Phipps v. Grady et al

Filing 7

ORDER declining to adopt the 3 Memorandum and Recommendations. All claimsagainst Defendant Faircloth are DISMISSED. As to all other defendants, this action may proceed with regard to Plaintiff's § 1983 claim arising from the April 30, 20 11 incident, while any claims arising from the December 14, 2009 incident are DISMISSED. As to Phipps's malicious prosecution claim against Defendant Grady, this action may proceed under the court's supplemental jurisdiction, to the extent that it arises from the April 30, 2011 incident. The Clerk of Court is DIRECTED to issue the summonses prepared by Plaintiff. The United States Marshal is DIRECTED to serve the summonses and a copy of the complaint on Defendants. Signed by Senior Judge James C. Fox on 12/8/2015. (copy sent to Virginius R. Phipps, 812 Warren Road, Faison, NC 28341 via US Mail) (Edwards, S.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
SOUTHERN DIVISION
No. 7:15-CV-00103-F
VIRGINIUS R. PHIPPS,

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Plaintiff,

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BENJAMIN L. GRADY, DALE
FAIRCLOTH, STRATTON F. STOKES,
C.L. JOHNSON, BLAKE WALLACE, THE
DUPLIN COUNTY NORTH CAROLINA
SHERIFF'S OFFICE, and DUPLIN
COUNTY, NORTH CAROLINA,
Defendants.

ORDER

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This matter is before the court for consideration of the Memorandum and
Recommendation ("M&R") [DE-3] issued by United States Magistrate Judge Robert B. Jones,
Jr. Therein, Judge Jones recommends that prose PlaintiffVirginius R. Phipps's Complaint [DE4] be dismissed. Phipps has filed an Objection [DE-5] to the M&R. For the reasons stated below,
the court declines to adopt the M&R.

I.

FACTUAL AND PROCEDURAL IDSTORY

Phipps's complaint alleges unconstitutional seizures of his person and property occurring
on December 14, 2009, and April 30, 2011, by Defendants Faircloth, Stokes, Johnson, Wallace,
the Duplin County Sheriffs Department, and Duplin County. The allegedly unconstitutional
seizures arose from allegations of trespass to land by Defendant Grady against Phipps. Compl.
[DE-4]

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11-13, 21-22. According to Phipps, on October 24, 2009, Defendant Grady reported

to Defendants Stokes and Faircloth that Phipps had trespassed on Grady's land, injuring

farmland and timber. Id.

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12-13. Stokes and Faircloth obtained an arrest warrant and served it

on Phipps on December 14, 2009. Id.

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16. Phipps spent several hours in jail before being

released on bond, and his truck and other personal property were seized. !d.

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16-17. Phipps

reports that he appeared in court numerous times, missed work opportunities, and suffered
reputational damage as a result. Id.
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20. The warrant was dismissed on September 27, 2012. Id.

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On April 27 and 30, 2011, Grady again alleged trespass by Phipps. Id.
Defendants Johnson and Stokes obtained arrest warrants. Id.
arrested. Id.
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21-22.

23. On April30, 2011, Phipps was

24. He was held for 19 days before being released on a $5,000.00 bond. Id.

26-27. The charges against Phipps were dismissed on November 28, 2011. Id.

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28.

Phipps alleges that Grady's actions constitute malicious prosecution and that the actions
of the other defendants violated his Fourth and Fourteenth Amendment rights. Id.

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32-33, 39.

On May 9, 2013, Phipps filed a complaint in this district identical to the instant action. See
Phipps v. Grady, No. 7:13-CV-95-BO (E.D.N.C. May 14, 2014). That complaint was voluntarily

dismissed on May 14, 2014. Id.
Phipps. commenced this action on May 14, 2015, by filing a Motion to Proceed In Forma
Pauperis ("IFP Application") [DE-l]. On June 6, 2015, Judge Jones granted Phipps's IFP

Application but recommended that the court dismiss Phipps's § 1983 claims as untimely and
decline to exercise its supplemental jurisdiction over the remaining state law claim. M&R [DE-4]
at 7. Phipps timely objected to the M&R.

II.

STANDARD OF REVIEW

A district court may "designate a magistrate judge ... to submit ... proposed findings of
fact and recommendations for the disposition" of a variety of motions. 28 U.S.C. § 636(b)(l)(B).

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The court then must "make a de novo determination of those portions of the report or specified
proposed findings or recommendations to which objection is made." Id. § 636(b)(l). Upon
review of the record, "the court may accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge." Id.

III.

DISCUSSION

In the M&R, Judge Jones observes that Phipps asserts claims pursuant to 42 U.S.C.
§ 1983 and state law arising out of Defendant Grady's allegations that Phipps trespassed on
Grady's land. Judge Jones recognized that § 1983 does not contain a statute of limitations, and
that federal courts instead apply "the forum state's 'most analogous' statute of limitations,
generally the statute applicable to personal injury actions," and that in North Carolina, that
statute of limitations is three years. M&R [DE-3] at 4-5 (quoting Fayemi v. Offerman, 99 F.
App'x 480, 481 (4th Cir. 2004) (unpublished)). Judge Jones also observed that the accrual of an
action is governed by federal law, and an action accrues "when the plaintiff possesses sufficient
·facts about the harm done to him that reasonable inquiry will reveal his cause of action." Id. at 5
(quoting Fayemi, 99 F. App'x at 481).
Judge Jones noted that "[t]he alleged unconstitutional search and seizures upon which
Phipps's § 1983 claim is based occurred first on December 14, 2009, when his property and
person were seized, and again during the period from April 30, 2011, when Phipps was arrested
and incarcerated." Id. Because a cause of action for unlawful search and seizure accrues on the
date of the search and seizure, Judge Jones determined that Phipps's § 1983 claims were
untimely. Id. at 6 (noting that Phipps "filed this action on' May 14, 2015, more than five years
after the first alleged search and seizure, more than four years after the second alleged seizure,
and more than a year after the statute of limitations had run as to both incidents"). Judge Jones

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further observed that there are no facts alleged in the Complaint that would support equitable
tolling of the statute of limitations. Id Judge Jones specifically took into account that Phipps,
then represented by counsel, had "filed a prior suit against these Defendants based on the same
allegations and asserting the same claims as in this action, from which [he] took a voluntary
dismissal without prejudice .... [because of] his inability to obtain valid service of process on
several defendants and his desire to cure that defect by dismissing the suit and refiling within the
appropriate time and statute of limitations." ld (citing Phipps v. Grady, No. 7:13-CV-95-BO).
Accordingly, Judge Jones recommended that Phipps's § 1983 claim be dismissed as time barred.
Judge Jones also recommended that the court decline to exercise supplemental jurisdiction over
Phipps's state-law claim for malicious prosecution.
Phipps has objected to Judge Jones's recommendation, contending that (1) he could not
assess the damages caused by the unconstitutional seizure of his property until the property was
returned to him on October 21, 2013, and (2) equitable tolling is appropriate because his counsel
in his prior action did not help him acquire new counsel, forcing Phipps to proceed prose.
As to Phipps's first argument, the court reiterates that under federal law, "the time of
accrual is when plaintiff knows or has reason to know of the injury which is the basis of the
action." Cox v. Stanton, 529 F.2d 47, 50 (4th Cir. 1975). Although Phipps's estimation of
damages may have changed over time, it cannot be disputed that he knew of the injuries giving
rise to his § 1983 claim-the seizure of his person and his property-first on December 14,
2009, when his property and person were seized, and again on April 30, 2011, when he was
arrested and incarcerated. Judge Jones correctly calculated the statute of limitations on these
actions.

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The court notes, however, that the M&R does not discuss the applicability to Phipps's
case of the savings provision found in Rule 41 (a) of the North Carolina Rules of Civil Procedure.
Where the statute of limitations for a particular cause of action is provided by analogous state
law, state tolling provisions also apply. See Bd of Regents v. Tomanio, 446 U.S. 478, 485
(1980). Under North Carolina's Rule 41(a) savings provision, a plaintiff may refile a claim .
within one year of the date of a voluntary dismissal. In some cases, this will have the effect of
tolling the applicable statute of limitations.
Here, Phipps refiled his claims exactly one year after taking a voluntary dismissal. Thus,
under Rule 41(a), Phipps's claims will be deemed timely to the extent they were timely when
originally filed on May 14, 2013. Based on a three-year statute of limitations, therefore, any
claims accruing prior to May 14, 2010 will be deemed untimely. Accordingly, Phipps's claim as
it relates to the December 14, 2009 incident is time barred. Phipps may proceed, however, with
his claim as it relates to the April 30, 2011 incident. The court notes that Defendant Faircloth is
implicated in only the December 14, 2009 incident, and as such, he will be dismissed from the
case.
Phipps further argues that the statute of limitations should be tolled because he was
forced to proceed pro se following his voluntary dismissal, causing hardship. This argument is
unavailing. Phipps's prose complaint with regard to the December 14, 2009 incident is untimely
now because it was untimely when originally filed-by counsel-on May 14, 2013. Phipps's pro

se status, including any difficulty he may have experienced in attempting to secure representation
after his voluntary dismissal, could have no effect on this issue.

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IV.

CONCLUSION

For the foregoing reasons, the court respectfully declines to adopt the M&R. All claims
against Defendant Faircloth are DISMISSED.

As to all other defendants, this action may

proceed with regard to Plaintiffs § 1983 claim arising from the April 30, 2011 incident, while
any claims arising from the December 14, 2009 incident are DISMISSED. As to Phipps's
malicious prosecution claim against Defendant Grady, this action may proceed under the court's
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supplemental jurisdiction, to the extent that it arises from the April 30, 2011 incident. The Clerk
of Court is DIRECTED to issue the summonses prepared by Plaintiff.

The United States

Marshal is DIRECTED to serve the summonses and a copy of the complaint on Defendants.
SO ORDERED.

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This the L day of December, 2015.

J
SC.FOX
Senior United States District Judge

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