Guerrero v. Weeks
Filing
15
MEMORANDUM OPINION Re: Deft's Motion to Dismiss Amended Complaint. Signed by District Judge James C. Cacheris on 09/16/13. (pmil)
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA
Alexandria Division
ESPERANZA GUERRERO,
)
)
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)
)
)
)
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Plaintiff,
v.
AMY T. WEEKS,
Defendant.
1:13cv837(JCC/JFA)
M E M O R A N D U M
O P I N I O N
This matter is before the Court on Defendant Amy T.
Weeks’s (“Defendant” or “Weeks”) Motion to Dismiss Amended
Complaint (“Motion”).
[Dkt. 10.]
For the following reasons the
Court will grant Defendant’s Motion to Dismiss.
I.
Background
This case arises under Title VI of the Civil Rights Act
of 1964 (“Title VI”), 42 U.S.C. § 2000d, et seq., Title II of the
Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12132,
Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 and
42 U.S.C § 1983.
A.
Factual Background
The subject matter underlying this case has been before
this Court previously in Guerrero v. Deane, Civil Action No.
1
1:09cv1313 (JCC/TRJ).
In Deane, the Guerrero family brought an
action under 42 U.S.C. § 1983 alleging that civil rights
violations had occurred during an officer’s service of a truancy
summons at the family’s home which resulted in a confrontation
between the family and the police.
(1:09cv1313 [Dkt. 1].)
Plaintiff lost at trial in this Court in Deane (1:09cv1313 [Dkts.
264, 266]) and the Fourth Circuit Court of Appeals affirmed.
(1:09cv1313 [Dkts. 300, 322].)
On July 17, 2013, the Court denied
Plaintiff’s motion for reconsideration.
(1:09cv1313 [Dkt. 330].)
On August 9, 2013, Plaintiff filed a notice of appeal with the
Fourth Circuit as to the order on her motion for reconsideration.
(1:09cv1313 [Dkt. 331].)
In the present case, Plaintiff again seeks redress for
alleged civil rights violations stemming from that incident.
Defendant Amy Weeks is a former Attendance Truancy Officer for the
Prince William County Public Schools.
(Compl. at 1.)
Plaintiff
Esperanza Guerrero (“Plaintiff” or “Guerrero”) is the aunt of R.
Munguia (“R. Munguia”), a student who in December of 2007 was
enrolled at Osburn Park High School in Prince William County.
(Compl. at 1, 3.)
Plaintiff alleges that Defendant fabricated the truancy
summons that was served on November 24, 2007, leading to
Plaintiff’s confrontation with the police and subsequent arrest.
2
(Compl. ¶ 28.); see 1:09cv1313 [Dkt. 1, ¶ 35].
Plaintiff avers
that Defendant used her position to “discriminate against a
Hispanic family” and that Defendant failed to follow proper
procedures under Virginia Law and Prince William County School
Board Policies in the issuance of the truancy summons.
(Compl. at
2, ¶ 1-6.)
B.
Procedural Background
Plaintiff filed the present action in the General
District Court of Prince William County, Virginia on June 28,
2013.
[Dkt. 1-4.]
On July 10, 2013, Defendant filed a Notice of
Removal stating that this Court has jurisdiction over the matter
pursuant to 28 U.S.C. § 1331 and 1441(a) because Plaintiff’s
Warrant in Debt alleges violations of Title VI of the Civil Rights
Act of 1964, Section 504 of the Rehabilitation Act of 1973, Title
II of the ADA and alleges a deprivation of constitutional rights
in violation of U.S.C. § 1983.
[Dkt. 1.]
On July 10, 2013,
Defendant filed her Motion to Dismiss for Lack of Jurisdiction and
Failure to State a Claim and accompanying memorandum of law.
[Dkts. 2-3]
Complaint.
On July 25, 2013, Plaintiff filed her Amended
[Dkt. 7.]
On August 12, 2013, Defendant filed her
Motion to Dismiss Amended Complaint and accompanying memorandum of
law.
[Dkts. 10-11.]
3, 2013.
Plaintiff filed her opposition on September
[Dkt. 13.]
3
Defendant’s Motion to Dismiss is before the Court.
II.
A.
Standard of Review
Failure to State a Claim
Federal Rule of Civil Procedure 12(b)(6) allows a court
to dismiss those allegations which fail “to state a claim upon
which relief can be granted.”
Fed. R. Civ. P. 12(b)(6).
A Rule
12(b)(6) motion tests the legal sufficiency of the complaint.
Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008).
A court
reviewing a complaint on a Rule 12(b)(6) motion must accept wellpleaded allegations as true and must construe factual allegations
in favor of the plaintiff.
See Randall v. United States, 30 F.3d
518, 522 (4th Cir. 1994).
A court must also be mindful of the liberal pleading
standards under Rule 8, which require only “a short and plain
statement of the claim showing that the pleader is entitled to
relief.”
Fed. R. Civ. P. 8.
While Rule 8 does not require
“detailed factual allegations,” a plaintiff must still provide
“more than labels and conclusions” because “a formulaic recitation
of the elements of a cause of action will not do.”
Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555–56 (2007) (citation omitted).
To survive a Rule 12(b)(6) motion, “a complaint must
contain sufficient factual matter, accepted as true, to ‘state a
claim to relief that is plausible on its face.’”
4
Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at
570).
“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.”
Id.
However, “[t]hreadbare recitals of the elements of
a cause of action, supported by mere conclusory statements, do not
suffice” to meet this standard, id., and a plaintiff's “[f]actual
allegations must be enough to raise a right to relief above the
speculative level . . . .”
Twombly, 550 U.S. at 555.
Moreover, a
court “is not bound to accept as true a legal conclusion couched
as a factual allegation.”
Iqbal, 556 U.S. at 678.
In considering a motion to dismiss, a court is limited
to considering the pleadings, documents attached to the pleadings,
documents integral to, relied on, or referenced to within the
pleadings, and official public records pertinent to the
plaintiff’s claims.
See Philips v. Pitt County Memorial Hosp.,
572 F.3d 176, 180 (4th Cir. 2009); Witthohn v. Fed. Ins. Co., 164
F. App’x 395, 396 (4th Cir. 2006); Gasner v. County of Dinwiddie,
162 F.R.D. 280, 282 (E.D. Va. 1995).
B.
Pro Se Plaintiff
Complaints filed by pro se plaintiffs are construed more
liberally than those drafted by an attorney.
Kerner, 404 U.S. 519, 520 (1972).
5
See Haines v.
“However inartfully pleaded by
a pro se plaintiff, allegations are sufficient to call for an
opportunity to offer supporting evidence unless it is beyond doubt
that the plaintiff can prove no set of facts entitling him to
relief.”
Thompson v. Echols, No. 99–6304, 1999 WL 717280 (4th
Cir. 1999) (citing Cruz v. Beto, 405 U.S. 319 (1972)).
While a
court is not expected to develop tangential claims from scant
assertions in a complaint, if a pro se complaint contains
potentially cognizable claims, the plaintiff should be allowed to
particularize those claims.
Id. (citing Beaudett v. City of
Hampton, 775 F.2d 1274 (4th Cir. 1985); Coleman v. Peyton, 340
F.2d 603, 604 (4th Cir. 1965)).
III. Analysis
Plaintiff alleges that Defendant’s actions violated her
rights under (1) Title VI; (2) the ADA; (3) Section 504 of the
Rehabilitation Act of 1973; (4) and 42 U.S.C. § 1983.
Defendant
argues that Plaintiff fails to state a claim under each statutory
provision and that even were Plaintiff to state a claim her
actions would be time-barred.
The Court will first consider the
timeliness of Plaintiff’s claims.
Congress omitted a statute of limitations for each of
the federal statutes under which Plaintiff asserts a claim.
“In
the event of such an omission, 42 U.S.C. § 1988(a) provides for
the selection of an appropriate common-law statute of limitations,
6
which is most applicable to the federal action.”
Wolsky v.
Medical College of Hampton Roads, 1 F.3d 222, 223 (4th Cir. 1993).
The Supreme Court has interpreted this provision to require that a
federal court follow the limitations period for the most analogous
state-law cause of action from the state in which the claim is
heard.
Id. (citing Wilson v. Garcia, 471 U.S. 261 (1985)).
While the limitation period is borrowed from state law,
accrual of a cause of action in a federal action is a question of
federal law.
See Synergistic Int’l, L.L.C. v. Korman, No.
2:05cv49, 2007 WL 517677, at *9 (E.D. Va. 2007).
Causes of action
accrue under federal law when the plaintiff “possesses sufficient
facts about the harm done to him that reasonable inquiry will
reveal his cause of action.”
Nasim v. Warden, Md. House of Corr.,
64 F.3d 951, 955 (4th Cir. 1995) (citing United States v. Kubrick,
444 U.S. 111, 122-24 (1979)).
Additionally, federal courts are
“obligated not only to apply the analogous state statute of
limitations . . . but also to apply the State’s rule for tolling
that statute of limitations.”
Onwuka v. Hampton Roads Regional
Jail, No. 1:11cv1398, 2012 WL 8466133, at *2 (E.D. Va. 2012)
(quoting Scoggins v. Douglas, 760 F.2d 535, 537 (4th Cir. 1985)).
The Court will consider the timeliness of each of Plaintiff’s
claims in turn.
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A.
Title VI Claim
Title VI bars “discrimination under any program or
activity receiving Federal financial assistance.”
Jersey Heights
Neighborhoods Ass’n v. Glendening, 174 F.3d 180, 187 (4th Cir.
1999) (quoting 42 U.S.C. § 2000d).
The Fourth Circuit has found
that a federal court must apply the “state personal injury
limitations period to Title VI claims.”
Id.
In Virginia, actions
for personal injury “shall be brought within two years after the
cause of action accrues.”
Va. Code Ann. § 8.01-243.
Therefore,
the Court will apply a two-year limitations period to Plaintiff’s
Title VI claim.
Plaintiff does not appear to dispute the application of
Virginia’s two-year statute of limitations.
Instead, Plaintiff
contends that her claim did not accrue until October 25, 2012,
when she “recovered documents from [her] former Attorney . . . .”
(Compl. at 2.)
Plaintiff argues that her “former Attorney and
Attorney for defendant in county litigation” concealed information
giving rise to her present claims. 1
Defendant claims that the
allegations contained in Plaintiff’s November 20, 2009 complaint
(1:09cv1313 [Dkt. 1]) and the documents provided to Plaintiff
during that litigation show that Plaintiff possessed sufficient
facts to be on notice of her cause of action by November 2009 at
1
“County litigation” refers to Guerrero v. Deane, Civil Action No. 1:09cv1313
(JCC/TRJ), which was filed in this Court on November 20, 2009.
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latest.
(Mem. at 7.)
The Court finds that Plaintiff’s claim accrued in
December 2009 at latest.
Defendant issued the allegedly illegal
truancy summons in 2007 and all alleged wrongdoing on the part of
Defendant likewise occurred in 2007.
(Compl. ¶ 16-28.)
Indeed,
Plaintiff met with Defendant and other school officials on
December 14, 2007 to discuss the allegedly improper truancy
summons.
(Compl. at 1; ¶ 20)
At this point Plaintiff was on
notice of her purported injury resulting from the altercation at
her home and actors involved in the issuance the truancy summons.
Furthermore, as Defendant notes, Plaintiff was provided
with a copy of the allegedly fraudulent truancy summons issued
against her nephew on December 14, 2009 as part of the county
litigation.
(1:09cv1313 [Dkt. 11-5.]) 2
Indeed, the basis of
Plaintiff’s claim is that her attorneys in the county litigation
were in possession of the documents giving rise to her present
cause of action.
(Compl. at 12.)
The Court finds, therefore,
that Plaintiff through her counsel “possesse[d] sufficient facts
about the harm” and that “reasonable inquiry [would] reveal [her]
2
The Court may consider official public records at the motion to dismiss
stage without converting the motion into one for summary judgment. See Slaey
v. Adams, Civil Action No. 1:08cv354, 2008 WL 5377937, at *4 (E.D. Va. 2008).
Plaintiff references the “county litigation” in her complaint (Compl. at 12)
and the documents related to this litigation are in the public record. The
Court therefore takes judicial notice of the documents in Civil Action No.
1:09cv1313 (JCC/TRJ) “and will consider these documents at the motion to
dismiss stage and in the statute of limitations analysis.” Id.
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cause of action.”
Nasim, 64 F.3d at 955.
Additionally, the Court rejects Plaintiff’s apparent
assertion that her lack of actual knowledge of her claim delays
the accrual date.
As the court noted in Nasim, a cause of action
accrues “either when the plaintiff has knowledge of the claim or
when he is put on notice – e.g. by the knowledge of the fact of
injury and who caused it - to make reasonable inquiry and that
inquiry would reveal the existence of a colorable claim.”
64 F.3d at 955.
Nasim,
In December 2009, at latest, Plaintiff was aware
of her alleged injury and the parties involved; Plaintiff “should
have known of [her] purported injury at this time.”
A Society
Without a Name v. Virginia, 655 F.3d 342, 348 (4th Cir. 2011).
Therefore, even applying Virginia’s two-year statute of
limitations to an accrual date of December 2009, the Court finds
that Plaintiff’s Title VI claim is time barred.
Accordingly, the
Court will dismiss this claim.
B.
Section 504 Claim
Section 504 of the Rehabilitation Act of 1973 requires
that any program or activity receiving federal financial
assistance not discriminate on the basis of disability.
§ 794.
29 U.S.C.
The Fourth Circuit has held that in Virginia, claims under
§ 504 are governed by a “personal injury statute of limitations”
because the Virginia Rights of Persons with Disabilities Act (the
10
“Virginia Act”) was “modeled after and is almost identical to the
Rehabilitation Act.”
Wolskey v. Medical College of Hampton Roads,
1 F.3d 222, 224-225 (4th Cir. 1993).
year statute of limitations.
Code Ann. §§ 51.5-40-46).
The Virginia Act has a one-
Wolskey, 1 F.3d at 223 (citing Va.
Applying the accrual date as discussed
above, Plaintiff has not filed a timely claim under § 504.
Accordingly, the Court will dismiss this claim.
C.
ADA Claim
A claim under the ADA is subject to a one-year
limitations period in Virginia.
A Society Without A Name, 655
F.3d at 342 (finding that the “one-year limitations period in the
Virginia Disabilities Act applies to ADA claims brought in
Virginia.”)
As discussed above, the facts giving rise to
Plaintiff’s claim occurred in 2007, and a reasonable investigation
would have revealed such facts by 2009 at very latest.
Therefore,
applying Virginia’s one-year limitations period, the Court finds
that Plaintiff’s claim is not timely.
The Court will dismiss
Plaintiff’s ADA claim.
D.
§ 1983 Claim
A claim arising under § 1983 is subject to a two-year
limitations period.
A Society Without A Name, 655 F.3d at 348.
Therefore this claim, like Plaintiff’s other causes of action is
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time-barred. 3
E.
The Court will dismiss Plaintiff’s § 1983 claim.
Tolling
Moreover, to the extent that Plaintiff alleges that her
action is tolled because of misconduct by Defendant, the Court
rejects such a claim.
Plaintiff claims that her action is tolled
because information was “fraudulently concealed” from her. 4
In
Virginia, the statute of limitations is tolled by the obstruction
of filing by a defendant.
Va. Code Ann. 8.01-229.
Virginia Code
provides that where a defendant uses “any other direct or indirect
means to obstruct the filing of an action” that time is not
counted for purposes of calculating the applicable statute of
limitations.
Id.
Here, Plaintiff alleges that her former
attorneys – not Defendant – concealed certain information from
her.
(Compl. at 12-13.) 5
Because these attorneys are not
3
Guerrero also refers to “malicious prosect[ion]” in her complaint. (Compl.
at 10.) Any claim of malicious prosecution brought under § 1983 would
likewise be subject to a two-year statute of limitations. Such a claim would
accrue on the date that a “favorable termination is obtained.” Pinder v.
Knorowski, 660 F. Supp. 2d 726, 736 (E.D. Va. 2009). Claims brought against
Guerrero were dismissed on January 25, 2008. (1:09cv1313 [Dkt. 1 ¶ 49].)
Therefore this claim is not timely. A common law claim of malicious
prosecution has a one-year statute of limitations and is likewise untimely.
Snyder v. City of Alexandria, 870 F. Supp. 672, 678 (E.D. Va. 1994).
Furthermore, to the extent that Plaintiff asserts a claim of “gross
negligence” against Defendant (see Compl. at 10) that claim is also time
barred under Virginia’s two-year statute of limitations. Va. Code Ann. §
8.01-243(A).
4
Plaintiff cites to Va. Code Ann. 8.01-235 in support of her tolling
argument. The Court notes that this statute addresses the statute of
limitations as an affirmative defense. Contrary to Plaintiff’s arguments, it
does not provide a toll of the statute of limitations. (Compl. ¶ 15.)
5
The Court notes that while Plaintiff alleges that information was
“concealed” from her she offers no more than conclusory allegations on this
point. (Compl. at 12.)
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defendants in the instant action any invocation of 8.01-229(d)’s
tolling provisions would be misplaced.
Because the Court finds that Plaintiff’s claims are
time-barred, it declines to address whether Plaintiff states a
claim under any of the statutes allegedly violated by Defendant.
IV.
Conclusion
For the foregoing reasons, the Court will grant
Defendant’s Motion to Dismiss.
An appropriate Order will issue.
September 16, 2013
Alexandria, Virginia
/s/
James C. Cacheris
UNITED STATES DISTRICT COURT JUDGE
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