Duncan v. Blackwell et al
Filing
54
MEMORANDUM OPINION. Signed by Chief Judge Michael F. Urbanski on 10/26/2020. (Opinion mailed to Pro Se Party via US Mail)(tvt)
Case 7:14-cv-00527-MFU-RSB Document 54 Filed 10/26/20 Page 1 of 6 Pageid#: 204
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
ROANOKE DIVISION
JONATHON ROBERT DUNCAN,
Plaintiff,
v.
ARTHUR BLACKWELL, et. al,
Defendants.
)
)
)
)
)
)
Civil Case No. 7:14cv00527
By: Michael F. Urbanski
Chief United States District Judge
MEMORANDUM OPINION
This matter is before the court on plaintiff’s motion for reconsideration, in which he
requests that the court reconsider its 2016 order granting his motion for voluntary dismissal
and reopen his case. For the reasons set forth below, the motion will be denied.
I.
BACKGROUND
Plaintiff Jonathon Robert Duncan, an inmate proceeding pro se, filed this case in
September 2014, and he paid the full filing fee. He named two defendants, both employees
of the Augusta County Sheriff’s Office. His complaint alleged that on March 2, 2013, after
he reported to the Sheriff’s Office to turn himself in on a probation violation warrant, he
was taken to a secure hallway, where the two defendants assaulted him without provocation,
including kicking, punching, and using a taser on him. Additionally, defendant Blackwell
allegedly injected an unknown substance into Duncan, pulled down Duncan’s underwear,
and then “stuck the Tazer” into Duncan’s penis before “viciously pull[ing] the prongs out
[with] blood everywhere.” Compl., ECF No. 1-1, at 3–4. After Duncan was restrained in
leg irons, defendants carried him to a parking lot, where another deputy allegedly punched
him in the face. Id. at 3.
Case 7:14-cv-00527-MFU-RSB Document 54 Filed 10/26/20 Page 2 of 6 Pageid#: 205
Finding that there were disputes of fact, the court denied defendants’ motion for
summary judgment, and the matter was set for a bench trial in October 2016. Two months
before trial, and after one of the defendants had filed for bankruptcy, Duncan filed a motion
to voluntarily dismiss the case. ECF No. 48. In it, he simply stated that he did not want to
proceed any further and wanted to dismiss the case for “personal reasons.” Id. at 1. He also
“apologize[d] for wasting anyone’s time.”
Id.
Defendants requested a dismissal with
prejudice, and the court gave Duncan an opportunity to respond to that request, but he
failed to file anything in response. Accordingly, by order entered September 20, 2016, the
court granted Duncan’s motion and dismissed the action with prejudice.
Nearly four years later, on September 3, 2020, the Clerk received from Duncan a
motion asking for reconsideration of the dismissal of his case. ECF No. 53. Duncan states
that he previously sought dismissal because he “was threatened by my City of Staunton
police department to drop the case or else they would do something worse to me.” Id. at 2.
He reiterates the basic allegations of his complaint, referring to the March 2, 2013 attack in
which he was “tazed” and then allegedly denied medical treatment. 1 Duncan’s motion to
The denial of medical treatment was alleged in a separate lawsuit, Duncan v. Lee, Case No. 7:14cv-546 (W.D. Va.), which was assigned to Judge Kiser. The complaint in that case referenced the March 2,
2013 attack by Blackwell and Arnold and claimed that after the assault, Duncan was not processed through
any regular booking procedures and was denied medical attention by staff at the Middle River Regional Jail,
despite the fact that he was visibly “beat up, tazed and covered in blood.” Duncan v. Lee, No. 7:4-cv-546,
Compl., ECF No. 1. Judge Kiser dismissed that case without prejudice for failing to state a claim against any
of the named defendants, because Duncan had not described any personal act or omission by any defendant.
Id., Mem. Op., ECF No. 9 at 1.
1
2
Case 7:14-cv-00527-MFU-RSB Document 54 Filed 10/26/20 Page 3 of 6 Pageid#: 206
reconsider also references a 2014 assault by jail correctional officer Larry Miller, and he
claims that he is in the process of filing a lawsuit over that incident. 2
Duncan says that these incidents resulted in a host of physical and emotional
damages and that he has “waited in fear for the last several years not knowing what to do.”
Id. at 3. He has “recently decided,” however, that “something has to be done” and that he
deserves to be compensated “for all this.” Id. He thus asks that the court reconsider its
order of dismissal and reopen his case.
II. DISCUSSION
Because Duncan’s motion was filed almost four years after dismissal of his case and
thus cannot be a Rule 59 motion, the court construes it as a motion pursuant to Federal Rule
of Civil Procedure 60(b). Rule 60(b) provides an avenue for relief “from a final judgment,
order, or proceeding.” A party seeking relief under Rule 60(b) must first make a threshold
showing of “timeliness, a meritorious defense, a lack of unfair prejudice to the opposing
party, and exceptional circumstances.” Dowell v. State Farm Fire & Cas. Auto Ins. Co., 993
F.2d 46, 48 (4th Cir. 1993). After that threshold showing is met, the movant must “clearly
establish” one of the six specific grounds for relief in Rule 60(b), In re Burnley, 988 F.2d 1, 3
(4th Cir. 1992), only two of which are potentially applicable here: “(3) fraud or misconduct
of an adverse party;” and “(6) any other reason justifying relief.” Fed. R. Civ. P. 60(b)
Subsection (6) of Rule 60(b) is a catch-all clause, but it “may be invoked only in
A § 1983 claim based on events that occurred in Virginia is subject to Virginia’s statute of
limitations for general personal injury claims, see Owens v. Okure, 488 U.S. 235, 239–40 (1989), which
requires that an action be brought within two years of its accrual. Va. Code Ann. § 8.01-243(A); A Soc’y
Without A Name v. Virginia, 655 F.3d 342, 348 (4th Cir. 2011) (explaining that § 1983 claims in Virginia have
a two-year limitations period). Thus, any claim based on a 2014 assault would be barred by the applicable
statute of limitations, absent equitable tolling.
2
3
Case 7:14-cv-00527-MFU-RSB Document 54 Filed 10/26/20 Page 4 of 6 Pageid#: 207
extraordinary circumstances when the reason from relief from judgment does not fall within
the list of enumerated reasons given in Rule 60(b)(1)–(5).” Aikens v. Ingram, 652 F.3d 496,
500 (4th Cir. 2011) (internal quotation marks omitted).
As an initial matter, it appears that Duncan cannot make the required threshold
showing.
With regard to timeliness, Rule 60(b) specifies that motions for relief from
judgment must be made “within a reasonable time,” and, as to motions brought under
subsections (1) to (3), not more than a year after judgment is entered. Duncan’s failure to
bring the motion within one year means that he cannot rely on subsection (3). As a general
rule, moreover, he cannot rely on the “misconduct of the other party,” which is specifically
enumerated under subsection (3), to bring his motion within subsection (6). Home Port
Rentals, Inc. v. Ruben, 957 F.2d 126, 133 (4th Cir 1992) (“A litigant may not move for relief
under Rule 60(b)(6) in order to circumvent the applicable time limits on motions under other
subsections of Rule 60(b).”).
Even if Duncan could proceed under subsection (6), moreover, the court does not
believe that four years is a “reasonable” time within which to file his motion, under the facts
alleged by Duncan. His motion refers to an unnamed person threatening to harm him if he
did not dismiss his lawsuit and Duncan summarily suggests that defendants prompted that
threat. While, if true, that would constitute misconduct of the opposing party and could
certainly explain the reason why Duncan asked that his case be dismissed, it does not explain
why he waited four years to seek reconsideration of that dismissal. Indeed, he does not
allege that there were any subsequent threats and certainly does not allege that threats
continued for four years after the dismissal.
4
Case 7:14-cv-00527-MFU-RSB Document 54 Filed 10/26/20 Page 5 of 6 Pageid#: 208
Instead, Duncan simply explains that he remained afraid and did “not know[] what to
do,” ECF No. 53 at 3, but “recently decided” he should pursue his claims. It appears, then,
that he simply had a change of heart and has now “decided” that he again wants to pursue
his claims. That is not sufficient to excuse a four-year delay, or to render such a long delay
reasonable. This is perhaps particularly true where the statute of limitations on his claim is
two years, see supra note 2, and would not have been tolled for the entire four years on the
facts alleged here.
On this point, the court finds instructive a Fourth Circuit case addressing a plaintiff’s
request for equitable tolling because of a defendant’s threats against her and control of her.
Cruz v. Maypa, 773 F.3d 138, 147–48 (4th Cir. 2014). Applying Virginia law, the Cruz court
noted that the statute of limitations is tolled for the period of time that the filing of the
action (or here, the seeking of reconsideration) “is obstructed by a defendant’s . . . using any
. . . direct or indirect means to” obstruct the filing. Va. Code Ann. § 8.01-220. Applying this
principle in the context of a person who alleged forced employment, the Fourth Circuit
assumed that the time during which the plaintiff was still being held in forced employment
tolled her claims, but noted that she did not allege that defendant took any action to obstruct
her filing suit after her escape. Because her claims were not filed within the limitations
period even with the benefit of the equitable tolling until the time of her escape, they were
time-barred. Cruz, 773 F.3d at 147–48.
The legal context here is different, but the principles are the same. Duncan provides
no adequate explanation for his continued failure—for a period of four years—to raise
defendants’ alleged earlier misconduct. He does not point to anything that occurred within
5
Case 7:14-cv-00527-MFU-RSB Document 54 Filed 10/26/20 Page 6 of 6 Pageid#: 209
those four years to justify such a lengthy delay. On the record before the court, his motion
simply was not made within a “reasonable time” under Federal Rule Civil Procedure 60(b).
For these reasons, the court concludes that Duncan’s motion was not timely because
he did not file it within a year so as to be timely under Rule 60(b)(3) and did not file it within
a “reasonable time” so as to proceed under Rule 60(b)(6), either. He is therefore not entitled
to relief under Rule 60(b).
III.
CONCLUSION
For the foregoing reasons, Duncan’s motion to reconsider and to reopen the case,
ECF No. 53, will be denied. An appropriate order will be entered.
It is so ORDERED.
Entered: October 26 2020
__,
Michael F. Urbanski
Chief U.S. District Judge
2020.10.26 13:48:55 -04'00'
Michael F. Urbanski
Chief United States District Judge
6
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?