG) (Entered: 05/29/2014)
TEXT ENTRY THAT FILING fee paid on behalf of HAROLD WILSON on 06/05/2014. Receipt number 8028896, in the amount of $ 5.32. (SCR, ) (Entered: 06/06/2014)
28 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM by Attorney Kyle J. Citta on behalf of Defendant Frank Hopkins. (AOA) (Entered: 06/12/2014)
29 BRIEF in support of MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM 28 by Attorney Kyle J. Citta on behalf of Defendant Frank Hopkins. (AOA) (Entered: 06/12/2014)
30 TEXT NOTICE OF FAILURE TO FILE ELECTRONICALLY the Brief 29 , Motion to Dismiss for Failure to State a Claim 28 by Deputy Clerk. Pursuant to NECivR 5.0.1(b), all documents submitted for filing shall be filed using the Electronic Filing System. An attorney who willfully or negligently fails as a registered attorney to electronically file documents may be ordered to show cause why the court should not impose sanctions. This notice is for your information for future filings.(AOA) (Entered: 06/12/2014)
31 BRIEF in opposition to MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM 28 on behalf of Plaintiffs Gracy S. Sedlak and Harold B. Wilson. (JSF) (Entered: 06/30/2014)
TEXT ENTRY THAT FILING fee paid on behalf of HAROLD WILSON on 07/07/2014. Receipt number 8029236, in the amount of $ 5.32. (SCR, ) Modified on 9/9/2014 to correct the receipt number (ADB, ). (Entered: 07/11/2014)
32 INTERLOCUTORY APPEAL, Request for Transcript and Bill of Exceptions regarding Memorandum and Order 25 on behalf of Plaintiff Gracy S. Sedlak. (Part 1 of 2) (Copy mailed to pro se parties) (JSF) Modified on 7/21/2014 to indicate an interlocutory appeal (JSF). (Entered: 07/14/2014)
(Part 2 of 2) MOTION for Leave to Appeal in forma pauperis on behalf of Plaintiff Gracy S. Sedlak. (JSF) (Entered: 07/14/2014)
33 COPY OF UNTIMELY MEMO prepared by deputy clerk and sent to Judge Kopf. (JSF) (Entered: 07/14/2014)
34 MEMORANDUM AND ORDER that the clerk's office shall not process Plaintiff Gracy Sedlak's appeal. Plaintiff Gracy Sedlak may not proceed on appeal in forma pauperis. The clerk's office is directed to provide a copy of this Memorandum and Order to the Eighth Circuit Court of Appeals. Ordered by Senior Judge Richard G. Kopf. (Copies mailed as directed) (JSF) (Entered: 07/15/2014)
35 NOTIFICATION OF APPEAL AND NOA SUPPLEMENT by Clerk to USCA regarding Notice of Appeal to USCA 32 , Memorandum and Order 25 , Memorandum and Order denying Motion for Leave to Appeal in forma pauperis 34 . Notice of Appeal filed on 7/11/14 by Plaintiff Gracy S. Sedlak. (JSF) (Entered: 07/15/2014)
36 COPY of Order from USCA − 8th Circuit (14−2696). The $505 appellate filing and docketing fee has not been paid and is due. Appellant is directed to either pay the fee in the district court or file a motion for leave to proceed in forma pauperis in this court within 28 days of the date of this order. If appellant does not pay the fee or move for IFP status by August 14, 2014, this appeal will be dismissed for failure to prosecute without further notice. (Attachments: # 1 Transmittal Letter)(GJG) (Entered: 07/18/2014)
TEXT ENTRY THAT FILING fee paid on behalf of HAROLD WILSON on 08/08/2014. Receipt number 8029643, in the amount of $ 45.48. (SCR, ) (Entered: 08/13/2014)
37 COPY of Judgment from USCA − 8th Circuit (14−2696) that the appellant has not responded to the court's order of 7/17/14. It is hereby ordered that the appeal is dismissed for failure to prosecute. (JSF) (Entered: 08/19/2014)

Case: 8:13-cv-130 As of: 10/31/2017 10:38 AM CDT 6 of 7

08/19/2014 09/10/2014 10/10/2014 11/03/2014
11/03/2014 11/07/2014 12/08/2014 12/15/2014 12/15/2014 12/15/2014 01/14/2015 01/15/2015 01/15/2015 01/26/2015 02/12/2015

38 MANDATE from USCA − 8th Circuit (14−2696) that in accordance with the judgment of 8/19/14, and pursuant to the provisions of Federal Rule of Appellate Procedure 41(a), the formal mandate is hereby issued in the above−styled matter regarding Notice of Appeal to USCA 32 . (JSF) (Entered: 08/19/2014)
TEXT ENTRY THAT FILING fee paid on behalf of HAROLD WILSON on 09/10/2014. Receipt number 8030015, in the amount of $ 6.57. (SCR, ) (Entered: 09/10/2014)
TEXT ENTRY THAT FILING fee paid on behalf of HAROLD WILSON on 10/10/2014. Receipt number 8030396, in the amount of $ 5.08. (SCR, ) (Entered: 10/14/2014)
39 MEMORANDUM AND ORDER that defendant's Motion to Dismiss 28 is granted. Accordingly, Plaintiffs' Complaint is dismissed with prejudice for failure to state a claim upon which relief may be granted. Plaintiffs' Motion for Summary Judgment 23 is denied. Plaintiffs' Motion for Preliminary Injunction 24 is denied. A separate judgment will be entered in accordance with this Memorandum and Order. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party) (JSF) (Entered: 11/03/2014)
40 JUDGMENT − Plaintiffs' Complaint and Amended Complaint are dismissed with prejudice for failure to state a claim upon which relief may be granted. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party) (JSF) (Entered: 11/03/2014)
TEXT ENTRY THAT FILING fee paid on behalf of HAROLD WILSON on 11/07/2014. Receipt number CQ15−21, in the amount of $ 5.57. (SCR, ) (Entered: 11/10/2014)
TEXT ENTRY THAT FILING fee paid on behalf of HAROLD WILSON on 12/08/2014. Receipt number 8031172, in the amount of $ 36.99. (SCR, ) (Entered: 12/09/2014)
41 NOTICE OF APPEAL regarding Memorandum and Order 39 and Judgment 40 on behalf of Plaintiff Gracy S. Sedlak. Copy of Notice of Appeal mailed to plaintiff Gracy S. Sedlak at 1035 Hartley, Lincoln, NE 68503. (JSF) (Entered: 12/15/2014)
42 COPY OF UNTIMELY APPEAL MEMO prepared by deputy clerk and sent to Pro Se Law Clerk as to plaintiff Gracy S. Sedlak. (JSF) (Entered: 12/15/2014)
43 COPY OF IFP MEMO prepared by Deputy Clerk and sent to Pro Se Law Clerk regarding Notice of Appeal 41 as to plaintiff Gracy S. Sedlak. (JSF) (Entered: 12/15/2014)
TEXT ENTRY THAT FILING fee paid on behalf of HAROLD WILSON on 01/14/2015. Receipt number 8031607, in the amount of $ 4.84. (SCR, ) (Entered: 01/26/2015)
44 MEMORANDUM AND ORDER − Plaintiff's notice of appeal was not timely filed. The clerk's office is directed to send a copy of this order to the Eighth Circuit Court of Appeals. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party and as directed) (JSF) (Entered: 01/15/2015)
45 NOTIFICATION OF APPEAL AND NOA SUPPLEMENT by Clerk to USCA regarding Notice of Appeal to USCA 41 , Memorandum and Order 39 , Judgment 40 and Memorandum and Order that the appeal was not timely filed 44 . Notice of Appeal filed on 12/15/14 by Plaintiff Gracy S. Sedlak. (JSF) (Entered: 01/15/2015)
46 COPY of Order from USCA − 8th Circuit (15−1154) that the appellant is directed to either pay the filing fee in the district court or file a motion for leave to proceed in forma pauperis. (Attachments: # 1 Transmittal Letter) (JSF) (Entered: 01/26/2015)
TEXT ENTRY THAT FILING fee paid on behalf of HAROLD WILSON on 02/12/2015. Receipt number 8032020, in the amount of $ 5.57. (SCR, ) (Entered: 02/17/2015)

Case: 8:13-cv-130 As of: 10/31/2017 10:38 AM CDT 7 of 7

03/03/2015 03/03/2015 03/09/2015 04/09/2015 05/11/2015

47 JUDGMENT from USCA − 8th Circuit (15−1154) that appellant has not responded to the court's order entered January 26, 2015. It is hereby ordered that this appeal is dismissed for failure to prosecute. See Eighth Circuit Rule 3C. Mandate shall issue forthwith. (JSF) (Entered: 03/03/2015)
48 MANDATE from USCA − 8th Circuit (15−1154) that in accordance with the judgment of 03/03/2015, and pursuant to the provisions of Federal Rule of Appellate Procedure 41(a), the formal mandate is hereby issued in the above−styled matter. (JSF) (Entered: 03/03/2015)
TEXT ENTRY THAT FILING fee paid on behalf of HAROLD WILSON on 03/09/2015. Receipt number 8032389, in the amount of $ 11.06. (SCR, ) (Entered: 03/10/2015)
TEXT ENTRY THAT FILING fee paid on behalf of Harold B. Wilson on 4/9/15. Receipt number 8032825, in the amount of $6.78. (JSF) (Entered: 04/09/2015)
TEXT ENTRY THAT FILING fee paid on behalf of Harold B. Wilson on 5/11/15. Receipt number 8033220, in the amount of $4.98. (JSF) (Entered: 05/12/2015)