United States District Court, D. Nebraska
MEMORANDUM AND ORDER
Richard G. Kopf, Senior United States District Judge
Marvel Jones (“Jones”) has filed an
“objection to dismissal for good cause shown
below” (Filing 14), which the court liberally construes
either as a motion to alter or amend judgment, filed pursuant
to Federal Rule of Civil Procedure 59(e), or as a motion for
relief from judgment, filed pursuant to Federal Rule of Civil
Procedure 60(b). For the reasons discussed below, the motion
will be denied in all respects.
59(e) motions serve the limited function of correcting
manifest errors of law or fact or to present newly discovered
evidence. United States v. Metro. St. Louis Sewer
Dist., 440 F.3d 930, 933 (8th Cir. 2006). Rule 60(b)
provides that a judgment may be set aside, inter
alia, for “mistake, inadvertence, surprise, or
excusable neglect, ” for “newly discovered
evidence, ” or for “any other reason that
justifies relief.” Fed.R.Civ.P. 60(b)(1), (2), (6). The
catch-all provision of Rule 60(b)(6) authorizes relief only
in the most exceptional of cases. In re Guidant Corp.
Implantable Defibrillators Prods. Liab. Litig., 496 F.3d
863, 866 (8th Cir. 2007).
motion to alter or amend a judgment must be filed no later
than 28 days after the entry of the judgment. Fed.R.Civ.P.
59(e). That time limit may not be extended, see Fed.
R. Civ. P. 6(b)(2), and a district court lacks jurisdiction
over an untimely Rule 59(e) motion. United States v. Mask
of Ka-Nefer-Nefer, 752 F.3d 737, 743 (8th Cir. 2014).
Because the judgment in this case was entered on July 30,
2019 (Filing 9), and the pending motion was not filed until
December 12, 2019, the court cannot consider the motion under
Rule 59(e), even though Plaintiff claims he did not know that
judgment had been entered until sometime after November 25,
2019, when the court sent him another copy of the judgment
and the underlying memorandum and order in response to a
request for a status report.
motion under Rule 60(b) must be made within a reasonable
time. Fed.R.Civ.P. 60(c)(1). What constitutes a reasonable
time is dependent on the particular facts of the case in
question and is reviewed for abuse of discretion. Watkins
v. Lundell, 169 F.3d 540, 544 (8th Cir. 1999).
Especially considering that the dismissal in this case was
without prejudice and was made prior to service on any
defendant, the court accepts the truth of Plaintiff's
representation that he did not receive the July
30th mailing and finds that the pending motion was
filed within a reasonable time after Plaintiff became aware
of the dismissal.
explained the court's previous memorandum and order,
Jones was convicted of first degree sexual assault and
sentenced to 25 to 40 years' imprisonment in 1997.
Although not specifically alleged in the complaint, Jones
presumably was committed to the Norfolk Regional Center
(“NRC”) as a sex offender upon completion of his
sentence. In this action, he seeks to be released from NRC,
to have the conviction expunged and his name removed from the
sex offender registry, and to recover damages from twelve
defendants for alleged constitutional violations associated
with the conviction. Jones alleges that he brings this action
for damages and injunctive relief under 42 U.S.C.
§§ 1981, 1983, 1985, 1986, 1987, and
for violation of his rights under the United States
Constitution and the Nebraska Constitution, and he may also
be asserting common law tort claims, including claims for
false arrest, false imprisonment, malicious prosecution,
abuse of process, fraud, and negligence. The court conducted
an initial review of the complaint pursuant to 28 U.S.C.
§ 1915(e)(2) and determined that all federal claims were
barred by the applicable statute of limitationsor by the
Heck doctrine,  such that granting Jones leave to amend
any of those claims would be futile. The court declined to
exercise supplemental jurisdiction over any state law claims.
See 28 U.S.C. § 1367(c).
pending motion, Jones argues that the statute of limitations
should be tolled pursuant to the provisions of Neb. Rev.
Stat. 25-213,  which provides that “if a person
entitled to bring any action ... is, at the time the cause of
action accrued, within the age of twenty years, a person with
a mental disorder, or imprisoned, ” he or she
“shall be entitled to bring such action within [the
applicable limitations period] after such disability is
removed.” Jones has not made a showing that he fits
within any of these three categories.
attached to the complaint indicates Jones was born in 1958.
While he is currently a civilly committed detainee at NRC,
there is no indication that he has a “mental
disorder” within the meaning of the tolling statute. As
used in section 25-213, a “mental disorder” is a
condition rendering a plaintiff “incapable of
understanding his legal rights or instituting legal action,
” or “evaluat[ing] and communicat[ing]
information necessary to protect [his] rights.”
Montin, 636 F.3d at 413 (quoting Kraft v. St.
John Lutheran Church, 414 F.3d 943, 948 (8th Cir.
2005)). Similarly, while Jones has been a prisoner for many
years, “imprisonment in and of itself is not a
disability entitling one imprisoned to a period of exclusion
from the normal time limitation ....” Scott v.
Hall, 488 N.W.2d 549, 551 (Neb. 1992). “[A]
showing of a recognizable legal disability, separate from the
mere fact of imprisonment, which prevents a person from
protecting his or her rights is required to entitle a
prisoner to have the statute of limitations tolled during
imprisonment.” Gordon v. Connell, 545 N.W.2d
722, 726 (Neb. 1996).
further argues that equitable tolling should apply because
evidence allegedly was withheld or concealed. However, as
discussed in the court's previous memorandum and order,
Jones alleges he obtained such evidence about four months
after his trial.
also relies on the “continuing tort doctrine, ”
but under Nebraska law this a doctrine of accrual, not a
tolling doctrine. Haltom v. Parks, No. 8:15-CV-428,
2018 WL 1033488, at *3 (D. Neb. Feb. 21, 2018) (citing
Alston v. Hormel Foods Corp., 730 N.W.2d 376, 382
(Neb. 2007). “[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 409, 413 (8th Cir. 2011) (quoting Wallace v.
Kato, 549 U.S. 384, 388 (2007) (emphasis in original).
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.
Accrual can be delayed under the “continuing
violations” theory, see Montin, 636 F.3d at
416, but the doctrine applies only to claims “composed
of a series of separate acts that collectively constitute one
unlawful practice.” Shepard v. Nebraska, No.
4:16CV3038, 2016 WL 2344200, at *3 (D. Neb. May 3, 2016)
(quoting Gonzalez v. Hasty, 802 F.3d 212, 220 (2d
Cir. 2015)). The continuing violation doctrine thus applies
not to discrete unlawful acts, even where those discrete acts
are part of a serial violation, but to claims that by their
nature accrue only after the plaintiff has been subjected to
some threshold amount of mistreatment. Gonzalez, 802
F.3d at 220. A continuing violation does not excuse a
plaintiff from complying with the applicable statute of
limitations-it simply allows the plaintiff to include, in an
initial complaint, allegedly unconstitutional acts that
occurred before the limitations period, provided that at
least one of the acts complained of falls within the
limitations period. Zotos v. Lindbergh Sch. Dist.,
121 F.3d 356, 362 (8th Cir. 1997). Jones's claims involve
discrete acts of allegedly unlawful behavior by law
enforcement, prosecutors, and public defenders, which
culminated in his conviction and sentencing in 1997. The
continuing violation doctrine therefore has no application
most part, the pending motion consists of citations to legal
authorities which Jones contends support the merits of his
federal and state law claims. Because Jones's federal
claims are barred by the statute of limitations or the
Heck doctrine, and because it is most appropriate to
dismiss the state law claims without prejudice in this
instance, no further discussion is necessary. The court has
carefully reviewed Jones's objections and finds no
legitimate basis for granting him relief from the judgment
that was entered on July 30, 2019.
THEREFORE ORDERED that Plaintiff's “objection to
dismissal for good cause shown below” (Filing 14),
construed either as a Rule 59(e) ...