Blair v. Douglas County et al

Filing 48

ORDER - IT IS ORDERED: The defendants' Motion to Dismiss (Filing No. 34 ) is denied. The defendants shall have until April 15, 2013, to file a motion to dismiss. The Clerk of the Court is directed to amend the case caption as reflected on this order. Ordered by Magistrate Judge Thomas D. Thalken. (TCL )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
STEVEN R. BLAIR,
Plaintiff,

8:11CV349

vs.
ORDER
DOUGLAS
COUNTY,
a
political
subdivision existing and organized in
the State of Nebraska, DONALD
KLEINE, in his official capacity,
STUART DORNAN, in his official
capacity, JAMES JANSEN, in his
official capacity, LORETTA VONDRA,
in her individual and official capacities,
MARY S. MCKEEVER, in her individual
and official capacities, and DOUGLAS
COUNTY COURT ADMINISTRATORS,
Defendants.
This matter is before the court on the defendants’ Motion to Dismiss (Filing No.
34).1 The defendants filed a brief (Filing No. 35) in support of the motion. The plaintiff
filed a brief (Filing No. 39) in opposition. The defendants did not file a reply.

BACKGROUND
1.

Arrest and Conviction
On May 12, 1997, the plaintiff, Steven R. Blair (Blair), was arrested for the

assault and kidnapping of Patty Dory (Dory). See Filing No. 28 - Amended Complaint p.
2-19. The Douglas County Attorney charged Blair in June 1997. Id. On June 16, 1998,
Blair was convicted of kidnapping, terroristic threats, and use of a weapon to commit a
felony. Id. Blair was sentenced to ten to fifteen years’ imprisonment for the kidnapping,
three to five years’ imprisonment for the use of a deadly weapon to commit a felony, to
run consecutively, and four to five years’ imprisonment for the terroristic threats, to run
concurrently with the other two sentences. Id.

1

The parties consented to jurisdiction by a United States Magistrate Judge pursuant to 28 U.S.C.
§ 636(c). See Filing No. 36.

2.

State Court Post-Conviction Proceedings
On April 27, 1998, Blair filed a motion for a new trial. Id. The Nebraska Court of

Appeals affirmed Blair’s conviction and sentence on March 31, 1999.

Id.

Subsequently, Blair filed an amended motion to set aside his convictions and
sentences. Id. On August 11, 2003, the Douglas County District Court “set aside the
judgment of conviction and Blair’s sentencing, and the court ordered a new trial.” Id.
The Douglas County District Court concluded Blair “sustained his burden of proof as to
his allegation that he was rendered ineffective assistance of counsel.” Id. The State
attempted to appeal the postconviction judgment, but, in a decision on November 15,
2005, the Nebraska Court of Appeals dismissed the State’s appeal for lack of
jurisdiction. Id.; State v. Blair, 707 N.W.2d 8, 9 (Neb. Ct. App. 2005).
3.

First Federal Lawsuit2
On April 3, 2001, Blair filed his first lawsuit in this court relating to his May 12,

1997, arrest. See Filing No. 1 - Complaint in Case No. 4:01CV3065. Blair sued several
officers and alleged they violated his Fourth Amendment rights when the officers
arrested Blair and searched his residence without probable cause. Id.
On June 26, 2001, United States Magistrate Judge Kathleen A. Jaudzemis
(Judge Jaudzemis) conducted an initial review of Blair’s complaint pursuant to 28
U.S.C. § 1915(e)(2), which requires a court to review in forma pauperis complaints to
determine whether summary dismissal is appropriate. See Filing No. 5 - Order in Case
No. 4:01CV3065.

Judge Jaudzemis concluded the holding of Heck v. Humphrey

barred Blair’s claims. Id.; see Heck v. Humphrey, 512 U.S. 477 (1994). However,
Judge Jaudzemis was uncertain whether Blair’s state conviction was invalidated and
gave Blair leave to file an amended complaint. Id. Blair filed an amended complaint on
July 5, 2001. See Filing No. 6 - Amended Complaint in Case No. 4:01CV3065. Judge
Jaudzemis reviewed the Amended Complaint and recommended Blair’s Amended
Complaint be dismissed because Blair had not shown he received a favorable outcome
in postconviction proceedings as contemplated by Heck. See Filing No. 7 - Report and
Recommendation in Case No. 4:01CV3065. On November 16, 2001, District Judge
2

Blair filed several lawsuits in this court. However, two of the actions, Case Nos. 8:05CV31 and
8:07CV307, which were dismissed without prejudice, are unrelated to his current federal lawsuit and will
not be discussed.
2

Richard G. Kopf (Judge Kopf) adopted Judge Jaudzemis’ Report and Recommendation
and dismissed Blair’s Amended Complaint. See Filing Nos. 10 - Memorandum and
Order; 11 - Judgment in Case No. 4:01CV3065.
Blair filed a notice of appeal on December 11, 2001. See Filing No. 12 - Appeal
in Case No. 4:01CV3065. On July 23, 2002, the Eighth Circuit United States Court of
Appeals affirmed this court’s dismissal of Blair’s action. See Filing No. 24 - Eighth
Circuit Judgment in Case No. 4:01CV3065.

4.

Second Federal Lawsuit
On June 25, 2004, Blair filed his second federal lawsuit in this court relating to his

May 12, 1997, arrest. See Filing No. 1 - Complaint in Case No. 4:04CV3229. Blair filed
his complaint against the same police officers as in Blair’s first federal lawsuit (Case No.
4:04CV3065) and added defendants and claims.

Id.

In addition to his Fourth

Amendment claims, Blair alleged conspiracy, malicious prosecution, abuse of process,
and false imprisonment. Id.
On July 26, 2006, Judge Kopf stayed Blair’s second federal lawsuit. See Filing
No. 57 - Memorandum and Order in Case No. 4:04CV3229. Judge Kopf noted:
The parties acknowledge that the principles expressed in
Heck v. Humphrey, 512 U.S. 477 (1994), barred the plaintiff
from bringing this civil rights action before August 11, 2003,
when he achieved a favorable outcome in his postconviction
action. That is because until he prevailed on postconviction
review, the plaintiff could not, through an action under
§ 1983, cast doubt on the validity of his confinement until his
conviction had first been invalidated or overturned in a state
proceeding or through a federal writ of habeas corpus. The
decision in Heck v. Humphrey barred the plaintiff from
litigating in a civil rights action his claims that the defendants
had wrongfully procured his conviction.
Id. Judge Kopf further noted, even though the Douglas County District Court invalidated
Blair’s conviction, Blair’s criminal case was pending, in that he had not yet been retried,
thus Blair had not obtained a final favorable outcome in his criminal case. Id. On
August 21, 2006, Judge Kopf dismissed without prejudice Blair’s case and granted Blair
leave to reopen the case “upon completion of the criminal proceedings in the state
courts.” See Filing No. 59 - Memorandum and Order in Case No. 4:04CV3229.
3

5.

Third Federal Lawsuit
On August 3, 2007, Blair filed his third federal lawsuit in this court relating to his

May 12, 1997, arrest. See Filing No. 1 - Complaint in Case No. 8:07CV295. Blair filed
his complaint against the same police officers as in Blair’s first and second federal
lawsuits (Case Nos. 4:04CV3065 and 4:04CV3229) and added defendants and claims.
Id. On October 16, 2007, District Judge Joseph F. Bataillon (Judge Bataillon) noted
Blair previously brought similar claims in this court against many of the same
defendants. See Filing No. 6 - Memorandum and Order in Case No. 8:07CV295. Id.
Judge Bataillon ordered Blair “to explain how the circumstances have changed since
the dismissal of the two previous lawsuits.” Id.
On January 25, 2008, Blair filed a brief explaining his change in circumstances.
See Filing No. 14 - Brief in Case No. 8:07CV295.

Blair explained he was

unconditionally released from prison on December 14, 2005.

Id.

Further, Blair

explained the Nebraska Court of Appeals, affirmed by the Nebraska Supreme Court,
declared his postconviction proceedings were moot on November 1, 2007. Id. Lastly,
Blair explained the Douglas County Attorney’s Office dismissed criminal proceedings
against Blair on January 15, 2008. Id. On July 1, 2008, Judge Bataillon concluded
Blair’s criminal proceedings were complete and allowed Blair to obtain service of
process on the defendants. See Filing No. 15 - Memorandum and Order in Case No.
8:07CV295.
Blair named Douglas County as one of the defendants in Blair’s third federal
lawsuit.

See Filing No. 16 - Amended Complaint in Case No. 8:07CV295.

On

November 21, 2008, Douglas County filed a Motion to Dismiss. See Filing No. 89 Motion in Case No. 8:07CV295. On April 15, 2009, Judge Bataillon dismissed the
claims against Douglas County without prejudice because Blair did not sufficiently
allege a claim against Douglas County. See Filing No. 169 - Memorandum and Order in
Case No. 8:07CV295.
On August 5, 2009, several defendants file a joint motion for summary judgment.
See Filing No. 235 - Defendants’ Motion in Case No. 8:07CV295.

In an order

dismissing all but Blair’s Fourth Amendment claims against certain officers, Judge
Bataillon discussed the statute of limitations issue. See Filing No. 282 - Memorandum
and Order in Case No. 8:07CV295. Judge Bataillon interpreted Blair’s argument, based
4

on the principles of Heck, as an argument for equitable tolling.

Id. at 10.

Judge

Bataillon noted Blair was required to file his Fourth Amendment claims by May 12,
2001. Id. However, Judge Bataillon determined Blair pursued his rights diligently and
“the court has prevented him from resolving his claims as it has twice determined that
they were barred by Heck.” Id. at 11. Therefore, Judge Bataillon concluded the statute
of limitations was equitably tolled with respect to Blair’s Fourth Amendment claims. Id.
On March 14, 2011, Blair filed an Acceptance of Rule 68 Offer. See Filing No.
406 - Acceptance in Case No. 8:07CV295. On April 4, 2011, this court dismissed Blair’s
action pursuant to the parties’ Joint Stipulation for Dismissal. See Filing Nos. 416 Joint Stipulation; 417 - Order in Case No. 8:07CV295. Subsequently, Blair appealed
the Order adopting the Joint Stipulation. See Filing No. 425 - Notice of Appeal in Case
No. 8:07CV295. The United States Court of Appeals for the Eighth Circuit affirmed this
court’s dismissal. See Filing No. 436 - Eighth Circuit Judgment in Case No. 8:07CV295.

6.

Current Federal Lawsuit
On October 7, 2011, Blair filed the instant action, pro se. See Filing No. 1 -

Complaint. Blair filed his complaint against Douglas County, Donald Kleine (Kleine),
Stuart Dornan (Dornan), James Jansen (Jansen), Jane and John Doe Douglas County
Court Reporters (DCC Reporters), and Douglas County Court Administrators (DCC
Administrators). Id. Blair alleges he was wrongfully convicted of kidnapping, terroristic
threats, and use of a weapon to commit a felony. Id. Specifically, Blair alleges: 1)
Douglas County officials concealed medical evidence from the defense that, if provided,
would have exonerated Blair; 2) Douglas County prosecutors presented testimony at
trial they knew to be false; and 3) DCC Reporters failed to provide a complete and
accurate transcript of the trial proceedings and destroyed recordings of the proceedings.
Id.

Blair also alleges numerous Douglas County policies and practices led to his

unlawful arrest, conviction, and detention. Id. Blair alleges the defendants’ unlawful
acts occurred between May 12, 1997, and January 15, 2008. Id. Blair seeks monetary
damages in the amount of $30,000,000.00. Id.
Also on October 7, 2011, Blair filed a Motion to Proceed In Forma Pauperis. See
Filing No. 2. On November 28, 2011, District Judge Laurie Smith Camp provisionally
granted Blair’s motion to proceed in forma pauperis. See Filing No. 6 - Order. Judge
5

Bataillon subsequently conducted an initial review of Blair’s complaint pursuant to 28
U.S.C. § 1915(e)(2). See Filing No. 8 - Memorandum and Order. Judge Bataillon
dismissed Blair’s claims against Kleine, Dornan, and Jansen because Blair did “not
allege any specific acts committed by these individuals.” Id. at 3. Judge Bataillon also
noted, “even if Blair had alleged specific acts by Kleine, Dornan, and Jansen, as
prosecutors they are likely entitled to immunity from suit.”

Id. (citing Schenk v.

Chavis, 461 F.3d 1043, 1046 (8th Cir. 2006) (“Prosecutors are entitled to absolute
immunity from civil liability under § 1983 when they are engaged in prosecutorial
functions that are intimately associated with the judicial process.”) (internal citation
omitted)).
Judge Bataillon assumed DCC Reporters and DCC Administrators were sued in
their official capacities as Blair did not specify the capacity in which these individuals
were sued. Id. at 4. Therefore, Judge Bataillon construed Blair’s claims against such
defendants as claims against Douglas County because a “suit against a public
employee in his or her official capacity is merely a suit against the public employer.” Id.
(citing Johnson v. Outboard Marine Corp., 172 F.3d 531, 535 (8th Cir. 1999)). Judge
Bataillon concluded Blair “alleged sufficient facts to ‘nudge’ his claims against Douglas
County across the line from conceivable to plausible under the [Jane Doe A By and
Through Jane Doe B v. Special Sch. Dist. of St. Louis County, 901 F.2d 642, 645
(8th Cir. 1990)] standard.”

Id. at 5.

Judge Bataillon noted the January 26, 2012,

Memorandum and Order was “only a preliminary determination based solely on the
allegations of the Complaint and is not a determination of the merits of Blair’s claims or
potential defenses thereto.” Id. Judge Bataillon further noted:
Blair’s Complaint is likely barred by Nebraska’s four-year
statute of limitations applicable to suits brought pursuant to
42 U.S.C. § 1983, as most of Blair’s claims relate to conduct
that occurred during his trial in 1998. However, the court is
reluctant to make such a finding at this time because in
Blair’s Complaint Blair alleges that his “civil rights were
violated from May 12, 1997, to January 15, 2008.”
Id. at 5 n.1.
On June 14, 2012, the remaining defendants filed a motion to dismiss. See
Filing No. 17. Blair subsequently obtained counsel.

See Filing No. 19 - Notice of

Appearance. Blair filed a brief in opposition to the defendants’ motion to dismiss and
6

requested leave to amend his complaint. See Filing No. 24 - Blair’s response p. 9. On
October 16, 2012, Judge Bataillon granted Blair leave to amend the complaint and
denied as moot the defendants’ motion to dismiss without prejudice to refilling. See
Filing No. 25 - Memorandum and Order.
On November 20, 2012, Blair filed an Amended Complaint. See Filing No. 28 Amended Complaint. Blair filed his complaint against Douglas County, Kleine, Dornan,
Jansen, DCC Reporters, and DCC Administrators. Id. Blair also named as defendants
DCC Reporters Loretta Vondra (Vondra) and Mary S. McKeever (McKeever). Id. Blair
alleges three counts against the defendants. Id. at 19-43. In Blair’s first count, Blair
alleges malicious prosecution, false imprisonment, use of fraudulent police reports, and
procurement of unreliable and fabricated evidence and testimony. Id. at 19-20. Blair
alleges the Douglas County Attorney tendered knowingly false testimony, failed to
disclose exculpatory evidence, and impeded Blair’s right to call witnesses. Id. at 20-27.
Blair also alleges McKeever intentionally removed witnesses’ statements in accordance
with a plan to deprive Blair of a fundamentally fair trial. Id. at 22.
In Blair’s second count, Blair alleges the defendants conspired to deprive Blair of
his constitutional rights. Id. at 28-29. Blair alleges the defendants deliberately solicited
false statements, fabricated and manufactured evidence that did not exist, and coerced
witnesses to provide false evidence. Id. at 28.
In Blair’s third count, Blair alleges the defendants committed various violations.
Id. at 29-43.

Blair generally alleges numerous Douglas County Attorney’s Office

policies and practices led to his unlawful arrest, conviction, and detention. Id. Blair also
alleges the Douglas County Attorney’s Office failed to train and supervise its deputy
county attorneys which led to obvious Brady violations. Id. at 30-32. Blair alleges the
Douglas County Attorney’s Office failed to investigate the alleged crimes. Id. at 32-34.
Lastly, Blair alleges various Monell v. Dep’t of Soc. Servs. of City of New York, 436
U.S. 658 (1978) claims against Douglas County for enforcing a policy, practice, and
custom of failing to investigate crimes adequately, fabricating evidence, withholding
evidence, discriminating based on race, tampering with witnesses, failing to discipline
and supervise county attorneys, and conspiring to obtain wrongful convictions. Id. at
34-43.

7

On February 5, 2013, Douglas County filed the current Motion to Dismiss. See
Filing No. 34 - Motion.

Douglas County moves to dismiss Blair’s complaint on six

grounds. Id. Douglas County argues: 1) the four-year statute of limitations bars Blair’s
claims; 2) Blair failed to state a claim upon which relief can be granted; 3) Blair failed to
allege sufficient facts to show a municipal policy or custom led to Blair’s injuries; 4) Blair
had a full and fair opportunity to litigate the same issues; 5) Blair is not entitled to
damages under 42 U.S.C. § 1983; and 6) Blair has not properly served John or Jane
Doe DCC Administrators pursuant to Federal Rule of Civil Procedure 4. Id. Douglas
County filed a brief in support of its motion, however Douglas County addressed only
the statute of limitations issue while reserving arguments on the remaining grounds for
future briefing. See Filing No. 35 - Brief p. 6.
Douglas County argues the DCC Reporters are at-will employees and a “suit
against a public employee in his or her official capacity is merely a suit against the
public employer,” therefore, Douglas County’s brief addresses the claims against
Douglas County and DCC Administrators. Id. at 1 (citing Johnson, 172 F.3d at 535).
Douglas County argues the four-year statute of limitations set forth in Neb. Rev. Stat. §
25-207, which applies to personal injury actions, has expired and Blair has run out of
time to file suit against Douglas County or its employees under 42 U.S.C. § 1983. Id. at
3. Douglas County argues the four-year statute of limitations began to run when Blair
discovered or should have discovered Douglas County violated Blair’s rights when
officers arrested Blair on May 12, 1997. Id. at 4. Douglas County argues Blair should
have discovered his injury at least when he was indicted, tried, convicted, and
sentenced in 1998, at which time the four-year statute of limitations would begin to run.
Id. Douglas County argues although Blair was imprisoned, which would entitle Blair to
toll the statute of limitations, he was not legally disabled from filing his claims. Id. at 5.
Douglas County also argues even if this court liberally construed Blair’s Amended
Complaint to show Blair was legally disabled from bringing his claim during
imprisonment, Blair was released from prison on December 14, 2005, which is more
than four years before Blair filed his complaint on October 7, 2011. Id.
Blair argues Heck and this court prevented Blair from filing his 42 U.S.C. § 1983
action against the defendants until he obtained a favorable outcome in his
postconviction relief proceedings and was not under threat of a new trial. See Filing No.
8

39 - Response p. 6-7. Blair argues his postconviction relief became final when the
Douglas County Attorney’s Office dismissed claims against Blair on January 15, 2008.
Id.

Therefore, Blair argues the statute of limitations did not begin to accrue until

January 15, 2008. Id. at 10.

ANALYSIS
“Dismissal under Rule 12(b)(6) is appropriate if it is clear that no relief can be
granted under any set of facts that could be proven consistent with the allegations.”
O’Neal v. State Farm Fire & Cas. Co., 630 F.3d 1075, 1077 (8th Cir. 2011). “To
survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted
as true, to ‘state a claim to relief that is plausible on its face.’” U.S. ex rel. Raynor v.
Nat’l Rural Utilities Co-op. Fin., Corp., 690 F.3d 951, 955 (8th Cir. 2012) (quoting
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.”

Iqbal, 556 U.S. at 678.

“Threadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Id. In applying these standards, the court must “accept as
true the factual allegations contained in the complaint and draw all reasonable
inferences in favor of the nonmoving party.” Mathers v. Wright, 636 F.3d 396, 397 (8th
Cir. 2011).
The relevant statute of limitations for Blair’s 42 U.S.C. § 1983 claims is Neb. Rev.
Stat. § 25-207, which sets forth a four-year statute of limitation. See Neb. Rev. Stat.
§ 25-207; Montin v. Estate of Johnson, 636 F.3d 409, 412 (8th Cir. 2011). “[T]he
accrual date of a § 1983 cause of action is a question of federal law that is not resolved
by reference to state law.” Montin, 636 F.3d at 413 (citing Wallace v. Kato, 549 U.S.
384, 388 (2007)).
Blair alleges he suffered ongoing violations of his rights from May 12, 1997, the
date of his arrest, to January 15, 2008, the date the Douglas County Attorney dismissed
charges against Blair. The events underlying Blair’s claims occurred at different times,
therefore, the statute of limitations commenced to run at different times. However, the
court does not need to engage in an individual analysis of when the statute of limitations

9

commenced on each claim because the court finds the principles of Heck tolled the
statute of limitations as explained below.
“Generally, a litigant seeking equitable tolling bears the burden of establishing
two elements: (1) that he has been pursuing his rights diligently, and (2) that some
extraordinary circumstances stood in his way.” Deroo v. United States, No. 12-1632,
2013 WL 978212, at *2 (8th Cir. Mar. 14, 2013) (quoting Pace v. DiGuglielmo, 544
U.S. 408, 418 (2005)). “Due diligence does not require repeated exercises in futility or
exhaustion of every imaginable option, but it does require reasonable efforts.” Id.
(emphasis in original) (internal quotation omitted).

In Heck, the Supreme Court

addressed the question of whether a state prisoner may challenge the constitutionality
of his conviction in a suit for damages under 42 U.S.C. § 1983. Heck, 512 U.S. at 48687. “[I]f a judgment in favor of a prisoner in a section 1983 action would necessarily
imply the invalidity of his conviction, continued imprisonment, or sentence, then no claim
for damages lies unless the conviction or sentence is [invalidated].” Schafer v. Moore,
46 F.3d 43, 45 (8th Cir. 1995) (citing Heck, 512 U.S. at 486-87).
This court dismissed without prejudice Blair’s first federal lawsuit, filed April 3,
2001, because Blair’s state postconviction proceedings had not yet resulted in a
favorable outcome. See Filing Nos. 10 - Memorandum and Order; 11 - Judgment in
Case No. 4:01CV3065.
dismissal.

Id.

This court cited the principles of Heck as the basis for

Blair’s second federal lawsuit, filed June 25, 2004, was likewise

dismissed without prejudice and he was given leave to reopen based on the Heck
principles. See Filing No. 57 - Memorandum and Order in Case No. 4:04CV3229. The
court stated although Blair achieved a favorable outcome in his postconviction
proceedings on August 11, 2003, Blair’s new trial had not yet occurred. Id. The court
noted if Blair’s second federal lawsuit proceeded and he received a favorable outcome,
such outcome could undermine the validity of a possible future conviction in the Blair’s
new trial. Id. Thus, the principles of Heck continued to bar Blair’s federal proceedings.
Blair was finally able to proceed with his claims in his third federal lawsuit filed August 3,
2007. In allowing Blair to proceed, the court noted the criminal proceedings against
Blair were complete.

See Filing No. 15 - Memorandum and Order in Case No.

8:07CV295.

10

Blair diligently pursued his rights. Additionally, this court prevented Blair from
proceeding with prior federal lawsuits until Blair’s third federal lawsuit, Case No.
8:07CV295, because Blair had not yet been retried, and therefore had not obtained a
final favorable outcome in his criminal case as contemplated by Heck. Allowing Blair to
proceed prior to the conclusion of Blair’s criminal proceedings could have challenged
the validity of any outstanding criminal judgment or future judgment. See Williams v.
Schario, 93 F.3d 527, 529 (8th Cir. 1996) (holding the plaintiff’s claims were not
cognizable under 42 U.S.C. § 1983 because judgment in the plaintiff’s favor that the
defendants presented perjured testimony and maliciously prosecuted the plaintiff would
necessarily imply the invalidity of the plaintiff’s conviction). The statute of limitations
was equitably tolled until November 1, 2007, when a mandate was issued dismissing
Blair’s postconviction proceedings as moot, or January 15, 2008, when the Douglas
County Attorney’s Office dismissed criminal proceedings against Blair.

Assuming the

four-year statute of limitations commenced to run on November 1, 2007, Blair had until
November 1, 2011, to file his claims against the defendants. Blair filed his complaint on
October 7, 2011, therefore Blair’s claims are not time-barred.
The defendants listed additional grounds for dismissal; however, the parties
limited their briefs to the statute of limitations issue.

Therefore, the court will not

address those arguments at this time.

IT IS ORDERED:
1.

The defendants’ Motion to Dismiss (Filing No. 34) is denied.

2.

The defendants shall have until April 15, 2013, to file a motion to dismiss.

3.

The Clerk of the Court is directed to amend the case caption as reflected

on this order.

Dated this 1st day of April, 2013.
BY THE COURT:
s/ Thomas D. Thalken
United States Magistrate Judge

11