MARVEL JONES v. NEBRASKA DEPARTMENT OF CORRECTIONAL SERVICES UNKNOWN UNNAME UNKNOWN UNNAME UNKNOWN UNNAME II UNKNOWN UNNAME TECUMSEH STATE CORRECTIONAL INSTITUTION UNKNOWN UNNAME UKNOWN UNNAME UNKNOWN UNNAME UKNOWN UNNAME UKNOWN UNNAME NEBRASKA STATE PENITENTIARY UKNOWN UNNAME UKNOWN UNNAME LIBRARIAN OF NEBRASKA STATE PENITENTIARY OMAHA CORRECTIONAL CENTER UKNOWN UNNAME UKNOWN UNNAME UKNOWN UNNAME UKNOWN UNNAME (2022)

MEMORANDUM AND ORDER

This matter comes before the Court on Defendants’, Nebraska Department of Correctional Services (NDCS), Tecumseh State Correction Institution, Nebraska State Penitentiary, and Omaha Correctional Center's, motion to stay. Filing No. 43. For the reasons stated herein, the Court grants the motion.

On July 27, 2022, the Court issued a memorandum and order addressing the named Defendants’ motion to dismiss. Filing No. 25. The Court concluded the named Defendants (the correctional institutions named above) were protected from suit by sovereign immunity. Filing No. 25 at 6–10. The Court concluded, however, that it could not sua sponte dismiss Jones's claims against the unnamed individuals in their individual capacities. Filing No. 25 at 11–12. The unnamed individuals are various officials of the named correctional facilities. Filing No. 25 at 10. Jones stated he had requested information regarding these individuals’ identities from NDCS but had not received a response. Filing No. 1-1 at 103; Filing No. 22 at 19. Thus, the Court ordered NDCS to respond to Jones's inquiry prior to its dismissal from the suit. Filing No. 25 at 12. Rather than complying with that deadline, NDCS filed a motion for relief under Federal Rule of Civil Procedure 60(b) which the Court denied on September 22, 2022. Filing No. 38. The Court subsequently ordered Defendants to disclose the ordered information on or before October 24, 2022. Filing No. 40. Defendants have filed an interlocutory appeal, Filing No. 42, and ask the Court to stay the deadline to disclose the individuals’ identities while the appeal is pending, Filing No. 43.

In deciding whether to issue a stay pending appeal, the Court considers four factors: (1) whether the party seeking the stay has demonstrated a strong likelihood of success on the merits; (2) whether the party seeking the stay will be irreparably injured without a stay; (3) whether a stay would substantially injure other parties; and (4) the public's interest. Org. for Black Struggle v. Ashcroft, 978 F.3d 603, 607 (8th Cir. 2020) (citing Brakebill v. Jaeger, 905 F.3d 553, 557 (8th Cir. 2018)).

For the reasons set forth in its prior orders, Filing No. 25; Filing No. 38, the Court does not believe Defendants have a strong likelihood of success on the merits. However, the other three factors weigh in favor of a stay. First, should Defendants be required to disclose the requested information now, they would be irreparably injured in the sense that they cannot “take back” the information should they prevail on appeal. Second, a stay would not substantially injure Jones. As Defendants correctly point out, his causes of action concern events that occurred many years ago and an additional short stay while this appeal is litigated would not prejudice his case. Lastly, as this case involves questions of the sovereign immunity of governmental agencies, the public has an interest in its outcome. A stay is appropriate while the appeal is litigated.

Accordingly,

IT IS ORDERED:

1. Defendant's motion to stay, Filing No. 43, is granted and the case, including the deadline for Defendants to disclose the information specified in Filing No. 25, is stayed pending Defendants’ interlocutory appeal;

2. Defendants are ordered to notify the Court within 10 days of the Eighth Circuit Court of Appeals ruling on their appeal.

Dated this 21st day of October, 2022.

Joseph F. Bataillon Senior United States District Judge