United States District Court, W.D. Virginia, Roanoke Division
Glen E. Conrad Senior United States District Judge
a prisoner proceeding pro se, filed this civil
rights action pursuant to 42 U.S.C. § 1983, alleging
that the defendant prison officials used excessive force
against him on two occasions. Counsel for the remaining
defendants now moves for leave to file an amended answer to
assert the affirmative defense that plaintiff's claims
against two of the defendants are barred by the applicable
statute of limitations. After review of the record, the court
concludes that the defendants' motion is appropriately
inmate's § 1983 action is commenced for purposes of
the statute of limitations when he delivers his complaint to
prison authorities for mailing. Lewis v. Richmond City
Police Dep't, 947 F.2d 733, 735-36 (4th Cir. 1991).
The docket indicates that plaintiff, Metkel Alana, delivered
his § 1983 complaint to prison authorities for filing on
or about June 15, 2018. See Compl. 5, ECF No. 1. The
first incident of excessive force alleged in Alana's
complaint occurred on May 23, 2015, involving defendants
Turner and Meade. The second incident, involving defendant
Rose, occurred on June 17, 2016. Virginia's two-year
statute of limitations for personal injury actions, Virginia
Code Ann. § 8.01-234(A), applies to prisoner civil
actions brought pursuant to § 1983. See Shelton v.
Angelone, 148 F.Supp.2d 670, 677 (W.D. Va. 2001) (citing
Owens v. Okure, 488 U.S. 235, 239-40 (1989);
Wilson v. Garcia, 471 U.S. 261 (1985)). Defendants
Turner and Meade wish to file an amended answer to assert an
additional affirmative defense-that Alana's § 1983
claims against them are barred under § 8.01-234(A),
because Alana did not file the § 1983 complaint within
two years after the May 23, 2015, incident involving these
15(a) of the Federal Rules of Civil Procedure provides that
“[a] party may amend its pleading once” without
leave of court within 21 days of serving its pleading or
within 21 days after a motion is served under Rule 12(b),
(e), or (f), “whichever is earlier.” Fed.R.Civ.P.
15(a)(1). The defendants did not meet these deadlines to
amend. Otherwise, “a party may amend its pleading only
with the opposing party's written consent or the
court's leave. The court should freely give leave when
justice so requires.” Fed.R.Civ.P. 15(a)(2). Permission
to amend should be freely given absent “undue delay,
bad faith or dilatory motive on the part of the movant,
repeated failure to cure deficiencies by amendments
previously allowed, undue prejudice to the opposing party by
virtue of allowance of the amendment, futility of amendment,
etc.” Foman v. Davis, 371 U.S. 178, 182
defendants' proposed amendment does not appear futile on
the face of the amended answer. As indicated, the complaint
was filed more than two years after the incident on May 23,
2015, involving defendants Turner and Meade. Thus, these
defendants appear to have a valid affirmative defense that
Alana's claims against them are time barred under Va.
Code Ann. § 8.01-234(A). Based on the current record,
the court also cannot find undue delay, bad faith, or
dilatory motive by the movants here.
critical inquiry for the court in a Rule 15(a) amendment
situation is whether the proposed amendment will prejudice
the nonmoving party in his ability to litigate his case.
Davis v. Piper Aircraft Co., 615 F.2d 606, 613 (4th
Cir. 1980) (“[A]bsence of prejudice, though not alone
determinative, will normally warrant granting leave to
amend.”). The court cannot find that Alana will be
prejudiced by the assertion of the limitations defense at
this stage of the litigation. Should the defendants move for
summary judgment under the statute of limitations as to his
claims concerning the 2015 incident, in response thereto,
Alana may present whatever evidence and arguments he has
against dismissal on that ground, such as equitable tolling
or waiver. The mere fact that some of his claims ultimately
"may be determined to be barred by the statute of
limitations does not amount to prejudice sufficient to defeat
an amendment" of the opposing party's answer.
National Recovery Agency. Inc. v. AIG Domestic Claims.
Inc.. 2006 WL 1289545, *3 (M.D. Pa. May 9, 2006); see
also Lvnam v. Foot First Podiatry Centers. P.C.. 919
F.Supp. 1141, 1149 n. 7 (N.D. Ill. 1996) (fact plaintiff will
be foreclosed from pursuing her claim if defendant is allowed
to amend to assert statute of limitations defense is not the
type of prejudice to be considered by the court in ruling on
motion to amend). Similarly, the time, effort, and money that
the plaintiff has expended in litigating his case to this
point do not constitute substantial prejudice in this
context. See Block v. First Blood Associates. 988
F.2d 344, 351 (2d Cir. 1993).
reasons stated, the court will grant the defendants'
motion for leave to file an amended answer. An ...