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Native American Council of Tribes v. Weber

May 18, 2010

NATIVE AMERICAN COUNCIL OF TRIBES; BLAINE BRINGS PLENTY; SHAWN GARRNETT; NEPHI ANTELOPE; BRIAN DUBRAY; CLAYTON CREEK; AND DAVID DELORIA, PLAINTIFFS,
v.
DOUGLAS WEBER, WARDEN OF SOUTH DAKOTA STATE PRISON; TIMOTHY REISCH, SECRETARY OF THE DEPARTMENT OF CORRECTIONS; MARTY JACKLEY; ATTORNEY GENERAL; AND JULIE KALLA, DEFENDANTS.



The opinion of the court was delivered by: Karen E. Schreier Chief Judge

ORDER

Plaintiffs, Native American Council of Tribes (NACT), Blaine Brings Plenty, Shawn Garrnett, Nephi Antelope, Brian Dubray, Clayton Creek, and David Deloria, brought this action to challenge the decision of defendants to remove tobacco from American Indian ceremonies in the South Dakota State Penitentiary. In their amended complaint, captioned "Plaintiffs' Amended Application under Rule 18(a) of Fed. R. Civ. P," plaintiffs allege that defendants harassed plaintiffs' religious objects, violated their first and fourteenth amendment rights, engaged in cruel and unusual punishment, violated their due process and equal protection rights, and unreasonably interfered with their exercise of religion. Plaintiffs request return of tobacco to their religious ceremonies pursuant to the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. §§ 2000cc et seq. Pending before the court are numerous motions and submissions filed by plaintiffs and defendants' motion to dismiss NACT as a plaintiff.

I. Plaintiffs' Motions and Submissions

Plaintiffs filed a number of motions and submissions pro se. Although plaintiffs are now represented by counsel, the court will liberally construe their pro se filings. See Smith v. St. Bernards Reg'l Med. Center, 19 F.3d 1254, 1255 (8th Cir. 1994) (stating that pro se complaint must be construed liberally).

A. Plaintiffs' Amended Application under Rule 18(a) of Fed. R. Civ. P. (Docket 21)

In Docket 21, plaintiffs argue that NACT's motion for summary judgment and an immediate and permanent preliminary injunction should be granted and that defendants' motion to dismiss should be denied. Plaintiffs' Amended Application under Rule 18(a) of Fed. R. Civ. P gives defendants notice of plaintiffs claims but does not include a brief containing the specific points or propositions of law set out with the authorities in support thereof for entry of an injunction against defendants or entry of judgment in favor of plaintiffs. A brief is required with every motion by D.S.D. Civ. LR 7.2A. Thus, to the extent plaintiffs' Amended Application under Rule 18(a) of Fed. R. Civ. P includes motions for a preliminary or permanent injunction and/or for summary judgment, these motions are denied without prejudice.

B. Et al., Plaintiffs' Motion in Support of Complaint under 42 U.S.C. § 2000cc-1(a)(1)-(2) for State Violation of the Right to Free Exercise of Religion (Docket 12)

In Docket 12, plaintiffs move to "restore all traditional ceremonies embodied in 'tobacco' back to the Native American Council of Tribes." Et al., Plaintiff's Motion in Support of Complaint under 42 U.S.C. § 2000cc-1(a)(1)-(2) for State Violation of the Right to Free Exercise of Religion, Docket 12 at 4. Plaintiffs did not file a certificate of service in conjunction with this motion. Defendants have not filed a response.

Under the Federal Rules of Civil Procedure, every written motion, except one that may be heard ex parte, must be served on every party. Fed. R. Civ. P. 5(a)(1)(D). Further, any motion that is required to be served must be filed with a certificate of service within a reasonable time after service. Fed. R. Civ. P. 5(d)(1). The local rules provide that the certificate of service must reflect "how service was effectuated on all parties." D.S.D. Civ. LR 5.1B3. Here, Et al., Plaintiffs' Motion in Support of Complaint under 42 U.S.C. § 2000cc-1(a)(1)-(2) for State Violation of the Right to Free Exercise of Religion is not a motion that may be heard ex parte, so plaintiffs were required to serve this motion on defendants and to file a certificate of service stating how service was effectuated. Plaintiffs did not file a certificate of service relating to this motion, and there is no indication that defendants were served. Because plaintiffs failed to comply with Rule 5(d)(1) and Local Rule 5.1B3 with respect to Et al., Plaintiffs' Motion in Support of Complaint under 42 U.S.C. § 2000cc-1(a)(1)-(2) for State Violation of the Right to Free Exercise of Religion, this motion is denied without prejudice.

C. Plaintiffs' Motion under 25 U.S.C. § 175 for General Principle to Be Applied (163 U.S. 376) (Docket 28)

In Docket 28, plaintiffs move the court to direct that the "general principle" that the United States is the legal trustee of many American Indians and American Indian tribes be applied to plaintiffs in this case. Plaintiffs did not file a certificate of service in conjunction with this motion. Defendants have not filed a response. As noted, under Rule 5(d)(1) and Local Rule 5.1B3, plaintiffs were required to file a certificate of service stating how service of this motion was effectuated on defendants. Fed. R. Civ. P. 5(d)(1); D.S.D. Civ. LR 5.1B3. Because plaintiffs failed to comply with these rules, Plaintiffs' Motion under 25 U.S.C. § 175 for General Principle to Be Applied (163 U.S. 376) is denied without prejudice.

D. Plaintiffs' Statement for Unconstitutional Conduct by State Officers' . . . 12 L.Ed. 2d 1110 (Docket 23)

In Docket 23, plaintiffs move to bar defendants from filing a counterclaim and request that defendants be denied summary judgment pursuant to Rule 56(c). Plaintiffs also state that NACT's motion for summary judgment and preliminary injunction should be granted. Defendants argue that there is no legal basis for denying defendants the opportunity to file a counterclaim and that to the extent plaintiffs' motion can be construed as a motion for summary judgment, the motion should be dismissed for failure to comply with the requirements for summary judgment under the federal rules.*fn1

The court finds that plaintiffs have provided no legal or factual basis for relief under Plaintiffs' Statement for Unconstitutional Conduct by State Officers' . . . 12 L.Ed. 2d 1110. With respect to plaintiffs' request that the court bar defendants from asserting any counterclaims, defendants have not attempted to assert any counterclaims, so this request is moot. Moreover, plaintiffs have cited no federal rule, and the court is unaware of any rule, that would permit the court to bar defendants from asserting a counterclaim that complies with all applicable deadlines and the pleading requirements of Rule 8. With respect to plaintiffs' request that defendants' motion for summary judgment be denied, defendants have not filed a motion for summary judgment in this case, so plaintiffs' request is premature.

Finally, to the extent plaintiffs intend this submission be a motion for summary judgment, the court finds that plaintiffs have not shown that they are entitled to judgment as a matter of law, as is required by the Federal Rules of Civil Procedure. Rule 56(c) provides that summary judgment "should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). Only disputes over facts that might affect the outcome of the case under the governing substantive law will properly preclude summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Summary judgment is not appropriate if a dispute about a material fact is genuine, that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Id.

The moving party bears the burden of bringing forward sufficient evidence to establish that there are no genuine issues of material fact and that the movant is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The nonmoving party is entitled to the benefit of all reasonable inferences to be drawn from the underlying facts in the record. Vette Co. v. Aetna Cas. & Sur. Co., 612 F.2d 1076, 1077 (8th Cir. 1980). The nonmoving party may not, however, merely rest upon allegations or denials in its pleadings, but must set forth specific facts by affidavits or otherwise showing that a genuine issue exists. Forrest v. Kraft Foods, Inc., 285 F.3d 688, 691 (8th Cir. 2002).

Here, the parties have not begun discovery, and plaintiffs have not provided any evidence to show that they are entitled to judgment as a matter of law. Because plaintiffs have not met their burden of bringing forward sufficient evidence to show that there are no genuine issues of material fact and that plaintiffs are entitled to judgment as a matter of law on their claims, plaintiffs' motion for summary judgment is denied. Overall, the court finds that plaintiffs are not entitled to any of the relief requested in Plaintiffs' Statement for Unconstitutional Conduct by State Officers' . . . 12 L.Ed. 2d 1110, so this motion is denied.

E. Plaintiffs' Motion Requesting a Protective Order (Docket 31)

In Docket 31, plaintiffs move for a protective order pursuant to Rule 26(c) "because the Defendants[] are oppressing and applying undue burdens on an isolated basis." Plaintiffs' Motion Requesting a Protective Order, Docket 31 at 1. Defendants argue that plaintiffs' motion ...


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