United States District Court, E.D. Virginia, Alexandria Division
Cheatham, a Virginia inmate proceeding pro se, filed this
civil rights action pursuant to 42 U.S.C. § 1983,
alleging that defendants violated his rights to due process
and equal protection and intentionally treated him in a
discriminatory manner when they determined that he was
ineligible for discretionary parole. By an Order entered
August 13, 2013, the complaint was dismissed, without
prejudice, on the holding that plaintiffs claim should have
been brought in a petition for habeas corpus relief pursuant
to 28 U.S.C. §2254. The United States Court of Appeals
for the Fourth Circuit vacated the dismissal and remanded the
matter for further proceedings after finding that
Cheatham's claim appropriately could be pursued in a
§ 1983 action. Cheatham v. Muse. R. No. 13-7561
(4th Cir. Feb. 18, 2014). Dkt. No. 11-13. Defendants have now
filed a Motion for Summary Judgment accompanied by a
supporting memorandum and exhibits, and have provided
plaintiff with the notice required by Local Rule 7(K) and
Roseboro v. Garrison. 528 F.2d 309 (4th Cir. 1975).
Dkt. No. 33-35. Plaintiff has filed a memorandum opposing
defendants' summary judgment motion, Dkt. No. 38,
followed by several additional motions for various forms of
relief. Dkt. No. 42-45, 47-49. For the reasons which follow,
defendants' Motion for Summary Judgment will be granted,
plaintiffs Motion for Leave to Amend the complaint will be
denied, and the remaining motions for additional relief will
be denied, as moot.
is an inmate committed to the Virginia Department of
Corrections ("VDOC"), having begun the service of a
58-year sentence on August 14, 1986. The sentence resulted
from plaintiffs conviction on July 16, 1986 in the Norfolk
Circuit Court of eleven separate offenses for which he was
sentenced consecutively. Def. Ex. 1, ¶ 4. Among those
offenses were three separate robbery convictions in which a
weapon was present or implied. Specifically, on November 14,
1985, Cheatham robbed the manager of a filling station in
Norview Avenue in Norfolk by force, threat or intimidation.
On that same day, also in the city of Norfolk, Cheatham
robbed two women of their purses and currency at a bus stop
on North Military Highway by force, threat or intimidation.
Id. ¶ 6. The following day, November 15, 1985,
Cheatham robbed the manager of a used car dealership in
Norfolk by force threat, or intimidation. Id. ¶
7. And on November 16, 1985, Cheatham used force, threat or
intimidation in attempting to rob a man who was getting into
his car, during which incident Cheatham shot the man through
the left arm and abdomen. Id. ¶ 8. Cheatham in
this proceeding does not dispute the accuracy of this
synopsis. Plf. Mem. at 5 ("Cheatham concedes to
Defendant's paragraphs 1 through 9 ....")
1, 1982, § 53.1-151(B1) of the Virginia Code was
enacted. Def. Ex. 1, ¶ 10. That provision provides that
"[a]ny person convicted of three separate felony
offenses of (I) murder, (ii), rape, or (iii) robbery by the
presenting of firearms or other deadly weapon, or any
combination of the offenses specified in subdivision (I),
(ii), (iii), when such offenses were not part of a common
act, transaction or scheme shall not be eligible for
parole." Id. It is VDOC's responsibility to
make parole determinations. Id. ¶ 11. On August
20, 1986, VDOC's Court and Legal Services determined that
Cheatham was ineligible for discretionary parole pursuant to
§53.1-151 (Bl) based upon the three qualifying robberies
during which a weapon was presented or implied. Id.
¶ 10. That determination was based on the fact that the
crimes were committed on three different dates against
different victims, and thus were not part of a common act,
transaction or scheme. Id. ¶ 11.
appealed VDOC's determination of his parole ineligibility
to the Virginia Parole Board ("VPB") in accordance
with § 53.1-151(31), which provides that the VPB may in
its discretion review a VDOC parole eligibility
determination, and make its own determination pursuant to
regulations promulgated by the VPB for that purpose. Def. Ex.
2 ¶ 7 The VPB upheld VDOC's
determination that Cheatham is not eligible for parole on May
31, 2001. Def. Ex. 1 ¶ 12; Def. Ex. 2 ¶ 6. Pursuant
to the VPB's Policies and Procedures, an offender is
afforded only one appeal of his parole eligibility based on
§ 53.1 -151 (B1) unless he subsequently presents new
information. Nonetheless, Cheatham pursued a second appeal of
his ineligibility status to the VPB. Because he cited the same
statute upon which he had relied in his initial appeal, the
VPB declined to review his second appeal. Def. Ex. 2, Ex. A
("The Parole Board denied your appeal on May 31, 2001.
The Code of Virginia does not provide for further
filed this action pursuant to § 1983 on August 28, 2013.
The named defendants are Harold Clarke, the Director of VDOC,
and William Muse, former Chairman of the VPB. Cheatham seeks
monetary damages as well as declarative and injunctive
Standard of Review
judgment "shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there
is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of
law." Fed.R.Civ.P. 56(c). The moving party bears the
burden of proving that judgment on the pleadings is
appropriate. See Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986) (moving party bears the burden of persuasion
on all relevant issues). To meet that burden, the moving
party must demonstrate that no genuine issues of material
fact are present for resolution. Id. at 322. Once a
moving party has met its burden to show that it is entitled
to judgment as a matter of law, the burden then shifts to the
non-moving party to point out the specific facts which create
disputed factual issues. Anderson v. Liberty Lobby.
Inc.. 477 U.S. 242, 248 (1986); Matsushita
Electrical Industrial Co. v. Zenith Radio Corp.. 475
U.S. 574, 587 (1986). In evaluating a motion for summary
judgment, a district court should consider the evidence in
the light most favorable to the non-moving party and draw all
reasonable inferences from those facts in favor of that
party. United States v. Diebold. Inc., 369 U.S. 654.
655 (1962). Those facts which the moving party bears the
burden of proving are facts which are material. " [T]he
substantive law will identify which facts are material. Only
disputes over facts which might affect the outcome of the
suit under the governing law will properly preclude the entry
of summary judgment." Anderson. 477 U.S. at
248. An issue of material fact is genuine when, "the
evidence ... create[s] [a] fair doubt; wholly speculative
assertions will not suffice." Ross v. Communications
Satellite Corp., 759 F.2d 355, 364 (4th Cir. 1985).
Thus, summary judgment is appropriate only where no material
facts are genuinely disputed and the evidence as a whole
could not lead a rational fact finder to rule for the
non-moving party. Matsushita, 475 U.S. at 587.
Plaintiffs Claims are Time-Barred
make a number of arguments in support of their motion for
summary judgment. Dispositive among them is the threshold
contention that plaintiffs claims that defendants violated
his constitutional rights are time-barred. There is no
federal statute of limitations for § 1983 claims, so the
state limitations period which governs personal injury
actions is applied. See Wilson v. Garcia. 471 U.S.
261, 280 (1985). Virginia has a two-year statute of
limitations for personal injury claims under Va. Code. Ann.
§ 8.01-243(A), which is the applicable statute of
limitations in this action. See Lewis v. Richmond City
Police Dep't. 947 F.2d 733, 735 (4th Cir. 1991).
Additionally, 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." Scoggins v. Douglas. 760 F.2d
535, 537 (4th Cir. 1985) (citing Board of Regents v.
Tomanio. 446 U.S. 478, 484-86 (1980»: see also
Hardin v. Straub. 490 U.S. 536, 538 (1989) ("Courts
thus should not unravel state limitations rules unless their
full application would defeat the goals of the federal
statute at issue.").
the limitation period is borrowed from state law, "the
question of when a cause of action accrues under 42 U.S.C.
§ 1983 remains one of federal law." Nasim v.
Warden. Md. House of Corr.. 64 F.3d 951, 955 (4th Cir.
1995) (citing Cox v. Stanton. 529 F.2d 47, 50 (4th
Cir. 1975)). Causes of action accrue under federal law when
the plaintiff "possesses sufficient facts about the harm
done to him that reasonable inquiry will reveal his cause of
action." Id. (citing United States v.
Kubrick. 444 U.S. Ill. 122-24(1979)).
case, as Cheatham states in his complaint, VDOC determined
pursuant to § 53.1-151(B1) that he was ineligible for
discretionary parole in 1986. Compl. ¶ 12;
accord. Def. Ex. 2 ¶ 5. Cheatham appealed, and
the VPB notified him in a letter dated May 31, 2001 that it
had upheld VDOC's determination. Def. Ex. 1 ¶ 12;
Def. Ex. 2 ¶ 6. Under these circumstances,
Cheatham's causes of action predicated on the finding
that he was ineligible for discretionary parole accrued at
the latest on May 31, 2001. See Richards v. Muse.
No. 1:13cv 1472 (CMH/JFA), 2015 WL 853886, at *4 (holding
that an inmate's causes of action against VDOC and the
VPB accrued when those agencies notified him that he had been
found to be ineligible for discretionary parole), affd, 611
Fed.App'x 787 (4th Cir. Aug. 12, 2015). Since plaintiff
did not file this lawsuit until August, 2013, over twelve
(12) years later, the claims he raises against both
defendants are time-barred.
fact that Cheatham filed a second, unauthorized appeal to the
VPB regarding his parole ineligibility in 2013 or 2014, see
n. 3, supra, does not alter this conclusion. When
the plaintiff in Richards did the same thing and
then argued that his claims should be deemed to have accrued
when he received the VPB's denial of his latest appeal
request, his position was expressly found to be without
[Richards'] implicit argument that each requested review
of his ineligibility status revived the limitations period is
without merit. The date on which plaintiffs cause of action
for his parole ineligibility accrued when he possessed
sufficient facts that reasonable inquiry would reveal it.
Nasim. 64 F.3d at 955. As discussed above, VDOC
denied plaintiff parole eligibility on August 25, 1986, and
he states in the complaint that he became aware of that fact
in 1991. Plaintiff learned on June 5, 1995 that the VPB had
upheld VDOC's decision. Indeed, in the letter denying
plaintiffs appeal quoted above, he was again informed that
"the original decision of the ...