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Wagner v. Barnette

United States District Court, W.D. Virginia, Roanoke Division

February 21, 2014

RANDAL BARNETTE, et al., Defendants.



Anthony C. Wagner, a federal inmate proceeding pro se, filed a verified Complaint[1] pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics , 403 U.S. 388 (1971), and the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2671, et seq. Wagner named as defendants Randal Barnette, a correctional officer at the United States Penitentiary in Lee County, Virginia ("USP Lee"); C. Zych, Warden of USP Lee; and the Director of Health Services at USP Lee. Wagner subsequently amended the Complaint to withdraw the Bivens claims against the Director of Health Services and all FTCA claims.[2] Officer Barnette and Warden Zych filed a "Motion to Dismiss, or in the Alternative, Motion for Summary Judgment, " and Wagner responded to the court's Roseboro[3] notice, making the matter ripe for disposition. After reviewing the record, the court grants defendants' motion because Wagner did not file his suit within the limitations period. Moreover, his suit fails to state a claim against Warden Zych.


The record reflects the following facts in a light most favorable to Wagner. On September 11, 2010, Officer Barnette moved Wagner into another inmate's cell at USP Lee. Once inside, the inmate started to attack Wagner, Wagner saw Officer Barnette look inside the cell, and the assailant yelled at Officer Barnette to lock the cell door. Officer Barnette allegedly saw the assailant standing over and attacking Wagner, who was bleeding and defenseless on the floor, but Officer Barnette did not intervene. Instead, Officer Barnette locked the door, left Wagner to be attacked, returned later, and escorted Wagner to another cell without requesting medical care for Wagner's unspecified injuries to his head, face, and upper body.

The next day, an inmate informed USP Lee staff that Wagner had been injured while playing basketball. Although Wagner had not yet complained of an injury, USP Lee staff escorted Wagner to the medical department for an evaluation. A nurse's medical assessment revealed that Wagner had dark discoloration around both eyes, a red right eyeball, bilateral swelling of his nose and cheeks, abrasions inside his mouth, redness to his left cheek, and dried blood inside his left nostril. Wagner told the nurse that his injuries occurred when he "got elbowed" and "got hit good" while playing basketball. The nurse advised Wagner to apply ice to the areas, immediately report any visual changes, take over-the-counter Motrin for pain, and report to sick call as needed. The nurse noted in the medical report that Wagner's injuries were inconsistent with being elbowed while playing basketball.

After leaving the medical department, USP Lee staff escorted Wagner to Lieutenant Ousley's office for photographs and an interview. Wagner told Lt. Ousley that he was playing basketball when another inmate accidently struck him with an elbow and landed on him after attempting a rebound. He did not tell Lt. Ousley or any other staff that another inmate attacked him in a cell the prior day or that Officer Barnette observed the attack and did not intervene. Lt. Ousley believed that Wagner had been assaulted at an earlier time and not on the basketball court because Wagner already had black eyes during the interview and because security camera recordings did not show Wagner on a basketball court at the alleged time. Lt. Ousley concluded that the inmate who reported Wagner's injuries, and who was a leader of a white-inmate faction in the prison, attacked Wagner, but Wagner refused to admit that any attack occurred. Staff immediately moved Wagner into segregation and then transferred him to the United States Penitentiary in Coleman, Florida, on November 30, 2010.

Wagner alleges that Officer Barnette violated the Eighth Amendment by being deliberately indifferent to the attack and by "fail[ing] to seek immediate medical care for the Plaintiff [..., who] sustained further emotional and bodily harm of which prompt medical attention would likely have prevented or lessened." Compl. ¶ 18. Wagner does not state specific allegations or claims against Warden Zych.[4] Instead, Wagner generally alleges that defendants, collectively, "interfered with and attempt[ed] to thwart" Wagner's pursuit of administrative remedies; contributed to Wagner's injuries; were "willfully deliberate"; treated the investigation of Wagner's attack as an "administrative inconvenience"; and failed to provide medical care to Wagner. Id . ¶¶ 12, 14, 22-26. Wagner demands $1, 000, 000.00 in damages for suffering "permanent and chronic injuries, including headaches, vision loss, and tinnitus"[5] as a result of the attack.

Wagner received some degree of assistance preparing this civil action from Elizabeth McKaveney, who is a legal assistant to attorney Brian O'Connor, and from Thomas J. Smith, who is Wagner's brother and an attorney in Houston, Texas.[6] On September 11, 2012, McKaveney emailed the Complaint for Wagner's signature to both Smith and Adam Setzer, who was Wagner's prison counselor. Smith replied to the email, telling Wagner, "Sign and fax the pleadings to the clerk's office. If you are allowed to call [Deputy Clerk] Brown[, ] please do so and advise th[at] filings are being made." Wagner claims that he immediately signed the emailed Complaint and handed it to Counselor Setzer for faxing to the Clerk of Court.[7] The next day, September 12, 2012, Wagner received another copy of the Complaint which he then signed. However, Wagner admits that he did not give the second signed Complaint to prison officials for mailing to the court until September 13, 2012.[8]


Defendants argue that Wagner filed this action beyond the statute of limitations. A civil action filed pursuant to Bivens adopts the statute of limitations that the forum state uses for general personal injury cases. See, e.g., Owens v. Okure , 488 U.S. 235, 249-50 (1989); Wilson v. Garcia , 471 U.S. 261, 280 (1985). Virginia Code § 8.01-243(A) is the applicable two-year limitations period for general personal injury actions in Virginia. See Blanck v. McKeen , 707 F.2d 817, 819 (4th Cir. 1983) (per curiam) (recognizing that Virginia's statute of limitations for general personal injury actions applies in a Bivens action about events occurring in Virginia).

However, federal law governs the question of when a cause of action accrues. Cox v. Stanton , 529 F.2d 47, 50 (4th Cir. 1975). A federal cause of action accrues when "the plaintiff has a complete and present cause of action" or when the plaintiff "can file suit and obtain relief." Bay Area Laundry and Dry Cleaning Pension Trust Fund v. Ferbar Corp. of Cal. , 522 U.S. 192, 201 (1997) (internal quotation marks omitted). Wagner's cause of action against Officer Barnette for being deliberately indifferent to the attack and need for medical care accrued on September 11, 2010, when Wagner allegedly knew Officer Barnette watched another inmate attack him in a locked cell without rendering any assistance. See, e.g., Farmer v. Brennan , 511 U.S. 825, 833 (1994) (discussing elements for a claim pursuant to the Eighth Amendment for a prison official's failure to protect an inmate from violence); Miltier v. Beorn , 896 F.2d 848, 854 (4th Cir. 1990) (discussing elements for a claim pursuant to the Eighth Amendment for non-medical staff's deliberate indifference to a serious medical need). Thus, the two-year limitation period ended on Tuesday, September 11, 2012. The court cannot consider the Complaint Wagner claims he gave to Counselor Setzer for faxing on September 11, 2012 to be the pleading that commenced this action. "A civil action is commenced by filing a complaint with the court." Fed.R.Civ.P. 3. This court does not accept filings, either from attorneys or pro se parties, via fax. U.S. DIST. COURT. W. D. VA., ADMINISTRATIVE PROCEDURES FOR FILING, SIGNING AND VERIFYING PLEADINGS AND PAPERS BY ELECTRONIC MEANS (Apr. 2011) ("ADMINISTRATIVE PROCEDURES"), at 5; see W.D. Va. Gen. R. 7(a) (enabling the ADMINISTRATIVE PROCEDURES). Instead, the court accepts initial filings, like complaints, via the court's Case Management/Electronic Case Filing system, commonly known as "CM/ECF, " or "United States mail, similar means, or deliver[y] in person to the Clerk's Office."[9] ADMINISTRATIVE PROCEDURES at 6. As an incarcerated, pro se litigant, Wagner was required to file the original, paper copy of the Complaint. Id. at 3, 7. Accordingly, the court's rules prohibited the Clerk from accepting a faxed copy of a pro se complaint for docketing, and, even had it been received, the faxed Complaint cannot be deemed properly filed to commence this action on September 11, 2012.[10]

The Complaint that was docketed in this action is the copy that Wagner signed on September 12, 2012, but Wagner admits that he did not give that Complaint to a prison official for mailing via USP Lee's mail system until September 13, 2012. Because Wagner was incarcerated and mailed the Complaint through the prison's mail system, the court affords Wagner the benefit of the prison-mailbox rule and considers the action commenced on September 13, 2012. See Houston v. Lack , 487 U.S. 266 (1988) (describing the "prison-mailbox rule" as requiring federal courts to consider documents filed on the day incarcerated, pro se litigants hand documents to prison officials for mailing to federal courts and not on the day the documents are delivered).[11] Nonetheless, September 13, 2012, is beyond the expiration of the limitations period, and thus, Wagner did not file his suit within the two-year limitations period.

Because the Virginia statute of limitations applies, the court is "obligated... to apply [Virginia]'s rule for tolling that statute of limitations." Scoggins v. Douglas , 760 F.2d 535, 537 (4th Cir. 1985); see Wade v. Danek Med., Inc. , 182 F.3d 281, 289 (4th Cir. 1999) (holding Virginia's equitable tolling rule applies when Virginia's statute of limitations is used in federal question and diversity actions). Virginia's statute of limitations may not be tolled, "or an exception applied, in the absence of a clear statutory enactment to such effect[, ]" Arrington v. Peoples Security Life Insurance Co. , 250 Va. 52, 55-56, 458 S.E.2d 289, 290-91 (1995), "unless under certain extraordinary circumstance, wherein the positive and plain requirements of an equitable estoppel preclude" applying the statute of limitations, Boykins Narrow Fabrics Corp. v. Weldon Roofing & Sheet Metal, Inc. , 221 Va. 81, 85, 266 S.E.2d 887, 889 (1980). See VA. CODE § 8.01-229 (permitting tolling of a limitations period in very limited circumstances). "[A]ny doubt must be resolved in favor of the enforcement of the statute [of limitations]." Arrington , 250 Va. at 55, 458 S.E.2d at 290-91.

Wagner does not establish that any of the very limited circumstances described in Virginia Code § 8.01-229 apply to statutorily toll the limitations period.[12] Furthermore, equitable tolling under Virginia law is not appropriate because Wagner has not presented any evidence that a defendant misrepresented or concealed a material fact for the purpose of masking a cause of action. See Boykins Narrow Fabrics Corp. , 221 Va. at 85, 266 S.E.2d at 890 (requiring this element for equitable tolling to be proven by clear, precise, and unequivocal evidence). To the extent Wagner argues that the limitations period should be equitably tolled while he pursued administrative remedies, no such tolling provision applies to Virginia Code § ...

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