Sullivan v. Sarpy County Jail et al

Filing 17

MEMORANDUM AND ORDER that Defendants' Motion to Strike or Dismiss 5 is granted. Plaintiff's claims against the Sarpy County Jail, Pamela Reinke and Dr. Dreesen are dismissed in their entirety. Plaintiff's official capacity and state law claims against London, Davis, and Westland are dismissed. The sole remaining claims in this case are the § 1983 claims asserted against London, Davis, and Westland in their individual capacities. Plaintiff's Motion for Remand and Appointment of Counsel 15 is denied. To the extent the motion seeks the appointment of counsel, it is denied without prejudice to reassertion. Ordered by Judge John M. Gerrard. (Copy mailed to pro se party) (JSF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
MICHAEL A. SULLIVAN,
Plaintiff,
V.
SARPY COUNTY JAIL, JEFF
DAVIS, Sheriff, GREG LONDON,
Captain, JUNE WESTLAND, Nurse,
PAMELA REINKE, Nurse, and
DOCTOR DREESEN, Jail Physician,
Defendants.

)
)
)
)
)
)
)
)
)
)
)
)
)

4:15CV3014

MEMORANDUM
AND ORDER

This matter is before the court on Defendants’ Motion to Strike or Dismiss
(Filing No. 5) and Plaintiff’s Motion for Remand and Appointment of Counsel (Filing
No. 15). For the reasons explained below, Defendants’ Motion to Strike or Dismiss
will be granted. Plaintiff’s Motion for Remand and Appointment of Counsel will be
denied.
I. BACKGROUND
On October 24, 2012, Plaintiff filed suit in the District Court of Sarpy County,
Nebraska (“state district court”), naming “Sarpy County Jail, Jeff Davis, Sheriff, Greg
London, Jail Captain, June Westland, Nurse,” and “Unknown and Unnamed Sarpy
County Jail Employee” as the defendants. (Filing No. 1-1.) Plaintiff’s Complaint
alleged that while he was incarcerated in the Sarpy County Jail, the defendants
deprived him of proper medical care. The Complaint asserted state law claims for
negligence, medical malpractice and infliction of emotional distress (collectively
“state law claims”), as well as a federal claim under 42 U.S.C. § 1983. The Complaint
stated that the claims were brought against Greg London (“London”), Jeff Davis
(“Davis”), and June Westland (“Westland”) in both their individual and official

capacities. These defendants were subsequently served with process, but only in their
individual capacities.
On June 21, 2013, the state district court issued an order on an amended motion
for summary judgment filed by London, Davis, and Westland. (Filing No. 1-2.) The
state district court dismissed the official capacity claims brought against London,
Davis, and Westland, finding that those defendants had not been properly served in
their official capacities. The state district court also dismissed the state law claims
against London, Davis, and Westland, concluding that Plaintiff failed to file his
Complaint within the time required by the Political Subdivisions Tort Claims Act,
Neb. Rev. Stat. §§ 13-901-928. With respect to the state law claims, the state district
court also found that Plaintiff had failed to satisfy the preconditions of suit for a
medical malpractice claim under Neb. Rev. Stat. § 44-2840, and could not sue London
and Davis for malpractice because they were not personally involved in Plaintiff’s
medical treatment. Further, the court concluded that Plaintiff failed to plead a
cognizable claim for intentional infliction of emotional distress. Therefore, following
the state district court’s ruling on the summary judgment motion, the only surviving
claims were those brought pursuant to § 1983 against London, Davis, and Westland
in their individual capacities.
Thereafter, Plaintiff moved to amend his Complaint to add Pamela Reinke
(“Reinke”) and “Dr. Dreesen” as defendants. Plaintiff did not attach a proposed
amended complaint to his motion. However, on January 2, 2015, the state district
court granted Plaintiff’s motion to amend and gave Plaintiff 21 days to file his
amended complaint. (Filing No. 1-3.)
Plaintiff filed his “Verified Amended Petition-In-Complaint for Declaratory,
Monetary and Equitable Relief” (“Amended Complaint”) on February 2, 2015.
(Filing No. 1-5.) The Amended Complaint substantially revises the original
Complaint. Not only does the Amended Complaint add Reinke and Dr. Dreesen as
defendants, but it also reasserts the official capacity and state law claims against
2

Davis, London, and Westland that were previously dismissed by the state district
court.
On February 5, 2015, Reinke entered a voluntary appearance in her individual
capacity only, waiving issuance and service of summons upon her. (Filing No. 1-6.)
She removed the action to this court on February 5, 2015. (Filing No. 1.) Plaintiff
subsequently sought to remand this action back to state court, but Plaintiff’ request for
remand was denied. (Filing No. 13.)
II. DISCUSSION
A.

Motion to Strike or Dismiss

Reinke seeks to have all claims asserted against her dismissed. Davis, London,
and Westland ask that the Court strike or dismiss the previously-dismissed claims
from the Amended Complaint, and essentially return the case to where it stood before
Plaintiff filed his Amended Complaint.
1.

Official Capacity and State Law Claims Against Davis, London, and
Westland

The state district court granted Plaintiff leave to add Pamela Reinke and Dr.
Dreesen as defendants. However, Plaintiff’s amended pleading goes far beyond the
scope of the state district court’s order. Not only does Plaintiff add Reinke and Dr.
Dreesen as defendants, but he also reasserts the official capacity and state law claims
against Davis, London, and Westland. Because Plaintiff exceeded the scope of the
state district court’s order granting him limited leave to amend his Complaint,
dismissal of the official capacity and state law claims against Davis, London, and
Westland is appropriate. See Goade v. Vollrath, 81 F. Supp. 971, 973 (W.D. Mo.
1948) (“The transfer of a suit from a State court to the Federal court, by way of
removal proceedings, does not vacate or nullify what has been done in the State court
3

prior to filing the removal papers . . . The District Court takes the case up where the
State Court left off and the Federal Court, must, as far as possible, recognize and give
effect to regularity of proceedings had in the State Court”).
Moreover, dismissal of Plaintiff’s official capacity and state law claims remains
proper for the reasons previously outlined by the state district court. Plaintiff still has
not properly served Davis, London, and Westland in their official capacities. As
explained by the state district court, in order to sue county employees in their official
capacities, service must be made upon the county. (Filing No. 1-2.) See Holmstedt
v. York Cnty. Jail Supervisor, 745 N.W.2d 317 (Neb. 2008). Plaintiff has not
complied with this requirement. Additionally, as found by the state district court,
Plaintiff’s state law claims against Davis, London, and Westland are barred by the
Political Subdivisions Tort Claims Act’s limitations period.
Also, because Sarpy County has not been served or named as a defendant in this
suit, Sarpy County Jail must also be dismissed from the case. Plaintiff’s suit should
not have been brought against the jail, but rather should have been brought “in the
proper name of the county.” Holmstedt v. York Cnty. Jail Supervisor, 739 N.W.2d
449, 461 (Neb. Ct. App. 2007), rev’d on other grounds, 745 N.W.2d 317 (Neb. 2008).
See also Meyer v. Lincoln Police Dept, 347 F. Supp.2d 706 (D. Neb. 2004) (holding
that the Lincoln Police Department is an agency of the City of Lincoln and has no
separate legal status under Nebraska law). Sarpy County Jail is not a proper defendant
in this suit.
2.

Official and Individual Capacity Claims against Reinke

Like Davis, London, and Westland, Reinke has not been served in her official
capacity. Although Reinke signed a voluntary appearance and waiver of service, she
did so in her individual capacity only. Therefore, the official capacity claims against
Reinke will be dismissed.

4

The claims against Reinke in her individual capacity will likewise be dismissed.
Plaintiff asserts a claim for intentional infliction of emotional distress against Reinke
in her individual capacity. As found by the state district court, Plaintiff failed to file
his original Complaint within the two-year time frame required by the Political
Subdivision Tort Claims Act. See Bojanski v. Foley, 798 N.W.2d 134, 143 (Neb. Ct.
App. 2011) (stating that requirements of the Political Subdivisions Tort Claims Act
apply where an individual is sued in his or her individual capacity, but is performing
duties within the scope of employment). Therefore, like Plaintiff’s state law claims
against Davis, London, and Westland, Plaintiff’s intentional infliction of emotional
distress claim against Reinke is time barred.1
Plaintiff’s claim under 42 U.S.C. § 1983 against Reinke in her individual
capacity is also precluded. The statute of limitations for Plaintiff’s § 1983 claim
alleging he received improper medical care while at the Sarpy County Jail runs four
years from the date his claim accrued. The statute of limitations expired no later than
March 16, 2014, which is four years from the date he left the Sarpy County Jail
facility. Plaintiff’s Amended Complaint naming Reinke as a party was filed on
February 2, 2015, clearly outside the limitations period. Plaintiff has not identified
any basis for tolling the statute of limitations.
Additionally, to the extent that Plaintiff argues that his action is not time barred
because he intended to sue Reinke by naming “Unknown and Unnamed Sarpy County
Jail Employee” as a defendant in the initial Complaint, such argument fails. Plaintiff’s
claims against Reinke do not “relate back” to the filing of the original Complaint.
Under Nebraska law, an action is deemed dismissed as to any defendant not served
within six months from the date the complaint was filed. Neb. Rev. Stat. § 25-217.
Reinke was not served within this six-month window. Therefore, even if Reinke was

1

It is unclear whether Plaintiff is asserting state law claims of negligence and
medical malpractice against Reinke. To the extent Plaintiff is attempting to do so,
dismissal of those claims is appropriate as they are also untimely.
5

identified as “Unknown Sarpy County Jail Employee” in the original Complaint, she
was dismissed by operation of law on April 24, 2013, and was not named (or renamed) as a defendant until February 2, 2015, well after the statute of limitations had
run. Also, Plaintiff has not even alleged that Reinke, before the running of the statute
of limitations, knew or should have known that the suit would have been brought
against her, but for a mistake concerning the identity of the proper party, as is required
for relation back under Nebraska state law. Neb. Rev. Stat. § 25-201.02.
Moreover, the Eighth Circuit Court of Appeals recently held that in order for
an amended pleading to “relate back” under Fed. R. Civ. P. 15(c), “the newly added
defendant must have had notice of the suit within 120 days of filing the original
complaint” and must have known that, but for a mistake concerning identity, should
have been named as a defendant in the original complaint. Lee v. Airgas Mid-South,
Inc., No. 14-3081, 2015 WL 4286405, *3 (8th Cir. July 16, 2015). Again, Plaintiff
has not alleged or shown that Reinke had knowledge of the suit within the time
required for service of the original Complaint, nor has Plaintiff alleged or shown that
Reinke should have known that she was the “Unknown Sarpy County Jail Employee”
named in the original Complaint. Therefore, Plaintiff’s § 1983 claim against Reinke
will be dismissed.
3.

Claims against Dr. Dreesen

Plaintiff’s claims against Dr. Dreesen will also be dismissed. The Amended
Complaint was filed on February 2, 2015, and the suit was removed to this court on
February 5, 2015. To date, Dr. Dreesen has not been served, nor has summons been
requested. Pursuant to Fed. R. Civ. P. 4, service must be accomplished within 120
days after the complaint is filed. This time period has long expired. It does not appear
that Plaintiff has made any effort to serve Dr. Dreesen and Plaintiff has not offered
any reason why he has not done so. Moreover, and in any event, it is apparent from
the face of the Amended Complaint that dismissal of the claims against Dr. Dreesen
is proper for the same reasons that those against Reinke have been dismissed.

6

B.

Motion to Remand and for Appointment of Counsel

In an order dated April 8, 2015 (Filing No. 13), the court denied a motion to
remand filed by Plaintiff, finding that this court has subject matter jurisdiction over
the action and that removal was timely. Nothing has changed since the court issued
its previous order and the ruling will not be reconsidered. Therefore, Plaintiff’s
renewed request for remand will be denied.
Plaintiff’s request for appointment of counsel will likewise be denied. The
court cannot routinely appoint counsel in civil cases. In Davis v. Scott, 94 F.3d 444,
447 (8th Cir. 1996), the Eighth Circuit Court of Appeals explained that “[i]ndigent
civil litigants do not have a constitutional or statutory right to appointed counsel. The
trial court has broad discretion to decide whether both the plaintiff and the court will
benefit from the appointment of counsel[.]” Id. (internal citation and quotation marks
omitted). No such benefit is apparent here at this time. Thus, the request for the
appointment of counsel will be denied without prejudice to reassertion.
IT IS THEREFORE ORDERED that:
1.

Defendants’ Motion to Strike or Dismiss (Filing No. 5) is granted.

2.
Plaintiff’s claims against the Sarpy County Jail, Pamela Reinke and Dr.
Dreesen are dismissed in their entirety. Plaintiff’s official capacity and state law
claims against London, Davis, and Westland are dismissed. The sole remaining
claims in this case are the § 1983 claims asserted against London, Davis, and
Westland in their individual capacities.
3.
Plaintiff’s Motion for Remand and Appointment of Counsel (Filing No.
15) is denied. To the extent the motion seeks the appointment of counsel, it is denied
without prejudice to reassertion.
DATED September 1, 2015.

7

BY THE COURT:
s/ John M. Gerrard
United States District Judge

*This opinion may contain hyperlinks to other documents or Web sites. The U.S. District Court for the District
of Nebraska does not endorse, recommend, approve, or guarantee any third parties or the services or products they
provide on their Web sites. Likewise, the court has no agreements with any of these third parties or their Web sites. The
court accepts no responsibility for the availability or functionality of any hyperlink. Thus, the fact that a hyperlink ceases
to work or directs the user to some other site does not affect the opinion of the court.

8