Aikens v. Ingram et al

Filing 11

ORDER granting 8 Motion to Dismiss - Signed by District Judge Terrence W. Boyle on 02/24/2012. (Baker, C.)

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NORTH CAROLINA

WESTERN DIVISION

No. 5:11~CV·371·BO

FREDERICK AIKENS,
Plaintiff,

v.
WILLIAM E. INGRAM, JR., individually
and in his capacity as Adjutant General of
the NORTH CAROLINA ARMY
NATIONAL GUARD and PETER VON
JESS, individually and in his capacity as
Lieutenant Colonel of the NORTH
CAROLINA NATIONAL GUARD
Defendants.

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ORDER

This matter is before the Court Defendants' Motion to Dismiss [DE 8]. Plaintiff has
responded [DE 10], and the matter is ripe for ruling. For the reasons discussed below,
Defendants' Motion to Dismiss is granted.
BACKGROUND
Plaintiff files this action alleging a civil rights claim pursuant to 42 U.S.C. § 1983 and a
state law tort claim for invasion of privacy. Plaintiff was a longtime member of the North
Carolina Army National Guard who in 2001 was called to active duty in support of the War
Against Terrorism and promoted to full Colonel and Commander of the 139th Rear Operations
Center. In December 2002, Plaintiff was instructed to complete an officer evaluation report of
Defendant Von Jess. Defendant Ingram later invalidated such report, and Plaintiff filed a
complaint regarding Defendant Ingram's actions with the Department of the Army Inspector

General. In January 2003 Plaintiffs unit was again called to active duty and deployed to Camp
Doha, Kuwait. On or about November 24,2003, Plaintiff was notified that Defendant Ingram
had used illegal means to obtain emails sent to Plaintiff s email account, and Plaintiff alleges that
beginning in April 2003 through November 2003 his email that he accessed while deployed was
monitored, intercepted, and forwarded to Defendant Von Jess. In May 2004 Plaintiff was
notified that he would be investigated for hostile command climate and inappropriate relations
with women. A Department of Army Inspector General investigation subsequently substantiated
Plaintiffs allegations that his email was improperly browsed, but Plaintiff resigned from the
North Carolina National Guard and the United States Army effective June 6, 2005.
Plaintiff filed a civil action in this Court on April 27,2006, alleging a civil rights claim
pursuant to 42 U.S.C. § 1983, a state law tort claim for invasion of privacy, and a claim under
Bivens v. Six Unknown Names Agents ofFederal Bureau ofNarcotics (403 U.S. 388 (1971».
No. 5:06-CV-I85-D. Plaintiffs complaint named the above-named Defendants as well as two
additional members of the North Carolina Army National Guard. By order entered September
13,2007, this Court dismissed Plaintiffs Amended Complaint without prejudice so that Plaintiff
could first pursue his military administrative remedy. Plaintiff did so, and the Army Board for
Correction of Military Records (ABCMR) determined it lacked jurisdiction to hear Plaintiffs
claims.
Plaintiff then returned to this Court on March 31, 2008, by filing a motion pursuant to
Rule 60(b)(6) in his earlier filed action. F.R.Civ.P.60(b)(6). This Court in its discretion denied
Plaintiff s Rule 60(b) motion. Plaintiff appealed and this Court's denial of Plaintiff s Rule 60(b)
motion was affirmed first by panel opinion filed July 6,2010, and subsequently by a published
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split en banc opinion filed July 13, 2011. Aikens v. Ingram, 612 FJd 285 (4th Cir. 2010); Aikens

v. Ingram, 652 F.3d 496 (4th Cir. 2011) (en banc). Two days later, Plaintiff filed the instant
action alleging the same causes of action against two of the Defendants who had been subject to
the earlier suit.
DISCUSSION
Defendants raise first that Plaintiff s complaint in this matter was filed outside the
applicable statutes of limitations and should therefore be dismissed for failure to state a claim.
"The raising of the statute of limitations as a bar to plaintiff s cause of action constitutes an
affirmative defense and may be raised by motion pursuant to Fed.R.Civ.P. 12(b)(6), if the time
bar is apparent on the face of the complaint." Dean v. Pilgrim's Pride Corp., 395 FJd 471, 474
(4th Cir. 2005).
Because 42 U.S.C. § 1983 does not provide for a statute of limitations, the analogous
state statute of limitations is applied. Nat 'I Adver. Co. v. City o/Raleigh, 947 F.2d 1158, 1161
(4th Cir. 1991). In North Carolina, the analogous state statute of limitations is three years. Id. at
1162. Plaintiffs invasion of privacy claim is also governed by a three year statute of limitations.

See Losing v. Food Lion, L.L.C, 185 N.C.App. 278, 265 (2007). Plaintiffs § 1983 claim
accrued when he "possesse [d] sufficient facts about the harm done to him that reasonable inquiry
w[ould] reveal his cause of action." Brooks v. City o/Winston-Salem, 85 FJd 178, 181 (4th Cir.
1996). Plaintiffs invasion of privacy claim would appear to accrue when "bodily harm to the
[Plaintiff] or physical damage to his property becomes apparent or ought reasonably to have
become apparent to [Plaintiff], whichever event first occurs." N.C. Gen. Stat. § 1-52(16); see

also Alexander v. City o/Greensboro, No. 1:09-CV-293, 2011 WL 3360644 (M.D.N.C. August

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3,2011) (applying § 1-52(16) to a claim for invasion of privacy).
In determining whether 12(b)(6) dismissal is appropriate, the Court must first address
whether the date on which Plaintiffs causes of action accrued is apparent on the face of
Plaintiffs complaint. Plaintiff specifically alleges in his complaint that on or about November
24,2003, Plaintiff was informed that Defendant Ingram had used illegal means to obtain an email
sent to Plaintiff. Cmp. at ~ 33. Because reasonable inquiry after November 24, 2003, would
have revealed Plaintiffs § 1983 cause of action, and because the invasion of privacy about which
Plaintiff complains would have become apparent at least on the same date, the Court holds that
the date upon which Plaintiff s causes of action accrued is apparent on the face of his complaint
and that consideration of Defendants' statute of limitations defense under Rule 12(b)(6) is
therefore appropriate.
Applying the three year statutes of limitation to the date upon which Plaintiffs claims
accrued results in a bar to suit becoming effective on or about November 24,2006. This action
was filed on July 15,2011 - well-outside the limitations period. Plaintiff argues, however, that
tolling provisions should apply to prevent the instant suit from being barred. Specifically,
Plaintiff contends that time during which the prior federal action was pending, the time during
which his action was pending before the ABCMR, and the time during which the Rule 60(b)
motion was pending and on appeal should be tolled. Additionally, Plaintiff asserts that equitable
principles should be applied to forestall the limitations period and to allow Plaintiff s claims to
proceed.
Plaintiff filed his original action with only 212 days left in his limitations period. Even if
neither the time during which Plaintiff s original district court action was pending nor the time

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during which his ABCMR proceeding was pending should be counted against the limitations
period, Plaintiffs clock began to run again following the adjudication of his claim by the
ABCMR. "[A ]bsent the commencement of appropriate judicial process by filing a complaint, the
statute of limitations [is] not tolled." Nationwide Mut. Ins. Co. v. Winslow, 95 N.C.App. 413,
416 (1989). Accordingly, Plaintiffs limitations period more than expired during the three years
between dismissal by the ABCMR on February 6,2008, and Plaintiffs filing of the instant action
on July 15,2011.
Although Plaintiff urges the application of equitable tolling principles to save his
otherwise out-of-time claims, this Court cannot find such application appropriate. As discussed
by the dissent in the Fourth Circuit's en banc opinion filed in Plaintiffs earlier action, while
North Carolina courts have certainly recognized the principle of equitable tolling, the cases
reviewed by this Court have only found its application appropriate in circumstances where the
actions of the defendant have somehow caused the plaintiff to fail to pursue his claim within the
limitations period. Aikens, 652 F.3d at 518 (discussing Duke v. Stainback, 320 N.C. 337 (1987);
Nowell v. Great Atl. & Pac. Tea Co., 250 N.C. 575 (1959)); see also English v. Pabst Brewing
Co. 828 F.2d 1047, 1049 (4th Cir. 1987) ("Equitable tolling applies where the defendant has
wrongfully deceived or misled the plaintiff in order to conceal the existence of a cause of
action") (emphasis added). Here, however, the Court can find no action by Defendants that
might be construed as deceitful or misleading such that Plaintiff s cause of action was concealed.
Additionally, the Court cannot ignore either the actions or inactions of Plaintiff when assessing
whether equitable principles compel the tolling of the applicable statutes of limitations in this
action. See Aikens, 652 F.3d at 502-3 (discussing Plaintiffs tactical decisions in pursuing the

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prior action).
CONCLUSION
Because Plaintiffs complaint in this action was filed well-outside the three year statutes
of limitations, and the Court finds no basis upon which to equitably toll the applicable limitations
periods, Plaintiff s complaint must be dismissed for failure to state a claim upon which relief can
be granted. Accordingly, Defendants' Motion to Dismiss is GRANTED, and this action is
dismissed in its entirety.

SO ORDERED, this

4-!1-

day of February, 2012.

T RRENCE W. BOYLE
UNITED STATES DISTRICT JUD

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