Opinion
4:00CV3099
July 20, 2000
Background
This action was filed in the District Court of Lancaster County, Nebraska, under filing CI00-471 on February 16, 2000. Notice of Removal was filed on April 14, 2000, by the defendant Bruce Wagner. A Motion to Dismiss was filed on behalf of the defendant Bruce Wagner on May 19, 2000. I referred the case to United States Magistrate Judge Thalken, who on July 3, 2000, ordered that the defendant Wagner's Motion to Substitute the United States as the sole defendant be granted as "the sole defendant in this case," denied the plaintiff's motion for joinder of the claims raised in Case No. 4:98CV3350; denied the plaintiff's motion for service of process; and recommended that the defendant's motion to dismiss be granted because the complaint "fails to state a claim upon which relief may be granted and because this court lacks subject matter jurisdiction." On July 12, 2000, the plaintiff's Motion for Summary Judgement and Notice of Hearing, filing 13, was filed and on July 12, the plaintiff's Notice of Appeal/Objection, filing 14, was filed. Also on July 12, 2000, a Motion for Hearing on Opposition of Defendant's Bruce Wagner's Attempt to Have This Matter Removed From State Court to Federal Court, filing 15, was filed.
Substitution of Parties
In accordance with 28 U.S.C. § 2679(d)(1), through a certification of the United States Attorney for the District of Nebraska that the defendant Wagner was acting within the scope of his office or employment at the time of the incident out of which the claim arose, the civil action must be deemed an action against the United States and consequently, the United States "shall be substituted as the party defendant." Once the United States has become substituted for the defendant Wagner, the action "shall be removed without bond at any time for trial by the Attorney General to the District Court of the United States . . ."
The procedure followed by the United States Attorney, acting for the Attorney General, is appropriate, although the Notice of Substitution, filing 3, which declares that the United States of America is substituted as the "sole" defendant in this matter, must be interpreted to mean that the United States of America is substituted as a defendant in place of the defendant Wagner. Such a substitution does not eliminate other defendants from the case. Similarly, the statement of the magistrate judge's Order and Report and Recommendation that "the United States should be substituted as the sole defendant . . ." must be understood as referring only to the United States being substituted for the defendant Wagner.
Subject Matter Jurisdiction
The Motion to Dismiss by the United States, filing 6, asks for dismissal pursuant to Rules 12(b)(1) and 12(b)(6) — that is, for lack of jurisdiction over the subject matter and for failure to state a claim upon which relief can be granted.
As to subject matter jurisdiction, the magistrate judge says that he agrees with the defendant's position, which is that the court lacks subject matter jurisdiction "because the plaintiff did not follow the procedures provided in the FTCA (Federal Tort Claims Act) for a claim against a federal employee." There is no explanation of why the FTCA applies. Title 28 U.S.C. § 2679(b)(1) does provide that the FTCA shall be exclusive of any other civil action or proceeding for money damages, but 28 U.S.C. § 2679(2) says that that provision (of section 2679(b)(1)) does not extend or apply to a civil action against an employee of the Government "which is brought for a violation of the Constitution of the United States." The plaintiff's claim here is that Bruce Wagner violated the plaintiff's Eighth Amendment protection against cruel and unusual punishment by deliberate indifference to his serious medical needs. I grant that the original complaint is not perfection in describing the claim against Wagner — now the United States — but it does assert at paragraph 10 "failing refusing to give Plaintiff adequate and prompt medical treatment. In refusing to allow Plaintiff to be seen by a specialist and not a Physician Assistant at VA Hospital on two occasions. Of which showed a continuous deliberate indifference to my mental and physical serious conditions." The plaintiff is acting without legal counsel and all allegations by him must be liberally construed. Easily within such a liberal construction is the conclusion that he is asserting a violation of the Constitution of the United States. As to the claim against the United States, this court has jurisdiction under 28 U.S.C. § 1346 (b)(1). As to other defendants, it appears that jurisdiction is probable under 28 U.S.C. § 1343 (a)(3) or (4) and 28 U.S.C. § 1367.
The filing by the plaintiff of "Amended Complaint/Praecipe for Service of Process" contained as Exhibit C in filing 7, adds nothing by way of allegations. It appears to be only for the purpose of getting service of process on persons who had not been served. If he intends it as an amended complaint, he is now assured that it is not an amended complaint. It states no claim against anyone. No amended complaint or amendment to the complaint will be allowed without prior permission from the court. The Amended Complaint/Praecipe for Service of Process was filed after the case was removed to the federal court. Once the case is removed to the federal court, and notice of removal has been given to the parties in accordance with 28 U.S.C. § 1446(d), "the State Court shall proceed no further unless and until the case is remanded." This federal court does have subject matter jurisdiction over the plaintiff's claim.
Motion for Joinder
The plaintiff has filed a "Motion for Joinder of Pending Claim under Rule 18, FRCP," filing 9. The magistrate judge analyzed the situation correctly. The motion seeks to have the present case, CV3099, joined with a previous case, CV3350, being adjudicated by Senior Judge Lyle E. Strom. That is not what Rule 18 of the Federal Rules of Civil Procedure is about. They are two separate cases, although the claims may be identical and it may be that CV3350 will effectively eliminate the plaintiff's claim in CV3099, if an appeal to the Eighth Circuit Court of Appeals is not effected.
Motion for Service of Process
Filing 11 asks that this court order the clerk of the Lancaster County District Court to provide summonses to the Sheriff of Lancaster County to perfect service of process on defendants who have not been served. This I cannot do, because the state court cannot proceed further as long as the action remains in this federal court and I have no jurisdiction over state court employees or officers per se. That does not eliminate the possibility of effecting service of summons on persons who have not been served. Title 28 § 1448 provides:
In all cases removed from any State court to any district court of the United States in which any one or more of the defendants have not been served with process or in which the service has not been perfected prior to removal, or in which process served proves to be defective, such process or service may be completed or new process issued in the same manner as in cases originally filed in such district court.
This section shall not deprive any defendant on whom process is served after removal of his right to move to remand the case.
So, it is true that I cannot grant the motion to order the clerk of the state court to enable the sheriff to perfect service of the process. Service must be done in the manner in which cases in the federal court properly obtain service. Such service does not involve the state court personnel or the sheriff.
Motion to Dismiss
The magistrate judge considered that the Motion to Dismiss should be converted into a motion for summary judgment, because matters outside the proceedings were presented to and not excluded by the court under F. R.Civ. P. 56. I agree that matters outside the pleadings were presented to and considered by the magistrate judge. That ordinarily means that the motion to dismiss should be considered to be a motion for summary judgment. Here, however, the plaintiff complains that he was not given notice that the magistrate judge intended to convert the motion to dismiss into a motion for summary judgment. The magistrate judge apparently concluded that all parties had been given "the reasonable opportunity to present all material made pertinent to [a motion for summary judgment] by Rule 56." I doubt that that is true. In Court v. Hall County, Nebraska, 75 F.2d 1170 (1984), the court said that I should not have converted a motion to dismiss into a motion for summary judgment, because
Once the district court decided not to exclude the extrinsic material, however, it was essential that the court give the parties notice of the changed status of the motion and a "reasonable opportunity to present all materials made pertinent to such motion by Rule 56." Fed.R.Civ.P. 12(b); see Woods v. Dugan, supra, 660 F.2d at 381; . . .
I understand that the court in Hamm v. Rhone-Poulenc Rorer Pharmaceuticals, Inc., 187 F.3d 941 (8th Cir. 1999), held that where it was the plaintiff who filed matters outside the pleadings, it was not beyond the district court's discretion to make the conversion, despite the lack of formal notice by the court to the parties. However, in the present case the plaintiff is not represented by counsel and I cannot be sure that he has presented all pertinent factual showings he can make to support his claim. Indeed, he complains at paragraph 5 of his "Motion for Hearing on Opposition of Defendant Bruce Wagner's Attempt to Have This Matter Removed From State Court to Federal Court" filing 15. that "the magistrate judge erred in failing to give the plaintiff adequate notice that he was intending on ruling on the respondents (sic) motion to dismiss." In the same document at paragraph 7 he urges that he be allowed sufficient time to "conduct discovery of the necessary informing and documents to show that these acts were intentional, wanton, and a reckless disregard of my life, health, well being . . ." For this reason I shall not accept the recommendation of the magistrate judge to grant the motion to dismiss at this time.
Neither, however, shall the case be remanded to the state court, as the plaintiff asks. The case is here properly and shall be resolved here but I shall grant to the plaintiff an opportunity to make a showing here by affidavit and by such discovery as seems appropriate to show that a genuine issue of fact remains as to whether Bruce Wagner acted with deliberate indifference in regard to the plaintiff's serious medical needs. Before that is undertaken, however, there remains the issue of the statute of limitations — not under the Federal Tort Claims Act.
Statute of Limitations
In CV3350 Magistrate Judge Jaudzemis and Judge Strom treated all claims as being brought under 42 U.S.C. § 1983. From that they concluded that Neb. Rev. Stat. § 25-207 applied and bars any action for an injury to the plaintiff's rights after four years from the date on which the action accrued. That is a correct holding of the Nebraska statute. Bauers v. City of Lincoln, 245 Neb. 632, 646-47, 514 N.W.2d 625, 634 (1994), citing Bridgeman v. Nebraska State Penitentiary, 849 F.2d 1076, 1077 (8th Cir. 1988), and Epp v. Gunter, 677 F. Supp. 1415, 1419 (D.Neb. 1988). Insofar as the plaintiff's claims here are founded on section 1983, the claims — some of them or perhaps all of them — may have been filed too late. It is asserted in the complaint that the plaintiff was assaulted by another inmate on November 22, 1994, and again on or about July 13, 1995. It is obvious that any claims arising out of those assaults are barred by the statute of limitations. Other claims appear to have accrued at varying times up until April 18, 1997. This action was filed on February 16, 2000, so any claim that accrued before February 16, 1996, is barred by Nebraska's statute of limitations.
The claim against the United States, founded upon a claimed violation of the Constitution of the United States, is governed by 28 U.S.C. § 2401, which provides:
(a) except as provided by the Contract Disputes Act of 1978, every civil action commenced against the United States shall be barred unless the complaint is filed within six years after the right of action first accrues. The action of any person under legal disability or beyond the seas at the time the claim accrues may be commenced within three years after the disability ceases.
Nothing is asserted against the United States — that is, against Bruce Wagner — more than six years before the filing of the complaint, February 16, 2000. Hence, I conclude that the claim against the United States is not barred by the applicable statute of limitations. As to claims against other persons, the complaint gives too little information to permit me to decide one way or another as to the effect of Nebraska's statute.
IT IS ORDERED that:
1. this court finds that this action has properly been removed to the federal court;
2. this court finds that it has subject matter jurisdiction;
3. the United States of America is substituted for Bruce Wagner as a party defendant;
4. the Motion for Service of Process, filing 11, is denied, inasmuch as it seeks an order directed to the Clerk of the Lancaster County District Court;
5. the Motion to Dismiss, filing 6, is now converted to a Motion for Summary Judgment under Rule 56 of the F. R. Civ. P. and NELR 56.1; the defendant United States of America shall have until July 28, 2000, to comply with NELR 56.1(a), unless an extension of time is granted by the court before July 28, 2000, and the plaintiff shall have until August 18, 2000, to comply with NELR 56.1(b), unless an extension of time is granted by the court before August 18, 2000; any evidence presented must meet the requirements of Rule 56.