Brown v. Gomer et al

Filing 18

MEMORANDUM OPINION. Signed by District Judge Michael F. Urbanski on 10/31/2013. (kab)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
ROANOKE DIVISION
JAMES A. BROWN,
Plaintiff,
v.
LT. GOMER, et al.,
Defendants.

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Civil Action No. 7:13-cv-00272

MEMORANDUM OPINION
By:

Hon. Michael F. Urbanski
United States District Judge

In June 2013, incarcerated pro se plaintiff James A. Brown filed the Complaint in this
action pursuant to 42 U.S.C. § 1983, alleging that Defendants violated the Eighth Amendment of
the United States Constitution by failing to protect him from his cellmate’s attack.1 The court
notified Defendants of this action after Plaintiff proved his indigence, and Defendants argue via a
motion to dismiss that this action was untimely filed. Although Plaintiff has received notice and
the opportunity to explain why this action should be deemed timely filed, he has failed to do so,
and Defendants’ motion to dismiss is granted.
The two-year limitations period for this action began on February 26, 2009, the day after
the attack when Plaintiff had a complete and present cause of action or could file suit and obtain
relief about Defendants’ alleged deliberate indifference to the serious risk of the cellmate’s
attack. See Owens v. Okure, 488 U.S. 235, 249-50 (1989) (recognizing § 1983 adopts the statute
of limitations that the forum state uses for general personal injury cases); VA. CODE § 8.01-229,
8.01-243(A) (permitting tolling of the two-year limitations period for general personal injury
actions); see also Bay Area Laundry and Dry Cleaning Pension Trust Fund v. Ferbar Corp. of
Cal., 522 U.S. 192, 201 (1997) (describing the standard for when a federal cause of action
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Plaintiff filed the same Complaint in June 2012 that the court dismissed without prejudice as untimely filed
without giving Plaintiff the opportunity to amend or notifying Defendants of the action, pursuant to 28 U.S.C.
§ 1915A. Brown v. Edmonds, No. 7:12-cv-00267 (W.D. Va. June 29, 2012) (Urbanski, J.). Plaintiff also filed a
related action in Brown v. Commonwealth, No. CL10000094-00 (Va. Cir. Ct. Feb. 28, 2011), but the disposition of
the action is not apparent.

accrues). However, Plaintiff filed this action on May 28, 2013, more than 1,500 days after the
cause of action accrued. Nothing in Plaintiff’s medical record supports a claim that Plaintiff
lacked sufficient mental capacity after the attack to toll the two-year limitations period to make
this action timely filed.2 See VA. CODE § 8.01-229(A) (tolling the limitations period for
incapacitation). Also, the cellmate’s subsequent criminal prosecution for malicious wounding
does not toll the statute of limitations.3 See id. § 8.01-229(K) (tolling the limitations period in a
civil action for the duration of criminal proceedings that arise from the same facts). Even if the
court were to toll the limitations period for prior state and federal litigation pursuant to Virginia
Code § 8.01-229(E)(1), Plaintiff still filed the action beyond the limitations period. Accordingly,
Defendants’ motion to dismiss is granted, and the Complaint must be dismissed with prejudice as
untimely filed.

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Plaintiff’s medical records from the hospital and prison infirmary filed in Brown v. Edmonds, No. 7:12-cv-00267
(W.D. Va. June 29, 2012), reveal the following information. See United States Fidelity & Guar. Co. v. Lawrenson,
334 F.2d 464, 467 (4th Cir. 1964) (discussing permissible judicial notice of prior, related litigation). Plaintiff was
awake but disoriented when he arrived at the hospital. He told hospital staff that he had a bad headache, but he was
not able to rate the pain on a numeric scale. The prison infirmary’s record for March 25, 2009, says Plaintiff was
“aware completely of his environment.” Plaintiff’s Braden Scale for sensory perception was consistently recorded
as, “No Impairment. Responds to verbal commands. Has no sensory defect which would limit ability to feel or
voice pain or discomfort.” (Braden Scale (Civil Action No. 7:12-cv-00267, ECF no. 2 at 60.)
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This action against Defendants does not arise from the same facts as the cellmate’s criminal proceedings.
Malicious wounding requires the Commonwealth to prove facts beyond a reasonable doubt that the cellmate
maliciously wounded Plaintiff with the intent to maim, disfigure, disable, or kill. VA. CODE § 18.2-51. The facts
necessary to prove malicious wounding beyond a reasonable doubt in Virginia criminal proceedings are not the
same facts necessary to determine whether Defendants were personally aware of facts indicating a substantial risk of
serious harm to Plaintiff and whether Defendants actually recognized the existence of that risk before the attack.
See, e.g., Farmer v. Brennan, 511 U.S. 825, 838 (1994). Consequently, Virginia Code § 8.01-229(K) does not
apply.

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The Clerk is directed to send copies of this Memorandum Opinion and the accompanying
Order to the parties.
Entered: October 31, 2013

/s/ Michael F. Urbanski
Michael F. Urbanski
United States District Judge

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