United States District Court, W.D. Virginia, Roanoke Division
Elizabeth K. Dillon United States District Judge.
Derrick Lynn Bratcher, a Virginia inmate proceeding pro
se, filed a civil rights action pursuant to 42 U.S.C.
§ 1983 on September 21, 2015, against numerous current
and former staff of the Red Onion State Prison. This matter
is before the court on defendants’ motions to
dismiss. Having considered the motions and the
record, the court grants the motions to dismiss and sua
sponte dismisses Bratcher’s claims against
regard to defendant Perry, it appears from a death
certificate mailed to the court that Perry died in May 2015,
before the filing of the complaint. (Dkt. No. 17.) “[A]
dead man obviously cannot be named party defendant in an
action.” Chorney v. Callahan, 135 F.Supp. 35,
36 (D.C. Mass. 1955) (noting that such an action is a
nullity). Rule 25 of the Federal Rules of Civil Procedure
allows substitution of parties if a party dies during the
pendency of a lawsuit, but does not apply when the party was
already dead before suit was filed. Mizukami v.
Buras, 419 F.2d 1319, 1320 (5th Cir. 1969); In re
Polo Builders, 374 B.R. 638, 642 (Bankr. N.D.Ill. 2007).
claim against Perry is also deficient because he fails to
allege sufficient facts to state a cognizable claim that
Perry violated his constitutional rights. Bratcher only
alleges that that Perry “approached plaintiff’s
cell . . . carrying a large canister of O.C. gas used for
resistant offenders, ” “entered plaintiff’s
cell, searching it, ” and “began making threats
to assault plaintiff.” See, e.g., Hudson v.
Palmer, 468 U.S. 517 (1984) (noting prisoners have no
legitimate expectation of privacy in their cells);
Henslee v. Lewis, 153 F. App’x 178, 180 (4th
Cir. 2005) (noting verbal harassment or verbal abuse by
prison officials in and of itself does not state a
constitutional deprivation under § 1983); Collins v.
Cundy, 603 F.2d 825, 827 (10th Cir. 1979) (same).
Accordingly, Bratcher’s claims against Perry will be
September 3, 2013, Bratcher was found guilty of two
disciplinary charges and sanctioned with 30 days of
disciplinary segregation and a $12.00 fine. Bratcher alleges
that defendant Warden Mathena violated his due process rights
on October 8, 2013, by upholding Bratcher’s
disciplinary convictions on appeal. To establish a violation
of procedural due process guaranteed by the Fourteenth
Amendment, an inmate must demonstrate a deprivation of
“life, liberty, or property” by governmental
action. Beverati v. Smith, 120 F.3d 500, 502 (4th
Cir. 1997). When the punishment does not cause the original
sentence to be enhanced, protected interests will be
generally limited to freedom from restraint that imposes
atypical and significant hardship on the inmate in relation
to the ordinary incidents of prison life. Sandin v.
Conner, 515 U.S. 472, 484 (1995). The court finds that
the sanctions imposed on Bratcher did not constitute an
atypical or significant hardship on Bratcher in relation to
the ordinary incidents of prisoner life. Id.
(holding that disciplinary segregation did not present the
type of atypical, significant deprivation in which a state
might create a liberty interest); Henderson v.
Virginia, No. 7:07cv266, 2008 U.S. Dist. LEXIS 5230, at
*33-34, 2008 WL 204480, at *10 (W.D. Va. Jan. 23, 2008)
(holding that a $12.00 fine did not pose an atypical and
significant hardship on the plaintiff in comparison to the
ordinary incidents of prison life). Accordingly,
Bratcher’s allegations do not state a due process
violation against Warden Mathena and, therefore, the court
will grant the defendants’ motion to dismiss as to this
regard to the remaining defendants, Bratcher alleges that on
August 25, 2013, defendants Gilbert, Franklin, Adams, Miller,
Kiser, Phipps, Axtell, Robinson, and Osborne used excessive
force against him and that on September 3, 2013, defendant
Counts denied him due process during a disciplinary hearing.
The court finds that these claims are untimely filed and,
therefore, grants defendants’ motions to dismiss as to
purposes of the statute of limitations, § 1983 actions
are considered personal injury claims and are governed by the
personal injury statute of limitations and tolling laws in
the state where the alleged injury occurred. Lewellen v.
Morley, 875 F.2d 118, 120 (7th Cir.1989); see also
Hardin v. Straub, 490 U.S. 536, 539 (1989); Wilson
v. Garcia, 471 U.S. 261, 279 (1985); Blanck v.
McKeen, 707 F.2d 817, 819 (4th Cir. 1983).
Bratcher’s claims of constitutional violations took
place in Virginia and, therefore, Virginia law concerning
statute of limitations governs this case. Virginia has a
two-year statute of limitations for general, personal injury
claims. Va. Code § 8.01-243(A); Almond v. Kent,
459 F.2d 200, 203-04 (4th Cir. 1972). Under these principles,
a plaintiff bringing a civil rights action under § 1983
in Virginia must do so within two years from the time when
his action accrues.
case, Bratcher’s claims accrued on August 25, 2013, and
September 3, 2013. Bratcher filed this action no earlier than
September 13, 2015, more than two years after the alleged
causes of action accrued. Accordingly, the court finds that
Bratcher’s claims against defendants Gilbert, Franklin,
Adams, Miller, Kiser, Phipps, Axtell, Robinson, Osborne, and
Counts are barred by the statute of limitations and, thus,
will grant defendants’ motions to dismiss as to these
appropriate order will be entered.