United States District Court, D. Nebraska
CARL A. MARTIN, Plaintiff,
NEBR DEP'T OF CORRECTIONS STAFF, in Official and Individual Capacities; STOUT, Officer - in Official and Individual Capacities; BIGFORD, Worker - in Official and Individual Capacities; 4-7 OFC, in Official and Individual Capacities; TOWER OFFICER, in Official and Individual Capacities; MASTER CONTROL OFC'S, in Official and Individual Capacities; SECURITY CAMERA OFC'S, in Official and Individual Capacities; and NURSES, All on Duty that day in Official and Individual Capacities; Defendants.
MEMORANDUM AND ORDER
RICHARD G. KOPF, SENIOR UNITED STATES DISTRICT JUDGE.
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.
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.)
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,
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. § 25-207. 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).
“Motion to Show Cause, ” Plaintiff asserts that
this action should not be dismissed because:
(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.)
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 lawsuit and, more importantly, the limitations
period had not run by the time the federal action was
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.
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 ...