Martin v. Nebr Dep't of Corrections Staff et al

Filing 10

MEMORANDUM AND ORDER that the Plaintiff has 30 days to show cause why this case should not be dismissed as frivolous because the statute of limitations has run. Failure to do so will result in dismissal of this action without further notice to Pla intiff. The clerk's office is directed to set a pro se case management deadline in this matter with the following text: October 23, 2017: check for response to show cause order. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party) (LAC)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
CARL A. MARTIN,
Plaintiff,

8:17CV250

vs.
NEBR DEP'T OF CORRECTIONS
STAFF, in Official and Individual
Capacites; STOUT, Officer - in Official
and Individual Capacites; BIGFORD,
Case Worker - in Official and Individual
Capacites; 4-7 OFC, in Official and
Individual Capacites; TOWER
OFFICER, in Official and Individual
Capacites; MASTER CONTROL
OFC'S, in Official and Individual
Capacites; SECURITY CAMERA
OFC'S, in Official and Individual
Capacites; and NURSES, All on Duty
that day in Official and Individual
Capacites;

MEMORANDUM
AND ORDER

Defendants.
Plaintiff filed a Complaint on July 12, 2017. (Filing No. 1.) He has been
given leave to proceed in forma pauperis. (Filing No. 7.) On August 17, 2017, he
paid the initial partial filing fee. (See Docket Sheet.) The court now conducts an
initial review of Plaintiff’s Complaint to determine whether summary dismissal is
appropriate under 28 U.S.C. §§ 1915(e) and 1915A.
Plaintiff, a prisoner at the Tecumseh State Correctional Institution (“TSCI”),
sues several known and unknown individuals employed at TSCI in their official
and individual capacities for an assault that he suffered on January 5, 2013, from
two inmates. He alleges that corrections staff conspired together to allow the

assault and that medical staff afterward failed to respond to his complaints of pain
from his injuries until after “a month or better” when they finally prescribed him a
pain pill. He seeks $75,000,000 total in damages. (Filing No. 1.)
The statute of limitations for 42 U.S.C. § 1983 actions is governed by the
limitations period for personal injury cases in the state in which the cause of action
arose. Wallace v. Kato, 549 U. S. 384, 387 (2007). In Nebraska, § 1983 actions are
limited by a four-year statute of limitations. See Montin v. Estate of Johnson, 636
F.3d 409, 412-13 (8th Cir. 2011); Neb. Rev. Stat. § 25-207. Although state law
establishes the statute of limitations for § 1983 actions, federal law controls on the
issue of when the statute of limitations begins to run. Wallace, 549 U.S. at 388;
Montin, 636 F.3d at 413. The standard rule is that 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, 549 U.S. at 388. Under that rule, the tort cause of action
accrues, and the statute of limitations commences to run, when the plaintiff knew
or should have known of the injury that forms the basis of the claim. Id. at 391.
The statute of limitations is not tolled during a term of imprisonment absent “a
showing of a recognizable legal disability, separate from the mere fact of
imprisonment, which prevents a person from protecting his or her rights[.]”
Gordon v. Connell, 545 N .W.2d 722, 726 (Neb. 1996).
Here, the causes of action accrued on January 5, 2013, the date on which
corrections staff allegedly conspired to allow the assault and the date of Plaintiff’s
injuries. Plaintiff did not file the current action until July 12, 2017, approximately
six months after the four-year statute of limitations expired. The court will allow
Plaintiff an opportunity to show cause within 30 days why this case should not be
dismissed as frivolous because the statute of limitations has run. See Myers v.
Vogal, 960 F.2d 750, 751 (8th Cir. 1992) (per curiam) (district court can dismiss an
in forma pauperis complaint if it is apparent the statute of limitations has run).

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IT IS THEREFORE ORDERED that:
1.
Plaintiff has 30 days to show cause why this case should not be
dismissed as frivolous because the statute of limitations has run. Failure to do so
will result in dismissal of this action without further notice to Plaintiff.
2.
The clerk’s office is directed to set a pro se case management deadline
in this matter with the following text: October 23, 2017: check for response to
show cause order.
Dated this 22nd day of September, 2017.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

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