Willoughby v. Henrico County, et al.

Filing 26

MEMORANDUM OPINION. Signed by District Judge Henry E. Hudson on 06/27/2014. Copy mailed to Plaintiff. (walk, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division

MIKE M. WILLOUGHBY,

Plaintiff,
Civil Action No. 3:14CV223HEH

HENRICO COUNTY, ET AL.,
Defendants.
MEMORANDUM OPINION

(Granting Defendants' Motions to Dismiss, Denying Plaintiffs Motions for Leave to
Amend and to Toll the Federal Statute of Limitations)
This matter is before the Court on Defendants' Motions to Dismiss for Failure to

State a Claim, pursuant to Federal Rule of Civil Procedure 12(b)(6) (ECF Nos. 11, 15,

and 18)1, filed by Henrico County, Owen I. Ashman, Henrico County Commonwealth's
Attorney Office, Judge Lee A. Harris, and the Commonwealth of Virginia (collectively

"Defendants") on May 5, 2014.2 This matter is also before the Court on Mike
Willoughby's ("Plaintiff') Motion for Leave to Amend the Complaint3 (ECF No. 22),

1 The Motions to Dismiss for all related actions were filed under the lead case, Case No.
3:14cv223.

2 Plaintiff filed five separate actions (Case Nos. 3:14cv223, 3:14cv224, 3:14cv225, 3:14cv226,
and 3:14cv227) alleging fifteen claims, including a negligence claim, a claim under the
Americans with Disabilities Act, and a claim under 42 U.S.C. § 1983 against each Defendant.
These cases were consolidated under Case No. 3:14cv223 by this Court, via a consolidating
order, due to their repetitive nature (ECF No. 2). The only differences are that Plaintiff alleges
that Defendants Judge Lee A. Harris and Owen I. Ashman are Commonwealth and County
employees, and that Defendant Ashman is a Commonwealth's Attorney Office employee.

3As explained supra, Plaintiff filed five separate and nearly identical complaints. The
complaints will be referred to collectively as the "Complaint," for simplicity.

filed May 23, 2014 and Plaintiffs Motion Toll the Federal Statute of Limitations (ECF

No. 23), filed on June 5,2014. For the reasons stated herein, Defendants' Motions to

Dismiss will be granted, Plaintiffs Motion for Leave to Amend will be denied, Plaintiffs
Motion to Toll the Federal Statute of Limitations will be denied, and the action will be

dismissed with prejudice.
I. BACKGROUND

As required by Rule 12(b)(6) of the Federal Rules of Civil Procedure, the Court
assumes Plaintiffs well-pleaded allegations to be true, and views all facts in the light
most favorable to him. T.G. Slater & Son v. Donald P. & Patricia A. Brennan, LLC, 385

F.3d 836, 841 (4th Cir. 2004) (citing Mylan Labs, Inc. v. Matkari, 7 F.3d 1130, 1134 (4th

Cir. 1993)). Viewed through this lens, the facts are as follows:
Plaintiff was arrested on October 7, 2007 for malicious wounding and abduction.

(Compl. 1 (unnumbered paragraphs), 3:14-cv-00223, ECF No. 4; 3:14-cv-00224, ECF
No. 1-1; 3:14-cv-00225, ECF No. 1-1; 3:14-cv-00226, ECF No. 1-1; 3:14-cv-00227, ECF

No. 1-1). His trial was held in Henrico County Circuit Court, with Judge Lee A. Harris

presiding, and Owen I. Ashman as counsel for the Commonwealth. Id. A psychological
evaluation was conducted on April 24, 2008 to determine Plaintiffs competency to stand
trial. (Compl. Ex. D thereto, ECF No. 4-4). The core of Plaintiff s allegations are that
Judge Harris and Ashman "didn't ensure that...[he] receivefd] a fair psychological
evaluation to help in [his] legal defense, and forced [him] to have an inaccurate trial,

resulting in damages." (Compl. at ^ 3). Plaintiff claims that Judge Harris and Ashman

are responsible for these damages, and sues both individuals in their official capacity, as

well as the County of Henrico, the Commonwealth of Virginia, and the Henrico County

Commonwealth's Attorney's Office, based on the theory that the individuals named were

employees ofthe three entities.4 (Compl. at^ 3).
Plaintiff attaches various exhibits evidencing a 2008 psychological evaluation

during which the court-appointed psychologist gathered and used five sources of
information: "(1) Court order for the evaluation, (2) Telephone interviews with Sheila
Willoughby, his mother, and Gwen Dabney, his aunt, (3) Telephone interview with Gary

Major at Henrico Mental Health, (4) Treatment records from the Henrico Jail West, (5)
Interview with the defendant [Mike Willoughby] on 4/3/08 at the Henrico Jail East."

(Compl. Ex. D thereto). Plaintiff starred and circled a portion ofthe evaluation which
states "No warrants or offense-related records were provided for review," but does not

explain what such emphasis means. (Compl. Ex. D thereto). The evaluating court-

appointed psychologist concluded that Plaintiff "possessed a rational and adequately
factual understanding of a trial and the roles of courtroom personnel, and possessed the
capacity to assist counsel in preparing a defense." (Compl. Ex. E thereto (ECF No. 4-5)).
Plaintiff asks this Court for three million dollars in relief, resulting from a

deprivation of his rights as a disabled individual under the Americans with Disabilities
Act ("ADA"), a deprivation of his constitutional rights under 42 U.S.C. § 1983, and

negligence of Defendants. (Compl. at 1fi|l,4; 3 (unnumbered paragraphs); 4 (unnumbered
paragraphs)). He alleges Defendants caused him injuries and monetary damages

4The Court notes, however, thatJudge Harris and Ashman are both Commonwealth employees,
their positions having been established by Va. Const, art. VI and Va. Code § 15.2-1626,
respectively.

including medical expenses, broken heels, loss of Social Security income, and pain and
suffering. (Compl. at J4). Plaintiff also claims that he was incapacitated but provides no
facts to suggest this aside from a letter evidencing a Social Security Administration
determination that he had been found to have become "disabled under our rules on

January 3, 2003." (Compl. 3; Compl. Ex. A-l thereto (ECF No. 4-8)).
II. DISCUSSION

Plaintiff in this case offers but a mere "formulaic recitation of the elements of a

cause of action" in his Complaint. Twombly, 550 U.S. at 555. He pleads money damages
of three million dollars as well as damages resulting from his personal and physical

injuries, and requests three million dollars of relief. (Compl. at ^ 4). However, the causal
link between Defendants' actions, if any, and the asserted damages is wholly missing and
this Court cannot decipher a plausible claim from the few facts presented.
A.
i.

MOTIONS TO DISMISS
STANDARD OF REVIEW

"A motion to dismiss under Rule 12(b)(6) tests the sufficiency of a complaint;

importantly, it does not resolve contests surrounding the facts, the merits of a claim, or
the applicability of defenses." Republican PartyofN.C. v. Martin, 980 F.2d 943, 952
(4th Cir. 1992) (citation omitted). The Federal Rules of Civil Procedure "require[] only
'a short and plain statement of the claim showing that the pleader is entitled to relief,' in
order to 'give the defendant fair notice of what the ... claim is and the grounds upon
which it rests.'" Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v.
Gibson, 355 U.S. 41, 47 (1957)). A complaint need not assert "detailed factual

allegations," but must contain "more than labels and conclusions" or a "formulaic
recitation of the elements of a cause of action." Twombly, 550 U.S. at 555 (citations

omitted). Thus, the "[fjactual allegations must be enough to raise a right to relief above

the speculative level," id. (citation omitted), to one that is "plausible on its face," id. at
570, rather than merely "conceivable." Id. In considering such a motion, a plaintiffs
well-pleaded allegations are taken as true and the complaint is viewed in the light most
favorable to the plaintiff. T.G. Slater, 385 F.3d at 841 (citation omitted). Legal
conclusions enjoy no such deference. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

Additionally, "[a] document filed pro se is 'to be liberally construed.'" Erickson
v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 104-105
(1976)). To that end, "a pro se complaint, however inartfully pleaded, must be held to
less stringent standards than formal pleadings drafted by lawyers." Id. (citation and
internal quotation marks omitted). And "[p]leadings must be construed to do justice."
Fed. R. Civ. P. 8(d). At the same time, courts recognize that a plaintiff "can plead

himself out of court by pleading facts that show that he has no legal claim." Atkins v.

City ofChicago, 631 F.3d 823, 832 (7th Cir. 2011) (Posner, J.) (citing Hecker v. Deere &
Co., 556 F.3d 575, 588 (7th Cir. 2009); Tamayo v. Blagojevich, 526 F.3d 1074, 1086 (7th
Cir. 2008); EEOC v. Concentra Health Servs., Inc., 496 F.3d 773, 777 (7th Cir. 2007);

Orthmann v. Apple River Campground, 757 F.2d 909, 915 (7th Cir. 1985); and Trudeau
v. FTC, 456 F.3d 178, 193 (D.C. Cir. 2006)).

ii.

PLAINTIFF'S NEGLIGENCE CLAIMS

As to Plaintiffs five negligence claims against Defendants, Plaintiff must "show

the existence of a legal duty, a breach of the duty, and proximate causation resulting in
damage." McGuire v. Hodges, 273 Va. 199, 205-06 (2007) (quoting Atrium Unit Owners
Ass'n v. King, 266 Va. 288, 293 (2003)). As Defendants have noted, Plaintiffs
negligence claims are insufficiently pled. (Defs. Commonwealth of Virginia and Judge
Lee A. Harris's Mem. 11 (ECF No. 19); Def. Henrico County's Mem. 3 (ECF No. 12);

Defs. Henrico County Commonwealth's Attorney's Office and Owen I. Ashman's Mem.
7 (ECF No. 16)). There is no factual basis provided in the Complaint to allow this Court

to find a legal duty of care owed to Plaintiff, a breach of said duty, or a causal link
between the alleged conduct of Defendants and the injury of Plaintiff. Surely, "the
question of liability for negligence cannot arise at all until it is established that the man
who has been negligent owed some duty to the person who seeks to make him liable for

his negligence." Dudley v. Offender Aid & Restoration, Inc., 241 Va. 270, 277 (1991).
There is no evidence of any conduct ofDefendants, aside from the following: Judge

Harris was the presiding judge for Plaintiffs criminal trial; Ashman was the prosecuting
attorney; and Defendants allowed Plaintiff to be evaluated by a psychologist, which lead
to Plaintiffs psychological report showing that Plaintiff was competent to stand trial.
(Compl. 1 (unnumbered paragraphs); Compl. Exs. D, E, F, G thereto).
Plaintiff provides no evidence or facts to show why his psychological report was

unfair. Where the capacity of a defendant in a state criminal case "is to be a significant
factor at trial," that defendant has a right of "access to a competent psychiatrist who will

conduct an appropriate examination and assist in evaluation, preparation, and

presentation of the [incapacity] defense." Ake v. Oklahoma, 470 U.S. 68, 83 (1985). The
main concern in Ake is "ensuring a defendant access to a psychiatrist or psychologist, not

with guaranteeing a particular substantive result." Wilson v. Greene, 155 F.3d 396,401
(4th Cir. 1998). The criminal defendant does not have "a constitutional right to choose a
psychiatrist of his personal liking or to receive funds to hire his own." Ake, 470 U.S. at
83. The court's proper role is not to decide the effectiveness of an expert witness, such as

a psychologist. Wilson, 155 F.3d at 401. "To entertain such claims would immerse
federal judges in an endless battle of the experts to determine whether a particular
psychiatric examination was appropriate." Id. It would also "undermine the finality of
state criminal convictions, which would constantly be subject to psychiatric reappraisal
years after the trial had ended." Id. Here, Plaintiff has "plead himself out of court by

pleading facts that show that he has no legal claim," as he has provided evidence that
Defendants satisfied any duty owed under Ake or Wilson when they provided him access

to a court-appointed psychologist at trial. (Compl. Exs. D, E, F, G thereto; ECF Nos. 4-4,
4.5,4.6,4-7). Atkins, 631 F.3d at 832; Wilson, 155 F.3d at 401.

Plaintiff provides x-ray evidence of his fractured heels (Compl. Ex. C thereto,
ECF No. 4-3). However, he does not plead any facts surrounding his injury, how his
heels were fractured, or why Defendants should be held responsible for these injuries. He
merely makes the legal conclusion that Defendants were negligent. For example, when

Plaintiff states that "as a direct and proximate result of the defendant's negligence ... I..
. suffered the following damages ...," he must also plead a plausible factual basis to

support the legal conclusion that Defendantsacted negligently. (Compl. at H4). This
Court cannot infer that Defendants acted negligently or that those particular acts caused

Plaintiffs injuries, based upon legal conclusion alone. Ashcroft, 556 U.S. at 678. The
Complaint is insufficient because this Court cannot point to any of Defendants' actions or
omissions alleged therein, which constitute negligence or which caused Plaintiffs
injuries.
iii.

PLAINTIFF'S CLAIMS UNDER THE AMERICANS WITH DISABILITIES

ACT (42 U.S.C. § 12132)

As Defendants have argued, Plaintiffs five claims under the ADA are
insufficiently pled. (Defs. Commonwealth of Virginia and Judge Lee A. Harris's Mem.
10-11, Def. Henrico County's Mem. 6-7, Defs. Henrico County Commonwealth's

Attorney's Office and Owen I. Ashman's Mem. 8-9). Plaintiff has provided evidence of

his status as a disabled individual under the ADA.5 He does not, however, provide any
evidence or plead any facts that suggest that he was, "by reason of such disability,...

excluded from participation in or ... denied the benefits of... services, programs, or
activities" or was "subjected to discrimination" in any way. 42 U.S.C. § 12132. Plaintiff
complains to this end that he was not guaranteed a "fair psychological evaluation to help
in [his] legal defense." (Compl. at ^ 3). However, as discussed supra, Defendants have
satisfied their duty to Plaintiff by providing him access to a court-appointed psychologist.

5The statute requires that a qualified individual "meet the essential eligibility requirements for
the receipt of services or the participation in programs or activities provided by a public entity.'
42 U.S.C. § 12131. To this effect, Plaintiff has provided evidence that he had been found to
have become "disabled under [the Social Security Administration] rules on January 3,2003."
(Compl. Ex. A-l thereto).

iv.

PLAINTIFF'S CLAIMS UNDER 42 U.S.C. § 1983

Also, as Defendants contend, the five claims made by Plaintiff under 42 U.S.C. §

1983 are insufficiently plead. (Defs. Commonwealth of Virginia and Judge Lee A.
Harris's Mem. 11; Def. Henrico County's Mem. 6; Defs. Henrico County

Commonwealth's Attorney's Office and Owen I. Ashman's Mem. 9-10). Plaintiff

provides no factual basis that he had been "subjected.. .to the deprivation of any rights,
privileges, or immunities secured by the Constitution and laws." 42 U.S.C. § 1983. The
only deprivation ofwhich he complains is that he was not guaranteed a "fair

psychological evaluation to help in [his] legal defense." (Compl. at ^ 3). However, this
is not a deprivation of a Constitutional right, as "[t]he Constitution does not entitle a
criminal defendant to the effective assistance of an expert witness," such as a

psychologist. Wilson 155 F.3d at 401.
v.

APPROPRIATENESS OF DEFENDANTS AS PARTIES

The failure of Plaintiffs Complaint to comply with the standard set forth in

Twombly alone is dispositive. However, out of an abundance of caution, this Court
addresses the other grounds by which the claims may be dismissed as against the
individual Defendants.

As Defendants have argued, none of Defendants are appropriate parties to be sued.

(Defs. Commonwealth of Virginia and Judge Lee A. Harris's Mem. 5, 7; Def. Henrico
County's Mem. 3; Defs. Henrico County Commonwealth's Attorney's Office and Owen
I. Ashman's Mem. 3-5). First, Henrico County is not an appropriate party, as it has not
acted in any way through any of its agents in any of the facts alleged. Judge Harris and

Ashman are employees of the Commonwealth, rather than of Henrico County, as their

positions were established by Va. Const, art. VI and Va. Code § 15.2-1626, respectively.
Secondly, Judge Harris is not a proper party. As a judge, he enjoys absolute immunity
for any damages which arise out of his judicial actions. Chu v. Griffith, 771 F.2d 79, 81
(4th Cir. 1985) (citing Bradley v. Fisher, 80 U.S. 335 (1872); Stump v. Sparkman, 435
U.S. 349 (1978)). Thirdly, Ashman is not a proper party, as she enjoys prosecutorial

immunity from civil liability arising out of cases which she prosecutes. Imbler v.
Pachtman, 424 U.S. 409,427 (1976). Fourthly, a county's "Commonwealth's Attorney's
Office is an arm of the Commonwealth and therefore immune from suit under the

Eleventh Amendment." Trantham v. Henry County Sherrijfs Office, 2011 U.S. Dist.
LEXIS 24512 at *15 (W.D. Va. March 10, 2011). (Mem. in Support).

Finally, the Commonwealth ofVirginia6 enjoys sovereign immunity from suits by
its citizens unless it otherwise consents to being sued. Hans v. Louisiana, 134 U.S. 1,17

(1890); U.S. Const. Amend. XI. Although the Commonwealth may enjoy sovereign
immunity generally, the Commonwealth's sovereign immunity under Title II of the ADA

is abrogated in the limited context of the Fourteenth Amendment. The Commonwealth
has also statutorily consented to the some of the types of actions provided in the
Complaint, and these statutes warrant the Court's attention.
As to ADA Title II claims, Congress has abrogated state sovereignty only as it
relates to actions which violate the Fourteenth Amendment. United States v. Georgia,

6The Commonwealth is not a "person"under the meaning of 42 U.S.C. § 1983, and thus cannot
be sued under the statute. See Will v. Mich. Dep't ofSlate Police, 491 U.S. 58, 64 (1989).

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546 U.S. 151, 154; 158 (2006).7 Yet, as stated supra, "[t]he Constitution does not entitle
a criminal defendant to the effective assistance of an expert witness," such as a

psychologist. Wilson 155 F.3d at 401. Plaintiffs Complaint does not allege a violation
of the Constitution in general, or the Fourteenth Amendment in particular. Therefore, the
Commonwealth has sovereign immunity as to these ADA title II claims, and cannot be
sued.

Negligence claims may be brought against the Commonwealth under Va. Code §
8.01-195.3 ("Virginia Tort Claims Act"), but liability is limited to one hundred thousand
dollars, and Plaintiff must show that Defendant Commonwealth employees were acting

"within the scope of [their] employment" when they were negligent. Plaintiff here
merely states the legal conclusion that Judge Harris and Ashman were Commonwealth

"employees" and "acting under Color of Law." (Compl. at ^j 1). He pleads no specific
actions within the scope of Ashman and Judge Harris' employment with the
Commonwealth that suggest they had been negligent. Even if this were so, the

prosecutorial and judicial immunities of Ashman and Judge Harris, as addressed supra,
would still bar any recovery under the Virginia Tort Claims Act.

7See Board ofTrustees of the University ofAlabama v. Garrett, 531 U.S. 356, 374 (2001)
(holding that "Congress is the final authority as to desirable public policy, but in order to
authorize private individuals to recover money damages against the states, there must be a
pattern of discrimination by the states which violates U.S. Const, amend. XIV, and the remedy
imposed by Congress must be congruent and proportional to the targeted violation."). See also
United States v. Georgia, 546 U.S. 151, 158 (2006) (holding that "insofar as Title II of the
Americans with Disabilities Act of 1990 (ADA), 42 U.S.C.S. § 12131 et seq., creates a private
cause of action for damages against the states for conduct that actually violates the Fourteenth
Amendment, Title II of the ADA validly abrogates state sovereign immunity.").
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B.

PLAINTIFF'S MOTION TO TOLL THE STATUTE OF LIMITATIONS

As Defendants have argued, Plaintiffs claims are all barred by the relevant

statutes of limitation. (Defs. Commonwealth of Virginia and Judge Lee A. Harris's
Mem. 8-10; Def. Henrico County's Mem. 8-9; Defs. Henrico County Commonwealth's

Attorney's Office and Owen I. Ashman's Mem. 6-8). Plaintiff moves to toll the statutes

oflimitation, based upon an argument that he is disabled.8 In all ofPlaintiffs claims, the
relevant statutes of limitation are Virginia state statutes. Therefore, this Court may toll
the statute of limitations upon a finding of incapacity, which according to Va. Code §

8.01-229 is appropriate where the individual is "so adjudged by a court of competent

jurisdiction, or if it shall otherwise appear to the court or jury determining the issue that
such person is or was incapacitated within the prescribed limitation period."
The standard for incapacity is wholly separate from that of disability, and Plaintiff

provides no evidence to the effect that he was ever found to be incapacitated. Even still,

Plaintiff, asks that this Court toll the respective statutes of limitation9 for his claims, due
to his disability. (Mot. to Toll, 1 (ECF No. 23)). Plaintiff provides evidence of a Social

8Plaintiff has filed "Motion To Toll-Attachment" (ECF No. 25). Although filed as a motion, the
Court will interpret it as an attachment, as it is titled as such and addresses the same subject
matter as the Motion to Toll. Plaintiff correctly identifies that the state statutes of limitation
control for all claims, but also cites antiquated case law to the effect that "[w]here there are two
or more disabilities coexisting in the same person when his right of action accrues, he is not
obliged to act until the last is removed." Wilson v. Branch, 77 Va. 65, 72-73 (1883); BlackweU's
Adm 'rv. Bragg, 78 Va. 529, 537 (1884). This quotation addresses the voidability of contracts
due to the "disabilities" of infancy and marriage, and has no bearing on the current proceeding.

9Plaintiff originally asked the Court to toll the Federal statute of limitations. However 42 U.S.C.
§ 1983 is "deficient" under 42 U.S.C. § 1988, meaning that it has no integrated statute of
limitations. Therefore, state statutes of limitation apply. Similarly, under the ADA and the law
of negligence claims are governed by the relevant state statutes of limitation.

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Security Administration determination that he had been found to have become "disabled
under our rules on January 3, 2003." (Compl. 3; Compl. Ex. A-1 thereto, (ECF No. 4-8)).

Plaintiff also presents evidence suggesting that he had been judged competent by a court-

appointed psychologist at trial. (Compl. Ex. E thereto). The evidence indicates Plaintiff
was disabled at, before, and after trial, but there is no evidence that he was legally
incapacitated.

Moreover, Plaintiff has alleged insufficient facts to provide a prima facie case for

any of his claims, and the dates of any acts (aside from the trial and the psychological
evaluation) are not included in the Complaint. However, this Court assumes, arguendo
for the sake of the statutes of limitation analysis and in alignment with the liberal

construction owed to pro se complaints, that all events took place in 2008 (the latest date

provided in the Complaint). (Compl. Ex. F thereto). Applying the relevant statutes of
limitation in the manner argued by Defendants, and denying Plaintiffs Motion to Toll,

Plaintiffs claims are all time-barred.10

10 As mentioned supra, the Court uses the 2008 date in regards to claim accrual. For the ADA
claims, the relevant statute of limitations in Virginia is one year, which would have run after any

discriminatory acts of Defendants caused the action to accrue. Thus, Plaintiffs causes of action,
which accrued before 2013, are barred. See generally Thome v. Hale, 2009 U.S. Dist. LEXIS
25938 (E.D. Va. 2009). For the 42 U.S.C. § 1983 claims, the relevant statute of limitations in
Virginia is two years, which would have run after any acts of Defendants which deprived
Plaintiff rights under § 1983 caused the action to accrue. Accordingly, Plaintiffs causes of
action, which accrued before 2012, are barred. See Wallace v. Kato, 549 U.S. 384, 387 (2007);
Va. Code § 8.01-243(A). For the negligence claims, the relevant statute of limitations in Virginia
is two years, which would have run after any negligence of Defendants which caused Plaintiff
injury, causing the action to accrue. Therefore, Plaintiffs causes of action, which accrued before
2012, are barred. See Va. Code § 8.01-248.

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C.

PLAINTIFF'S MOTION FOR LEAVE TO AMEND

"The disposition of a motion to amend is within the sound discretion of the district
court." Davis v. Virginia Commonwealth Univ., 180 F.3d 626, 628 (4th Cir. 1999) (citing
Foman v. Davis, 371 U.S. 178 (1962)). The Federal Rules of Civil Procedure provide

that parties should "freely" be given leave by the Court to amend their incomplete or
otherwise defective pleadings "when justice so requires." Fed. R. Civ. P. 15(a)(2). As

the Fourth Circuit has explained, "[a] motion to amend should be denied only where it

would be prejudicial, there has been bad faith, or the amendment would be futile."
Nourison Rug Corp. v. Parvizian, 535 F.3d 295, 298 (4th Cir. 2008) (citing HCMFCorp.
v. Allen, 238 F.3d 273, 276-77 (4th Cir. 2001)).

Fed. R. Civ. P. 15 (a)(1)(B) reads, in relevant part, "[a] party may amend its

pleading once as a matter of course ... if the pleading is one to which a responsive
pleading is required, 21 days after service of a responsive pleading or 21 days after
service of a motion under Rule 12(b),... whichever is earlier." Plaintiff therefore had

until May 26, 2014 to file an amended Complaint, without needing leave of Court. This
date having passed, Plaintiff may amend the Complaint only with the written consent of

opposing counsel or leave of this Court. See Fed. R. Civ. P. 15(a) (2).
Plaintiff contends that due to his confinement he cannot amend his Complaint

"effectively and professionally." (Mot. for Leave 3 (unnumbered paragraphs)).
However, the pleading standard for pro se litigants is generous, as it requires that "[a]

document filed pro se is 'to be liberally construed.'" Erickson v. Pardus, 551 U.S. 89, 94
(2007) (quoting Estelle v. Gamble, 429 U.S. 97, 104-105 (1976)). In addition,

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"[p]leadings must be construed to do justice." Fed. R. Civ. P. 8(d). This Court does not
require a professional Complaint from thepro se Plaintiff. "[A] pro se complaint,
however inartfully pleaded, must be held to less stringent standards than formal pleadings
drafted by lawyers." Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citation and internal
quotation marks omitted).

Even if Plaintiff were granted leave, any possible amendments to the Complaint
would be futile. Plaintiff can plead no set of facts which can cure the procedural defects

in the Complaint that undermine all claims. For reasons outlined supra, Plaintiffs claims
are time-barred by the relevant statutes of limitation. Also, each Defendant is immune
from all claims brought by Plaintiff, barring all recovery for Plaintiff for any liability
incurred by Defendants.
III. CONCLUSION

In sum, this Court finds that Plaintiff has not pled a plausible factual basis for any

of his fifteen causes of action against Defendants. This alone is sufficient to dismiss the
matter. Moreover, none of Defendants are proper parties to be sued and the applicable
statutes of limitation time-bar all claims. Accordingly, the Court grants Defendants'
Motions to Dismiss, denies Plaintiffs Motion for Leave to Amend, and denies Plaintiffs
Motion to Toll the Federal Statute of Limitations. This case is dismissed with prejudice.

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An appropriate Order will accompany this Memorandum Opinion.

/s/

Henry E. Hudson
United States District Judge

Date:_3jiAj
Richmond, Virginia

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