United States District Court, E.D. North Carolina, Western Division
THURMAN M. JUDGE, JR., Plaintiff,
STACY HAYES, Correctional Officer; BUCEPHALUS EDGE, Correctional Officer; JAMES GRAY, Sgt.; WILLIAM L. BULLARD, Unit Manager; KENNETH TORNES, Lt.; SONYA B. HYATT, Registered Nurse, Defendants.
W. FLANAGAN, UNITED STATES DISTRICT JUDGE
matter is before the court on defendants' motions to
dismiss for failure to state a claim (DE 20, DE 34), and
plaintiff's motion to amend complaint (DE 42). The issues
raised have been fully briefed and are ripe for adjudication.
For the following reasons, the court grants defendants'
motions and denies plaintiff's motion.
OF THE CASE
March 16, 2016, plaintiff, a state prisoner filed this civil
rights action pro se pursuant to 42 U.S.C. §
1983, asserting claims of “misuse of force, denial of
due process, denial of medical care, [and] violation of the
Eighth and Fourteenth Amendments to the United States
Constitution and State and Federal statutory rights, ”
as to events that occurred on November 14, 2009. (DE 1 at 6).
On November 14, 2009, plaintiff alleges that while he was
employed as a barber in Tabor Correctional Institution,
another inmate assaulted plaintiff and plaintiff was injured.
(Id. at 6-7). In conjunction with his complaint,
plaintiff files extensive documentation regarding his
previous pursuit of medical and legal remedies regarding
these injuries. (See DE 1-1 at 1-89).
January 17, 2017, the court conducted a frivolity review of
the complaint under 28 U.S.C. § 1915, allowing
plaintiff's claims to proceed. On June 26, 2017,
defendants Stacy Hayes, James Gray, William L. Bullard,
Kenneth Tornes, and Sonya B. Hyatt filed the instant motion
to dismiss for failure to state a claim or, in the
alternative, motion for summary judgment, arguing that the
action is barred by the statute of limitations, the complaint
fails to state a claim against defendants, and that
defendants are entitled to qualified immunity. In support of
the motion, these defendants included the applicable
grievance form filed by plaintiff which was considered
resolved by the North Carolina department of corrections on
January 29, 2010. On August 10, 2017, defendant Bucephalus
Edge filed the instant motion to dismiss, asserting the same
three arguments as asserted by the other defendants.
in response to the instant motions to dismiss, filed two
motions for extension of time to file responses, both of
which the court granted, setting plaintiff's time to
respond as October 23, 2017. (DE 28, DE 40). On September 7,
2017, plaintiff filed the instant “motion to amend
complaint, ” to which all defendants filed a joint
response in opposition on September 12, 2017, to which
plaintiff filed a reply entitled “response to dismissal
and attachment to amended complaint” on October 4,
is no federal statute of limitations for actions brought
under 42 U.S.C. § 1983. I n s t e a d, the analogous
state statute of limitations applies. See Wallace v.
Kato, 549 U.S. 384, 387 (2007). Specifically, the state
statute of limitations for personal injury actions governs
claims brought under 42 U.S.C. § 1983. See id.
North Carolina has a three-year statute of limitations for
personal injury actions. N.C. Gen. Stat. § 1-52(5);
see Brooks v. City of Winston-Salem, 85 F.3d 178,
181 (4th Cir. 1996). Although the limitations period for
claims brought under § 1983 is borrowed from state law,
the time for accrual of an action is a question of federal
law. Wallace, 549 U.S. at 388; Brooks, 85
F.3d at 181. A claim accrues when the plaintiff knows or has
reason to know of the injury which is the basis of the
action. Owens v. Baltimore City State's Attorneys
Office, 767 F.3d 379, 389 (4th Cir. 2014). Finally,
“[w]hen a state statute [of limitations] is borrowed .
. . the federal court will also borrow the state rules on
tolling.” Shook ex rel Shook v. Gaston Cnty. Bd. of
Educ., 882 F.2d 119, 121 (4th Cir. 1989); see Bd. of
Regents v. Tomanio, 446 U.S. 478, 483-85 (1980);
Bonneau v. Centennial Sch. Dist. No. 28J, 666 F.3d
577, 580 (9th Cir. 2012).
complaint, filed March 16, 2016, alleges he was injured on
November 14, 2009. (DE 1). Plaintiff's complaint was
filed more than six years after the alleged November 2009
assault. Plaintiff would have possessed sufficient facts to
support the instant claim no later than November 2009, when
he claims he was assaulted. Accordingly, plaintiff's
claims would have accrued no later than November 2009 and, in
order to be timely, had to have been filed no later than
November 2012. Plaintiff offers no evidence or argument that
would allow the court to find his claims subject to
additional filings in this case do not change this
conclusion. First, plaintiff's “amended
complaint” contains only additional factual details
concerning the events that occurred on November 14, 2009 and
legal argument regarding plaintiff's claims, but it does
not alter or add to the claims as found in plaintiff's
original complaint. (See DE 42). Thus, given the
court's holding, that plaintiff's claims are barred
by the applicable statute of limitations, the court denies
plaintiff's “motion to amend complaint” as
to plaintiff's “response to dismissal and
attachment to amended complaint, ” it appears plaintiff
argues that the court should disregard or toll the statute of
limitations in that “plaintiff was advised by legal
counsel and personal competency to exhaust ‘all'
remedies before bringing claims against defendants.”
(DE 46 at 7). Based on the documents submitted by plaintiff
in conjunction with his original complaint, it appears that
plaintiff may be defining “all remedies” as not
limited to administrative remedies as found under the Prison
Litigation Reform Act, requiring the exhaustion of
administrative remedies within the prison system before
bringing the current type of suit, see 42 U.S.C.
§ 1997e(a), but as any legal action related to
a general rule, absent applicable state law tolling
limitations in personal injury actions, limitations periods
are not tolled during the pendency of administrative
proceedings.” Roberts v. Wood Cty. Comm'n,
993 F.2d 1538 (4th Cir. 1993) (unpublished) (citing Patsy
v. Bd. of Regents, 457 U.S. 496, 514 n.17 (1982);
Board of Regents v. Tomanio, 446 U.S. 478, 490-92
(1980)). North Carolina has no applicable tolling provision.
See also Kolomick v. United Steelworkers of America,
District 8, 762 F.2d 354, 356 (4th Cir.1985)
(“tolling does not apply in situations where a
plaintiff pursues relief through parallel administrative
proceedings.”); Goldman v. Simmons, No.
5:12-CT-3118-F, 2012 WL 8466137, at *3 (E.D. N.C. Oct. 10,
2012), dismissed, 511 F. App'x 241 (4th Cir.
2013) (holding plaintiffs § 1983 action is barred by
North Carolina statute of limitations and noting
“Plaintiff fails to cite any authority for his argument
that his prosecution of a similar civil case along a parallel
track in state court somehow ‘tolls' the statute of
limitations for purposes of his § 1983 action in federal
on the foregoing, defendants' motions to dismiss are
GRANTED (DE 20, DE 34), and plaintiffs claims are DISMISSED
WITH PREJUDICE as barred by the applicable statute of
limitations. Plaintiffs motion to amend ...