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

Filing 12

MEMORANDUM AND ORDER that this matter is dismissed with prejudice because Plaintiff did not file his claims within the relevant statute of limitations period. The court will enter judgment by a separate document. 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.
This matter is before the court on Plaintiff’s “Motion to Show Cause.”
(Filing No. 11.) For the reasons discussed below, the court will dismiss Plaintiff’s
claims against Defendants with prejudice.
I. BACKGROUND
Plaintiff filed this action on July 12, 2017. (Filing No. 1.) 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. (Id.)
On September 22, 2017, the court conducted an initial review of Plaintiff’s
Complaint and determined that Plaintiff’s claims appeared to be filed outside the
applicable four-year statute of limitations period. (Filing No. 10.) The court
ordered Plaintiff to show cause why this action should not be dismissed as
untimely based on the applicable statute of limitations. (Id.) In response, Plaintiff
filed the present motion (Filing No. 11) on October 18, 2017.
II. DISCUSSION
Plaintiff has brought his claims pursuant to 42 U.S.C. § 1983. 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. § 25207. As the court stated in its order to show cause, Plaintiff’s causes of action
accrued on January 5, 2013, more than four years prior to the date on which
Plaintiff filed his Complaint on July 12, 2017. (Filing No. 10 at CM/ECF p.2.)
Nebraska’s tolling statute, NEB. REV. STAT. § 25-213, provides that the limitations
period may be tolled under certain circumstances, including for periods of
imprisonment. However, the Nebraska courts have interpreted section 25-213 to
mean that a term of imprisonment does not toll the limitations period 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).
In his “Motion to Show Cause,” Plaintiff asserts that this action should not
be dismissed because:

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(1) Plaintiff attempted to resolve this matter through the Nebraska
Department of Corrections by following the policies and procedures
listed in the NDCS Rules and Regulations Title 68 Chapter 2
Greivance [sic] procedures.
(2) The Movant then sought releif [sic] through the Tort Claim
process through the State of Nebraska and the Johnson County
District Court as seen on attached documentation.
(Filing No. 11 at CM/ECF p.1.) The attached documentation to which Plaintiff
refers indicates that Plaintiff filed a tort claim against the State of Nebraska on
December 24, 2014. (Id. at CM/ECF p.2.) That tort claim was denied on March 4,
2016. (Id. at CM/ECF p.6.) In April or May 2017, Plaintiff filed an action in the
District Court of Johnson County, Nebraska, which is still pending according to
Plaintiff’s Complaint. (Filing No. 1 at CM/ECF p.2; see also Filing No. 11 at
CM/ECF pp.7–8.) Plaintiff states that during these various state proceedings, he
“at no time stalled or delayed any action in this matter.” (Filing No. 11 at
CM/ECF p.1.)
Through his Motion to Show Cause and its attachments, Plaintiff essentially
argues that the four-year limitations period should have been tolled during the
pendency of his grievance and state tort claim proceedings. A federal court
considering a section 1983 claim applies the tolling rules of the jurisdiction from
which it draws the limitations period, in this case Nebraska. See Bd. of Regents of
Univ. of State of New York v. Tomanio, 446 U.S. 478, 487 (1980). The Nebraska
Supreme Court rejected an argument similar to Plaintiff’s in Brodine v. Blue Cross
Blue Shield of Neb., 724 N.W.2d 321 (Neb. 2006). In Brodine, the Nebraska
Supreme Court found that the statute of limitations was not tolled based on
equitable principles during the pendency of a federal lawsuit between the same
parties involved in the state action. Id. at 329. The court reasoned that the filing of
the state action was not dependent upon the resolution of any issues in the federal

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lawsuit and, more importantly, the limitations period had not run by the time the
federal action was dismissed. Id.
As in Brodine, the filing of Plaintiff’s § 1983 action in this court was not
dependent upon the resolution of the grievance or state proceedings. See Walker v.
Wegner, 624 F.2d 60, 61 (8th Cir. 1980) (“[T]he Federal remedy provided under §
1983 is intended to supplement State remedies so that the latter need not be
exhausted before the former is invoked.”). Moreover, Plaintiff received notice that
his state tort claim was denied on March 4, 2016, a full 10 months prior to the
expiration of the four-year statute of limitations. Plaintiff did not file his action in
state district court until over a year later in April or May of 2017 and did not file
the present action until July 12, 2017. Plaintiff has not provided any reason for the
delay in pursuing his federal constitutional claims that would support equitable
tolling of the statute of limitations, and the court finds that the statute of limitations
was not tolled by the pendency of Plaintiff’s state proceedings.
Accordingly, the court finds Plaintiff’s claims are untimely and must be
dismissed. 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).
IT IS THEREFORE ORDERED that:
1.
This matter is dismissed with prejudice because Plaintiff did not file
his claims within the relevant statute of limitations period.
2.

The court will enter judgment by a separate document.

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Dated this 26th day of October, 2017.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

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