United States District Court, W.D. Virginia, Danville Division
JACKSON L. KISER SENIOR UNITED STATES DISTRICT JUDGE.
matter is before the court on Defendants Patrick County and
the Patrick County Board of Supervisors' Motion to
Dismiss [ECF No. 6]. The motion was fully briefed and, on
June 18, 2019, I heard oral argument from the parties. I have
reviewed the pleadings, arguments, and relevant law. For the
reasons stated herein, Defendants' Motion to Dismiss will
STATEMENT OF FACTS AND PROCEDURAL
Steven Alderman (“Plaintiff”) owned and operated
Blue Ridge Restaurant in Patrick County, Virginia, which his
family built in 1958. In 1978, his family “installed a
properly designed septic system.” (Compl. ¶ 8 [ECF
No. 1].) He contends that, although Blue Ridge Restaurant was
among the oldest in the area, “they were never offered
the option of using a ‘pump and haul' approach to
handling waste or any ‘grandfathering' of unlawful
sewage handling.” (Id. ¶ 9.) Instead,
Plaintiff's family was required to install an expensive
septic system. With its septic system, Blue Ridge Restaurant
is permitted to have only 55 seats.
2002, Plaintiff and his sister bought the Mountain House
Restaurant, which was built in 1982 with a full and expensive
septic system. That restaurant is permitted to have only 85
seats with its septic system. Operating both restaurants
yields an annual profit of $640, 000.
alleges that Defendants Patrick County and the Patrick County
Board of Supervisors (collectively “Defendants”)
engaged in “discriminatory and unlawful acts that
damaged plaintiff's businesses” when, in 2000 and
2001, Defendants approved an unlawful “pump and
haul” sewage system for a competing business.
(Id. ¶ 18.) At the time, the permission was
contingent on the future installation of a permanent sewage
system. To date, however, no such system has been installed.
Another business was granted the same permission for a
“pump and haul” system in 2009. (Id.
contends these other businesses were granted this
“unfair and unlawful advantage by Patrick County to
operate without septic systems . . . to inhibit or punish
plaintiff's exercise of his constitutional rights or a
bad faith intent to injure plaintiff.” (Id.
¶ 25.) As a result, Plaintiff was forced to close Blue
Ridge Restaurant in 2007 and Mountain House Restaurant in
2012. Efforts to sell the restaurants “have not been
possible because no one will buy them or pay a market price
because of the discriminatory acts of Patrick County, and the
resulting unfair competition.” (Id. ¶
30.) He now brings suit under 42 U.S.C. § 1983 for the
alleged violation of his “right to equal protection of
the law” under the 14th Amendment. (Id. ¶
filed his Complaint on January 25, 2019, forty-one years
after his family installed the septic system at Blue Ridge
Restaurant, seventeen years after he bought Mountain House
Restaurant, twelve years after he closed Blue Ridge
Restaurant, and seven years after he closed Mountain House
Restaurant. Defendants filed a Motion to Dismiss, pursuant to
Fed.R.Civ.P. 12(b)(6), on May 15, 2019, arguing the statute
of limitations applicable to actions under 42 U.S.C. §
1983 barred Plaintiff's action. [ECF Nos. 6 & 7.]
Plaintiff responded [ECF No. 10], and Defendants replied [ECF
No. 14]. I heard oral arguments on June 18, 2019, making this
matter ripe for disposition.
STANDARD OF REVIEW
survive a Rule 12(b)(6) motion to dismiss, a 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) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)). “A claim has facial plausibility
when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Iqbal, 556
U.S. at 678. In determining facial plausibility, the court
must accept all factual allegations in the complaint as true.
Id. The Complaint must contain “a short and
plain statement of the claim showing that the pleader is
entitled to relief” and sufficient “[f]actual
allegations . . . to raise a right to relief above the
speculative level . . .” Twombly, 550 U.S. at
555 (internal quotation marks omitted). Therefore, the
Complaint must “allege facts sufficient to state all
the elements of [the] claim.” Bass v. E.I. Dupont
de Nemours & Co., 324 F.3d 761, 765 (4th Cir. 2003).
Although “a complaint attacked by a Rule 12(b)(6)
motion to dismiss does not need detailed factual allegations,
” a pleading that merely offers “labels and
conclusions” or “a formulaic recitation of the
elements of a cause of action will not do.”
Twombly, 550 U.S. at 555.
1983 of Title 42 of the United States Code is the statutory
provision that provides a civil remedy to vindicate one's
constitutional rights. That section gives private individuals
a right of action against persons who, acting under color of
law, deprive a plaintiff of “any rights, privileges, or
immunities secured by the Constitution and laws” of the
United States. 42 U.S.C. § 1983 (2019). The Fourteenth
Amendment guarantees that no citizen will be deprived
“of life, liberty, or property, without due process of
law, ” nor will any person be denied “equal
protection of the laws.” U.S. Const. amend. XIV.
§ 1983 does not set forth a statute of limitations, it
is well-settled that “[t]he statute of limitations for
a § 1983 claim is borrowed from the applicable
state's statute of limitations for personal-injury
actions, even when a plaintiff's particular § 1983
claim does not involve personal injury.” Tommy
Davis Constr., Inc. v. Cape Fear Pub. Util. Auth., 807
F.3d 62, 66-67 (4th Cir. 2015) (citing Wilson v.
Garcia, 471 U.S. 261, 275-80 (1985)). Virginia has a
two-year statute of limitations for personal-injury actions,
see Va. Code Ann. § 8.01-243(A) (Cumm. Supp.
2019), which applies in § 1983 actions. See Lewis v.
Richmond City Police Dep't, 947 F.2d 733, 735 (4th
claims is barred by the two-year statute of limitations
applicable to his claim. “Generally speaking, a federal
claim ‘accrues when the plaintiff knows or has reason
to know that the act providing the basis of his or her injury
has occurred,' and therefore [the court] ‘typically
determine[s] the accrual of a § 1983 action by looking
to the event that should have alerted the typical lay person
to protect his or her rights.'” Owens v.
Baltimore City State's Attorneys Office, 767 F.3d
379, 404-05 (4th Cir. 2014) (quoting D'Ambrosio v.
Marino, 747 F.3d 378, 384 (6th Cir. 2014)). Stated
another way, a claim under § 1983 accrues “when
the plaintiff ...