Lothes v. City of Elkins et al
Filing
22
MEMORANDUM OPINION AND ORDER GRANTING MOTION TO STRIKE ECF NO. 13 AND MOTION TO DISMISS 5 . The Report and Recommendations are REJECTED 9 , 18 . The Amended Complaint is STRICKEN from the record. This action is DISMISSED WITH PREJUDICE and STRICKEN from the Courts active docket. (A copy of this Memorandum Opinion And Order is being mailed to Pro Se Plaintiff by CM/RRR). Signed by Chief District Judge Thomas S Kleeh on 3/27/2024. (mas) (Additional attachment(s) added on 3/27/2024: # 1 Certified Mail Return Receipt) (mas).
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
CHRISTOPHER LOTHES,
Plaintiff,
v.
CIVIL NO. 2:23-CV-10
(KLEEH)
CITY OF ELKINS,
ELKINS POLICE DEPARTMENT, and
CHRISTOPHER BOATWRIGHT,
Defendants.
MEMORANDUM OPINION AND ORDER GRANTING MOTION TO
STRIKE [ECF NO. 13] AND MOTION TO DISMISS [ECF NO. 5]
Pending before the Court are a motion to dismiss, a motion to
strike, and a report and recommendation (“R&R”) on each.
After
reviewing the docket, in order to streamline its analysis and
provide clarity, the Court hereby REJECTS both R&Rs and rules
directly on the motions as set forth below.
I.
The
pro
se
BACKGROUND
Plaintiff,
Christopher
Lothes
(“Plaintiff”),
originally filed this action in the Circuit Court of Randolph
County, West Virginia, on May 1, 2023 [ECF No. 1-2].
It was
removed to the Northern District of West Virginia on June 2, 2023
[ECF No. 1].
On June 5, 2023, the Court referred the case to the
Magistrate Judge for review [ECF No. 3].
of
Elkins,
the
Elkins
Police
The Defendants, the City
Department,
and
Christopher
Boatwright, filed a motion to dismiss on June 9, 2023 [ECF No. 5].
LOTHES V. ELKINS
2:23-CV-10
MEMORANDUM OPINION AND ORDER GRANTING MOTION TO
STRIKE [ECF NO. 13] AND MOTION TO DISMISS [ECF NO. 5]
Plaintiff
did
not
file
a
response.
On
July
11,
2023,
the
Magistrate Judge entered a R&R recommending that the motion to
dismiss be granted [ECF No. 9].
Defendants objected to the R&R,
noting a typographical error and asking that the Court dismiss the
action with prejudice, as opposed to without prejudice [ECF No.
11].
On October 16, 2023, without seeking leave of Court and
without Defendants’ consent, Plaintiff filed an amended complaint
[ECF No. 12].
Defendants moved to strike the amended complaint
[ECF No. 13].
Plaintiff then objected to the motion to strike
[ECF No. 16], and Defendants filed a reply [ECF No. 17].
The
Magistrate Judge entered another R&R, recommending that the motion
to strike be granted and again finding the case should be dismissed
[ECF No. 18].
Plaintiff submitted another filing pertaining to
the motion to strike [ECF No. 19] and then filed a response to the
second R&R [ECF No. 21].
II.
ALLEGATIONS IN THE ORIGINAL COMPLAINT
The following allegations are taken from Plaintiff’s original
complaint.1
For purposes of analyzing the motion to dismiss, the
Court assumes that they are true.
The original complaint is only three pages in length, and the
paragraphs are not numbered.
1
2
LOTHES V. ELKINS
2:23-CV-10
MEMORANDUM OPINION AND ORDER GRANTING MOTION TO
STRIKE [ECF NO. 13] AND MOTION TO DISMISS [ECF NO. 5]
On or around November 21, 2020, Plaintiff was at his residence
in Elkins, West Virginia.
Around 10:00 a.m., Officer Christopher
Boatwright (“Boatwright”) of the Elkins Police Department pounded
on Plaintiff’s front door.
his
department,
or
his
Boatwright did not announce his name,
reason
for
being
at
the
Plaintiff and his two female guests remained silent.
residence.
Immediately
after knocking on the front door, Boatwright fired his departmentissued weapon at the front door of the residence.
The bullet
penetrated two doors and two walls and lodged in the drywall in
Plaintiff’s bedroom.
The bullet passed within three feet of
Plaintiff’s head.
Boatwright then kicked open the front door and said, “Chase,
it’s Boatwright.
Are there any weapons in the house?”
laid on the floor with his arms out.
Plaintiff
Boatwright entered the
bedroom and handcuffed Plaintiff, ordering him to remain on the
floor.
Boatwright proceeded to search the residence without a
warrant or explanation.
He removed Plaintiff’s handcuffs and
demanded that Plaintiff stay on the floor, face down, until he
left.
Boatwright searched the residence again.
Boatwright then
went to the front door and announced, “Okay, Chase, I am leaving,”
and he closed the door.
Plaintiff followed Boatwright outside and asked him what was
going on and why he shot at the house.
3
Boatwright responded, “I
LOTHES V. ELKINS
2:23-CV-10
MEMORANDUM OPINION AND ORDER GRANTING MOTION TO
STRIKE [ECF NO. 13] AND MOTION TO DISMISS [ECF NO. 5]
didn’t shoot at your house and if you don’t want to be arrested
you should go back inside.”
Plaintiff returned to his residence,
fearing retribution and arrest.
holes.
There he saw the various bullet
The next day, Boatwright approached Plaintiff and said,
‘Hey, you good?”
my house.”
Plaintiff replied, “No, are you good?
You shot
Boatwright responded, “I didn’t shoot at your house,
and I am willing to give you one free pass.”
responded, “I don’t need a free pass, you do.
Plaintiff then
I have the bullet.”
Boatwright told Plaintiff that he could help make his felony go
away.
III. STANDARDS OF REVIEW
Rule 12(b)(6)
Rule 12(b)(6) of the Federal Rules of Civil Procedure allows
a defendant to move for dismissal upon the ground that a complaint
does not “state a claim upon which relief can be granted.”
In
ruling on a 12(b)(6) motion to dismiss, a 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)).
A court is
“not bound to accept as true a legal conclusion couched as a
factual allegation.” Papasan v. Allain, 478 U.S. 265, 286 (1986).
A court should dismiss a complaint if it does not contain
“enough facts to state a claim to relief that is plausible on its
4
LOTHES V. ELKINS
2:23-CV-10
MEMORANDUM OPINION AND ORDER GRANTING MOTION TO
STRIKE [ECF NO. 13] AND MOTION TO DISMISS [ECF NO. 5]
face.”
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).
Plausibility exists “when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”
Iqbal, 556 U.S. 662, 678 (2009).
Ashcroft v.
A motion to dismiss “does not
resolve contests surrounding the facts, the merits of a claim, or
the applicability of defenses.”
Martin,
980
appropriate
F.2d
only
942,
if
“it
952
(4th
appears
Republican Party of N.C. v.
Cir.
to
be
1992).
a
Dismissal
certainty
that
is
the
plaintiff would be entitled to no relief under any state of facts
which could be proven in support of its claim.”
Johnson v.
Mueller, 415 F.2d 354, 355 (4th Cir. 1969).
Rule 12(f)
Rule 12(f) of the Federal Rules of Civil Procedure provides
a district court with the authority to strike “an insufficient
defense or any redundant, immaterial, impertinent, or scandalous
matter.”
A motion to strike, however, is “generally viewed with
disfavor because striking a portion of a pleading is a drastic
remedy and because it is often sought by the movant simply as a
dilatory tactic.”
Waste Mgmt. Holdings, Inc. v. Gilmore, 252 F.3d
316, 347 (4th Cir. 2001) (citation and quotation marks omitted).
Material should be stricken when it “has no bearing on the subject
matter of the litigation” and “its inclusion will prejudice the
5
LOTHES V. ELKINS
2:23-CV-10
MEMORANDUM OPINION AND ORDER GRANTING MOTION TO
STRIKE [ECF NO. 13] AND MOTION TO DISMISS [ECF NO. 5]
defendants.”
Jackson v. United States, No. 3:14-CV-15086, 2015 WL
5174238, at *1 (S.D.W. Va. Sept. 2, 2015).
IV.
DISCUSSION
As discussed below, the Court grants the motion to strike the
amended complaint and the motion to dismiss the original complaint.
A.
Defendants’ motion to strike the amended complaint is
granted because Plaintiff did not show good cause for his
failure to comply with Rule 15.
Between the removal of the case and the filing of the amended
complaint, 136 days passed.
Pursuant to Rule 15 of the Federal
Rules
Plaintiff
of
Civil
Procedure,
was
required
to
obtain
Defendants’ consent or seek leave of the Court before amending.
He did neither, and he has failed to show good cause.
While it is
true that the Court must hold a pro se pleading to a less stringent
standard
than
those
drafted
by
attorneys
and
must
liberally
construe a pro se complaint, these principles are not without
limits.
Gordon v. Leeke, 574 F.2d 1147, 1152–53 (4th Cir. 1978).
Being incarcerated and proceeding pro se are not, in and of
themselves, reasons to excuse missed deadlines or failure to comply
with rules.
to
seek
Plaintiff has not set forth a basis for his failure
leave
to
file
his
amended
complaint.
Accordingly,
Defendants’ motion to strike is GRANTED, and the amended complaint
is STRICKEN.
6
LOTHES V. ELKINS
2:23-CV-10
MEMORANDUM OPINION AND ORDER GRANTING MOTION TO
STRIKE [ECF NO. 13] AND MOTION TO DISMISS [ECF NO. 5]
B.
Defendants’ motion to dismiss the original complaint is
granted because the action is barred by the statute of
limitations.
While the complaint does not identify a specific cause of
action, the Court assumes, as do Defendants, that Plaintiff has
raised a claim pursuant to 42 U.S.C. § 1983 for violation of his
right to be free from an unlawful search under the Fourth Amendment
to the United States Constitution.
The Complaint asserts that the
alleged acts occurred on November 21, 2020.
See Compl., ECF No.
1-2.
Although 42 U.S.C. § 1983 does not contain a specific statute
of limitations, it is well-settled that such claims are governed
by “the most analogous state-law cause of action,” which is a
personal injury claim.
Owens v. Baltimore City State’s Attorney’s
Office, 767 F.3 379, 388 (4th Cir. 2014).
In West Virginia, the
applicable statute of limitations for a personal injury claim is
two years.
See W. Va. Code § 55-2-12(b).
Although
state
law
determines
the
applicable
statute
of
limitations, “[t]he time of accrual of a civil rights action is a
question of federal law.”
Cox v. Stanton, 529 F.2d 47, 50 (4th
Cir. 1975) (citations omitted). Under federal law, a Ҥ 1983 claim
based
on
an
unconstitutional
search
accrue[s] at the time of the search.”
and
seizure
of
property
Smith v. Travelpiece, 31
F.4th 878, 887 (4th Cir. 2022) (stating that “[o]nce the wrongful
7
LOTHES V. ELKINS
2:23-CV-10
MEMORANDUM OPINION AND ORDER GRANTING MOTION TO
STRIKE [ECF NO. 13] AND MOTION TO DISMISS [ECF NO. 5]
entry
occurred,
plaintiff[]
‘could
have
filed
suit’
with
a
‘complete and present cause of action’”).
Plaintiff has not pled
any
toll
facts
or
circumstances
that
would
limitations or the accrual of his claim.
therefore,
accrued
on
November
21,
2020.
limitations expired on November 21, 2022.
suit until May 1, 2023.
the
statute
of
Plaintiff’s claim,
The
statute
of
Plaintiff did not file
Accordingly, this case is barred by the
statute of limitations, and Defendants’ motion to dismiss is
GRANTED.2
the
Because the Court finds that the action is barred by
statute
of
limitations,
it
does
not
reach
Defendants’
additional arguments for dismissal of the City of Elkins and the
Elkins Police Department.
V.
CONCLUSION
For the reasons discussed above, the Court ORDERS as follows:
The R&Rs are REJECTED [ECF Nos. 9, 18];
The motion to strike is GRANTED [ECF No.
13];
The amended complaint is STRICKEN [ECF No.
12];
The motion to dismiss is GRANTED [ECF No.
5]; and
The Court would have dismissed the Amended Complaint for the same
reason had it not been stricken.
2
8
LOTHES V. ELKINS
2:23-CV-10
MEMORANDUM OPINION AND ORDER GRANTING MOTION TO
STRIKE [ECF NO. 13] AND MOTION TO DISMISS [ECF NO. 5]
This action is DISMISSED WITH PREJUDICE
and STRICKEN from the Court’s active
docket.
The Clerk is directed to enter a separate judgment order.
The Clerk shall transmit copies of this Memorandum Opinion and
Order to counsel of record by email and to the pro se Plaintiff
via certified mail, return receipt requested.
DATED: March 27, 2024
____________________________
THOMAS S. KLEEH, CHIEF JUDGE
NORTHERN DISTRICT OF WEST VIRGINIA
9
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?