United States District Court, E.D. Virginia, Alexandria Division
Yousef A. Roseboro, Plaintiff,
Gerard Brown, Defendant.
LIAM O'GRADY, District Judge.
Yousef A. Roseboro, a former federal inmate proceeding se, has filed an action pursuant to the Federal Tort Claims Act ("FICA"), 28 U.S.C. §§ 1346(b), 2671 and Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971). On October 23, 2013, this Court construed plaintiff's claim as arising solely pursuant to Bivens, added Gerard Brown as an individual-capacity defendant, and directed the defendant to address whether plaintiff's claim is barred by the applicable statute of limitations. See Dkt. 11. Defendant Brown filed a Motion to Dismiss, arguing that plaintiff's Bivens claim is time-barred. Dkt. 34. Plaintiff filed a response, and defendant filed a reply to this response. Dkt. 39, 40. For the reasons that follow, defendant Brown's Motion to Dismiss will be granted.
However, in its October 23, 2013 Order, the Court dismissed the United States as a defendant, but did not explicitly dismiss plaintiff's FTCA claim. Because it appears that plaintiff has properly stated an FTCA claim, the United States will be reinstated as a defendant, and plaintiff will be directed to provide additional information surrounding the filing of his FTCA administrative claims.
On July 29, 2010, plaintiff, then housed at FCC Petersburg ("Petersburg") was struck by an institutional mail cart being driving by defendant Brown, a Petersburg employee. See Compl. [Dkt. 1], at "Statement of Claim" III. Plaintiff states that, at the time of the collision, Brown was "recklessly" driving the cart, and "turned a corner at a high rate of speed on the sidewalk between the Carolina and Virginia housing units towards the backs of unsuspecting prisoners" walking between units. Am. Compl. [Dkt. 7] ¶ 6. Brown allegedly did not sound the horn or otherwise alert the prisoners to his presence. Id. The cart then rolled over plaintiff's right foot, striking his right shoulder, hip, and lower back. Id.
Plaintiff states that he "was in such pain he could not move, " but that Brown did nothing to assist him. Id. 7. Brown stopped the cart approximately fifty feet from plaintiff, stepped out to ask "if [plaintiff] was o.k., but... [then] hopped back into his cart and sped away." Id. Brown allegedly did not attempt to assess plaintiff's injuries, did not offer to bring plaintiff to the medical wing, and did not alert medical staff to plaintiff's injuries. Id. As a result of this incident, plaintiff "suffered permanent damage to [his] shoulder, hip, and lower back." Compl., at "Statement of Claim" III. These injuries necessitated surgery to repair a torn rotator cuff in March, 2011. See Defendant's Memorandum in Support of Motion to Dismiss ("Def.'s Mem.") [Dkt. 35], Ex. A [Dkt. 37], at unnumbered page 1.
Plaintiff filed a request for an administrative remedy on August 13, 2010. See id, Ex. A, at unnumbered page 7. After his request was denied by the Petersburg warden, he filed all required appeals. See id, at unnumbered pages 1-6. Plaintiff's final administrative appeal was denied on November 4, 2011. Plaintiff also filed administrative claims pursuant to the FTCA, requesting $1, 000, 000 in damages. The Bureau of Prisons' Mid-Atlantic Regional Director denied plaintiff's FTCA administrative claims on November 27, 2012. See Am. Compl, Ex. B. C. Plaintiff filed his lawsuit on March 25, 2013, and it was docketed in this Court on April 25, 2013.
II. Motion to Dismiss
In its initial screening of plaintiff's complaint. the Court noted that plaintiff's claim accrued three years before the date on which he tiled his lawsuit. See Order, June 10, 2013 [Dkt. 3]. There is no federal statute of limitations for Bivens claims, so courts look to the state limitations period which governs personal injury actions. See Wilson v. Garcia, 471 U.S. 261, 280 (1985), overruled on other grounds by Jones v. R.R. Donnelley & Sons Co, 541 U.S. 369 (2004); Blanck v. McKeen, 707 F.2d 817, 819 (4th Cir. 1983) (per curiam). Virginia has a two-year statute of limitations for personal injury claims under Virginia Code. § 8.01-243(A), which is the applicable statute of limitations in this action. See Shelton v. Angelone, 148 F. Stipp. 2d 670, 677 (W.D. Va. 2001), aff'd, 49 F.Appx. 451 (4th Cir. Oct. 30, 2002) (unpublished opinion). Plaintiff argued that the statute of limitations should have been tolled during the time that he exhausted his administrative remedies pursuant to the Prison Litigation Reform Act "(PLRA"), 28 U.S.C. § 1997(e), as well as the time during which he exhausted his FTCA administrative remedies. See. e.g., Am. Compl. ¶ 3.
Although federal courts are "obligated not only to apply the analogous state statute of limitations to federal constitutional claims brought under § 1983,  but also to apply the State's rule for tolling that statute of limitations, " Scouuins v. Douglas, 760 F.2d 535, 537 (4th Cir. 1985) (citing Bd. of Regents of Univ. of New York v. Tomanio, 446 U.S. 478, 484-86 (1980)), the Fourth Circuit has not addressed whether the statute of limitations should be equitably tolled during plaintiff's exhaustion of administrative remedies. Accordingly, the Court directed the defendant to address this limited issue in his response to plaintiff's claims. As defendant Brown is properly before the Court in his individual capacity only pursuant to plaintiff's Bivens claim, he filed a Motion to Dismiss on the basis that plaintiff's Bivens claim is time-barred. Defendant's Motion will be granted.
A. Standard of Review
When evaluating a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a court must presume that all factual allegations in the complaint arc true, and must draw all reasonable inferences in the plaintiff's favor. See, e.g., Burbach Broad. Co. of Del. v. Elkins Radio Corp., 278 F.3d 401, 406 (4th Cir. 2002). Therefore, a court may not dismiss a complaint if the plaintiff pleads any plausible set of facts that would entitle him to relief. See, e.g., Conley v. Gibson, 355 U.S. 41, 45-46 (1957). A claim has plausibility if the plaintiff alleges sufficient facts by which a court could reasonably infer the defendant's liability. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009 (citing Bell Atl. v. Twombly, 550 U.S. 544, 556 (2007)). To meet this standard. however, the plaintiff must do more than simply allege "threadbare recitals of the elements of a cause of action, supported by mere conclusory statements...." Id. (citing Twornbly, 550 U.S. at 555)). Thus, the plainti If must allege facts that show more than a "mere possibility of misconduct" by the defendant. Id. at 679.
While courts must hold complaints tiled by pro se prisoners to less stringent standards than formal pleadings drafted by lawyers...." Haines v. Kerner, 404 U.S. 519, 520-21 (1972), pro se plaintiff's must meet the plausibility standard to withstand a Rule 12(b)(6) motion. Accordingly, plaintiff, although he is a pro se prisoner, must provide some "factual enhancement" to his ...