Haltom v. Parks et al

Filing 148

ORDER granting the Cedars defendants' 115 Motion for Summary Judgment. Haltom's claims against the Cedars Defendants are dismissed with prejudice. Ordered by Judge John M. Gerrard. (KMG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
JOHN V. HALTOM,
Plaintiff,

8:15-CV-428

vs.
MEMORANDUM AND ORDER
KAREN PARKS, et al.,
Defendants.
This matter is before the Court on the motion for summary judgment
(filing 115) filed by Karen Parks, Salina Hardesty, Sam Funnah, Nicole
Lemke, Stephanie Allison, Ralph Martinez, Jason Bequette, Wendy Waites,
Michael Smith, Mark Heilman, Anthony Troester, Marti Beard, Nanette
Simmons, Jeremy Powers, Sharon Bartek, Bob Meier, and Cedars Youth
Services, Inc. (collectively, the "Cedars Defendants"). The Court will grant
their motion and dismiss the claims against them with prejudice.
BACKGROUND
The plaintiff's allegations are briefly summarized as follows. In 2009,
the Nebraska Department of Health and Human Services (DHHS) began
investigating domestic disputes between the plaintiff, John Haltom, and his
former wife. Filing 6 at 18-19. That investigation resulted in the adjudication
of Haltom's children in Nebraska juvenile court. Filing 6 at 9.
Haltom claims that as part of its investigation, DHHS conspired with
private health practitioners to violate Haltom's constitutional rights and,
ultimately, take away his children. These actions were purportedly motivated
by DHHS's "long standing resentment" of Haltom, stemming from past

litigation, his operation of adult entertainment businesses, and his "political
ambitions within the State of Nebraska and its state departments." Filing 6
at 3, 8, 9. To accomplish its goals, at least according to Haltom, DHHS and
the other defendants—all acting "under color of state law"—partook in
widespread misconduct ranging from the production of false medical
evaluations to unwarranted "invasions" into Haltom's home. Filing 6 at 5-6,
12. As a result, Haltom says he has experienced "extreme emotional and
physical distress" and is "[unable] to function in society." Filing 6 at 5.
The Nebraska juvenile court, finding that Haltom's ex-wife had
"successfully corrected the conditions adjudicated in this case[,]" terminated
its jurisdiction (and thus, the juvenile case) on June 24, 2011. Filing 117-1 at
10-11. That order expressly relieved DHHS of responsibility for the children.
Filing 117-1 at 11. Haltom initiated this lawsuit on November 21, 2015.
Filing 1. In his operative pleading, Haltom asserts 37 separate purported
claims for relief against 49 named and 7 unnamed defendants, all premised
on alleged federal constitutional violations brought pursuant to 42 U.S.C. §§
1983, 1985(2), 1985(3), or 1986.1 See filing 6. Some defendants have already
been dismissed on motions to dismiss, filing 81, and others have been
dismissed for failure to serve process, filing 97.

1

Section 1983 creates a civil action for those deprived by a person acting under color of

state law of a right secured by the Constitution and laws of the United States. West v.
Atkins, 487 U.S. 42, 48 (1988). Section 1985(2) creates a civil action for those who were
injured by a conspiracy to interfere with the administration of justice in a state court. See
Harrison v. Springdale Water & Sewer Comm'n, 780 F.2d 1422, 1429 (8th Cir. 1986).
Section 1985(3) creates a civil action for those injured by a private conspiracy to deny equal
protection of the laws. Harrison, 780 F.2d at 1429. And § 1986 imposes liability on those
who have knowledge of a § 1985 conspiracy and power to prevent it, but fail to do so. Keefe
v. City of Minneapolis, 785 F.3d 1216, 1223-24 (8th Cir. 2015).

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The remaining defendants include the Cedars Defendants, listed above.
See filing 6. Cedars Youth Services is a nonprofit organization that provides
in-home safety and family support services. Filing 116 at 2.2 The individual
Cedars Defendants were employees of Cedars. Filing 116 at 2 n.2. The Cedars
Defendants are here because Cedars was retained by DHHS to provide
services associated with the juvenile court case. Filing 116 at 3. Cedars' role
was to visit and supervise visits to Haltom's home, inspect the home, write
court reports regarding Haltom's behavior, and take urine samples from
Haltom. Filing 116 at 3. None of the Cedars Defendants were involved with
Haltom outside the context of the juvenile court proceedings. Filing 116 at 3.
The Cedars Defendants last had contact with Haltom or his children no
later than October 29, 2010. Filing 116 at 3-4. And, as noted above, the
juvenile court proceedings in their entirety terminated on June 24, 2011,
filing 117-1, and this lawsuit was filed on November 21, 2015, filing 1. The
Cedars Defendants move for summary judgment arguing, among other
things, that Haltom's claims are time-barred. Filing 116 at 6-8.
STANDARD OF REVIEW
Summary judgment is proper if the movant shows that there is no
genuine dispute as to any material fact and that the movant is entitled to
judgment as a matter of law. See Fed. R. Civ. P. 56(a). The movant bears the
initial responsibility of informing the Court of the basis for the motion, and
must identify those portions of the record which the movant believes
demonstrate the absence of a genuine issue of material fact. Torgerson v. City
2

Failure to file a brief precludes the opposing party from contesting the moving party's

statement of facts. NECivR 7.1(b)(1)(C). And properly referenced material facts in a
summary judgment movant's statement of undisputed facts are considered admitted unless
controverted in the opposing party's response. NECivR 56.1(b)(1).

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of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc). If the movant
does so, the nonmovant must respond by submitting evidentiary materials
that set out specific facts showing that there is a genuine issue for trial. Id.
On a motion for summary judgment, facts must be viewed in the light
most favorable to the nonmoving party only if there is a genuine dispute as to
those facts. Id. Credibility determinations, the weighing of the evidence, and
the drawing of legitimate inferences from the evidence are jury functions, not
those of a judge. Id. But the nonmovant must do more than simply show that
there is some metaphysical doubt as to the material facts. Id. Where the
record taken as a whole could not lead a rational trier of fact to find for the
nonmoving party, there is no genuine issue for trial. Id.
DISCUSSION
Although the Cedars Defendants raise several issues, the Court does
not need to go farther than the statute of limitations. To begin with, § 1983
claims are generally governed by the personal injury statute of limitations of
the state where the claim arose. Bridgeman v. Nebraska State Pen, 849 F.2d
1076, 1077 (8th Cir. 1988); see City of Rancho Palos Verdes, Cal. v. Abrams,
544 U.S. 113, 123 n.5 (2005). Here, that's a four-year statute of limitations.
Jacob v. Schlichtman, 198 F.3d 250 (8th Cir. 1999) (citing Neb. Rev. Stat. §
25-207); see Bridgeman, 849 F.2d at 1077.
Section 1983 claims accrue, for the purpose of the statute of limitations,
when the plaintiff knows or has reason to know of the injury which is the
basis of his action. Johnson v. Johnson Cty. Comm'n Bd., 925 F.2d 1299, 1301
(10th Cir. 1991); see Davis v. Ross, 995 F.2d 137, 138 (8th Cir. 1993); Kaster
v. Iowa, 975 F.2d 1381, 1382 (8th Cir. 1992). Accrual occurs when the
plaintiff has a complete and present cause of action, that is, when the
plaintiff can file suit and obtain relief. Wallace v. Kato, 549 U.S. 384, 388
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(2007). And the Cedars Defendants' evidence establishes conclusively that no
act of misconduct occurred during the limitations period. See Kashaka v.
Baltimore Cty., Maryland, 450 F. Supp. 2d 610, 617 (D. Md. 2006) (citing
Causey v. Balog, 162 F.3d 795, 804 (4th Cir. 1998)).
Nor does the record establish any basis for tolling the statute of
limitations. For a § 1983 action, the issue of tolling, like the underlying
statute of limitations, is determined by reference to state law. Montin v.
Estate of Johnson, 636 F.3d 409, 413 (8th Cir. 2011). And Haltom does
include allegations that might be read to suggest some sort of concealment on
the part of the allegedly conspiring defendants. See filing 6 at 6.
But under the doctrine of fraudulent concealment, the plaintiff must
show that he or she exercised due diligence to discover his or her cause of
action before the statute of limitations expired. Andres v. McNeil Co., 707
N.W.2d 777, 787 (Neb. 2005). There is no showing of such diligence here. And
concealment does not estop a defendant from asserting the statute of
limitations where the plaintiff could reasonably have learned of his cause of
action within the limitations period. See Gering-Fort Laramie Irr. Dist. v.
Baker, 612 N.W.2d 897, 904 (Neb. 2000). In this case, there is no basis to
believe that Haltom could not have learned of his purported claims before
termination of the juvenile court proceedings, more than 4 years before he
commenced this action. Similarly, a statute of limitations may be tolled
where the plaintiff is unaware of his injury. Alston v. Hormel Foods Corp.,
730 N.W.2d 376, 384-85 (Neb. 2007). But that rule does not apply where the
injured party could have discovered the claim within the statute of
limitations. Id. at 387. So, it does not apply here.
Haltom's complaint might also be read to describe some sort of
continuing tort. See filing 6. But under Nebraska law, the continuing tort

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doctrine is a doctrine of accrual, not a tolling doctrine. Id. at 382. And the
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. Under federal
law, an ongoing deprivation of a constitutional right might create an issue
with respect to claim accrual. See id. at 416. But there is no such allegation
here—at least, no allegation of a deprivation that could have extended later
than termination of the juvenile court proceeding. So, the traditional rule of
accrual applies, and
[u]nder the traditional rule of accrual the tort cause of action
accrues, and the statute of limitations commences to run, when
the wrongful act or omission results in damages. The cause of
action accrues even though the full extent of the injury is not
then known or predictable. Were it otherwise, the statute would
begin to run only after a plaintiff became satisfied that he had
been harmed enough, placing the supposed statute of repose in
the sole hands of the party seeking relief.
Wallace, 549 U.S. at 391 (cleaned up) (citations and quotation omitted).
Pursuant to that rule, Haltom's § 1983 claims are plainly time-barred. An
allegation of continuous harassment will not save a claim that is otherwise
barred by the statute of limitations, absent some showing that an actual
violation occurred within the limitations period. Causey, 162 F.3d at 804.
The same is true of Haltom's § 1985 claims. To determine the
applicable statute of limitations for a cause of action created by a federal
statute that does not expressly supply a limitations period, federal courts
generally "borrow" the most closely analogous state limitations period.
Graham Cty. Soil & Water Conservation Dist. v. U.S. ex rel. Wilson, 545 U.S.
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409, 414 (2005). And for an alleged § 1985 conspiracy, the Eighth Circuit has
applied the state statute of limitations for a civil conspiracy. Carr v.
Aubuchon, 969 F.2d 714, 716 (8th Cir. 1992).
In Nebraska, the statute of limitations applicable to a claim of civil
conspiracy is that applicable to the underlying wrong. Hatcher v. Bellevue
Volunteer Fire Dep't, 628 N.W.2d 685, 696 (Neb. 2001); Upah v. Ancona Bros.
Co., 521 N.W.2d 895, 902 (Neb. 1994), disapproved of on other grounds by
Welsch v. Graves, 582 N.W.2d 312 (Neb. 1998). In other words, there is no
basis to distinguish Haltom's § 1985 claims from his § 1983 claims for
limitations purposes—no part of the alleged conspiracy is claimed to have
occurred, nor could any part of the alleged conspiracy have occurred, after
termination of the juvenile court's jurisdiction.
Finally, Haltom's § 1986 claims are quickly disposed of: unlike §§ 1983
and 1985, § 1986 contains a statute of limitations. Burnett v. Grattan, 468
U.S. 42, 48 (1984). "[N]o action under the provisions of this section shall be
sustained which is not commenced within one year after the cause of action
has accrued." § 1986. Accordingly, Haltom's § 1986 claims are also timebarred. See Housley v. Erwin, 325 F. App'x 474 (8th Cir. 2009).
Because all of Haltom's claims are time-barred, the Court will grant the
Cedars Defendants' motion for summary judgment (filing 115).
IT IS ORDERED:
1.

The Cedars Defendants' motion for summary judgment
(filing 115) is granted.

2.

Haltom's claims against the Cedars Defendants are
dismissed with prejudice.
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3.

Karen Parks, Salina Hardesty, Sam Funnah, Nicole
Lemke,

Stephanie

Allison,

Ralph

Martinez,

Jason

Bequette, Wendy Waites, Michael Smith, Mark Heilman,
Anthony Troester, Marti Beard, Nanette Simmons, Jeremy
Powers, Sharon Bartek, Bob Meier, and Cedars Youth
Services, Inc. are terminated as parties.3
Dated this 20th day of February, 2018.
BY THE COURT:

John M. Gerrard
United States District Judge

3

Salina Hardesty is listed on the Court's docket twice as a defendant, presumably because

she was erroneously listed twice on the caption of Haltom's initial complaint. Filing 1 at 1.
She should be terminated as a party twice as well.

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