Baker v. Neneman et al
MEMORANDUM AND ORDER - Baker's Complaint is dismissed with prejudice because his claims were not filed within the relevant statutes of limitation. A separate judgment will be entered in accordance with this order. Ordered by Judge John M. Gerrard. (Copy mailed to pro se party)(GJG)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
LOU ANN NENEMAN, CITY OF
OMAHA, and BRUCE HOLCOMB,
This matter is before the court on its own motion. For the reasons discussed
below, the court will dismiss Plaintiff Robert Baker’s (“Baker”) claims against the
defendants with prejudice.
Baker filed his Complaint (Filing No. 1) against Neneman, Holcomb and the
City of Omaha. He alleged officers with the Omaha Police Department assaulted him
on August 19, 2006, in conjunction with his arrest for the theft of a vehicle. Police
officers transported Baker to a hospital following his arrest where Holcomb and
Neneman were apparently employed as a doctor and nurse, respectively. At the
hospital, Neneman assisted a doctor—not Holcomb— in applying Dermabond to a cut
on Baker’s face. (Filing No. 1 at CM/ECF pp. 9-10.) At some point, Holcomb briefly
examined the cut on Baker’s face and then held a brief conversation with police
officers in the hallway, which was “the extent of any contact [Baker] had with Dr.
Holcomb.” (Id. at CM/ECF p. 10.)
Baker alleged Neneman and Holcomb conspired with officers of the Omaha
Police Department to deprive him of his constitutional rights. (Id. at CM/ECF p. 12.)
The crux of Baker’s argument appears to be that Neneman and Holcomb failed to
ascertain the severity of Baker’s injuries following his arrest. Had they examined him
further, they would have uncovered severe knee and head injuries. (Id. at CM/ECF
On December 1, 2014, the court ordered Baker to show cause why this action
should not be dismissed as untimely based on the applicable statute of limitations.
(Filing No. 15.) Baker filed a response (Filing No. 16) on December 15, 2014.
Baker brings a cause of action under 42 U.S.C. § 1983 alleging conspiracy
claims. It appears Baker may also be attempting to bring state-law professional
negligence claims against Neneman and Holcomb. In either case, it is obvious from
the Complaint that his claims are barred by the statute of limitations. A court “may
sua sponte dismiss a complaint, before service, when an affirmative defense, such as
the statute of limitations, is obvious from the complaint.” Anderson v. United Transp.
Union, No. 4:09-CV-00136-WRW, 2009 WL 529920, at * 1 (E.D.Ark. Mar. 2, 2009)
42 U.S.C. § 1983
“Section 1983 does not supply its own statute of limitations; instead, [the court]
borrow[s] the statute of limitations from state law.” Mountain Home Flight Serv. Inc.
v. Baxter Cnty., Arkansas, 758 F.3d 1038, 1044 (8th Cir. 2014). Under Nebraska law,
the applicable statute of limitations for this action is four years. See Neb. Rev. Stat.
§ 25-207; Bridgeman v. Nebraska State Penitentiary, 849 F.2d 1076, 1077-78 (8th
Baker’s cause of action accrued on August 19, 2006, the date on which
Neneman and Holcomb allegedly conspired with police officers. Thus, he had until
August 19, 2010, to file his § 1983 action. He did not file this action until March 12,
2014, more than three years and six months after the limitations period expired. Thus,
absent equitable tolling of the limitations period (discussed below), Baker’s § 1983
action is barred by the statute of limitations.
A medical malpractice cause of action in Nebraska must be commenced:
within two years next after the alleged act or omission in rendering or
failure to render professional services providing the basis for such
action; Provided, if the cause of action is not discovered and could not
be reasonably discovered within such two-year period, then the action
may be commenced within one year from the date of such discovery or
from the date of discovery of facts which would reasonably lead to such
discovery, whichever is earlier[.]
Neb. Rev. Stat. § 25-222.
The Nebraska Supreme Court has concluded that discovery in this context
“occurs when the party knows of facts sufficient to put a person of ordinary
intelligence and prudence on inquiry which, if pursued, would lead to the discovery
of facts constituting the basis of the cause of action.” Gordon v. Connell, 545 N.W.2d
722, 726 (Neb. 1996). In addition, “one need not know the full extent of one’s
damages before the limitations period begins to run, as a statute of limitations can be
triggered at some time before the full extent of damages is sustained.” Id.
It is obvious from Baker’s Complaint that he “discovered” his injuries within
the two-year limitations period of § 25-222. Baker essentially alleges Holcomb and
Neneman did not do enough to diagnose his injuries on August 19, 2006, when he was
admitted to the emergency room where they were working. Baker alleged in his
Complaint that, on that date, “[a] layman could see [he] had serious head wounds and
bleeding profusely” and “[a] layman could see [he] had trouble walking.” (Filing No.
1 at CM/ECF p. 8.) Thus, he knew on that date that he had injuries and Holcomb and
Neneman were allegedly negligent in treating his injuries. While Baker may not have
known the full extent of the damage to his knee and head on that date, he knew he had
Baker’s cause of action for medical malpractice accrued on August 19, 2006.
Thus, he had until August 19, 2008, to file his malpractice action. He did not file this
action until March 12, 2014, more than five years after the limitations period expired.
Thus, absent equitable tolling of the limitations period, Baker’s medical malpractice
action is also barred by the statute of limitations.1
Nebraska’s tolling statute, Neb. Rev. Stat. § 25-213, provides that the
limitations period may be tolled under certain circumstances, including for periods of
imprisonment. The Nebraska Supreme Court has concluded that “a showing of a
recognizable legal disability, separate from the mere fact of imprisonment, which
This cause of action represents Baker’s’s third attempt in this court to litigate
claims arising from events that occurred on August 19, 2006. The Nebraska savings
clause statute, Neb. Rev. Stat. § 25-201.01, allows certain cases to be brought outside
the statute of limitations where there was a previous action—i.e., an original action—
that was filed within the limitations period and was dismissed after the expiration of
the limitations period. Under the saving clause, a plaintiff may refile within six
months or a period of time equal to the limitations period, whichever is shorter. Neb.
Rev. Stat. § 25-201.01(3). Thus, even assuming § 25-201.01 otherwise applies, it
does not toll the statute of limitations here because Plaintiff did not file this action
within six months of the dismissal of the previous actions. (See Case Nos.
prevents a person from protecting his or her rights is required to . . . have the statute
of limitations tolled during imprisonment.” Gordon v. Connell, 545 N.W.2d 722, 77576 (Neb. 1996).
Baker argues he was unable to prosecute these claims earlier because he was
unable to receive proper medical treatment as a result of his incarceration at the
Douglas County Jail. The court fails to see how Baker’s alleged inability to receive
proper medical treatment constitutes a legal disability that prevented him from filing
suit within the applicable limitations period. This is particularly so because Baker
filed two actions in this court litigating similar claims within the applicable limitations
period while he was incarcerated in the Douglas County Jail. (See Case Nos.
Baker has not demonstrated any legal disability separate from the mere fact of
his imprisonment. In addition, he has not demonstrated any other reason to toll the
statute of limitations. Therefore, he is not entitled to equitable tolling of the
IT IS THEREFORE ORDERED that:
Baker’s Complaint is dismissed with prejudice because his claims were
not filed within the relevant statutes of limitation.
A separate judgment will be entered in accordance with this order.
DATED this 23rd day of February, 2015.
BY THE COURT:
s/ John M. Gerrard
United States District Judge
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