United States District Court, E.D. Virginia, Richmond Division
SUNDARI K. PRASAD, Plaintiff,
INVESTIGATOR BERGER, et al., Defendants.
HANNAH LAUCK, UNITED STATES DISTRICT JUDGE
K. Prasad, a Virginia inmate proceeding pro se and
in forma pauperis, filed this 42 U.S.C. § 1983
action. The matter is before the Court for
evaluation pursuant to 28 U.S.C. §§ 1915(e)(2) and
to the Prison Litigation Reform Act ("PLRA") this
Court must dismiss any action filed by a prisoner if the
Court determines the action (1) "is frivolous" or
(2) "fails to state a claim on which relief may be
granted." 28 U.S.C. § 1915(e)(2). The first
standard includes claims based upon "an indisputably
meritless legal theory, " or claims where the
"factual contentions are clearly baseless."
Clay v. Yates, 809 F.Supp. 417, 427 (E.D. Va. 1992)
(quoting Neitzke v. Williams, 490 U.S. 319, 327
(1989)), affd, 36 F.3d 1091 (4th Cir. 1994). The
second standard is the familiar standard for a motion to
dismiss under Fed.R.Civ.P. 12(b)(6).
motion to dismiss under Rule 12(b)(6) tests the sufficiency
of a complaint; importantly, it does not resolve contests
surrounding the facts, the merits of a claim, or the
applicability of defenses." Republican Party of N.C.
v. Martin, 980 F.2d 943, 952 (4th Cir. 1992) (citing 5 A
Charles A. Wright & Arthur R. Miller, Federal
Practice and Procedure § 1356 (1990)). In
considering a motion to dismiss for failure to state a claim,
a plaintiffs well-pleaded allegations are taken as true and
the complaint is viewed in the light most favorable to the
plaintiff. Mylan Labs., Inc. v. Matkari, 7 F.3d
1130, 1134 (4th Cir. 1993); see also Martin, 980
F.2d at 952. This principle applies only to factual
allegations, however, and "a court considering a motion
to dismiss can choose to begin by identifying pleadings that,
because they are no more than conclusions, are not entitled
to the assumption of truth." Ashcroft v. Iqbal,
556 U.S. 662, 679 (2009).
Federal Rules of Civil Procedure "require only 'a
short and plain statement of the claim showing that the
pleader is entitled to relief, ' in order to 'give
the defendant fair notice of what the... claim is and the
grounds upon which it rests.'" Bell Atl Corp. v.
Twombly, 550 U.S. 544, 555 (2007) (second alteration in
original) (quoting Conley v. Gibson, 355 U.S. 41, 47
(1957)). Plaintiffs cannot satisfy this standard with
complaints containing only "labels and conclusions"
or a "formulaic recitation of the elements of a cause of
action." Id. (citations omitted). Instead, a
plaintiff must allege facts sufficient "to raise a right
to relief above the speculative level, " id.
(citation omitted), stating a claim that is "plausible
on its face, " id. at 570, rather than merely
"conceivable." Id. "A claim has
facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged."
Iqbal, 556 U.S. at 678 (citing Bell Atl.
Corp., 550 U.S. at 556). In order for a claim or
complaint to survive dismissal for failure to state a claim,
the plaintiff must "allege facts sufficient to state all
the elements of [his or] her claim." Bass v. E.I.
DuPont de Nemours & Co., 324 F.3d 761, 765
(4th Cir. 2003) (citing Dickson v. Microsoft Corp.,
309 F.3d 193, 213 (4th Cir. 2002); Iodice v. United
States, 289 F.3d 270, 281 (4th Cir. 2002)). Lastly,
while the Court liberally construes pro se
complaints, Gordon v. Leeke, 574 F.2d 1147, 1151
(4th Cir. 1978), it will not act as the inmate's advocate
and develop, sua sponte, statutory and
constitutional claims that the inmate failed to clearly raise
on the face of his or her complaint. See Brock v.
Carroll, 107 F.3d 241, 243 (4th Cir. 1997) (Luttig, J.,
concurring); Beaudett v. City of Hampton,
775 F.2d 1274, 1278 (4th Cir. 1985).
Prasad's Particularized Complaint
action proceeds on Prasad's Particularized Complaint
("Complaint, " ECF No. 12). In her Complaint,
Prasad names Investigator Berger, Jonathan David Headlee,
Hamilton L. Hendrix, Jane "Justice" Carpenter a/k/a
Paradox Jane, David Arnold Carpenter, Sean Karn/Kelly Lind,
and Sinnamon Love as Defendants. (Id. at 1.) To the
best of its ability,  the Court sets forth Prasad's
allegations as follows:
In or around 2010-2011, Sundari Prasad was kidnapped and held
against her will by two Hispanic men in the District of
Columbia and held hostage for 4 days (apx.). She was drugged
and repeatedly raped [and] sodomized by these two men. D.C.
firemen were called to the scene when she found a cellphone
in one man's room (she was padlocked in both rooms and
could not get out) and they (firemen) had to axe [the] door
in. In the room, they found Prasad in disarray, dirty, [and]
disheveled - and disoriented. There was a bucket in the room
which she was forced to defecate and urinate in for these
days. D.C. investigators questioned her at [the] hospital and
were overly discriminatory - commenting on her hair, her
body, and her knowledge of the Spanish language - all making
negative comments, "You must've had a gastric bypass
- I can see by all the fat on your arms/legs/etc.;"
"Don't butcher my Spanish language" when asked
if she spoke fluent Spanish and Prasad tried to demonstrate
that she does - but was nervous. All through - the
investigators made rude, off-color comments ("Why did
you want to leave? X ( one of the men) brought you food to
eat!"). Prasad's mother - Carolyn D. Nelson sent in
ex-parte [and] numerous letters to detectives that was/were
contrary to the statements made in case  a missing persons
report was supposedly filed by V. Cheek [and] Carolyn Nelson
of which they made a comment to police "You didn't
find her dead in a ditch yet?" Sarcastically and C.
Nelson's off comment about money and a report for
insurance of Prasad. During this time, Nelson got on
Prasad's social media (Facebook) asking
"friends" where she was and Headlee, Justice, Karn,
Love, and Carpenter committed acts of . . . libel/slander,
threats, celebrated her rape online, called out names and
made monetary bets on if she was going to be found alive etc.
Hamilton L. Hendrix harassed Prasad later all throughout
custody case on details of rape that she didn't want to
divulge - and maligned her as well on social media, etc. -
taking video illegally - selling her personal items for
profit, etc. for Headlee put coordinates of Prasad's last
whereabouts via her IP address and cellphone info online
[with] Justice [and] Carpenter and advertised "drunk
prostitute for sale, " "rape encounters, "
etc. on Craigslist... along [with] Karn [and] Love that would
have added to the entire incident
Headlee/Karn [and] Love/Carpenter/Justice cyberstalked and
cyber-harassed as well as physically stalked Prasad in D.C.
and posted photos [and] live online updates via website and
social media until her phone died and Prasad was found by
fire [department] 4 days later. . . . Investigator Berger was
given the case to investigate when she returned to Richmond,
Va. In addition - Human Rights Watch... conducted an in-depth
investigation into her case and 192 others (apx.) that were
not processed and a report was presented formally in D.C.
(Id. at 1-3.)
alleges violations of, inter alia, the Americans
with Disabilities Act ("ADA"), "ex parte,
" "human rights violations, " state law and
constitutional violations,  several federal statutes,
the First,  Fifth,  Sixth,  Eighth,  Ninth,  Tenth,
Thirteenth,  and, Fourteenth Amendments. (Id.
at 4-10.) Prasad seeks, among other things, "injunctive,
declaratory, and monetary relief, " that this case
"be treated as a full criminal case, " and that her
"identity be changed along with [her] son's."
(Id. at 11.)
both unnecessary and inappropriate to engage in an extended
discussion of Prasad's theories for relief. See
Cochran v. Morris, 73 F.3d 1310, 1315 (4th Cir. 1996)
(emphasizing that "abbreviated treatment" is
consistent with Congress's vision for the disposition of
frivolous or "insubstantial claims" (citing
Neitzke v. Williams, 490 U.S. 319, 324 (1989))).
Although Prasad's Complaint has many legal infirmities,
it ultimately will be dismissed as frivolous for falling well
outside the applicable statutes of limitations for 42 U.S.C.
§ 1983 and ADA actions.
The Applicable Statute of Limitations Bars Prasad's
42 U.S.C. S 1983 Claims
no explicit statute of limitations for 42 U.S.C. § 1983
actions exists, federal courts borrow the personal injury
statute of limitations from the relevant state. Nasim v.
Warden, 64 F.3d 951, 955 (4th Cir. 1995) (citing
Wilson v. Garcia, 471 U.S. 261, 266-69 (1985)).
Virginia applies a two-year statute of limitations to
personal injury claims. See Va. Code Ann. §
8.01-243(A) (West 2018). Thus, Prasad was required to file
her Complaint within two years from when the underlying
42 U.S.C. § 1983 claim accrues is dictated by federal
law. See Nasim, 64 F.3d at 955. "A claim
accrues when the plaintiff becomes aware of his or her
injury, United States v. Kubrick,444 U.S. 111, 123
(1979), or when he or she 'is put on notice... to make
reasonable inquiry' as to whether a claim exists."
Almond v. Sisk, No. 3:08CV138, 2009 WL 2424084, at
*4 (E.D. Va. Aug. 6, 2009) (omission in original) (quoting
Nasim, 64 F.3d at 955), aff'd, 372
Fed.Appx. 432 (2010). Further, in order to dismiss a 42
U.S.C. § 1983 action because the applicable statute of
limitations has expired, "the court must find that the
expiration of the statute of limitations is clear on the face
of the complaint." In re Davis, Nos. 4:11CV11,
11CV12, 11CV13, 11CV14, ...