Prasad v. Delta Sigma Theta Sorority, Inc.

Filing 15

MEMORANDUM OPINION. See Opinion for complete details. Signed by District Judge M. Hannah Lauck on 10/03/2017. Copy mailed to Plaintiff as directed.(ccol, )

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

SUNDARIK. PRASAD,
Plaintiff,
V.

Civil Action No. 3:16CV897

DELTA SIGMA THETA SORORITY, INC.,
Defendant.
MEMORANDUM OPINION

SundariK. Prasad, a Virginia inmate proceeding pro se and informa pauperis, filed this

42 U.S.C. § 1983 action.' The matter is before the Court for evaluation pursuant to28 U.S.C.
§§ 1915(e)(2) and 1915A.
I. Preliminary Review

Pursuant to the Prison Litigation Reform Act ("PLRA") this Court must dismiss any

action filed by a prisoner if the Court determines the action (1) "is frivolous" or (2) "failsto state
a claim on which relief may be granted." 28 U.S.C. § 1915(e)(2). The first standard includes

claimsbased upon "'an indisputably meritless legal theory/" or claimswherethe "'factual

contentions are clearly baseless.'" Clay v. Yates, 809 F. Supp. 417,427 (E.D. Va. 1992)
(quoting Neitzke v. Williams, 490 U.S. 319,327 (1989)), ajfd, 36 F.3d 1091 (4th Cir. 1994).

' The statute provides, in pertinent part:
Every person who, under colorof any statute... of any State... subjects,
or causesto be subjected, any citizen ofthe United States or other person within

thejurisdiction thereof to the deprivation of anyrights, privileges, or immunities
secured by the Constitution and laws, shall be liable to the party injured in an
action at law....

42 U.S.C. § 1983.

The second standard is the familiar standard for a motion to dismiss under Fed. R. Civ. P.

12(b)(6).

"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 Party ofN.C. v. Martin, 980 F.2d 943,952 (4th Cir.
1992) (citing 5A Charles A. Wright

Arthur R. Miller, Federal Practice and Procedure § 1356

(1990)). In considering a motion to dismiss for failure to state a claim, a plaintiffs well-pleaded
allegations are taken as true and the complaint is viewed in the light most favorable to the
plaintiff. Mylan Labs., Inc. v. Matkari, 1 F.3d 1130,1134 (4th Cir. 1993); see also Martin, 980

F.2d at 952. This principle applies only to factual allegations, however, and "a court considering
a motion to dismiss can choose to begin by identifying pleadings that, because they are no more
than conclusions, are not entitled to the assumption of truth." Ashcroft v. Iqbal, 556 U.S. 662,
679 (2009).

The Federal Rules of Civil Procedure "require[ ] only 'a short and plain statement ofthe
claim shoAving 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) (second alteration in original) (quoting Conley v. Gibson, 355 U.S. 41,

47 (1957)). Plaintiffs cannot satisfy this standard with complaints containing only "labels and
conclusions" or a "formulaic recitation of the elements of a cause of action." Id. (citations
omitted). Instead, a plaintiff must allege facts sufficient "to raise a right to relief above the
speculative level," id. (citation omitted), stating a claim that is "plausible on its face," id. at 570,

rather than merely "conceivable." Id "A claim has facial plausibilitywhen the plaintiffpleads
factual content that allows the court to draw the reasonable inference that the defendant is liable
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for the misconduct alleged." Iqbal, 556 U.S. at 678 (citing BellAtl. Corp., 550 U.S. at 556). In
order for a claim or complaint to survive dismissal for failiu'e to statea claim, the plaintiff must
"allege facts sufficient to state allthe elements of [his or] herclaim." Bassv. E.L DuPont de
Nemours & Co., 324F.3d761, 765 (4th Cir. 2003) (citing Dickson v. Microsoft Corp., 309 F.3d
193,213 (4th Cir. 2002); lodice v. United States, 289 F.3d 270,281 (4th Cir. 2002)). Lastly,
while the Court liberally construes pro se complaints, Gordonv. Leeke, 574 F.2d 1147,1151
(4th Cir. 1978), it will not act as the inmate's advocate and develop, sua sponte, statutory and
constitutional claims that the inmate failed to clearly raise on the face of his or her complaint.

See Brockv. Carroll, 107 F.3d 241,243 (4th Cir. 1997) (Luttig, J., concurring);Beaudett v. City
ofHampton, 775 F.2d 1274, 1278 (4th Cu*. 1985).
II. Prasad's Complaint

The action proceeds on Prasad's Particularized Complaint ("Complaint," ECF No. 13).

Inher Complaint, Prasad alleges:^
In and around 1997-2004,1 was a member of Delta Sigma Theta Sorority,

incorporated [at Virginia Commonwealth University]. During "pledge" period, I
was subjected to very harsh treatment [and] vicious trauma in the form of
"hazing" - which [was] physical, mental, and emotional. "Sisters" (other
members) would have us complete various tasks that were physical such as
exercises, buy them items using our money, some performed sexual favors, some
were yelled at, screamed at, suffered loss of sleep, loss of meals, etc.
During "pledge" period, several letters were written to the elder of our
pledge group to tell of our hazing - this was blamed on three of us - all three of
us were "legacy" - [meaning] our mothers were sorority sisters and we were
automatically granted membership by "bloodline." The other sorority sisters
considered us "pauper" as if we meant nothing. All during this "process" as they
called it, we were denied food, sleep, showers, talking to our families, and other
rights, and were harassed, and some beaten and forced to undergo "process" daily
to "cross the burning sands." Us three "legacies" were not included - but were
still initiated. I refused to participate in the hazing as it was against PanHellenic

^The Court corrects the capitalization and punctuation in quotations from Prasad's
Complaint. The Court also omits the emphasis in the quotations from Prasad's Complaint.

rules. In 2004, they kicked me out of the sorority - for no reason at all - after I
stood up to the hazing [and] still reported it, [and] complained about them

violating my [Americans with Disabilities Act ("ADA")] rights, etc. In jail - I
had flashbacks of this trauma.

The Defendants have defiled the Plaintiff's human [and] civil rights by
demeaning her to no less than a slave. "We have to break you down to build you
up." Then kicking her out of [the] sorority [because] she complained about the
hazing. They are against [her because] she is disabled (Eta Taujoked about her
mental illness of depression often).
(Compl. 1-3.)

Prasad alleges violations of the ADA, "human rights," and the First,^ Thirteenth,''

Fourteenth,^ and Fifteenth^ Amendments. {Id. at 2-3.) Prasad seeks injunctive reliefas well as
monetary damages. {Id. at 3^.)
III. Analysis

It is both unnecessary and inappropriate to engage in an extended discussion of Prasad's

theories for relief See Cochran v. Morris, 73 F.3d 1310,1315 (4th Cir. 1996) (emphasizing that
"abbreviated treatment" is consistent with Congress's vision for the disposition of frivolous or
"insubstantial claims" (citing Neitzke v. Williams, 490 U.S. 319,324 (1989))). Although
Prasad's Complaint has many legal infirmities, it ultimately will be dismissed as frivolous for

^"Congress shall make no law... abridging the freedom ofspeech

" U.S. Const

amend. I.

^"Neither slavery nor involuntary servitude, except as apunishment for crime whereof
theparty shall have been duly convicted, shall existwithin the United States, or anyplace subject
to their jurisdiction." U.S. Const, amend. XIII.

^"No State shall... deprive any person oflife, liberty, or property, without due process
of law...." U.S. Const, amend. XIV, § 1.

^"The right ofcitizens ofthe United States to vote shall not be denied or abridged by the
United States or by any State on account of race, color, or previous condition of servitude." U.S.
Const, amend. XV.

falling well outsidethe applicable statutesof limitations for 42 U.S.C. § 1983 and ADA actions.
A. The Applicable Statute of Limitations Bars Prasad's 42 U.S.C. 8 1983 riaims

Because no explicit statute of limitations for 42 U.S.C. § 1983 actions exists, federal

courtsborrowthe personal injury statuteof limitations from the relevantstate. Nasim v. Warden,

64 F.3d 951, 955 (4th Cir. 1995) (citing Wilson v. Garcia, 471 U.S. 261,266-69 (1985)).
Virginia applies a two-year statute of limitations to personal injury claims. See Va. Code Ann.

§ 8.01-243(A) (West 2017). Thus, Prasad was required to file her Complaint within two years
from when the underlying claims accrued.

When a 42 U.S.C. § 1983 claim accrues is dictated by federal law. See Nasim, 64 F.3d

at 955. "A claim accrues when the plaintiff becomes aware of hisor her injury. United States v.
Kubrick, 444 U.S. 111, 123 (1979), or when he or she Ms put onnotice... to make reasonable

inquiry' as to whether a claim exists." Almond v. Sisk, No. 3:08CV138,2009 WL 2424084, at

*4 (E.D. Va. Aug. 6,2009) (omission inoriginal) (quoting Nasim, 64 F.3d at 955), qff'd, 372 F.
App'x 432 (2010). Further, in order to dismiss a 42U.S.C. § 1983 action because the applicable
statute of limitations hasexpired, "the court mustfmd thatthe expiration of the statute of

limitations is clear onthe face of the complaint." In re Davis, Nos. 4:1 ICVll, 11CV12,
11CV13,11CV14, 11CV15,11CV16,11CV17,1ICV18,11CV19, 11CV20,2011 WL

9669470, at *2 (E.D. Va. Jan. 26,2011) (citation omitted), ajfdsub nom. Davis v. Wilkinson,
443 F. App'x 812 (4th Cir. 2011).

It is clear from the face ofher Complaint that the events ofwhich Prasad complains
accrued more than two years before this action was brought. As evident by her Complaint,

Prasad was aware, or atthe very least was on inquiry notice, that the Defendant was engaged in

what she deems as "hazing" between 1997 and 2004. (Compl. 1.) Further, Prasad was certainly
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aware that the Defendant "kicked [her] out" in 2004 after Prasad "stood up tothe hazing" and
"still reported it [and] complained." {Id. at2.) Thus, Prasad's claims accrued no later than 2004,

meaning she had until sometime in 2006 tofile this action. Prasad filed her Complaint in
November 2016, almost tenyears after the expiration of Virginia's applicable statute of

limitations. See Va. Code Ann. §8.01-243(A) (West 2017). Therefore, Prasad's Complaint is

untimely on its face,' and her 42 U.S.C. § 1983 action is frivolous. See Nasim, 64 F.3d at 956
(holding that the district court did not err in dismissing as fiivolous an inmate's complaint
alleging that asbestos inhis cell caused him physical and psychological injuries when the action

was filed four years after itaccrued and a year after the applicable statute oflimitations expired).
B. The Applicable Statute of Limitations Bars Prasad's ADA riaims

Prasad also asserts thatthe Defendant violated her rights under the ADA. However, it is

unclear from Prasad's Complaint under which Title ofthe ADA she brings herclaims. Because
the Court presumes thatPrasad intends to casther Complaint broadly, the Court construes Prasad

to allege violations of Title II® and/or Title III' ofthe ADA, as well asa claim ofretaliation for

' In contrast to accrual, whether a 42 U.S.C. §1983 claim istolled is a matter ofstate
law. See Bd. ofRegents v. Tomanio, 446 U.S. 478,486 (1980). However, Prasad does not allege
andthe Court finds no grounds for tolling the applicable Virginia statute of limitations. SeeVa.
Code Ann. § 8.01-229 (West 2017); Anderson v. Humphres, No. 1:06CV653 LMB/BRP, 2006
WL6198680, at *1 (E.D. Va. Dec. 4,2006).
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•
Title II states, in relevant part, "noqualified individual with a disability shall, byreason
ofsuch disability, beexcluded from participation inorbe denied the benefits ofthe services,

programs, or activities of a public entity." 42 U.S.C. § 12132.

' Title III states, in relevant part, "[n]o individual shall be discriminated against on the

basis ofdisability in the full and equal enjoyment ofthe goods, services, facilities, privileges,
advantages, oraccommodations ofany place ofpublic accommodation by any person who owns,
leases (or leases to), or operates a place ofpublic accommodation," 42 U.S.C. § 12182(a).

protected activity under 42 U.S.C. § 12203.'° However, for the reasons stated below, Prasad's
ADA claims, whether they are brought pursuant to Title II, Title III, or considered a claim of
retaliation undereither Title, are barredby the applicable statuteof limitations.
Like 42 U.S.C. § 1983, the ADA does not contain a statute of limitations. Thome v.

Hale, No. 1:08CV601 (JCC), 2009 WL 890136, at *4 (E.D. Va. Mar. 26,2009). Consequently,
federal courts "borrow the state statute of limitations that applies to themost analogous state-law
claim." ASoc'y Without A Name v. Virginia, 655 F.3d 342,347 (4th Cir. 2011) (citations

omitted). The United States Court of Appeals forthe Fourth Circuit has held that generally, the
one-year statuteof limitations in the Virginia Rights of Persons with Disabilities Act ("the

Virginia Act") applies to ADA claims in Virginia." Id. at 348; see Va. Code Ann. §51.5-46 (B)
(West 2017). Therefore, Prasad had one year from accrual of her ADA claims to file a
Complaint alleging those claims.

Also like a claim brought under 42 U.S.C. § 1983, when an ADA claim accrues is a
matter of federal law. A Soc 'y WithoutA Name, 655 F.3d at 348. "A claim accrues when the

plaintiff becomes aware of his or her injury, Kubrick, 444 U.S. at 123, or when he or she 'is put
on notice... to make reasonable inquiry' as to whether a claim exists." Almond, No. 2009 WL

42 U.S.C, § 12203(a) states, in relevant part, "[n]o personshall discriminate against
any individual because suchindividual has opposed anyact or practice made unlawful by [the
ADA] or because such individual made a charge, testified, assisted, or participated in any
mannerin an investigation, proceeding, or hearing under [the ADA]."

" The Court notes that although the Fourth Circuit's reasoning for adopting the Virginia
Actas the appropriate analogous state-law wasbased on the statute's "express pronoimcement
that regulations promulgated pursuant to the statute 'shall beconsistent, whenever applicable,"'
with the ADA, Semenova v. Md. Transit Admin., 845 F.3d 564, 567 (4th Cir. 2017) (citing yi
Soc'y Without A Name, 655 F.3d at 349),the language relied on by the Court has been removed
from the statute. See Va. Code Ann. § 51.5-40 (West 2017). However, because this Courtfinds

noauthority holding a different statute of limitations applies to ADA claims in Virginia, the
Court retains the VirginiaAct's one-year statute of limitations.
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on notice ... to make reasonable inquiry' as to whether a claim exists." Almond, No. 2009 WL

2424084, at *4 (omission in original) (quoting Nasim, 64 F.3d at 955). Butstill, "[i]norder to
dismiss a complaint sua sponte on the ground thatthe statute of limitations has expired, the court

must find that the expiration of the statute of limitations is clear onthe face ofthe complaint."
In re Davis, 2011 WL 9669470, at *2.

For the same reasons statedabove, Prasad's ADA claimsaccrued no later than 2004.'^
Thus, under the Virginia Act's statute of limitations, Prasad had imtil sometime in 2005 to file a

Complaint alleging Title II, Title III, and retaliatory violations ofthe ADA.'^ However, Prasad
filed her Complaint in November 2016, nearly eleven years after the Virginia Act's one-year
statute of limitations period expired. Thus, Prasad's ADA claims arefacially time-barred.'^ See
A Soc'y Without A Name, 655 F.3d at 348 (findingplaintiffs ADA claims were time-barred
under the Virginia Act's one-year statute of limitations period when the action was filed two
The Court does not fmd a continuing violation of either 42 U.S.C. § 1983 or the ADA
so as to delay accrual of either applicable statute of limitations past 2004. Although Prasad
claims shehad "flashbacks of [the] traxraia" while injail, (Compl. 2), "a continuing violation is

occasioned by continual unlawiful acts, not continual ill effects from an original violation." Nat'I
Advert. Co. v. City ofRaleigh, 947F.2d 1158,1166 (4th Cir. 1991) (quoting Ward v. Caulk, 650
F.2d 1144,1147 (9th Cir. \9U))-, see A Soc'y Without A Name, 655 F.3d342 at 348.

Prasaddoes not allege and the Courtfinds no grounds for equitably tolling the
applicable statute of limitations. See Thome, 2009 WL 890136, at *6.

"'Although Congressenacted a catchall four-year statute of limitations for actions

arising imder federal statutes enacted after December 1,1990,' the ADA was enacted onJuly 26,
1990." ASoc 'y Without AName, 655 F.3d at 347 (citations omitted). Therefore, as a general
rule, "theone-year limitations period in the [Virginia Act] applies to ADA claims brought in
Virginia." Id. at 348. The ADA was amended, however, in 2008. See 42 U.S.C. § 12102 (West
2017); Dickinson v. Univ. ofN Carolina, 91 F. Supp. 3d 755,764(M.D. N.C. 2015). Thus, if
Prasad's claims were "made possible" by the ADA Amendments Act (ADAAA) rather than the
pre-amendment ADA, she could invoke the four-yearstatute of limitations. Dickinson, 91 F.
Supp. 3d at 764. However, evenif Prasad had pled facts to allowthe Court to inferher claims
were made possible by the ADAAA, her Complaint would still be time-barred because her

claims would have tohave been brought no later than 2008 and Prasad filed her Complaint in
November 2016.
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frivolous. See Neitzke, 490 U.S. at 325 (explaining that "a complaint, containing as it does both
factual allegations and legal conclusions, is frivolous where it lacks an arguable basis either in
law or in fact.").

IV. Conclusion
For the foregoing reasons, Prasad's claims will be DISMISSED AS FRIVOLOUS. The
action will be DISMISSED. The Clerk will be DIRECTED to note the disposition of the action
for the purposes of28 U.S.C. § 1915(g).

An appropriate Order will accompany this Memorandum Opinion.

M. Hannah
Date: .OCT - 3 2017
Richmond, Virginia

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