United States District Court, W.D. Virginia, Roanoke Division
Jackson L. Kiser Senior United States. District Judge
Oshea Douglas, a Virginia inmate proceeding pro se, commenced
this action pursuant to 42 U.S.C. § 1983. Plaintiff
names as defendants the Virginia Department of Corrections
("VDOC") and two of its officials. Plaintiff
complains that he was erroneously deemed ineligible for
discretionary parole. The parties filed motions for summary
judgment, and this matter is ripe for disposition. After
reviewing the record, I grant Defendants' motion for
summary judgment and deny Plaintiffs motion for summary
judgment because the action is time barred.
committed most of the crimes for which he is incarcerated in
January 1992. His first sentence of fifteen years'
imprisonment was entered in 1993, and by 1995, he would
ultimately be sentenced to decades of imprisonment.
became a VDOC offender on October 22, 1993. Notably, the VDOC
determined on August 23, 1995, that Plaintiff is ineligible
for discretionary parole pursuant to Virginia Code §
53.1-151(B1)  The VDOC first notified him of his
ineligibility for discretionary parole Via the Legal Update
issued on August 29, 1995. There isno record that Plaintiff
appealed the VDOC's decision to the Virginia Parole
parties filed cross-motions for summary judgment. A party is
entitled to summary judgment if the pleadings, the disclosed
materials on file, and any affidavits show that there is no
genuine dispute as to any material fact. Fed.R.Civ.P. 56(a).
Material facts are those necessary to establish the elements
of a party's cause of action. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). A genuine dispute
of material fact exists if, in viewing admissible evidence
and all reasonable inferences drawn therefrom in a light most
favorable to the non-moving party, a reasonable fact-finder
could return a verdict for the non-movant. Id. The
moving party has the burden of showing - "that is,
pointing out to the district court - that there is an absence
of evidence to support the nonmoving party's case."
Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).
If the movant satisfies this burden, then the non-movant must
set forth specific facts that demonstrate the existence of a
genuine dispute of fact for trial. Id. at 322-24. A
party is entitled to summary judgment if the admissible
evidence as a whole could not lead a rational trier of fact
to find in favor of the non-movant. Williams v.
Griffin. 952 F.2d 820, 823 (4th Cir. 1991). "Mere
unsupported speculation ... is not enough to defeat a summary
judgment motion." Ennis v. Nat'l Ass'n of
Bus. & Educ. Radio, Inc., 53 F.3d 55, 62 (4th Cir.
1995). A plaintiff cannot use a response to a motion for
summary judgment to amend or correct a complaint challenged
by the motion for summary judgment. Cloaninger v.
McDevitt, 555 F.3d 324, 336 (4th Cir. 2009).
argue, inter alia, that the statute of limitations
bars this action. Section 1983 adopts the statute of
limitations that the forum state uses for general personal
injury cases. Owens v. Okure. 488 U.S. 235, 249-50
(1989). Virginia's applicable statute of limitations for
§ 1983 actions is two years and may be tolled. See Va.
Code §§ 8.01-229, 8.01-243(A). However, federal law
itself governs the question of when a cause of action
accrues. Cox v. Stanton. 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'" or when the plaintiff "can file suit
and obtain relief." Bay Area Laundry and Dry
Cleaning Pension Trust Fund v. Ferbar Corp. of Cal, 522
U.S. 192, 201(1997).
VDOC determined in 1995 that Plaintiff was ineligible for
discretionary parole pursuant to §53.1-151 (Bl).
Consequently, Plaintiffs present claim predicated on the
finding that he was ineligible for discretionary parole
accrued in 1995. See Richards v. Muse, No.
I:13cvl472, 2015 U.S. Dist. LEXIS 24097, at *6-13, 2015 WL
853886, at *4-5 (E.D. Va. Feb. 24, 2015) (holding that an
inmate's causes of action against VDOC and the Virginia
Parole Board accrued when those agencies notified him that he
had been found to be ineligible for discretionary parole),
affd, 611 Fed.Appx. 787 (4th Cir. 2015). Plaintiff
did not file this lawsuit until over twenty years after it
argues that Defendants should be equitably estopped from
arguing the limitations defense "due to obstruction and
fraud by concealing the potential cause of action."
Plaintiff baldly asserts that "[a] material fact was
falsely represented the hearing [sic] conducted by the VDOC
was not to determine parole ineligibility." Plaintiffs
argument has no merit. The pertinent Legal Update issued in
1995 clearly states on the seventh line of content, "NOT
ELIGIBLE FOR DISCRETIONARY PAROLE (53.1-151-B)[, ]" and
the second page of the Update notes that this determination
was made on August 23, 1995. These details are the same as in
the Legal Update issued in 2017, which is purportedly when
Plaintiff first acknowledged the determination. Plaintiff
fails to establish that any defendant intended to conceal the
discovery of the cause of action by an affirmative act or
misrepresentation or that any tolling of the limitations
period applies. See, e.g.. Newman v.
Walker. 270 Va. 291, 297-99, 618 S.E.2d 336, 340 (2005).
Accordingly, the statute of limitations bars this action, and
Defendants are entitled to summary judgment.
foregoing reasons, I grant Defendants' motion for summary
judgment and deny ...