United States District Court, E.D. Virginia, Richmond Division
A. Gibney, Jr., Judge
Bellamy, a Virginia inmate proceeding pro se and
in forma pauperis, filed this 42 U.S.C. § 1983
action. On February 21, 2015, Bellamy was incarcerated to
Sussex II. (ECF No. 1, at 4.) On that date, Bellamy alleges
that he was assaulted by four other inmates. (Id.)
Defendants Evans and Smith responded to the disturbance with
their K-9 dogs. (Id.) Although Bellamy "was no
longer engaged in any acts of disturbance," Defendants
Evans and Smith instructed their dogs to attack him.
(Id.) Defendants Evans and Smith allowed their dogs
to continue to attack Bellamy even after Bellamy had
surrendered. (Id.) Defendant Smith then punched
Bellamy in the left eye. (Id. at 4-5.) Bellamy
demands monetary damages. (Id. at 6.)
matter is before the Court on the Motion for Summary Judgment
filed by Defendants Evans and Smith. Defendants move for summary
judgment on the ground that Bellamy's claim is barred by
the relevant statute of limitations. Bellamy has responded.
For the reasons set forth below, the Motion for Summary
Judgment (ECF No. 25) will be GRANTED.
SUMMARY JUDGMENT STANDARD
judgment must be rendered "if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law."
Fed.R.Civ.P. 56(a). It is the responsibility of the party
seeking summary judgment to inform the court of the basis for
the motion, and to identify the parts of the record which
demonstrate the absence of a genuine issue of material fact.
See Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986). "[W]here the nonmoving party will bear the
burden of proof at trial on a dispositive issue, a summary
judgment motion may properly be made in reliance solely on
the pleadings, depositions, answers to interrogatories, and
admissions on file." Id. at 324 (internal
quotation marks omitted). When the motion is properly
supported, the nonmoving party must go beyond the pleadings
and, by citing affidavits or '"depositions, answers
to interrogatories, and admissions on file,' designate
'specific facts showing that there is a genuine issue for
trial.'" Id. (quoting former Fed.R.Civ.P.
56(c) and 56(e) (1986)).
there is no explicit statute of limitations for 42 U.S.C.
§ 1983 actions, 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 2019). Hence, Bellamy 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. 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.
3:08cvl38, 2009 WL 2424084, at *4 (E.D. Va. Aug. 6, 2009)
(omission in original) (quoting Nasim, 64 F.3d at
Bellamy's claims accrued as of February 21, 2015, the
date Defendants allegedly used excessive force against his
person. Bellamy, however, did not file his complaint until
February 20, 2018, almost three years later. Thus, the action
is barred by the relevant statute of limitations unless
Bellamy demonstrates some basis for excusing his late filing.
not argued by Bellamy, the United States Court of Appeals for
the Fourth Circuit recently concluded the limitation period
may be equitable tolled for a prisoner while he exhausts his
administrative remedies as required by 42 U.S.C. §
1997e(a). See Battle v. Ledford, 912 F.3d 708, 719
(4th Cir. 2019). Nevertheless, even with the benefit of
equitable tolling, Bellamy's Complaint remains untimely.
The record does not indicate that Bellamy was attempting to
exhaust his administrative remedies for his current claim
after June of 2015. (See, e.g., ECF No. 28-2, at
23.) Thus, even with the benefit of equitable tolling,
Bellamy was required to file his Complaint at the latest, by
July 1, 2017. He failed to do so. Accordingly, the action is
barred by the statute of limitations. The Motion for Summary
Judgment (ECF No. 25) will be GRANTED. The action will be
appropriate Order will accompany this Memorandum Opinion.
 The Court employs the pagination
assigned by the CM/ECF docketing system. The Court corrects
the capitalization in the quotations from Bellamy's
 By Memorandum Opinion and Order
entered on November 19, 2018, the Court dismissed all claims