JAMES A. BROWN, Plaintiff,
LT. GOMER, et al., Defendants.
Hon. Michael F. Urbanski, United States District Judge
In June 2013, incarcerated pro se plaintiff James A. Brown filed the Complaint in this action pursuant to 42 U.S.C. § 1983, alleging that Defendants violated the Eighth Amendment of the United States Constitution by failing to protect him from his cellmate’s attack. The court notified Defendants of this action after Plaintiff proved his indigence, and Defendants argue via a motion to dismiss that this action was untimely filed. Although Plaintiff has received notice and the opportunity to explain why this action should be deemed timely filed, he has failed to do so, and Defendants’ motion to dismiss is granted.
The two-year limitations period for this action began on February 26, 2009, the day after the attack when Plaintiff had a complete and present cause of action or could file suit and obtain relief about Defendants’ alleged deliberate indifference to the serious risk of the cellmate’s attack. See Owens v. Okure, 488 U.S. 235, 249-50 (1989) (recognizing § 1983 adopts the statute of limitations that the forum state uses for general personal injury cases); Va. Code § 8.01-229, 8.01-243(A) (permitting tolling of the two-year limitations period for general personal injury actions); see also Bay Area Laundry and Dry Cleaning Pension Trust Fund v. Ferbar Corp. of Cal., 522 U.S. 192, 201 (1997) (describing the standard for when a federal cause of action accrues). However, Plaintiff filed this action on May 28, 2013, more than 1, 500 days after the cause of action accrued. Nothing in Plaintiff’s medical record supports a claim that Plaintiff lacked sufficient mental capacity after the attack to toll the two-year limitations period to make this action timely filed.See Va. Code § 8.01-229(A) (tolling the limitations period for incapacitation). Also, the cellmate’s subsequent criminal prosecution for malicious wounding does not toll the statute of limitations.See id. § 8.01-229(K) (tolling the limitations period in a civil action for the duration of criminal proceedings that ...