Holmstedt v. York County Jail Supervisor
| Decision Date | 28 August 2007 |
| Docket Number | No. A-05-906.,A-05-906. |
| Citation | 739 N.W.2d 449,15 Neb. App. 893 |
| Parties | Duane S. HOLMSTEDT, Appellant v. YORK COUNTY JAIL SUPERVISOR (NAME UNKNOWN) et al., Appellees. |
| Court | Nebraska Court of Appeals |
Duane S. Holmstedt, pro se.
Charles W. Campbell, of Angle, Murphy, Valentino & Campbell, P.C., York, for appellees.
Duane S. Holmstedt appeals the decision of the York County District Court dismissing his action filed pursuant to 42 U.S.C. § 1983 (2000) against the York County jail supervisor, the York County Sheriff's Department, Sheriff Dale Radcliff, Lt. Paul Vrbka, and Deputy Ray Silverstrand under Neb. Ct. R. of Pldg. in Civ. Actions 12(b)(2), (4), (5), and (6) (rev. 2003). We conclude that the district court properly dismissed the complaint against the York County Sheriff's Department for lack of personal jurisdiction, but that the court erred in dismissing the complaint as to the remaining defendants.
On May 20, 2005, Holmstedt filed a pro se complaint in the York County District Court against the defendants, which he designated in the caption as follows: "York County Jail Supervisor, (name unknown) York County Sheriff's Department, Sheriff Dale Radcliff, Lt. Paul Vrbka, Deputy Ray Silverstrand, Defendants." In the complaint, which he entitled "Petition," the allegations which appear to be relevant to a possible claim against the defendants are that he was arrested and interrogated by Radcliff and Vrbka on August 13, 2003. He alleges with some particularity that he was abused by them on that day and on later occasions while incarcerated in the York County jail (apparently awaiting the disposition of a criminal charge against him). Holmstedt alleges he was struck, yelled at, deprived of an attorney, and told that he "had to tell [them] everything." He also alleges that Radcliff deprived him of medical care and medication. He alleges other abuse by Radcliff Vrbka, and Silverstrand during subsequent intermittent times he was in the jail. For purposes of this opinion, we think it is unnecessary to set forth all of the details of his pro se handwritten complaint. Holmstedt prays that the defendants be charged and prosecuted for the alleged crimes, that the York County Sheriff's Department be ordered to pay him the sum of $250,000, and that the remaining defendants be ordered to pay him $25,000 each.
The transcript shows that the defendants were served on May 23, 2005, by delivery of a copy of the summons and complaint for each of the named defendants as follows: on Radcliff, to "Dale E. Radcliff"; on the York County Sheriff's Department, to "Dale E. Radcliff, Sheriff of York County, Nebraska"; on the York County jail supervisor, to "John Prusia York County Jail Supervisor"; on Vrbka, to "Paul M. Vrbka"; and on Silverstrand, to "Ray Silverstrand a/k/a Gene R. Silverstrand."
Separate motions to dismiss were filed by counsel for each of the defendants in the name used in the complaint. Each motion raised the same grounds for dismissal, that is, pursuant to rule 12(b)(2), (4), (5), and (6), and all but the motion of the York County Sheriff's Department alleged the complaint was deficient in that it (1) purports to sue the respective defendant in his official capacity but the defendant was not served in his official capacity, (2) fails to state a claim for relief because it fails to allege that Holmstedt exhausted his administrative remedies as required by 42 U.S.C. § 1997e(a) (2000), and (3) fails to state a claim for relief against the defendant acting in his official capacity pursuant to § 1983. The motion of the defendant York County Sheriff's Department differs in that the first reason stated in its motion to dismiss was that there is no individual or political subdivision which may be sued known as the "`York County Sheriff's Department,'" rather than the first reason stated by the other defendants, as shown above.
The transcript shows a letter from Holmstedt to the trial judge dated June 4, 2005, and file stamped June 7, wherein Holmstedt "object[s]" to the motions to dismiss and then goes on to briefly argue each of the points raised in the motions. The motions were heard by the district court on June 24, with Holmstedt appearing by telephone and the defendants' attorney appearing in person. At that hearing, the defendants' attorney stated the bases for the motions to dismiss. Then Holmstedt stated that his brief had been mailed "yesterday," and requested a continuance. The continuance was denied, but the judge stated that he would not rule until he had received Holmstedt's brief. Holmstedt started to read the brief over the telephone; the judge asked Holmstedt whether he had anything to say that was not in the brief, and he said no. The judge then stated that he would rather not listen to Holmstedt read the brief because he was going to read the brief several times himself before he ruled on the motion. Holmstedt stated, "That works." The hearing was concluded shortly thereafter.
Holmstedt's brief in opposition to the motions to dismiss was dated June 23, 2005. The brief was received by the district court clerk on June 29, but was not filed because the brief was considered Holmstedt's written argument to the court. On July 12, the district court entered an order which stated, in its entirety, Holmstedt has timely appealed to this court.
Holmstedt's assignments of error, restated, are that the district court erred (1) in dismissing his complaint "without showing cause or producing an order to support the dismissal" and (2) in failing to consider his written arguments. Holmstedt also contends that because he was acting pro se, the district court should have held him to less stringent standards than an attorney and should have construed his pleadings liberally.
When reviewing an order dismissing a case for lack of personal jurisdiction under rule 12(b)(2), an appellate court examines the question whether the nonmoving party has established personal jurisdiction de novo. See Ameritas Invest. Corp. v. McKinney, 269 Neb. 564, 694 N.W.2d 191 (2005).
An appellate court reviews a district court's grant of a motion to dismiss under rule 12(b)(6) de novo, accepting all the allegations in the complaint as true and drawing all reasonable inferences in favor of the nonmoving party. See Kellogg v Nebraska Dept. of Corr. Servs., 269 Neb. 40, 690 N.W.2d 574 (2005). The appellate court is, however, free to ignore legal conclusions, unsupported conclusions, unwarranted inferences, and sweeping legal conclusions cast in the form of factual allegations. Id. Complaints should be liberally construed in the plaintiff's favor and 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 claim which would entitle him to relief. Id.
When reviewing questions of law, an appellate court has an obligation to resolve the questions independently of the conclusions reached by the trial court. Coral Prod. Corp. v. Central Resources, 273 Neb. 379, 730 N.W.2d 357 (2007).
Less Stringent Standards for Pro Se Litigants.
Holmstedt contends that because he was acting pro se, the district court should have held him to less stringent standards than an attorney under his § 1983 claim and should have construed his pleadings liberally. We recognize that the U.S. Supreme Court has so stated in the context of a § 1983 action. See Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972) ().
To the extent that our decision involves construction of Holmstedt's complaint, we have followed the requisite approach. However, to the extent that the question before us concerns whether Holmstedt has complied with the statutory requirements for service of process, the dictates of Haines do not apply. Statutes prescribing the manner of service of summons are mandatory and must be strictly pursued. Erdman v. National Indemnity Co., 180 Neb. 133, 141 N.W.2d 753 (1966). There is no merit to this assignment of error.
Alleged Error by District Court in Failing to Consider Written Arguments and Not Setting Forth Reasoning.
Holmstedt claims that the district court erred in dismissing his complaint "without showing cause or producing an order to support the dismissal." Holmstedt also claims that the district court erred in failing to consider his written arguments and in failing to set forth the court's reasoning. He bases this claim on the fact that although the court's decision dismissing his complaint was filed on July 12, 2005, Holmstedt's brief was not file stamped until July 28 and the trial court did not set forth its reasoning in the order.
Briefs of parties in the district court are "presented to the judge and not filed with the clerk." Neb. Ct. R. of Dist. Cts. 5B (rev. 2000). Such briefs are not part of the complete record of a case. See Neb.Rev.Stat. § 25-1321 (Cum. Supp. 2006). "All judgments and orders must be entered on the journal of the court, and specify clearly the relief granted or order made in the action." Neb.Rev.Stat. § 25-1318 (Reissue 1995).
The trial judge's signed order provided, The trial court complied with § 25-1318. At the oral hearing, the trial judge stated he would not rule on the case until he received Holmstedt's brief. The delay between the hearing on June 24, 2005, and the decision on July 12 shows that the judge waited for Holmstedt's brief. Because rule 5B states that briefs are not to be filed with the clerk, the clerk's subsequent filing of the brief in contravention of the district court rules provides no logical support for...
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