United States District Court, W.D. Virginia, Roanoke Division
E. Conrad Senior United States District Judge.
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
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.
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.Canady placed his § 1983 complaint in
the prison mail box on September 27, 2017.
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
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). 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
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).
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.
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).
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.
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.
contends that his cause of action accrued only after he had
exhausted administrative remedies, as required under 42
U.S.C. § 1997e(a). Specifically, Canady contends that his
claims accrued on September 29, 2015, the day ...