Farewell v. Pedro et al
Filing
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OPINION. Signed by Judge James P. Jones on 10/31/2014. (tvt)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
ROANOKE DIVISION
MARK FAREWELL,
Plaintiff,
v.
OFFICER PEDRO H.M., ET AL.,
Defendants.
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Case No. 7:14CV00462
OPINION
By: James P. Jones
United States District Judge
Mark Farewell, Pro Se Plaintiff.
Plaintiff Mark Farewell, a Virginia inmate proceeding pro se, has filed a
civil rights action under 42 U.S.C. § 1983. Farewell alleges that certain actions by
the defendant police officer violated his Fourth Amendment right to be free from
unreasonable seizure and that the officer and the defendant magistrate caused him
to be wrongfully convicted. Upon review of the allegations, I find that the lawsuit
must be summarily dismissed without prejudice for failure to state any actionable
claim.
Farewell provides few specific details about the events from which his
claims arise. First, he alleges that on September 2, 2011, the defendant police
officer stopped him without “a reasonable and articulable suspicion of criminal
activity,” which constituted an unreasonable seizure. (Compl. 2.) Second, Farewell
alleges that the officer and the magistrate “lacked the essential elements sufficient
to establish any material fact that constituted an assault and battery” under Va.
Code. Ann. § 18.2-57. (Id.) He asserts that no evidence in the record shows that
he “made an objectively offensive or forcible contact with the officer’s person,”
that he “inten[ded] to do bodily harm to the officer,” or that he “had the present
ability” to use violence. (Id.) Third, Farewell alleges that the officer used perjured
testimony and “committed fraud on the court [by] using photographs of a different
police vehicle . . . to actively conceal the fact [that] the assault was not possible,”
in conspiracy with the Commonwealth. (Id. at 2-3.)
Records available online for the Charlottesville Circuit Court indicate that
Farewell was charged with assaulting a police officer, pleaded not guilty, was
convicted by a jury, and sentenced to three years and nine months in prison. In this
§ 1983 action, Farewell seeks to recover monetary damages for the defendants’
alleged violations of his constitutional rights.
The court must dismiss any action or claim filed by a prisoner against a
governmental entity or officer if the court determines the action or claim is
“frivolous, malicious, or fails to state a claim upon which relief may be granted.”
28 U.S.C. § 1915A(b)(1). To state a claim under § 1983, the plaintiff must allege
facts showing that a person acting under color of state law undertook conduct that
violated the plaintiff’s constitutional rights. See Cooper v. Sheehan, 735 F.3d 153,
158 (4th Cir. 2013) (“Section 1983 of Title 42 creates a cause of action against
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any person who, acting under color of state law, abridges a right arising under the
Constitution or laws of the United States.”)
Farewell complains that the challenged actions of the defendant officer and
magistrate caused him to be wrongfully charged with and found guilty of a
criminal offense, which resulted in the term of imprisonment he is now serving.
Claims of this nature, challenging the validity of the plaintiff’s confinement, are
not actionable under § 1983 unless the judgment imposing the term of confinement
has been overturned or set aside. Heck v. Humphrey, 512 U.S. 477, 486-87 (1994).
[I]n order to recover damages for . . . harm caused by actions whose
unlawfulness would render a conviction or sentence invalid, a § 1983
plaintiff must prove that the conviction or sentence has been reversed
on direct appeal, expunged by executive order . . . or called into
question by a federal court’s issuance of a writ of habeas corpus. . . .
A claim for damages bearing that relationship to a conviction or
sentence that has not been so invalidated is not cognizable under
§ 1983. Thus, when a state prisoner seeks damages in a § 1983 suit,
the district court must consider whether a judgment in favor of the
plaintiff would necessarily imply the invalidity of his conviction or
sentence; if it would, the complaint must be dismissed unless the
plaintiff can demonstrate that the conviction or sentence has already
been invalidated.
Id. (footnote omitted).
If Farewell could prove that the defendants’ actions caused him to be
wrongfully charged, prosecuted, and found guilty, such findings would necessarily
imply that the state court’s judgment was in error. Because Farewell offers no
evidence that the judgment under which he stands convicted and sentenced has
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been overturned or expunged, any cause of action for damages which he may have
against anyone for wrongful actions that contributed to the procurement of that
judgment has not yet accrued.1 Id. Therefore, Farewell’s §1983 claims against the
defendants regarding his confinement are not yet actionable under § 1983. I will
dismiss these claims without prejudice under § 1915A(b)(1).
A separate Final Order will be entered herewith.
DATED: October 31, 2014
/s/ James P. Jones
United States District Judge
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To the extent that Farewell seeks monetary damages against the officer who
stopped him for a violation of his Fourth Amendment rights independent of his
conviction, his claim must be dismissed as time barred. A § 1983 claim based on events
that occurred in Virginia must be brought within two years from the time when the action
accrues or it is barred by Va. Code Ann. § 8.01-243(a), Virginia’s statute for personal
injury claims. See Owens v. Okure, 488 U.S. 235, 239-40 (1989). A claim under § 1983
accrues when plaintiff knows enough about the harm done to him to bring his lawsuit.
Nasim v. Warden, Md. House of Corr., 64 F.3d 951, 955 (4th Cir. 1995) (en banc). It is
clear from the face of Farewell’s complaint that he knew in September 2011 of any harm
that the defendant’s actions caused him. Yet, he did not file this action until August
2014, almost three years later. Thus, any § 1983 claim he may have had related to the
traffic stop and independent of his conviction is barred under § 8.01-2439a), and must be
summarily dismissed under § 1915A(b)(1).
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