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, )

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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 2 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 5 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). 8 • 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. 7 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. 8 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 9

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