United States District Court, E.D. Virginia
E. PAYNE SENIOR UNITED STATES DISTRICT JUDGE
Dancingbuck, a Virginia inmate proceeding pro se,
filed this 42 U.S.C. § 1983 action. The action proceeds
on the PARTICULARIZED COMPLAINT. ("Complaint," ECF
No. 15.) The matter is before the Court on the Motion to
Dismiss filed by Investigator Young and Nurse Sidi. For the
reasons that follow, the Motion to Dismiss (ECF No. 19) will
be granted because the action is barred by the relevant
statute of limitations.
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 5A
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 plaintiff's 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).
the Court liberally construes pro se complaints,
Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir.
1978), it does not act as the inmate's advocate, sua
sponte developing statutory and constitutional claims
the inmate failed to clearly raise on the face of his
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).
SUMMARY OF PERTINENT ALLEGATIONS
Memorandum Order entered on February 26, 2018, the Court
directed Dancingbuck to particularize his complaint in order
to provide the defendants with fair notice of the facts and
legal basis upon which their liability rests. (ECF No.
Dancingbuck's response is hardly a model of clarity. As
best as can be discerned, Dancingbuck contends that
Investigator Young and Nurse Sidi violated his rights under
the Eighth Amendment by their unidentified conduct between
July 13 and July 16, 2015, which somehow caused damage to
Dancingbuck's gastrointestinal track. (Compl. 1.)
Specifically, with respect to Defendant Young, Dancingbuck
Inv. Young's criminal acts nearly caused my death. Taken
to E.R. . . . Spent 3 days for treatment of emergency surgery
at Southampton Memorial Hospital. . . . Prognosis:
permanently damaged prostate, colon, internal/external
painful hemorrhoids. . . . Investigator C. Young . . . nearly
caused my death by his cruel & unusual punishment on
7.13.15, abuse & mistreatment began damage & bleeding
G.I. track. I nearly bled out to death, till on, 7.16.15, so
bad condition [that] I had to be taken [to] E.R. . . .
(Id. at 1.) With respect to Defendant Sidi,
Dancingbuck alleges that:
Nurse R. Sidi['s] criminal acts nearly caused my death. .
. . Nurse R. Sidi's violation of 8th civil right nearly
caused my death & has caused permanent injuries by her
cruel & unusual punishment between 07.13.15 &
07.16.15, so bad condition I had to be taken to E.R.....
there is no explicit statute of limitations for 42 U.S.C.
§ 1983 actions, the 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). Hence, Dancingbuck was required to
have filed his Complaint within two years from when the
underlying claim accrued. "A claim accrues when the
plaintiff becomes aware of his or her injury, United
States v. Kubrick, 444 U.S. Ill. 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;O8cvl38, 2009 WL 2424084, at *4 (E.D. Va.
Aug. 6, 2009) (omission in original) (quoting Nasim,
64 F.3d at 955) .
claims against Investigator Young and Nurse Sidi accrued at
the latest on July 16, 2015 when he was treated for the
injuries they allegedly caused to his gastrointestinal track.
Thus, for Danckingbuck's claims to be timely he needed to
file this action by July 1, 2017. The record in this matter
indicates that Dancingbuck handed his original complaint in
this matter to prison officials on September 14, 2017. (ECF
No. 1-5, at 1.) The Court deems the action filed as of that
date. See Lewis v. Richmond City Police Dep't,
947 F.2d 733, 736 (4th Cir. 1991) (concluding inmate's
civil action was filed for statute of limitation purposes
when handed to prison officials for mailing). Accordingly,
the present action is untimely, Dancingbuck responds that the
action is timely because the statute of limitations was
"tolled under the 'continuous -treatment
doctrine,' and James Herman Raynor v. Gerald
Pugh Civ. Act. # 1:13CV01117-LMB-JFA." (ECF No. 22,
at 1.) Initially, the Court notes that the cited case has
nothing to with the statute of limitations. Even if the
continuous treatment doctrine applied in the context of
Eighth Amendment claims, it still would not save
Dancingbuck's claim. "[T]he continuing treatment
doctrine tolls the running of the statute of limitations
while a patient is undergoing a 'continuous and
substantially uninterrupted course of examination and
treatment' for a particular ailment." Castillo
v. Emergency Med. Assocs., P.A., 372 F.3d 643, 648 (4th
Cir. 2004) (citing Farley v. Goode, 252 S.E.2d 594,
599 (Va. 1979)). Here, Dancingbuck fails to allege any facts
that suggest that he received ...