United States District Court, W.D. Virginia, Charlottesville Division
JACKSON L. KISER SENIOR UNITED STATES DISTRICT JUDGE
matter is before the court on Plaintiff Jamar Gladden's
(“Plaintiff”) objection to the Report and
Recommendation (“R&R”) filed by Magistrate
Judge Joel Hoppe, in which he recommended I grant Defendant
R. A. Oberholzer's (“Defendant”) Motion to
Dismiss. For the reasons stated herein, Plaintiff's
objection will be overruled, the R&R will be adopted, and
Defendant's Motion to Dismiss will be granted with
STATEMENT OF FACTS AND PROCEDURAL
to Plaintiff's Complaint and Statement of More Definite
Facts [ECF Nos. 2 & 11], Defendant, who is presumably an
officer with the Charlottesville Police Department, stopped
Plaintiff in Charlottesville on July 29, 2015. During the
traffic stop, Plaintiff alleges Defendant “grabbed
[him] around the neck with his forearm in a ‘choke
hold' fashion, never attempting to grab [Plaintiff's]
wrist or hands to arrest or detain [Plaintiff]. While arm was
(Ofc. R.A. Oberholzer's arm) [sic] around
[Plaintiff's] neck, Ofc. R. A. Oberholzer used his body
weight to throw [Plaintiff] to the ground, with his stomach
on [Plaintiff's] back, he continued to choke [Plaintiff].
Ofc. R. A. Oberholzer and ‘John Doe' Detectives
kicked, punched and struck [Plaintiff] while being choked
& after being choked by R. A. Oberholzer.” [ECF No.
30, 2015, Defendant secured arrest warrants for Plaintiff,
charging him with driving on a suspended license,
see Va. Code Ann. § 46.2-301, and obstruction
of a law enforcement office, see id. §
18.2-460. On September 10, those charges were dismissed on
the prosecution's motion for nolle prosequi.
(Commonwealth v. Gladden, No. GT15-4963
(Charlottesville Gen. Dist. Ct.); Commonwelth v.
Gladden, No. GT15-4964 (Charlottesville Gen. Dist.
initially filed suit in this court against Defendant and
others on November 7, 2016, while Plaintiff was incarcerated
on other charges. See Gladden v. Charlottesville VA
Police Dep't, et al., 7:16-cv-00519 (W.D. Va. 2016)
(“Gladden I”). That case was dismissed
without prejudice on January 5, 2018, due to Plaintiff's
failure to pay the filing fee as instructed. (Mem. Op.,
Gladden I, Jan. 5, 2018 [ECF No. 54].)
filed the present suit on February 6, 2019, alleging a single
count of excessive force under 42 U.S.C. §
1983. [ECF No. 2.] On April 5, Defendant filed a
Motion to Dismiss, pursuant to Fed. R. Civ. P 12(b)(6),
arguing that Plaintiff's claim is barred by the two-year
statute of limitations applicable to actions under 42 U.S.C.
§ 1983. The motion was fully briefed by the parties and
referred to a magistrate judge for recommendation.
See Fed.R.Civ.P. 72(b). Magistrate Judge Joel C.
Hoppe filed his Report and Recommendation on June 20, 2019,
recommending that I grant Defendant's Motion to Dismiss.
(R&R, June 20, 2019 [ECF No. 25].) Plaintiff filed a
timely objection to the R&R [ECF No. 26], 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.
Fed.R.Civ.P. 72(b)(3), I review de novo those
portions of the R&R to which proper objections have been
made, and review the remainder of the R&R for clear
error. Plaintiff's only objection is that the magistrate
judge incorrectly computed the time that had elapsed-and thus
was chargeable under the statute of limitations-between his
injury and filing date.
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). Although §
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 Cir.
1991). In addition to state statutes of limitations, state
tolling statutes are applied to § 1983 actions as well.
See Bd. of Regents v. Tomanio, 446 U.S. 478, 484-85
claim is barred by the applicable two-year statute of
limitations. “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 possesses sufficient facts about the harm done
to him that reasonable inquiry will reveal his cause of
action.” Nasim v. Warden, Mc. House of
Corrections, 64 F.3d 951, 955 (4th Cir. 1995) (en banc).
Plaintiff asserts his injury arose on July 29, 2015. The
statute of limitations commenced on that day, but was tolled
from July 30, 2015, when Defendant filed charges against
Plaintiff, starting a criminal prosecution that arose
“out of the same facts” as Plaintiff's §
1983 claim. See Va. Code Ann. § 8.01-229(K)
(2019). Those charges were dismissed on September 10, 2015,
meaning the statute of limitations began to run again on that
date. The limitations period was tolled a second time when
Plaintiff filed his first suit over ...