Cotton v. Stephens, 4:18CV3138

CourtUnited States District Courts. 8th Circuit. United States District Court of Nebraska
Writing for the CourtRichard G. Kopf Senior United States District Judge
PartiesJAMES COTTON, Plaintiff, v. WADE STEPHENS JR., and RAMON ESTEVEZ, Defendants.
Docket Number4:18CV3138
Decision Date21 December 2020

JAMES COTTON, Plaintiff,



December 21, 2020


This matter is before the court on a renewed Motion for Summary Judgment (Filing 75) filed by Defendants, Wade Stephens, Jr. ("Stephens"), and Ramon Estevez ("Estevez"), and on a renewed Motion to Appoint Counsel (Filing 111) submitted by Plaintiff, James Cotton ("Cotton"). For the reasons discussed below, both motions will be denied.


Unlike Cotton's previous requests for appointment of counsel, extensions of time, or other miscellaneous relief, which have been clearly designated as motions in a formal caption,1 see Fed. R. Civ. P. 7(b)(2) & 10(a), this request for appointment of counsel comes in the form of a letter addressed to the Clerk of the Court, which Cotton describes as an "ex parte message" to be "passed along to Judge Richard Kopf." (Filing 111.) There is no certificate of service or any other indication that Cotton mailed a copy of this correspondence to Defendants. Such an ex parte communication is inappropriate.2 However, the clerk of the court properly docketed

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Cotton's correspondence as a motion3 on October 1, 2020, and Defendants filed an opposing brief (Filing 112) the following day.4

In his motion, which is dated September 22, 2020, Cotton "request[s] that the court "appoint counsel to proceed with the motion for summary judgment answer," which was due on September 25, 2020, because on September 15, 2020, Cotton, who is a prisoner, allegedly "fell ill with Covid-19 infection and secondary bronchitis infection" and was "no longer physically or mentally capable to litigate this action ...." (Filing 111). The court finds it unnecessary to rule on the merits of the motion because, as will be discussed next, Defendants have not made a sufficient showing in support of their renewed Motion for Summary Judgment. Cotton's renewed Motion to Appoint Counsel therefore will be denied without prejudice to reassertion.


Defendants again seek the dismissal of this action based on the defense of qualified immunity. In ruling on Defendant's previously filed motion for summary judgment (Filing 15), the court found there were genuine issues of material fact as to whether Defendants violated Cotton's Fourteenth Amendment rights by using excessive force, and that the alleged constitutional violation was clearly established as of October 24, 2016, when the incident occurred. See Memorandum and Order entered January 2, 2020 (Filing 60).

The only new evidence filed in support of Defendants' renewed Motion for Summary Judgment, which was filed on June 18, 2020, consists of a set of requests

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for admission (Filing 76) that Defendants contend should be deemed admitted by reason of Cotton's failure to respond. After the filing of Defendants' renewed Motion for Summary Judgment, however, the court granted Cotton's Rule 36(b) motion (Filing 82) and ordered that "Defendants' requests for admission, which were served on Cotton on March 25, 2020, shall not be deemed admitted by reason of Plaintiff's failure to respond to such requests within the time permitted by Rule 36(a)(3) of the Federal Rules of Civil Procedure, and Plaintiff is hereby granted an extension of time, until August 24, 2020, to serve his responses to those requests for admission." Memorandum and Order entered on August 4, 2020 (Filing 95 at 4).

On August 31, 2020, the Clerk of the Court received a mailing from Cotton which contained a motion for extension of time (Filing 104) and a copy of Cotton's responses to Defendants' requests for admission (Filing 103). Cotton certified that he sent a copy of his discovery responses to Defendants' counsel and to the clerk of the court by placing a postage-prepaid mailing in the prison mailbox at the Nebraska State Penitentiary on August 24, 2020. Service of discovery responses is complete upon mailing. Fed.R.Civ.P. 5(a)(2)(C). The court finds the certificate of service meets the requirements of Rule 5, and that the responses were mailed on August 24, 2020, by Cotton depositing them in the prison mailbox.5

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The court also granted Cotton's request for a 21-day extension of time to respond to the renewed Motion for Summary Judgment (see Filings 104, 105), and a subsequent request for a 10-day extension of time (see Filings 108, 110). Even so, no opposing brief was filed by Cotton by the final deadline of September 25, 2020. As discussed above, Cotton instead submitted an ex parte request for appointment of counsel.

Although Cotton has failed to respond to Defendants' motion, "[f]ailure to file an opposing brief is not considered a confession of a motion ...." NECivR 7.1(b)(1)(C). As a general rule, however, the failure to file an opposing brief will "preclude[ ] the opposing party from contesting the moving party's statement of facts." Id. See also NECivR 56.1(b)(1) ("Properly referenced material facts in the movant's statement are considered admitted unless controverted in the opposing party's response."); Fed. R. Civ. P. 56(c)(1) ("A party asserting that a fact cannot be or is genuinely disputed must support the assertion by: (A) citing to particular parts of materials in the record, ...; or (B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact."). Thus, to the extent the facts set out in Defendants' statement of material facts are properly supported by the record, as referenced therein, they may be deemed admitted.

But in this case, where Cotton has previously opposed a summary judgment motion raising the defense of qualified immunity, and has presented evidence that was considered by the court and found to show that the evidence cited by Defendants did not establish the absence of a genuine dispute, see Fed. R. Civ. P. 56(a), it would not be in the interest of justice for the court to ignore Cotton's evidence.6 While the

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court is "not obliged to scour the record looking for factual disputes," Libel v. Adventure Lands of Am., Inc., 482 F.3d 1028, 1033 (8th Cir. 2007), here the factual disputes have already been identified by the court in its Memorandum and Order of January 2, 2020 (Filing 60). The evidence of record that was considered by the court at that time may again be considered with reference to Defendants' renewed Motion for Summary Judgment without running afoul of the Federal Rules. See Fed. R. Civ. P. 56(c)(3) ("The court need consider only the cited materials, but it may consider other materials in the record.").

Defendants' brief in support of their original motion contained a separate, 19-paragraph statement of undisputed facts. (Filing 17 at 1-5.) Cotton did not respond to Defendants' statement of facts in an opposing brief. Instead, Cotton filed a "Response and Cross Motion for Summary Judgment" (Filing 40), in which he disputed all but the first and last paragraphs of Defendants' statement of facts (establishing the dates of his confinement at the Douglas County Correctional Center ("DCCC")) and requested that summary judgment be granted in his favor. Although not styled as an affidavit, this multi-purpose document contains a jurat certifying that is was "subscribed and sworn to" before a notary public on July 24, 2019; the document is signed by both Cotton and the notary public, and it is stamped with the notary public's seal.7 The document therefore has independent evidentiary value to the extent that Cotton's statements are "made on personal knowledge, set out facts

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that would be admissible in evidence, and show that [Cotton] is competent to testify on the matters stated." Fed. R. Civ. P. 56(c)(4). See Awnings v. Fullerton, 912 F.3d 1089, 1099 (8th Cir. 2019) (holding district court did not abuse its discretion in considering affidavits in which affiants did not expressly state they had personal knowledge of the facts recited); see also Williams v. York, 891 F.3d 701, 703 n. 2 (8th Cir. 2018) (plaintiff's verified complaint must be treated as the equivalent of an affidavit for summary judgment purposes); Williams v. Evangelical Ret. Homes of Greater St. Louis, 594 F.2d 701, 703 (8th Cir. 1979) ("The general rule is that defects in the form of the affidavits are waived if not objected to at the trial court level."). Cotton also filed a personal affidavit (Filing 43) and 358 pages of exhibits (Filing 42). In ruling on Defendants' original motion, the court cited facts stated in Filings 40 and 43,8 and it will do so again in ruling on Defendants' renewed Motion for Summary Judgment.9

Defendants' brief in support of their renewed Motion for Summary Judgment contains a separate, 18-paragraph statement of undisputed facts (Filing 77 at 1-5), which is substantially similar to their previous statement (Filing 24 at 1-5). Both statements rely on the same evidence (Filings 25, 48). The primary differences are

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that facts related to Cotton's dismissed ADA and Rehabilitation Act claims have been omitted in the new statement, and Defendants now also rely upon certain requests for admission that Cotton did not respond to within the time prescribed by Rule 36(a)(3). As already discussed, however, the court permitted Cotton to respond to the requests for admission after the filing of Defendants' Renewed Motion for Summary Judgment, and has determined that his responses were timely served.10

In their current statement of facts, Defendants cite Cotton's previous failure to respond to their Requests for Admission Nos. 1-9 and 12-23. (See Filing 77 at 1-5, "Undisputed Facts," ¶¶ 3, 8, 9, 15, 17.) The court must therefore determine whether those requests for admission have now been denied by Cotton.

In Request Nos. 1-9, Cotton is asked to admit that no medical professional diagnosed him...

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