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Canady v. M. Hodges

United States District Court, W.D. Virginia, Roanoke Division

June 27, 2018

M. HODGES, ET AL., Defendants.


          Glen E. Conrad Senior United States District Judge.

         Marlon Canady, a Virginia inmate proceeding pro se, filed this civil rights action pursuant to 42 U.S.C. § 1983. Canady alleges that prison officials used excessive force and acted with deliberate indifference to his serious medical needs, in violation of his constitutional rights. After review of the record, the court concludes that the defendants' motions to dismiss Canady's claims as time-barred must be granted.


         In 2015, Canady was incarcerated at Keen Mountain Correctional Center ("KMCC"). His claims in this case stem from the following alleged events. On June 25, 2015, Inmate Ames attacked Canady with a heavy object in a sock. Canady blocked the weapon, fought Ames, and held him on the floor. When Canady heard Officer Bostic order the inmates to the floor, he climbed off Ames and got on the floor himself. Nevertheless, Officer Hodges in the control booth shot Canady in the back of his right thigh with "a 40 [mm.] [oleoresin capsicum ("O.C.")] round." Compl. 8-9, ECF No. 1. Bostic also sprayed O.C. gas on Canady's face, eyes, chest, and arms. Sergeant Barbetto then engaged his attack dog on the inmates, shouting for them to get to the floor, when Canady was already there. Canady suffered dog bites to his right forearm and his right hip. After the incident, the officers placed him in a locked shower with his hands cuffed behind his back and delayed decontaminating him. Defendant Whited, a nurse called to evaluate Canady's injuries, did not provide any medical treatment.

         Canady pursued administrative remedies about the June 25 incident under the prison's grievance procedure, Operating Procedure ("OP") 866.1. The final official ruling on his last appeal under that procedure was signed and dated September 28, 2015.[1]Canady placed his § 1983 complaint in the prison mail box on September 27, 2017.[2]

         The defendants have filed motions to dismiss under Federal Rule of Civil Procedure 12(b)(6)." Fed.R.Civ.P. 12(b)(6). Specifically, the defendants argue that Canady's claims are barred under the applicable statute of limitations. Canady has responded to the motions, alleging additional facts in response to the statute of limitations defense, which the court will liberally construe and consider as amendments.


         To survive a motion to dismiss under Rule 12(b)(6), the "complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).[3] In assessing the motion, the "court must accept as true all of the allegations contained in a complaint," but need not do so with mere conclusory statements or legal conclusions. Id. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id.

         Generally, a statute of limitations argument would be an affirmative defense, not properly raised in a motion to dismiss pursuant to Rule 12(b)(6). See Fed.R.Civ.P. 8(c); Goodman v. Praxair. Inc., 494 F.3d 458, 464 (4th Cir. 2007). However, "if all facts necessary to the affirmative defense clearly appear on the face of the complaint," then a court may address the affirmative defense pursuant to Rule 12(b)(6). Id; see Brooks v. City of Winston-Salem. N.C., 85 F.3d 178, 181 (4th Cir. 1996) (stating sua sponte dismissal is proper when the face of the complaint clearly reveals the existence of a meritorious affirmative defense).

         Canady presents his claims under Section 1983, a statute that permits an aggrieved party to file a civil action against a person for actions taken under color of state law that violated his constitutional rights. See Cooper v. Sheehan, 735 F.3d 153, 158 (4th Cir. 2013). Because Congress did not include time limits in the statute for filing a § 1983 action, such cases are governed by the statute of limitations governing general personal injury actions in the state where the tort allegedly occurred. See Owens v. Okure, 488 U.S. 235, 239, 250 (1989). In addition, the state's tolling rules apply in calculating the timeliness of a § 1983 complaint. Board of Regents v. Tomanio, 446 U.S. 478, 484 (1980); Scoggins v. Douglas, 760 F.2d 535, 537-38 (4th Cir. 1985).

         In Virginia, the limitations period for general personal injury claims is two years. See Va. Code Ann. § 8.01-243(A). Thus, Canady had two years from the date when his § 1983 claims accrued to file them in a federal lawsuit. A Soc'y Without A Name v. Virginia, 655 F.3d 342, 348 (4th Cir. 2011).

         "[T]he 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). It is well established that "a cause of action [under § 1983] accrues 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. 111, 123 (1979). In other words, the cause of action accrues when the plaintiff is "armed with the facts about the harm done to him, [and] can protect himself by investigating them further and working diligently to prepare his legal claims for litigation within the statutory filing period. Kubrick, 444 U.S. at 123.

         The defendants assert that based on facts clear from Canady's complaint, his claims in, this action accrued on June 25, 2015. The court agrees. On June 25, 2015, Canady knew about what harm he suffered and whose actions or omissions caused that harm. At that point, his claims accrued, and he had a duty to inquire into any other factual or legal details necessary to bring his lawsuit.

         Canady contends that his cause of action accrued only after he had exhausted administrative remedies, as required under 42 U.S.C. § 1997e(a).[4] Specifically, Canady contends that his claims accrued on September 29, 2015, the day ...

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