United States District Court, W.D. Virginia, Abingdon Division
Caitlin Marie Kasmar, Katherine Katz, John Bell Williams,
III, and Timothy James Coley, BuckleySandler LLP, Washington,
D.C., and Elliot M. Mincberg, Washington Lawyers'
Committee for Civil Rights and Urban Affairs, Washington,
D.C., for Plaintiff.
P. Davis and Nancy Hull Davidson, Office of the Attorney
General, Richmond, Virginia, and Sheri H. Kelly, Office of
the Attorney General, Abingdon, Virginia, for Defendants.
OPINION AND ORDER
P. Jones United States District Judge.
civil rights case, the plaintiff, a Virginia inmate, asserts
claims against prison officials and state entities based on
the First, Eighth, and Fourteenth Amendments to the United
States Constitution, as well as the Americans with
Disabilities Act (“ADA”) and the Rehabilitation
Act (“RA”). The defendants have moved to
bifurcate the issue of whether the ADA and RA claims are
time-barred. They have also moved to stay discovery on all
remaining issues pending resolution of the statute of
limitations issue. For the reasons that follow, I will deny
plaintiff in this case is a former inmate who has been
diagnosed with autism spectrum disorder (“ASD”)
and intellectual disability (“ID”). He asserts
claims against the Virginia Department of Corrections
(“VDOC”) under the ADA and RA based on his
alleged treatment at Rappahannock Regional Jail and Marion
Correctional Treatment Center. He also asserts claims against
several prison officials under 42 U.S.C. § 1983,
alleging violations of his rights under the First, Eighth,
and Fourteenth Amendments. I previously reviewed the
plaintiff's allegations in detail in an Opinion and Order
disposing of the defendants' Motion to Dismiss.
Latson v. Clarke, No. 1:16-CV-00039, 2017 WL
1407570, at *1-6 (W.D. Va. Apr. 20, 2017).
their Motion to Dismiss, the defendants argued that the
plaintiff's ADA and RA claims are barred by the statute
of limitations. I denied the Motion to Dismiss the two claims
as time-barred after undertaking the following analysis:
Given the similarities between the ADA and the RA, courts
apply the same limitations period to claims under both acts.
Semenova v. Md. Transit Admin., 845 F.3d 564, 567
(4th Cir. 2017). Because Title II of the ADA does not contain
a statute of limitations, courts must either apply the
federal four-year catch-all limitations period or the state
statute of limitations for the most analogous state-law
claim. A Soc'y Without a Name, for People Without a
Home, Millennium Future-Present v. Virginia, 655 F.3d
342, 347 (4th Cir. 2011). The four-year federal catch-all
period applies only to claims arising under statutes enacted
after December 1, 1990, and the ADA was enacted a few months
before that, on July 26, 1990. Id. Therefore, as a
general rule, “the one-year limitations period in the
Virginia [Rights of Persons with] Disabilities Act applies to
ADA claims brought in Virginia.” Id. at 348.
The ADA was amended, however, in 2008. ADA Amendments Act of
2008, Pub. L. No. 110- 325, 122 Stat. 3553 (codified at 42
U.S.C. § 12102). If Latson's claim was made possible
by the ADA Amendments Act rather than the pre-amendment ADA,
then he can invoke the four-year statute of limitations.
See Jones v. R.R. Donnelley & Sons Co., 541 U.S.
369, 382, 124 S.Ct. 1836, 158 L.Ed.2d 645 (2004); Mercado
v. Puerto Rico, 814 F.3d 581, 589 (1st Cir. 2016).
Latson argues that his claim was made possible by the ADA
Amendments Act because his condition is episodic in nature,
and ASD and ID were not consistently recognized as
disabilities under the original ADA. The ADA Amendments Act
broadened the definition of “disability” under
both the ADA and the RA. 42 U.S.C. § 12102(4)(A)
(“The definition of disability in this Act shall be
construed in favor of broad coverage of individuals under
this Act, to the maximum extent permitted by the terms of
this Act.”). The amendments to the ADA expressly
included episodic impairments in the definition of disability
and provided that mitigating measures such as medication
should not be considered in determining whether an impairment
substantially limits a major life activity and thus qualifies
as a disability. 42 U.S.C. § 12101(4)(D), (E).
Recent regulations clearly indicate that ASD now qualifies as
a disability under the amended version of the ADA. 29 C.F.R.
§ 1630.2(j)(3)(iii); 28 C.F.R. §
35.108(d)(2)(iii)(E). It is not clear, however, that ASD and
ID, as they affect Latson, would have been recognized as
disabilities prior to the ADA Amendments Act.
The defendants assert that ASD and ID were recognized as
disabilities under the ADA prior to 2008, but they have not
pointed to any controlling case actually holding that ASD and
ID qualified as disabilities under the pre-amendment ADA. In
most of the cases cited by the defendants, the court either
assumed these conditions were disabilities without deciding
the point, or the parties agreed that ASD and ID were
disabilities and did not present the issue to the court.
See, e.g., Roe ex rel. Preschooler II v.
Nevada, 332 F.Supp.2d 1331, 1340 (D. Nev. 2004) (stating
that defendants did not contest that the plaintiff had a
disability under the ADA or was handicapped under the RA);
Hahn ex rel. Barta v. Linn Cty., 130 F.Supp.2d 1036,
1045 (N.D. Iowa 2001) (noting that whether plaintiff was a
qualified individual with a disability was not in dispute).
Additionally, it is not apparent from the face of the Amended
Complaint that ASD is an ever-present rather than episodic
disorder. The defendants' arguments about the nature of
ASD and ID raise issues of fact that go beyond the four
corners of the Amended Complaint.
“Ordinarily, a defense based on the statute of
limitations must be raised by the defendant through an
affirmative defense, see Fed. R. Civ. P. 8(c), and
the burden of establishing the affirmative defense rests on
the defendant.” Goodman v. Praxair, Inc., 494
F.3d 458, 464 (4th Cir. 2007). Therefore, the question of
whether a claim is time-barred usually cannot be resolved on
a motion to dismiss, except “in the relatively rare
circumstances where facts sufficient to rule on an
affirmative defense are alleged in the complaint.”
Here, based solely on the allegations in the Amended
Complaint, I cannot say for certain that Latson's ADA and
RA claims would have been cognizable prior to the 2008 ADA
Amendments Act. Though it seems unlikely, the evidence may
show that Latson's impairment is episodic, or that the
mediation of his condition through medication and treatment
would have negated his claims under the pre-amendment version
of the ADA. The statute of limitations issue raised by the
defendants is not one that I can resolve at this procedural