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McCollum v. Peterkin

United States District Court, M.D. North Carolina

July 3, 2018



          OSTEEN, JR., District Judge

         Plaintiffs Waddell McCollum and Lena McCollum (“Plaintiffs” or “Mr. McCollum” or “Ms. McCollum”), proceeding pro se, filed this Complaint on October 23, 2017, naming as Defendants Hoke County and certain individuals in their individual capacities: Hubert Peterkin, Timothy Rugg, Samuel Morant, Timothy Kavanaugh, Stanley Davis, and John Does #1-5. (Doc. 2.) Summonses were issued, (Doc. 5), and served on Hoke County, Kavanaugh, Peterkin, and Rugg, (Doc. 7). These Defendants responded by moving to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). (Doc. 9.) Plaintiffs have responded, (Doc. 15), and Defendants have replied, (Doc. 16). Also before the court are a Motion for Joinder Multiple Plaintiffs, (Doc. 3), and Motion Requesting the Court to Order Disclosure, (Doc. 14). Defendants have not responded to either of these motions. These matters are now ripe for ruling, and this court finds Defendants' motion to dismiss should be granted because Plaintiffs' claims are time barred.[1] This court will order further briefing on how dismissal of Plaintiffs' claims affects the motion for joinder.

         I. BACKGROUND

         The allegations of Plaintiffs' Complaint, taken as true, state the following: On October 19, 2014, Defendants Kavanaugh and Davis arrested Plaintiffs' son, Robert Lewis, in front of Plaintiffs' home. (Complaint (“Compl.”) (Doc. 2) at 10.)[2] After Lewis was taken into custody, additional officers arrived to the residence. (Id. at 12.) Mr. and Ms. McCollum, both diabetics, were not allowed to enter their house for several hours and then only after imploring the officers to let them enter to check their blood sugars. (Id. at 11-13.) Eight and a half hours after the warrantless search and seizure of the home began, Defendant Rugg and Detective William Tart arrived with a search warrant, which was ordered “without just cause.” (Id. at 12-13.) Plaintiffs bring a § 1983 claim for Fourth Amendment violations and a common law trespass claim stemming from the search and seizure of their home, seeking compensatory as well as punitive damages. (Id. at 9, 16.)


         Defendants move to dismiss under Federal Rule of Civil Procedure 12(b)(6), alleging that the claims are facially barred by the applicable statute of limitations. (Mem. of Law in Support of Mot. to Dismiss (“Defs.' Br.”) (Doc. 10) at 2.)

         “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is facially plausible if the plaintiff provides enough factual content to allow the court to reasonably infer that the defendant is liable for the misconduct alleged. Id. The pleading setting forth the claim must be “liberally construed” in the light most favorable to the nonmoving party, and allegations made therein are taken as true. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). However, the “requirement of liberal construction does not mean that the court can ignore a clear failure in the pleadings to allege any facts [that] set forth a claim.” Estate of Williams-Moore v. Alliance One Receivables Mgmt., Inc., 335 F.Supp.2d 636, 646 (M.D. N.C. 2004).

         “A document filed pro se is ‘to be liberally construed,' and ‘a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.'” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citations omitted). Nevertheless, liberal construction of a pro se complaint does not “undermine Twombly's requirement that a pleading contain ‘more than labels and conclusions[.]'” Giarratano v. Johnson, 521 F.3d 298, 304 n.5 (4th Cir. 2008) (citation omitted).

         A statute of limitations defense is characterized as “an affirmative defense, which can be the basis of a motion to dismiss under Rule 12(b)(6).” Dickinson v. Univ. of N.C., 91 F.Supp.3d 755, 763 (M.D. N.C. 2015) (citing Dean v. Pilgrim's Pride Corp., 395 F.3d 471, 474 (4th Cir. 2005)). For a statute-of-limitations defense to succeed “at this stage, all facts necessary to show the time bar must clearly appear ‘on the face of the complaint.'” Id. (citing Goodman v. Praxair, Inc., 494 F.3d 458, 464 (4th Cir. 2007).

         III. ANALYSIS

         Moving Defendants seek to dismiss the Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) on the grounds that the Complaint fails to state a claim upon which relief can be granted because it is facially barred by the applicable statute of limitations. (“Defs.' Br.” (Doc. 10) at 2.)[3] Plaintiffs reply that their Complaint was filed “within the three-year statute of limitations applicable to their claims” or, alternatively, was filed “within three years from the time that they knew or had reason to know of the injuries giving rise to their claims[.]” (Mem. of Law & Resp. to Defs. Mot. to Dismiss (“Pls.' Br.”) (Doc. 15) at 2.)

         “The statute of limitations for all § 1983 claims is borrowed from the applicable state's statute of limitations for personal-injury actions, even when a plaintiff's particular § 1983 claim does not involve personal injury.” Tommy Davis Const., Inc. v. Cape Fear Pub. Util. Auth., 807 F.3d 62, 66-67 (4th Cir. 2015) (citing Wilson v. Garcia, 471 U.S. 261, 275-80 (1985)). In North Carolina, § 1983 claims “are limited by ‘the three-year period for personal injury actions set forth in [ N.C. Gen. Stat.] § 1-52(5).'” Id. at 67 (citation omitted). Section 1-52's three-year period also governs claims for trespass, which accrues on the date of the trespass. See § 1-52(3) (stating that even if “the trespass is a continuing one, the action shall be commenced within three years from the original trespass, and not thereafter”).

         “Although the applicable state statute of limitations supplies the length of the limitations period in a § 1983 action, the time of accrual of the cause of action is a matter of federal law.” Brooks v. City of Winston-Salem, 85 F.3d 178, 181 (4th Cir. 1996) (citing Nasim v. Warden, Md. House of Correction, 64 F.3d 951, 955 (4th Cir. 1995) (en banc)). “Under federal law a cause of action accrues when the plaintiff possesses sufficient facts about the harm done to him that reasonable inquiry will reveal his cause of action.” Id. (citation omitted).

         “The accrual date for a claim alleging illegal entry and search is the date of entry of by the police.” Hubbard v. Bohman, No. 1:11CV00716, 2013 WL 2645260, at *1 (M.D. N.C. June 11, 2013); see also Smith v. McCarthy, 349 Fed.Appx. 851, 856-57 (4th Cir. 2009) (per curiam). When, as Plaintiffs allege, a search is also undertaken ostensibly pursuant to a search warrant that is later found to be defective, it is less settled when that claim accrues. Compare Belanus v. Clark,796 F.3d 1021, 1026 (9th Cir. 2015) (“[A] cause of action for illegal search and seizure accrues when the wrongful act occurs, even if the person does not know at that time that the search was warrantless.” (citations omitted)) and Craddock v. Fisher, Civil Action No. 3:12CV430, 2015 WL 1825720, at *4 (E.D. Va. Apr. 21, 2015) (holding that plaintiff's Fourth Amendment Bivens claims stemming from searches performed under allegedly defective warrant accrued on the dates of the searches) and Hill v. Simms, Civil Action No. 3:07-0349, 2010 WL 3852039, at *3 (S.D. W.Va. Sept. 30, 2010) (holding that plaintiffs' claims based on defective search warrants “accrued at the time of the defective process, not when the Courts determined the process to be defective”), aff'd, 418 Fed.Appx. 184 (4th Cir. 2011) (per curiam), with Adrian v. Selbe, 364 Fed.Appx. 934, 937 (5th Cir. 2010) (holding that Bivens claim accrued on the ...

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