Garcia v. US Marshalls et al
Filing
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MEMORANDUM AND ORDER - The Motion to Dismiss pursuant to Fed. R. Civ. P. 12(b)(6) filed on behalf of Defendants Coombs and Betsworth (Filing 33 ) is granted, and Plaintiff's claims against such Defendants are dismissed with prejudice as barr ed by the statute of limitations. Plaintiffs Motion (Filing 35 ) for an update on the status of this case is granted, and this Memorandum and Order shall serve as Plaintiffs update on the status of this case. Plaintiffs Motion (Filing 35 ) for ap pointment of counsel, a translator, and leave to amend his Complaint are denied. Defendants Motion to Strike Filing 35 (Filing 36 ), insofar as it can be construed as an untimely response to Defendants Motion to Dismiss (Filing 33 ), is denied as moot because the court did not consider such untimely filing as a response, but instead as separate motions addressed in paragraphs (2) and (3) above. This action will continue only as to Plaintiffs deliberate- indifference medical claim against Defendant Jeff Davis, Sarpy County Sheriff, in his individual capacity. A progression order as to this Defendant will be entered in due course. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party)(MKR)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
ELEAZAR GARCIA,
Plaintiff,
4:20CV3049
vs.
DAVID W. COOMBS, JR., Special
Deputy U.S. Marshal, in his individual
capacity; JACOB P. BETSWORTH,
Special Deputy U.S. Marshal, in his
individual capacity; and JEFF DAVIS,
Sarpy County Sheriff, in his individual
capacity,
MEMORANDUM
AND ORDER
Defendants.
Defendants Special Deputy U.S. Marshals David Coombs, Jr., and Jacob
Betsworth move to dismiss the claims against them pursuant to Fed. R. Civ. P.
12(b)(6). (Filing 33.) For the reasons that follow, the Defendants’ Motion will be
granted.
BACKGROUND
Plaintiff filed this case pro se and was granted permission to proceed in forma
pauperis. (Filing 6.) After initial review of Plaintiff’s Complaint (Filing 1) and
Amended Complaint (Filing 22), the court determined that Plaintiff plausibly stated
claims against the Defendants in their individual capacities for deliberate
indifference to Plaintiff’s serious medical needs and/or excessive force when
Plaintiff was a pretrial detainee.
FACTUAL ALLEGATIONS
Plaintiff alleges that during his arrest on September 30, 2017, in Underwood,
Iowa, U.S. Marshals Coombs and Betsworth surrounded him, hit his legs, knocked
him down to the ground, and broke his left arm. The Marshals called for an
ambulance, which transported Plaintiff to a hospital in Council Bluffs, Iowa. After
x-rays, a doctor at the hospital advised Plaintiff that he would need surgery as soon
as possible, and that the hospital could perform the surgery two days later, which
was a Monday. Plaintiff was given pain medication and then transferred to the
Pottawattamie County Jail in Iowa for holding over the weekend.
On Monday, Coombs and Betsworth picked Plaintiff up from the jail and
transported him to the Sarpy County Jail instead of to the hospital for surgery. At
this point, Plaintiff’s arm was very painful, swollen, and turning purple. Plaintiff
informed the Marshals of his level of pain, but they continued to take him to the
Sarpy County Jail. When Plaintiff arrived at the jail, he asked to be taken to the
hospital or for pain medication because the pain was causing him to feel faint.
Plaintiff claims “[t]hey just came by to look at me but did nothing to help me.”
(Filing 1 at CM/ECF p. 6.)
Two weeks later, Plaintiff was taken to see a doctor at an off-site clinic, where
he was again x-rayed and told that he needed surgery as soon as possible. Two weeks
later, on October 30, 2017, Plaintiff had surgery. While the doctor recommended
that Plaintiff stay overnight in the hospital, jail staff disagreed and ordered Plaintiff
to return to the Sarpy County Jail three hours after surgery was complete. Plaintiff
alleges that he repeatedly asked for, but was denied, pain medication for his
“excruciating” pain.
At a follow-up appointment two weeks later with his surgeon, he was told,
after more x-rays, that he needed a second surgery to replace his elbow. Plaintiff
underwent surgery on November 30, 2017, and was allowed to stay the night in the
hospital so he could receive pain medication. At his three-week follow-up
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appointment, the surgeon told Plaintiff there was nothing further that could be done.
Since that time, a neurologist advised Plaintiff that he has severe nerve and tendon
damage, which prevents Plaintiff from fully extending his arm and causes chronic
daily pain. The neurologist advised Plaintiff he “would have to be on disability for
the rest of [his] life.” (Filing 1 at CM/ECF p. 8.)
Plaintiff’s Amended Complaint clarifies that Plaintiff brings his excessiveforce claim against Defendants Coombs and Betsworth (“the U.S. Marshal
Defendants”) and his deliberate-indifference claim against Sheriff Davis. (Filing 22
at CM/ECF p. 2.)
Plaintiff requests $2,000,000 in damages.
DISCUSSION
1. Statute of Limitations
The U.S. Marshal Defendants argue that Plaintiff’s lawsuit is barred by the
applicable Iowa statute of limitations. “[A] statute of limitations defense is only
grounds for dismissal when the defense is established by the complaint itself.”
Ritchie Cap. Mgmt., L.L.C. v. JP Morgan Chase & Co., 960 F.3d 1037, 1048 (8th
Cir. 2020).
As explained in the court’s previous Memoranda and Orders, Plaintiff asserts
Bivens claims against the U.S. Marshal Defendants in their individual capacities.1
(Filing 7 at CM/ECF pp. 4-5.) Bivens actions are governed by the same statute of
limitations as 42 U.S.C. § 1983 actions. Sanchez v. United States, 49 F.3d 1329,
1330 (8th Cir. 1995). Section 1983 does not have its own statute of limitations, but
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Bivens actions are implied causes of action for damages against federal
government officials in their individual capacities for constitutional violations.
Carpenter’s Produce v. Arnold, 189 F.3d 686, 687 (8th Cir. 1999). “As a general
rule, Bivens claims and § 1983 claims are almost identical and involve the same
analysis.” Solomon v. Petray, 795 F.3d 777, 789 n.7 (8th Cir. 2015).
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rather adopts applicable state-law statute of limitations applicable to personal-injury
torts. Id.; see also DeVries v. Driesen, 766 F.3d 922, 923 (8th Cir. 2014) (interpreting
Iowa law); Mountain Home Flight Serv., Inc. v. Baxter Cty., Ark., 758 F.3d 1038,
1044 (8th Cir. 2014).
Here, because the conduct forming the basis of Plaintiff’s excessive-force
claim occurred in Iowa, the Iowa two-year personal injury tort statute of limitations
applies. Wallace v. Kato, 549 U.S. 384, 387-88 (2007) (statute of limitations for
personal-injury torts in state where cause of action arose applies in § 1983 actions;
§ 1983 action accrues when plaintiff has complete and present cause of action);
Sanchez, 49 F.3d at 1330; DeVries, 766 F.3d at 923; Iowa Code Ann. § 614.1
(Westlaw 2021).2 According to Plaintiff’s Amended Complaint, the arrest during
which the U.S. Marshal Defendants used excessive force on Plaintiff occurred on
September 30, 2017, in Underwood, Iowa. (Filing 22 at CM/ECF p. 1.) Plaintiff filed
his lawsuit in this court on May 4, 2020—approximately seven months after the
applicable two-year Iowa statute of limitations had run. Thus, on the face of
Plaintiff’s Complaints, Plaintiff’s claims against the U.S. Marshal Defendants are
untimely.
Further, Plaintiff has failed to allege sufficient facts to support a basis for
tolling the statute of limitations under Iowa law, such as death of the tortfeasor, Iowa
Code Ann. § 614.2, or the filer of the complaint being a minor or having a mental
illness, Iowa Code Ann. § 614.8. See DeVries, 766 F.3d at 923 (citing Iowa Code
Ann. §§ 614.2, 614.8).3
Iowa Code Ann. § 614.1 provides in part: “Actions may be brought within
the times limited as follows . . . after their causes accrue, and not afterwards, except
when otherwise specially declared: . . . Those founded on injuries to the person or
reputation, including injuries to relative rights, whether based on contract or tort, or
for a statute penalty, within two years.”
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Because Plaintiff’s claims against the Defendant U.S. Marshals are barred
by the statute of limitations, the court need not address Defendants’ other asserted
grounds for dismissal, failure to plead personal involvement and qualified immunity.
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2. Miscellaneous Motions
In one filing, Plaintiff requests an update on the status of this case,
appointment of counsel, a translator, and leave to amend his Complaint. (Filing 35.)
This Memorandum and Order shall serve as Plaintiff’s update on the status of this
case. As to Plaintiff’s request for appointment of counsel, there is no constitutional
or statutory right to appointed counsel in civil cases. Phillips v. Jasper Cty. Jail, 437
F.3d 791, 794 (8th Cir. 2006); Edgington v. Missouri Dep’t of Corr., 52 F.3d 777,
780 (8th Cir. 1995), abrogated on other grounds, Doe v. Cassel, 403 F.3d 986, 989
(8th Cir. 2005). The trial court has broad discretion to decide whether both the
plaintiff and the court will benefit from the appointment of counsel. Davis v. Scott,
94 F.3d 444, 447 (8th Cir. 1996). The relevant criteria for determining whether
counsel should be appointed include the factual complexity of the issues, the ability
of the indigent person to investigate the facts, the existence of conflicting testimony,
the ability of the indigent person to present the claims, and the complexity of the
legal arguments. Phillips, 437 F.3d at 791; Edgington, 52 F.3d at 780. Having
considered these factors, the court concludes that appointment of counsel is not
warranted at this time because the issues are not factually or legally complex, and
the Plaintiff has demonstrated his ability to investigate the facts and clearly convey
them to the court. For these reasons, a translator is also not necessary at this time.
Finally, Plaintiff’s request for leave to amend his Complaint will be denied,
as such amendment would be futile because Plaintiff’s claims against Defendants
Coombs and Betsworth are barred by the statute of limitations. U.S. ex rel. Joshi v.
St. Luke’s Hosp., Inc., 441 F.3d 552, 557 (8th Cir. 2006) (leave to amend may be
See e.g., Rollins v. City of Albert Lea, 79 F. Supp. 3d 946, 969 (D. Minn. 2014)
(considering qualified immunity argument for claims that were not barred by statute
of limitations); Kennedy v. City of Braham, 67 F. Supp. 3d 1020, 1043 (D. Minn.
2014) (same).
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denied when amendment would be futile); Cornelia I. Crowell GST Tr. v. Possis
Med., Inc., 519 F.3d 778, 782 (8th Cir. 2008) (“when the court denies leave on the
basis of futility, it means the district court has reached the legal conclusion that the
amended complaint could not withstand a motion to dismiss under Rule 12(b)(6) of
the Federal Rules of Civil Procedure”).
CONCLUSION
Plaintiff’s claims against Defendant U.S. Marshals Coombs and Betsworth
are dismissed with prejudice as barred by the statute of limitations. This action will
continue only as to Plaintiff’s deliberate-indifference medical claim against
Defendant Jeff Davis, Sarpy County Sheriff, in his individual capacity.
IT IS ORDERED:
1.
The Motion to Dismiss pursuant to Fed. R. Civ. P. 12(b)(6) filed on
behalf of Defendants Coombs and Betsworth (Filing 33) is granted, and Plaintiff’s
claims against such Defendants are dismissed with prejudice as barred by the statute
of limitations.
2.
Plaintiff’s Motion (Filing 35) for an update on the status of this case is
granted, and this Memorandum and Order shall serve as Plaintiff’s update on the
status of this case.
3.
Plaintiff’s Motion (Filing 35) for appointment of counsel, a translator,
and leave to amend his Complaint are denied.
4.
Defendants’ Motion to Strike Filing 35 (Filing 36), insofar as it can be
construed as an untimely response to Defendants’ Motion to Dismiss (Filing 33), is
denied as moot because the court did not consider such untimely filing as a response,
but instead as separate motions addressed in paragraphs (2) and (3) above.
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5.
This action will continue only as to Plaintiff’s deliberate-indifference
medical claim against Defendant Jeff Davis, Sarpy County Sheriff, in his individual
capacity. A progression order as to this Defendant will be entered in due course.
DATED this 30th day of March, 2021.
BY THE COURT:
Richard G. Kopf
Senior United States District Judge
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