United States District Court, W.D. Virginia, Harrisonburg Division
Michael F. Urbanski United States District Judge
Mark Lee Pauler, a former Virginia inmate proceeding pro se, commenced this civil action pursuant to 42 U.S.C. § 1983. Plaintiff names as defendants Sgt. Gordon Crosen, Sgt. Atkins, and Fred Kite, all employees at Page County Jail. Presently before the court is Pauler's motion for leave to proceed in forma pauperis. ECF No. 7.
Plaintiff alleges five separate counts in his 42 U.S.C. § 1983 case. In Count One, Pauler claims that while incarcerated in the "B-Block Drunk Tank" in April 2011, Sgt. Crosen threw a book that came close to striking Pauler's head and made verbal threats directed at Pauler. ECF No. 1 at 5. Count One also generally alleges that while in jail on March 18, Pauler's medication was withheld and he suffered physical harm, that his confidentiality was breached, and that other inmates subjected him to violence and sexual assault. Id. at 5-6. Count Two alleges that while incarcerated, Pauler suffered nutrition neglect as a result of poor food selection, a lack of exercise, and a lack of time outside. Id. at 6. Count Two specifies no date as to when the nutrition neglect occurred. Count Three, tided "Sanitation Safety, " alleges that D-Block contained holes in the wall, toilet water leaked into B-Block common areas, and that paint and cement fell off walls. Id. at 6-7. Count Four alleges "Overcrowdedness." Id. at 7. Further, Count Four explains that Pauler sought placement on work detail through a request to Fred Kite. Id. at 7-8. Fred Kite yelled at Pauler and never placed Pauler on work detail. Id. at 8. Count Five alleges violations of Miranda Rights, specifically that Officer Atwood handcuffed, arrested, jailed, and took Pauler before a magistrate without asking Pauler if he desired an attorney or allowing Pauler to call an attorney. Id.
Because Pauler appears to be indigent, the court will grant the motion to proceed in forma pauperis. However, district courts have a duty to screen initial filings and dismiss a complaint filed in forma pauperis if the action is "(i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2)(B). Under (i), courts are empowered to dismiss claims relying on "an indisputably meritless legal theory" or where "factual contentions are clearly baseless" such as "claims of infringement of a legal interest which clearly does not exist." Neitzke v. Williams, 490 U.S. 319, 327 (1989). Part (ii) incorporates the familiar standard for a motion to dismiss under Fed.R.Civ.P. 12(b)(6), accepting a plaintiffs factual allegations as true. A complaint needs "a short and plain statement of the claim showing that the pleader is entitled to relief and sufficient "[f]actual allegations ... to raise a right to relief above the speculative level..." Bell Ad. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal quotation marks omitted). A plaintiffs basis for relief "requires more than labels and conclusions...." Id.
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege "the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law." West v. Atkins, 487 U.S. 42, 48 (1988). Plaintiff may not recover damages for emotional injuries without an accompanying physical injury and a correctional officer's threatening language and gestures do not violate a civil right. 42 U.S.C. § 1997e(e); Fisher v. Woodson, 373 F.Supp. 970, 973 (E.D. Va. 1973).
42 U.S.C. § 1983 actions apply the statute of limitations that the forum state applies to general personal injury actions. National Advertising Co. v. City of Raleigh, 947 F.2d 1158, 1161 (4th Cir. 1991). Thus Va. Code § 8.01-243(A) provides the applicable two year statute of limitations in this case. Cornett v. Weisenburger, 454 F.Supp.2d 544, 547 (W.D. Va. 2006). Federal law, however, determines the accrual date of a cause of action. Cox v. Staunton, 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." Bay Area Laundry and Dry Cleaning Pension Trust Fund v. Ferbar Corp. of Cal., 522 U.S. 192, 201 (1997). An action is complete and present when the "plaintiff can file suit and obtain relief." Id. District court may dismiss 42 U.S.C. § 1983 actions sua sponte where the face of the complaint reveals the action is time barred. Nasim v. Warden, 64 F.3d 951, 956 (4th Cir. 1995)(en banc)(dismissing time-barred 42 U.S.C. §1983 claim as frivolous); see also Brooks v. City of Winston-Salem. N.C., 85 F.3d 178, 181 (4th Cir, 1996)(holding grant of Fed.R.Civ.P. 12(b)(6) motion proper where face of complaint "reveals the existence of a meritorious affirmative defense.")
In Count One, Pauler indicates that the conduct giving rise to his claim for verbal and mental abuse occurred in April of 2011 and that his medications were withheld on March 18. ECF No. 1 at 5. Count Four references a period from March 18 to August 25 without providing a year. Id. at 7. Pauler signed the complaint on September 9, 2011. Id. at 9. No other dates are provided in the entirety of the complaint. Therefore, the latest possible date on which Pauler's claim become "complete and present" was on September 9, 2011. See Bay Area Laundry, 522 U.S. at 201.
Pauler provided a residential, non-jail address, indicating he was not a prisoner when this complaint was filed. ECF No. 1 at 1. Therefore the "Prison Mailbox Rule" is not applicable to the present case. Even assuming the April, 2011 date applies only to Count One, the latest possible date that any of the claims could have accrued is September 9, 2011, when Pauler signed the complaint. The case was filed in the Eastern District of Virginia on March 8, 2016, and transferred to die Western District of Virginia on March 16, 2016. Id. at 1. Because March 8, 2016 is well over four years after September 9, 2011, the two year statute of limitations bars the entirety of Pauler's case. Because the face of the complaint reveals that die entirety of Pauler's claims is plainly time barred, this case is both frivolous and subject to dismissal under a Fed.R.Civ.P. 12(b)(6) standard.
For the reasons set forth above, Pauler's entire claim, Counts One, Two, Three, Four, and Five, must be dismissed with prejudice under 28 U.S.C. §§ 1915 (e)(2)(B)(i) and 1915 (e)(2)(B)(ii). Accordingly Pauler's motion for leave to file in ...