Denmark v. Starcher

Filing 22

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION TO DISMISS: It is ORDERED that Defendant's 15 Motion to Dismiss is hereby granted in part and denied in part. Accordingly, this case may proceed, but only as a 1983 individual-capacity claim. Signed by District Judge Irene M. Keeley on 12/18/14. (cnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
JACKIE DENMARK,
Plaintiff,
v.

//

CIVIL ACTION NO. 1:14CV58
(Judge Keeley)

CPL. D.P. STARCHER, individually
and in his official capacity as a
Trooper with the West Virginia
State Police,
Defendant.

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANT’S MOTION TO DISMISS [DKT. NO. 15]
Pending before the Court is the motion to dismiss (dkt. no.
15) filed by the defendant, Corporal D.P. Starcher (“Starcher”).
The amended complaint of the plaintiff, Jackie Denmark (“Denmark”),
asserts claims against Starcher in both his individual and official
capacities pursuant to 42 U.S.C. § 1983 and the common law tort of
abuse of process.

In his motion, Starcher contends that (1) any

claims against him in his individual capacity are barred by the
statute of limitations, and (2) he is immune from § 1983 liability
in his official capacity.

For the following reasons, the Court

GRANTS IN PART and DENIES IN PART Starcher’s motion.
I. FACTUAL BACKGROUND
In May, 2006, Denmark’s son, Seth, and two other individuals,
including David Wayne Beech (“Beech”), visited Denmark’s home.
According

to

Denmark’s

amended

complaint,

nothing

suspicious

DENMARK v. STARCHER

1:14CV58

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANT’S MOTION TO DISMISS
occurred,

and

following

dinner

the

threesome

departed

her

residence.
Apparently, Beech went missing following this visit, and the
West Virginia State Police suspected a kidnapping. Soon the police
arrested Seth. Denmark alleges that Starcher pressured Seth for a
confession by threatening to arrest her. When Seth did not confess,
Starcher filed a criminal complaint against Denmark on March 12,
2010, and obtained an arrest warrant, which he executed on the same
day. The criminal complaint alleged that Denmark had aided and
abetted Seth in Beech’s kidnapping, in violation of W. Va. Code
§ 61-2-14E.

Denmark was detained for several months; subsequently

she was placed on home confinement until, eventually, the state
dismissed charges against her without prejudice in April, 2011. In
May, 2013, the Circuit Court of Calhoun County, West Virginia,
accepted a plea agreement from another defendant involved in
Beech’s alleged kidnapping that included a provision requiring the
State to dismiss all charges against Denmark with prejudice.
II. PROCEDURAL BACKGROUND
Before her charges had been dismissed with prejudice, Denmark
filed a complaint in this Court on March 12, 2012 that alleged
Starcher, acting in his official capacity only, had violated her
constitutional rights and committed abuse of process when he filed
2

DENMARK v. STARCHER

1:14CV58

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANT’S MOTION TO DISMISS
the March, 2010 criminal complaint against her. That complaint was
docketed as Case No. 1:12CV43.

In December, 2013, the Court

granted Starcher’s unopposed motion to dismiss that complaint
without prejudice based on untimely service of process.
In March, 2014, pursuant to West Virginia’s “savings statute,”
W. Va. Code § 55-2-18,1 Denmark refiled her complaint in the
captioned case that, like its predecessor, named Starcher solely in
his official capacity.

Later, in July, 2014, the Court allowed

Denmark to amend her complaint in order to allege claims against
Starcher in both his official and individual capacities. After
Denmark amended her complaint, Starcher moved to dismiss.
That motion is now fully briefed and ripe for review. In
addressing Starcher’s motion, the Court will consider (1) whether
Denmark’s claims against Starcher in his individual capacity are
time-barred, and (2) whether Starcher is immune from Denmark’s §
1983 claim in his official capacity.2
1

The savings statute provides that, “[f]or a period of one year
from the date of an order dismissing an action or reversing a judgment,
a party may refile the action if the initial pleading was timely filed
and: (i) the action was involuntarily dismissed for any reason not based
upon the merits of the action.” Moreover, “a dismissal not based upon
the merits of the action includes . . . [a] dismissal for failure to have
process timely served.” W. Va. Code § 55-2-18(b)(3).
2

Starcher bases his motion on both Rules 12(b)(1) and 12(b)(6).
It is clear that “the statute of limitations is an affirmative defense,
not a jurisdictional prerequisite, so such a challenge to a complaint is

3

DENMARK v. STARCHER

1:14CV58

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANT’S MOTION TO DISMISS
III. STANDARDS OF REVIEW
A.

Rule 12(b)(1)
When,

as

here,

the

moving

party

has

asserted

a

facial

challenge to the Court’s subject matter jurisdiction under Rule
12(b)(1),

“‘the

plaintiff,

in

effect,

is

afforded

the

same

procedural protection as he would receive under a Rule 12(b)(6)
consideration.’” Kerns v. United States, 585 F.3d 187, 192 (4th
Cir. 2009) (quoting Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir.
1982)).

“In that instance, the court must evaluate the complaint

in the same manner utilized in assessing a motion to dismiss for
failure to state a claim –- that is, viewing the well-pleaded facts
in the complaint as true.”

Kimble v. Rajpal, 566 Fed. App’x 261,

262 (4th Cir. 2014) (per curiam).

made pursuant to Rule 12(b)(6), not 12(b)(1).” Reid v. Prince George’s
Cnty. Bd. of Educ., __ F. Supp. 3d __, No. TDC-14-600, 2014 WL 5089070,
at *2 (D. Md. Oct. 8, 2014). On the other hand, it remains unclear in
the Fourth Circuit “whether a dismissal on Eleventh Amendment immunity
grounds is a dismissal for failure to state a claim under Rule 12(b)(6)
or a dismissal for lack of subject matter jurisdiction under Rule
12(b)(1).” Andrews v. Daw, 201 F.3d 521, 524 n.2 (4th Cir. 2000). But
see Evans v. Martin, No. 2:12CV3838, 2013 WL 4805729, at *3 (S.D.W. Va.
Sept. 9, 2013) (noting that “[t]he recent trend, however, appears to
treat Eleventh Amendment immunity motions under Rule 12(b)(1)”) (internal
quotation marks and citation omitted). The Court need not decide the
latter issue for purposes of this order.

4

DENMARK v. STARCHER

1:14CV58

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANT’S MOTION TO DISMISS
B.

Rule 12(b)(6)
In

reviewing

the

sufficiency

of

a

complaint

under

Rule

12(b)(6), a district court “‘must accept as true all of the factual
allegations contained in the complaint.’”

Anderson v. Sara Lee

Corp., 508 F.3d 181, 188 (4th Cir. 2007) (quoting Erickson v.
Pardus, 551 U.S. 89, 94 (2007)).

However, while a complaint does

not need detailed factual allegations, a plaintiff’s obligation to
provide the grounds of his entitlement to relief requires more than
labels and conclusions, and a formulaic recitation of the elements
of a cause of action will not do.
U.S. 544, 555 (2007).

Bell Atl. Corp. v. Twombly, 550

Indeed, courts “are not bound to accept as

true a legal conclusion couched as a factual allegation.”
v. Allain, 478 U.S. 265, 286 (1986).

Papasan

In considering whether the

facts alleged are sufficient, “a complaint must contain ‘enough
facts to state a claim to relief that is plausible on its face.’”
Anderson, 508 F.3d at 188 (quoting Twombly, 550 U.S. at 547).
“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 of N.C. v. Martin, 980 F.2d 943,

952 (4th Cir. 1992).

“But in the relatively rare circumstances

where facts sufficient to rule on an affirmative defense are
5

DENMARK v. STARCHER

1:14CV58

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANT’S MOTION TO DISMISS
alleged in the complaint, the defense may be reached by a motion to
dismiss filed under Rule 12(b)(6),” so long as “all facts necessary
to the affirmative defense ‘clearly appear[] on the face of the
complaint.’” Goodman v. Praxair, Inc., 494 F.3d 458, 464 (4th Cir.
2007) (quoting Richmond, Fredericksburg & Potomac R.R. v. Forst, 4
F.3d 244, 250 (4th Cir. 1993)).
IV. ANALYSIS
A.

Statute of Limitations
“The raising of the statute of limitations as a bar to

plaintiffs’ cause of action constitutes an affirmative defense and
may be raised by motion pursuant to Fed. R. Civ. P. 12(b)(6), if
the time bar is apparent on the face of the complaint.”

Dean v.

Pilgrim’s Pride Corp., 395 F.3d 471, 474 (4th Cir. 2005) (citations
omitted).

Here, Starcher contends that any claims against him in

his individual capacity are time-barred because Denmark never sued
him in his individual capacity until July, 2014. Starcher’s motion
focuses particularly on Denmark’s claim pursuant to § 1983.3

3

To the extent Denmark alleges a stand-alone claim for abuse of
process, that claim is clearly time-barred for reasons other than
Denmark’s failure to assert it against Starcher in his individual
capacity until July, 2014.
“An action for abuse of process must be
brought within one year from the time the right to bring the action
accrued.” Syl. Pt. 3, Preiser v. MacQueen, 352 S.E.2d 22, 23 (W. Va.
1985). Under West Virginia law, a cause of action for abuse of process
accrues “‘from the termination of the acts which constitute the abuse

6

DENMARK v. STARCHER

1:14CV58

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANT’S MOTION TO DISMISS
Federal law does not provide a statute of limitations for §
1983 claims.

Rather, “42 U.S.C. § 1988 requires courts to borrow

and apply to all § 1983 claims the one most analogous state statute
of limitations.”

Owens v. Okure, 488 U.S. 235, 240 (1989) (citing

Wilson v. Garcia, 471 U.S. 261 (1985)).

“In West Virginia, § 1983

actions are considered personal injury actions and utilize the two
year statute of limitations.”

Orum v. Haines, 68 F. Supp. 2d 726,

730 (N.D.W. Va. 1999) (citing W. Va. Code § 55-2-12(b)); see also
McCausland v. Mason Cnty. Bd. of Educ., 649 F.2d 278, 279 (4th Cir.
1981).
Here, Starcher has asserted the statute of limitations as a
bar

to

Denmark’s

§

1983

individual-capacity

claim.

It

is

undisputed that Denmark did not allege any claims against Starcher
in his individual capacity until July, 2014, when she filed her
amended complaint.

Thus, two questions arise.

First, when did

complained of, and not from the completion of the action in which the
process issued.’” Id. at 29 (quoting 1 A.L.R. 3d 953-54 (1965)). Based
on Preiser, any abuse of process claim in this case accrued when Starcher
filed a criminal complaint against Denmark in March, 2010, not, as
Denmark urges, when the charges were dismissed with prejudice in May,
2013. Moreover, Denmark’s reliance on the continuing tort doctrine and
the threat of re-arrest is misplaced because “a wrongful act with
consequential continuing damages is not a continuing tort.” Ricottilli
v. Summersville Mem. Hosp., 425 S.E.2d 629, 632 (W. Va. 1992) (citing
Spahr v. Preston Cnty. Bd. of Educ., 391 S.E.2d 739, 742 (W. Va. 1990)).
Therefore, even using Denmark’s initial complaint filed in March, 2012,
she was still one year too late in asserting a claim under West Virginia
law for abuse of process.

7

DENMARK v. STARCHER

1:14CV58

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANT’S MOTION TO DISMISS
Denmark’s § 1983 claim accrue?

Second, if her § 1983 claim accrued

prior to July, 2012, does her § 1983 individual-capacity claim,
first asserted in her amended complaint filed in July, 2014, relate
back to her March, 2014 complaint?
1. Accrual
“Although the applicable state statute of limitations supplies
the length of the limitations period in a § 1983 action, the time
of accrual of the cause of action is a matter of federal law.”
Brooks v. City of Winston-Salem, 85 F.3d 178, 181 (4th Cir. 1996).
“Under federal law a cause of action accrues when the plaintiff
possesses

sufficient

facts

about

the

harm

done

to

reasonable inquiry will reveal his cause of action.”

him

that

Nasim v.

Warden, Md. House of Corr., 64 F.3d 951, 955 (4th Cir. 1995) (en
banc).
In Wallace v. Kato, 549 U.S. 384, 387-88 (2007), the United
States Supreme Court addressed the accrual of a § 1983 claim
similar to that asserted here.

There, the plaintiff, Wallace, who

had been arrested for murder in 1994, was convicted by a jury, and
sentenced to twenty-six years in prison.

Id. at 386.

He then

successfully appealed his conviction on the ground that he had been
arrested in violation of the Fourth Amendment, and the prosecutors
dropped all charges against him on April 10, 2002.
8

Id. at 386-87.

DENMARK v. STARCHER

1:14CV58

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANT’S MOTION TO DISMISS
On April 2, 2003, Wallace filed a § 1983 action against the
arresting officers, alleging that he had suffered damages as a
result of their violation of his Fourth Amendment rights.

Id.

The

district court granted summary judgment to the police officers
after concluding that Wallace’s § 1983 claim was time-barred. That
decision was later affirmed by the Seventh Circuit.
Supreme

Court

then

granted

certiorari

Wallace’s § 1983 claim was timely.
After

first

determining

to

Id.

determine

The

whether

Id. at 386.

that

the

applicable

statute

of

limitations for Wallace’s claim under Illinois law was two years,
the court explained that a § 1983 claim accrues “when the plaintiff
has a complete and present cause of action, that is, when the
plaintiff can file suit and obtain relief.”
quotation marks and citation omitted).

Id. at 388 (internal

It further explained that

Wallace “could have filed suit as soon as the allegedly wrongful
arrest

occurred,

subjecting

him

to

the

harm

of

involuntary

detention, so the statute of limitations would normally commence to
run from that date.”

Id.

Nevertheless, the court looked to the most analogous common
law tort cause of action, false imprisonment, to determine whether
any “distinctive treatment” of the accrual date was appropriate.
Id. It observed that, under the common law, the limitations period
9

DENMARK v. STARCHER

1:14CV58

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANT’S MOTION TO DISMISS
for a false imprisonment claim does not begin to run until the end
of detention without legal process.

Id. at 389.

Applying this

principle to the plaintiff’s § 1983 claim, the court concluded that
his false imprisonment ended, and the two-year limitations period
had begun to run, on the date of his arraignment.

Id. at 391.

The Fourth Circuit recently applied Wallace in Owens v.
Baltimore City State’s Attorneys Office, 767 F.3d 379, 387-89 (4th
Cir. 2014).

There, the plaintiff, Owens, asserted a § 1983 claim

against multiple defendants, including several police officers who
had been involved in investigating and prosecuting him for burglary
and felony murder.

He alleged that the defendants had “violated

his

rights

constitutional

withholding
trial.”
untimely.

exculpatory

Id. at 387.
Id. at 388.

by

and

intentionally

impeachment

and

evidence

in
at

bad
his

faith
1988

The officers moved to dismiss the claim as
The relevant issue on appeal was when the

statute of limitations had begun to run on Owens’s § 1983 claim.
Id.
Relying on Wallace, the Fourth Circuit looked to the most
analogous common law tort cause of action, which was the claim of
malicious prosecution.

Id. at 390.

Observing that, under the

common law, “the limitations period for malicious prosecution
claims does not begin to run until a truly final disposition is
10

DENMARK v. STARCHER

1:14CV58

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANT’S MOTION TO DISMISS
achieved,” it concluded that the statute of limitations governing
Owens’s § 1983 cause of action had not begun to run until after the
prosecutors had dropped the charges against him. Id.
on

this

date

that

proceedings

against

Owens

“It was only

were

favorably

terminated in such manner that they could not be revived.”
The

holdings

in

Wallace

and

Owens

establish

that

Id.
the

determination of when the limitations period governing a § 1983
claim begins to run turns on a court’s analysis of the most
analogous common law tort cause of action. In Denmark’s amended
complaint, she alleges that “her Fourth Amendment Constitutional
rights to

be

free

from unreasonable search

and

seizure

were

violated and, as such, she maintains that she may bring this
Complaint for damages pursuant to 42 U.S.C. § 1983.”
at 1-2).
tort

(Dkt. No. 12

Based on this allegation, the most analogous common law

cause

of

action

would

likely

be

a

claim

for

false

imprisonment.
“Reflective of the fact that false imprisonment consists of
detention without legal process, a false imprisonment ends once the
victim becomes held pursuant to such process.”
at 389 (emphasis in original).

Wallace, 549 U.S.

That point, the Supreme Court

determined, was the date on which the plaintiff was arraigned in
the underlying criminal case.

Id. at 391.
11

Therefore, if false

DENMARK v. STARCHER

1:14CV58

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANT’S MOTION TO DISMISS
imprisonment is indeed the most analogous common law cause of
action in this case, the two-year limitations period for Denmark’s
§ 1983 claim began to run when she was arraigned in the Circuit
Court of Calhoun County, sometime after her arrest on March 12,
2010.

Given that, the complaint that Denmark filed on March 12,

2012 was timely.
Alternatively, the most analogous common law cause of action
may be abuse of process.

Indeed, Denmark alleges that Starcher

committed an “intentional abuse of criminal process.” In an action
for abuse of process, the common law makes it “‘unnecessary for the
plaintiff to prove that the proceeding has terminated in his
favor.’”

Heck v. Humphrey, 512 U.S. 477, 495 (1994) (Souter, J.,

concurring) (quoting W. Keeton, D. Dobbs, R. Keeton, & D. Owen,
Prosser and Keeton on Law of Torts 897 (5th ed. 1984)).

Courts

have held that, when abuse of process provides the most analogous
cause of action for a § 1983 claim, the limitations period runs
from the date the plaintiff was arrested and charges were brought
against her.

See, e.g., Aly v. City of Lake Jackson 453 Fed. App’x

538, 540 (5th Cir. 2011) (per curiam); see also Rose v. Bartle, 871
F.2d 331, 351 (3d Cir. 1989).
In this case, Starcher arrested Denmark on March 12, 2010.
Thus, even if the common law cause of action most analogous to her
12

DENMARK v. STARCHER

1:14CV58

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANT’S MOTION TO DISMISS
§ 1983 claim is abuse of process, Denmark’s initial complaint,
filed on March 12, 2012, was timely as it was filed on the final
day of the limitations period.
2. Relation Back
A finding that Denmark’s March 12, 2012 complaint was filed
within the two-year limitations period does not end the Court’s
inquiry. Denmark did not assert a § 1983 claim against Starcher in
his individual capacity until she filed her amended complaint in
July, 2014.4

At first blush, it would appear that this amended

complaint would have to relate back to the initial complaint filed
in Case No. 1:12CV43 in March, 2012.

Under such a construction,

relation back would be inappropriate because “a complaint in one
case may not relate back to a complaint in another case to avoid
the statute of limitations.”

Angles v. Dollar Tree Stores, Inc.,

494 Fed. App’x 326, 330 n.8 (4th Cir. 2012) (citing Bailey v.
Northern Ind. Pub. Svc. Co., 910 F.2d 406, 413 (7th Cir. 1990);
Morgan Dist. Co. v. Unidynamic Corp., 868 F.2d 992, 994 (8th Cir.
1989)).

4

There is no doubt that official-capacity claims and individualcapacity claims are legally distinct. See Kentucky v. Graham, 473 U.S.
159, 165-66 (1985); Andrews v. Daw, 201 F.3d 521, 526 (4th Cir. 2000).

13

DENMARK v. STARCHER

1:14CV58

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANT’S MOTION TO DISMISS
That analysis, however, fails to account for West Virginia’s
savings statute.

When a complaint is filed, the statute of

limitations is tolled.

See Charlton v. M.P. Indus., Inc., 314

S.E.2d 416, 419 (W. Va. 1984); Stevens v. Saunders, 220 S.E.2d 887,
889 (W. Va. 1975).

Under the savings statute, if the complaint is

involuntarily dismissed on grounds other than the merits, that
tolling period is extended by one year.

See W. Va. Code § 55-2-18;

Emp’rs Fire Ins. Co. v. Biser, 242 S.E.2d 708, 712 (W. Va. 1978).
Applying West Virginia’s savings statute to this case,5 it is
clear that Denmark filed her March, 2012 complaint within the
limitations period, with one day remaining, and that the tolling
period was extended by one year when the Court dismissed the March,
2012 complaint on December 23, 2013 for failure to serve timely
process. When Denmark filed her next complaint in March, 2014, she
was within one year of the involuntary dismissal of her previous
complaint, and thus within the applicable two-year limitations
period.

Accordingly, the relevant inquiry is whether the amended

complaint Denmark filed in July, 2014, asserting an individual-

5

State tolling rules are “binding rules of law” in § 1983 actions.
Bd. of Regents of Univ. of State of New York v. Tomanio, 446 U.S. 478,
484 (1980).

14

DENMARK v. STARCHER

1:14CV58

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANT’S MOTION TO DISMISS
capacity claim against Starcher, relates back to her March, 2014
complaint.
Under Fed. R. Civ. P. 15(c)(1)(C), an amendment to a pleading
that changes a party or a party’s name relates back to the date of
the original pleading
if Rule 15(c)(1)(B) is satisfied and if, within the
period provided by Rule 4(m) for serving the summons and
complaint, the party to be brought in by amendment:
(i) received such notice of the action that it will
not be prejudiced in defending on the merits; and
(ii) knew or should have known that the action
would have been brought against it, but for a
mistake concerning the proper party’s identity.
Fed. R. Civ. P. 15(c)(1)(C); see also Goodman v. Praxair, Inc., 494
F.3d 458, 468-69 (4th Cir. 2007) (rejecting the argument that an
added party is not a changed party within the scope of Rule
15(c)(1)(C)).

“All three conditions of Rule 15(c)(1)(C) must be

met in order for relation back to be permissible.”

Francis v.

Woody, No. 3:09CV235, 2009 WL 2371509, at *6 (E.D. Va. July 31,
2009).
Rule 15(c)(1)(B)’s requirement that the newly asserted claim
arise out of conduct alleged in the original pleading is satisfied
in this case.

Likewise, Rule 15(c)(1)(C)(i) is satisfied because

Starcher had notice of the action within 120 days of the filing of

15

DENMARK v. STARCHER

1:14CV58

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANT’S MOTION TO DISMISS
the March, 2014 complaint,6 and would not suffer any cognizable
prejudice as a result of relation back.7
Rule 15(c)(1)(C)(ii), however, is less clear cut. It requires
two things: first, that Denmark made a “mistake” by not asserting
an individual-capacity claim in her March 2012 complaint; and,
second, that Starcher had knowledge, actual or constructive, that
an individual-capacity claim would have been brought but for
Denmark’s mistake.
a. Mistake
The mistake requirement is satisfied here.

In Goodman, 494

F.3d at 471, the Fourth Circuit explained that “parsing among
different kinds of mistakes does not typically aid application of
the Rule.”

In Krupski v. Costa Crociere S.p.A., 560 U.S. 538

(2010), the Supreme Court provided additional clarification as to
Rule 15(c)(1)(C)(ii)’s mistake requirement.

A mistake lies when a

6

Denmark filed a motion to amend her complaint to include the
individual-capacity claim on June 26, 2014. (Dkt. No. 9).
7

Starcher’s contention that the possibility of personal liability
constitutes prejudice is unavailing. Such prejudice is inherent to the
individual-capacity claim itself, rather than the result of relation
back.
See Robinson v. Clipse, 602 F.3d 605, 609 (4th Cir. 2010)
(rejecting the notion of prejudice because, “[h]ad Clipse been named as
a defendant in the original complaint, he would have been in the same
position he is now”).
Moreover, such prejudice does not relate to
Starcher’s ability to defend the suit on its merits, as required by Rule
15(c)(1)(C)(i).

16

DENMARK v. STARCHER

1:14CV58

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANT’S MOTION TO DISMISS
plaintiff has made “a deliberate choice to sue one party instead of
another while fully understanding the factual and legal differences
between the two parties.”

Id. at 549.

On the other hand, there is

no mistake simply because “a plaintiff is aware of the existence of
two parties and chooses to sue the wrong one.”

Id.

The reasonableness of the mistake is not itself at issue.
As noted, a plaintiff might know that the prospective
defendant
exists
but
nonetheless
harbor
a
misunderstanding about his status or role in the events
giving rise to the claim at issue, and she may mistakenly
choose to sue a different defendant based on that
misimpression.
That kind of deliberate but mistaken
choice
does
not
foreclose
a
finding
the
Rule
15(c)(1)(C)(ii) has been satisfied.
. . .
When the original complaint and the plaintiff’s conduct
compel the conclusion that the failure to name the
prospective defendant in the original complaint was the
result of a fully informed decision as opposed to a
mistake concerning the proper defendant’s identity, the
requirements of Rule 15(c)(1)(C)(ii) are not met.
Id. at 549, 552.
Here, it is implausible that Denmark’s attorney, being fully
aware

of

the

consequences

of

sovereign

immunity,

nonetheless

deliberately chose to sue Starcher only in his official rather than
individual capacity.

Likelier, indeed, is that Denmark’s attorney

lacked an understanding of sovereign immunity, and made the kind of
“deliberate but mistaken choice” described in Krupski.

17

DENMARK v. STARCHER

1:14CV58

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANT’S MOTION TO DISMISS
b. Knowledge
That

Denmark made

a

mistake

within the

meaning

of

Rule

15(c)(1)(C)(ii), however, says nothing about Starcher’s knowledge
that an individual-capacity claim should have been brought against
him.

Nowhere in the pleadings does Starcher concede having actual

knowledge that Denmark intended to assert a claim against him in
his individual-capacity.

Constructive knowledge, on the other

hand, is less obvious.
In evaluating constructive knowledge for the purpose of the
relation back analysis, courts look to whether the allegations in
the original complaint should have notified the defendant that an
individual-capacity

claim

was

intended.

To

this

end,

courts

considering the question have focused on different aspects of the
allegations.
primarily

For

instance,

with unequivocal

official capacity.

the

Sixth

language

Circuit

regarding

is

the

concerned

defendant’s

Compare Lovelace v. O’Hara, 985 F.2d 847, 850

(6th Cir. 1993) (finding that, based on language from the original
complaint alleging an official-capacity claim, “O’Hara had no
reason to believe that he would be held personally liable”), with
Brown v. Shaner, 172 F.3d 927, 933 (6th Cir. 1999) (distinguishing
Lovelace by explaining that, “by contrast, plaintiffs’ Original
Complaint did not speak in such unequivocal terms,” and finding
18

DENMARK v. STARCHER

1:14CV58

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANT’S MOTION TO DISMISS
that the plaintiffs knew or should have known that an individualcapacity claim would have been brought).

The Seventh Circuit

appears to be more persuaded by whether the original complaint
alleges compensatory and punitive damages.
924 F.2d 1370, 1378 (7th Cir. 1991).

See Hill v. Shelander,

And in Sanders-Burns v. City

of Plano, 594 F.3d 366, 379 (5th Cir. 2010), the Fifth Circuit
noted several allegations of significance, including the prayer for
relief, which requested that judgment be entered against the
defendant in his “individual capacity.”
Although the Fourth Circuit has never squarely addressed this
issue,8 it has explained that, “[t]hough the advisory committee’s
note [to Rule 15(c)] does not outline the precise amount of
latitude for improper naming of government entities, it clearly
contemplated a liberal approach.”

Goodman, 494 F.3d at 2007.

In

that same vein, district courts within the Fourth Circuit have been
willing to charge defendants with constructive knowledge in many
instances.

See, e.g., Lackawanna Transp. Co. v. Pub. Svc. Comm’n

8

In Biggs v. Meadows, 66 F.3d 56, 61 (4th Cir. 1995), the Fourth
Circuit instructed courts to examine several factors in determining the
capacity intended to be alleged in a § 1983 suit where no capacity is
alleged specifically. These include (1) whether a governmental policy
or custom, or the lack of indicia of such a policy or custom, is evident
on the face of the complaint; (2) whether the complaint includes a
request for compensatory or punitive damages; and (3) whether the
defendant asserted qualified immunity as a defense to the original
complaint. Id.

19

DENMARK v. STARCHER

1:14CV58

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANT’S MOTION TO DISMISS
of West Virginia, No. 5:08CV66, 2008 WL 5378318, at *7 (N.D.W. Va.
Dec.

23,

2008)

(“[T]he

commissioners

of

the

Public

Service

Commission should have known that the action would have been
brought against them except for a mistake in law in the plaintiff’s
original complaint.”); Justus ex rel. Estate of Justus v. Cnty. of
Buchanan, 498 F. Supp. 2d 883, 886 (W.D. Va. 2007) (charging
constructive knowledge because “the liberal construction of Rule
15(c)[(1)(C)(ii)] dictated by Goodman requires a relation back”);
Francis, 2009 WL 2371509, at *9 (“‘[W]hether the suit was against
[the defendant] in his official or individual capacity, [he] always
knew that the lawsuit was being brought against him.’”) (quoting
Hill, 924 F.2d at 1378).
Here, Starcher correctly observes that the allegations from
Denmark’s March, 2014 complaint are unequivocal as to his official
capacity:
At all times relevant, defendant Cpl. D.P. Starcher was
an employee of the West Virginia Police force and was
acting under color of and authority of law.
Said
Defendant is being sued in his official capacity as a
West Virginia State Trooper.
. . .
The actions whereby the Defendant prepared and verified
as true the allegations in his criminal complaint,
conducted an investigation and ultimately sought a
Forthwith Warrant for the arrest of the Plaintiff and
then, by information, advocated the continued wrongful
20

DENMARK v. STARCHER

1:14CV58

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANT’S MOTION TO DISMISS
detention of the Plaintiff, were at all times actions
under authority and color of law as a trooper or officer
of the West Virginia State Police force.
(Dkt. No. 1 at 2, 6).

Such allegations, without more, might

suggest that Starcher reasonably believed he would not face an
individual-capacity claim.
Two factors belie that conclusion, however.

First, “public

officials are charged with knowing their susceptibility to personal
§

1983

liability

due

to

the

state’s

sovereign

immunity.”

Lackawanna, 2008 WL 5378318, at *7. Second, in her March, 2014
prayer for relief, Denmark requested compensatory and punitive
damages that are available only in an individual-capacity suit.
(Dkt. No. 1 at 8); see Biggs, 66 F.3d at 61 (“Another indication
that suit has been brought against a state actor personally may be
a plaintiff’s request for compensatory or punitive damages, since
such

relief

is

unavailable

in

official

capacity

suits.”).

Therefore, Rule 15(c)(1)(C)(ii) is satisfied because Denmark made
a mistake by filing her individual-capacity claim out of time, and
Starcher should have known that such a claim would have been filed
but for Denmark’s mistake.
B.

Sovereign Immunity
Starcher also argues that sovereign immunity bars an official-

capacity

§

1983

claim.

Denmark
21

offers

no

response

to

this

DENMARK v. STARCHER

1:14CV58

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANT’S MOTION TO DISMISS
argument.

Indeed, “a suit against a state official in his or her

official capacity is not a suit against the official but rather is
a suit against the official’s office.”
State Police, 491 U.S. 58, 71 (1989).

Will v. Michigan Dept. of

“As such, it is no different

from a suit against the State itself.”

Id.

Accordingly, Starcher

is immune from Denmark’s official-capacity claim because “the
Eleventh Amendment bars a damages action against a State in federal
court.”

Graham, 473 U.S. at 169; see Hutto v. South Carolina Ret.

Sys., __ F.3d __, 2014 WL 6845450, at *9 (4th Cir. Dec. 5, 2014)
(“State

officials

retrospective

money

sued

in

damages

their
have

the

official
same

capacities

sovereign

for

immunity

accorded to the State.”).
V. CONCLUSION
Denmark’s § 1983 individual-capacity claim against Starcher is
not time-barred because it relates back to her timely filed March,
2014 complaint.

That said, the remainder of Denmark’s claims fail

as a matter of law.

Accordingly, this case may proceed, but only

as a § 1983 individual-capacity claim.
For the reasons discussed, the Court GRANTS IN PART and DENIES
IN PART Starcher’s motion to dismiss.
It is so ORDERED.

22

DENMARK v. STARCHER

1:14CV58

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANT’S MOTION TO DISMISS
The

Court

directs

the

Clerk

to transmit

copies

of

Memorandum Opinion and Order to counsel of record.
DATED: December 18, 2014.
/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE

23

this