Young v. Lacy et al

Filing 138

MEMORANDUM OPINION AND ORDER adopting 128 Proposed Findings and Recommendation of Magistrate Judge as follows: Defendants' 120 Motion and 121 Amended Motion to Dismiss are GRANTED; Plaintiff's 115 Complaint in action No. 1:19-cv-001 86 is DISMISSED WITH PREJUDICE; The Clerk is directed to close Case No. 1:19-cv-00186 and remove it from the court's active docket, and permit plaintiff to proceed with the remaining claim pending in Case No. 1:17-cv-03633. Signed by Senior Judge David A. Faber on 7/24/2020. (cc: counsel of record and unrepresented parties) (mk)

Case 1:17-cv-03633 Document 138 Filed 07/24/20 Page 1 of 22 PageID #: 923

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
AT BLUEFIELD
LARRY ARNOLD YOUNG,
Plaintiff,
v.

CIVIL ACTION NO. 1:17-03633

T.A. LACY,
Defendant.
LARRY ARNOLD YOUNG,
Plaintiff,
v.

CIVIL ACTION NO. 1:19-00186

T.A. LACY, and
STEVEN A. SOMMERS,
Defendants.
MEMORANDUM OPINION AND ORDER
By Standing Order, Case No. 1:19-cv-00186 was referred to
United States Magistrate Judge Cheryl A. Eifert for submission of
findings and recommendation regarding disposition pursuant to 28
U.S.C. § 636(b)(1)(B).1

Magistrate Judge Eifert submitted to the

court her Findings and Recommendation (“PF&R”) on December 4,
2019, in which she recommended that the court grant defendants’
motion and amended motion to dismiss, (ECF Nos. 120, 121),
dismiss with prejudice the Complaint in action No. 1:19-cv-00186,
(ECF No. 115), close Case No. 1:19-cv-00186 and remove it from

This action, Case No. 1:19-cv-00186, was consolidated with Case
No. 1:17-cv-03633, with Case No. 1:17-cv-03633 designated as the
lead case.
1

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the court’s active docket, and permit plaintiff to proceed with
the remaining claim pending in Case No. 1:17-cv-03633.

(See ECF

No. 128.)
In accordance with the provisions of 28 U.S.C. § 636(b),
plaintiff was allotted fourteen days and three mailing days in
which to file any objections to Magistrate Judge Eifert’s PF&R.
The failure of any party to file such objections within the time
allowed constitutes a waiver of such party’s right to a de novo
review by this court.
Cir. 1989).

Snyder v. Ridenour, 889 F.2d 1363 (4th

Plaintiff was granted an extension of time to file

objections, (see ECF Nos. 131, 134), and timely filed his
objections on January 8, 2020.
I.

(ECF No. 135.)

Factual and Procedural Background
On July 20, 2016, state authorities received a report that

plaintiff sexually assaulted a six-year-old female child.
Nos. 53-1, 53-2.)

(ECF

Plaintiff was arrested at a residence on July

22, 2016 and appeared for a preliminary hearing before a county
magistrate, who found probable cause that plaintiff committed
sexual assault in the first degree and sexual abuse in the first
degree.

(ECF Nos. 53-1, 53-2.)

A Mercer County, West Virginia

grand jury subsequently charged plaintiff with one count of
sexual assault in the first degree and two counts of sexual abuse
in the first degree.

(ECF No. 53-4.)

2

Plaintiff was ultimately

Case 1:17-cv-03633 Document 138 Filed 07/24/20 Page 3 of 22 PageID #: 925

tried before a jury and acquitted of all charges on March 15,
2018.

(ECF No. 55.)

A. First civil action: Case No. 1:17-cv-03633
While plaintiff’s criminal case was pending in state court,
plaintiff filed Case No. 1:17-cv-03633 in this court, naming as
defendants T.A. Lacy (“Lacy”), Aaron Young (“Young”), and Perry
Richmond (“Richmond”).

(ECF No. 1.)

In an amended complaint,

plaintiff asserted that Steven Sommers (“Sommers”), Lacy, and
Jeremy Farmer (“Farmer”) “illegally entered and searched . . .
the trailer” where plaintiff was found on July 22, 2016, and
arrested him without a warrant.

(ECF No. 33 at 2.)

Plaintiff

claimed that Lacy “illegally search[ed] [the trailer] after he
was asked to leave the premises.”

(Id. at 3.)

Plaintiff also

alleged that, in the course of the arrest, Lacy snuck behind him,
grabbed his left hand, twisted his arm behind his back, and
something “cracked” in plaintiff’s wrist.

(Id. at 2.)

Plaintiff

claimed that he has “suffered constant pain in [his] left wrist
ever since that moment” and could not use his left hand “without
insulting the injury and suffering severely.”

(Id. at 3.)

Plaintiff further asserted that Richmond and Young applied
excessive force in removing him from the courtroom after two of
his criminal hearings.

(ECF Nos. 1 at 29-31, 13 at 3-22, 33, and

33-1 at 1-36.)

3

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Defendants filed a motion for summary judgment and amended
motion for summary judgment accompanied by memoranda in support,
to which plaintiff filed a response.
and 55.)

(ECF Nos. 48, 49, 53, 54,

On May 11, 2018, Magistrate Judge Cheryl Eifert issued

Proposed Findings and Recommendations (“PF&R”), concluding that
plaintiff had raised genuine issues of fact with respect to his
Fourth Amendment claims of an illegal search and false arrest,
but failed to state valid claims of excessive force.
57.)

(ECF No.

Magistrate Judge Eifert recommended that defendants

Richmond and Young be dismissed from the case; that the excessive
force claim against Lacy be dismissed, and that plaintiff be
permitted to proceed on his claims against Lacy for improper
search and false arrest.

(Id.)

On September 28, 2018, this court adopted the findings and
recommendations in the PF&R, except this court found no factual
basis to support the false arrest claim.

(ECF No. 65.)

Consequently, the court dismissed defendants Richmond and Young
from the case, dismissed the false arrest and excessive force
claims against Lacy, and allowed plaintiff to proceed with his
Fourth Amendment illegal search claim against Lacy.

(Id.)

On October 17, 2018, plaintiff filed a Notice of Appeal with
the Fourth Circuit.

(ECF No. 70.)

The Fourth Circuit dismissed

the appeal on January 30, 2019 due to plaintiff’s failure to
prosecute.

(ECF No. 78.)

On April 18, 2019, the Fourth Circuit
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reopened plaintiff’s appeal, noting that plaintiff evidently did
not receive critical filings in the matter because the Clerk of
the Fourth Circuit was not using the correct mailing address.
(ECF No. 91.)

On June 13, 2019, this court stayed plaintiff’s

remaining claim pending completion of plaintiff’s appeal.
No. 110.)

(ECF

On August 26, 2019, the Fourth Circuit denied the

appeal on the ground that it lacked jurisdiction over the matter,
because this court had not issued a final order, nor an
appealable interlocutory or collateral order.

(ECF No. 111.)

B. Second civil action: Case No. 1:19-cv-00186
On March 15, 2019, plaintiff filed a second civil action,
which pertained to the same search, arrest, detention, and
prosecution underlying Case No. 1:17-cv-03633.

The second civil

action was docketed as Case No. 1:19-cv-00186 and, for the first
time, named Sommers as a defendant.

(ECF No. 115.)

Following the issuance of the Fourth Circuit’s decision
denying plaintiff’s appeal, on August 29, 2019, this court
entered an Order consolidating Case Nos. 1:17-cv-03633 and 1:19cv-00186 on the basis that they involved the same underlying
events.

(ECF No. 114.)

As previously indicated, although

Sommers had been mentioned in plaintiff’s amended complaint in
Case No. 1:17-cv-03633, (see ECF No. 33), Sommers was not named
as a defendant in that action.

Accordingly, the Clerk issued a

5

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summons to Sommers, which was served with the complaint filed in
Case No. 1:19-cv-00186.

(ECF Nos. 116, 118.)

On October 22, 2019, Lacy and Sommers filed an Amended
Motion to Dismiss.

(ECF No. 121.)

In the motion, Lacy argues

that the newly filed complaint in Case No. 1:19-cv-00186 should
be dismissed against him, because it is duplicative of the
amended complaint pending in Case No. 1:17-cv-03633.

Lacy also

notes that the new complaint relies on the same factual
allegations and asserts the same claims already raised in this
action.

Sommers argues that the complaint should be dismissed

against him, because plaintiff’s claims against him are either
barred by the applicable statute of limitations or fail as a
matter of law.

(ECF No. 122.)

Plaintiff filed a response to defendants’ motions to dismiss
on November 15, 2019.

(ECF Nos. 124, 125.)

In his response,

plaintiff clarifies that his claims against Sommers include the
following:

illegal entry, illegal search and seizure, false

detention, false arrest, filing false claims, refusing plaintiff
medical attention, perjury, defamation of character, and
malicious prosecution.

Plaintiff asserts that his claims against

Sommers are not time barred because the limitations period did
not begin to run until plaintiff was exonerated of the criminal
charges for which he was arrested.

Plaintiff further asserts

that any claims against Sommers “relate back” to the original
6

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complaint.

With respect to his claims against Lacy, plaintiff

submits new evidentiary support for the claims in the form of
witness affidavits, (see ECF No. 124-1), but does not dispute
that the claims are duplicative of those already alleged.
Lacy and Sommers filed a reply on November 22, 2019,
asserting that plaintiff offers little substantive resistance to
their dispositive motions; instead, he attempts to rely on his
pro se status as a reason to excuse him from the Federal Rules of
Civil Procedure.

(ECF No. 127.)

Defendants further argue that

plaintiff’s claims must be dismissed as duplicative of his
amended complaint in Case No. 1:17-cv-03633, with the exception
that plaintiff now specifically names Sommers as a defendant.
Defendants argue that the claims against Sommers are time-barred,
are not subject to the favorable termination rule, and do not
relate back to plaintiff’s original pleading simply because
plaintiff decided not to name Sommers as a defendant in his
original action.

Finally, defendants contend that plaintiff’s

false arrest, malicious prosecution, excessive force, and denial
of medical care claims fail as a matter of law given this court’s
prior determinations that probable cause existed for plaintiff’s
arrest; that the use of force with plaintiff was objectively
reasonable; that Lacy was entitled to qualified immunity; and
that plaintiff suffered no injury.
I.

Standard of Review of Pro Se Objections
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Pursuant to Fed. R. Civ. P. 72(b), the court must “make a de
novo determination upon the record . . . of any portion of the
magistrate judge's disposition to which specific written
objection has been made.”

However, the court is not required to

review, under a de novo or any other standard, the factual or
legal conclusions of the magistrate judge as to those portions of
the findings or recommendation to which no objections are
addressed.

See Thomas v. Arn, 474 U.S. 140, 149–50 (1985).

Furthermore, de novo review is not required and unnecessary “when
a party makes general and conclusory objections that do not
direct the court to a specific error in the magistrate's proposed
findings and recommendations.”

Orpiano v. Johnson, 687 F.2d 44,

47–48 (4th Cir. 1982); see also United States v. Midgette, 478
F.3d 616, 622 (4th Cir. 2007) (“[T]o preserve for appeal an issue
in a magistrate judge's report, a party must object to the
finding or recommendation on that issue with sufficient
specificity so as reasonably to alert the district court of the
true ground for the objection.”); McPherson v. Astrue, 605 F.
Supp. 2d 744, 749 (S.D.W. Va. 2009) (“[F]ailure to file a
specific objection constitutes a waiver of the right to de novo
review.”).
“A document filed pro se is ‘to be liberally construed.’ ”
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v.
Gamble, 429 U.S. 97, 106 (1976)).
8

Specifically as to objections

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to a PF&R, courts are “under an obligation to read a pro se
litigant's objections broadly rather than narrowly.”

Beck v.

Comm'r of Internal Revenue Serv., 1997 WL 625499, at *1-2
(W.D.N.C. June 20, 1997) (citing Orpiano, 687 F.2d at 48).
However, objections that are “unresponsive to the reasoning
contained in the PF&R” are irrelevant and must be overruled.
Kesterson v. Toler, 2009 WL 2060090, at *1 (S.D.W. Va. July 7,
2009) (citing Orpiano, 687 F.2d at 47).
II.

Analysis
Liberally construing plaintiff’s response to Magistrate

Judge Eifert’s PF&R, plaintiff sets forth three primary
objections.

First, plaintiff objects to the PF&R’s conclusion

that his claims are time-barred by the statute of limitations.2
Second, plaintiff argues that the statute of limitations should
be tolled.

And third, he objects to the PF&R’s deliberate

indifference analysis.
A. Objection one: claims not barred by statute of limitations
In an action brought pursuant to 42 U.S.C. § 1983, the
statute of limitations is determined by the law of the State in
which the action is brought, while federal law governs when the
limitation period accrues.

Wallace v. Kato, 549 U.S. 384, 387

The PF&R does explain that plaintiff’s malicious prosecution
claim is not time-barred and is timely filed. However, the PF&R
concluded that because the court had already determined that
probable cause existed to arrest plaintiff, (see ECF No. 65),
plaintiff had not made a viable malicious prosecution claim.
2

9

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(2007); A Society Without a Name v. Virginia, 655 F.3d 342, 348
(4th Cir. 2011).

“We determine when the statute of limitations

on a plaintiff's § 1983 claim begins to run by looking to the
common-law tort most analogous to the plaintiff's claim.

In

general, the limitations period for common law torts commences
when the plaintiff knows or has reason to know of his injury.”
Owens v. Baltimore City State's Attorneys Office, 767 F.3d 379,
392 (4th Cir. 2014).
Plaintiff did not object to the PF&R’s conclusions as to the
length of the statute of limitations corresponding to his claims.
The court thus adopts the PF&R’s findings as to West Virginia
statute of limitations provisions corresponding to each claim, as
follows:

i) search and seizure claim is subject to a two-year

statute of limitations under West Virginia law; ii) false arrest
and false imprisonment claims are subject to one-year statutes of
limitations; iii) malicious prosecution claim is subject to a
one-year statute of limitations; iv) defamation and perjury
claims are subject to one-year statutes of limitations; and v)
plaintiff’s deliberate indifference claim is governed by a twoyear statute of limitations.
Instead, plaintiff objects to the PF&R’s conclusions as to
when the limitation period accrues, which is a matter of federal
law.

Plaintiff argues that the statute of limitations does not

bar any of his claims, regardless of when he first had knowledge
10

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or was put on notice of his claims, because the statute of
limitations did not begin to run until after the criminal
prosecution against him had concluded.

Plaintiff points to the

Supreme Court’s decision in Heck v. Humphrey, 512 U.S. 477
(1994), as barring his § 1983 claims while his criminal
prosecution was pending and thus serving as a basis for equitable
tolling of the statute of limitations for his claims.

However,

plaintiff’s reading of Heck is incorrect.
The Fourth Circuit has interpreted Heck as setting forth the
rule that a person may not file suit under § 1983 as long as a §
1983 judgment in his favor would imply the invalidity of his
criminal conviction.

See Owens v. Baltimore City State's

Attorneys Office, 767 F.3d 379, 391 (4th Cir. 2014).

While here

plaintiff was acquitted and not convicted, the Heck analysis
remains the same.

See McDonough v. Smith, 139 S. Ct. 2149, 2158

(2019) (“[W]hile [plaintiff] was acquitted . . . his claims
challenge the validity of the criminal proceedings against him in
essentially the same manner as the plaintiff in Heck challenged
the validity of his conviction.”)

Thus, any claim that does not

necessarily imply the invalidity of the criminal proceedings
against him would not have been Heck-barred.
In applying Heck, courts must carefully analyze the
relationship between the plaintiff's § 1983 (or other) claims and
the charge founding the criminal proceedings against plaintiff.
11

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If a judgment in favor of the plaintiff would necessarily imply
the invalidity of the plaintiff's conviction or sentence, the §
1983 action is precluded.

If, however, the plaintiff's action,

even if successful, would not demonstrate the invalidity of any
outstanding criminal judgment against the plaintiff, the action
can proceed.

See Ballenger v. Owens, 352 F.3d 842, 845–47 (4th

Cir. 2003); Gray v. Ballard, 2015 WL 1292787, at *1 (S.D.W. Va.
Mar. 23, 2015), aff'd, 848 F.3d 318 (4th Cir. 2017).
i.

Illegal search and seizure claims, false arrest and false
imprisonment claims

Applying this standard, plaintiff’s illegal search and seizure
claims and his false arrest and false imprisonment claims were
not barred by Heck.

The Fourth Circuit has held that “civil

claims based on unreasonable searches do not necessarily imply
that the resulting criminal convictions were unlawful.”

Covey v.

Assessor of Ohio Cty., 777 F.3d 186, 197 (4th Cir. 2015) (citing
Heck, 512 U.S. at 487 n.7).

This is because a “valid conviction

can still result after an improper search when doctrines such as
independent source, inevitable discovery, or harmless error would
alleviate the effect of the improper search.”

Id.

Further,

warrantless arrests also do “not necessarily implicate the
validity of a subsequently obtained conviction.”

Brooks v. City

of Winston-Salem, N.C., 85 F.3d 178, 182 (4th Cir. 1996); see
also Massey v. Wriston, 2016 WL 5172811, at *5 (S.D.W. Va. Sept.
12

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21, 2016) (“Claims arising out of police actions toward a
criminal suspect, such as arrest, interrogation, or search and
seizure, are presumed to have accrued when the actions actually
occur.”).

Here, plaintiff was charged in state court of one

count of sexual assault in the first degree and two counts of
sexual abuse in the first degree.

Unlike criminal charges based

upon, for example, resisting an arrest that was later deemed
unlawful, these criminal charges are independent from the claims
made by plaintiff.
Because plaintiff’s illegal search and seizure claims and his
false arrest and false imprisonment claims do not necessarily
imply the invalidity of the criminal proceedings brought against
him, these claims were not barred by Heck.

Therefore,

plaintiff’s objection that the statute of limitations did not run
until his acquittal is OVERRULED as to his illegal search and
seizure claims and his false arrest and false imprisonment
claims.
ii.

Malicious prosecution claim

The PF&R concluded that plaintiff’s malicious prosecution
claim did not accrue until the criminal proceedings against him
concluded.

However, the PF&R also concluded that because the

court had already determined that Sommers had probable cause to
arrest plaintiff, plaintiff did not assert a viable malicious
prosecution claim against Sommers.
13

Plaintiff did not respond to

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this finding by the PF&R in his objections, and thus the court
ADOPTS this finding by the PF&R without de novo review.
iii. Defamation and perjury claims
Plaintiff claims that Sommers defamed him and committed
perjury by fabricating evidence in his statements to the
magistrate and in grand jury testimony.

The PF&R noted that

plaintiff appeared before the magistrate in July 2016 and the
grand jury indicted him in October 2016.

(ECF Nos. 53-2, 53-4.)

The PF&R also concluded that these claims are subject to one-year
statutes of limitations.

Thus, the PF&R found that because

plaintiff did not file the instant claims against Sommers until
March 2019, his defamation and perjury claims are untimely.

The

PF&R also concluded that plaintiff’s defamation and perjury
claims as to Sommers’ grand jury testimony fail as a matter of
law because of witness immunity from § 1983 claims.
Plaintiff objects to the PF&R’s findings on this issue,
contending that his claims for perjury and fabrication of
evidence are like his claim for malicious prosecution because
they are both based on the wrongfulness of the prosecution
itself.

Thus, plaintiff argues that he was barred from bringing

these claims while his prosecution was ongoing.3

Plaintiff

Because the court rules in plaintiff’s favor on this line of
argument, the court need not address plaintiff’s two other
grounds – the favorable termination rule, and that the violations
grounded on fabricated evidence were ongoing and continuous – for
delaying the start of the statute of limitations period until
3

14

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therefore argues that the statute of limitations on these claims
did not begin to run until his acquittal on March 15, 2018,
making his March 14, 2019 lawsuit against Sommers timely filed.
The court agrees with plaintiff:

his claims against Sommers

for defamation and perjury based upon fabrication of evidence
were timely filed.

In 2019, the Supreme Court held that a

plaintiff who was acquitted of the criminal charges brought
against him “could not bring his fabricated-evidence claim under
§ 1983 prior to favorable termination of his prosecution.”
McDonough v. Smith, 139 S. Ct. 2149, 2156 (2019).

The Court

analogized fabrication of evidence claims to malicious
prosecution claims, explaining that “[t]he essentials of
[plaintiff’s] claim are similar [to a claim for malicious
prosecution]:

His claim requires him to show that the criminal

proceedings against him — and consequent deprivations of his
liberty — were caused by [defendant’s] malfeasance in fabricating
evidence.

At bottom, both claims challenge the integrity of

criminal prosecutions undertaken ‘pursuant to legal process.’”
Id. (quoting Heck, 512 U.S. at 484).

Further, the Court reasoned

that
impos[ing] a ticking limitations clock on criminal
defendants as soon as they become aware that fabricated
evidence has been used against them. Such a rule would
after his acquittal. These arguments also do not have any effect
on the court’s later discussion as to witness immunity in § 1983
claims based upon the witness’s testimony.
15

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create practical problems in jurisdictions where
prosecutions regularly last nearly as long as—or even
longer than—the relevant civil limitations period. A
significant number of criminal defendants could face an
untenable choice between (1) letting their claims
expire and (2) filing a civil suit against the very
person who is in the midst of prosecuting them. The
first option is obviously undesirable, but from a
criminal defendant’s perspective the latter course,
too, is fraught with peril: He risks tipping his hand
as to his defense strategy, undermining his privilege
against self-incrimination, and taking on discovery
obligations not required in the criminal context.”
Id. at 2158 (internal citations omitted).

Therefore, the Court

held that for claims of fabrication of evidence, “[o]nly once the
criminal proceeding has ended in the defendant’s favor . . . will
the statute of limitations begin to run.”

Id.

Nonetheless, while plaintiff succeeds in his objections to
when the statute of limitations begins to run, his claims still
fail as a matter of law.

“[T]he law is well-settled that grand

jury witnesses enjoy the same immunity as witnesses at trial,
which is an absolute immunity from any § 1983 claim based on the
witness’s testimony.”

Dreyfuse v. Chiles, 2018 WL 4381276, at *2

(S.D.W. Va. Mar. 23, 2018) (citing Rehberg v. Paulk, 566 U.S.
356, 369 (2012)), report and recommendation adopted, 2018 WL
3493083 (S.D.W. Va. July 20, 2018); see also Ragland v. Doe, 811
F. App'x 177 (4th Cir. 2020).

In addition, a police officer who

testifies before a grand jury or at trial is afforded the same
immunity as any lay witness.

Rehberg, 566 U.S. at 367-69 (citing

Briscoe v. LaHue, 460 U.S. 325, 342-43 (1983)).
16

Furthermore,

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plaintiff made no objections to the PF&R’s findings on this issue
of law.

See McPherson v. Astrue, 605 F. Supp. 2d 744, 749

(S.D.W. Va. 2009) (“[F]ailure to file a specific objection
constitutes a waiver of the right to de novo review.”).
Therefore, plaintiff’s objection that the statute of
limitations does not bar his defamation and perjury claims
against Sommers is SUSTAINED.

However, because his claims fail

as a matter of law for reasons other than the statute of
limitations, his objection to the PF&R’s conclusion that this
claim must be dismissed is OVERRULED.
A. Objection two: tolling the statute of limitations
Plaintiff alternatively argues that even if his claims were
not Heck-barred, the statute of limitations should be tolled
until after his acquittal under the reasoning of Hardin v.
Straub, 490 U.S. 536 (1989), and Bd. of Regents of Univ. of State
of N.Y. v. Tomanio, 446 U.S. 478 (1980).

Plaintiff contends that

these cases hold that it is appropriate for a federal court to
adopt a federal rule to toll the statute of limitations during
the pendency of a state court prosecution.
Plaintiff’s reading of Hardin and Tomanio is incorrect.

In

both cases, the Supreme Court made it clear that federal courts
must use the tolling rules of the state in which it was situated
unless the state’s rule is inconsistent with federal law.
Hardin, 490 U.S. at 539; Tomanio, 446 U.S. at 485-86.
17

See

In Hardin,

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this meant applying Michigan’s tolling rule, Hardin, 490 U.S. at
538-39, and in Tomanio this meant applying the New York tolling
rule.

See Tomanio, 446 U.S. at 485, 491-92.

Therefore, here the

court must examine West Virginia’s tolling rule, determine
whether or not plaintiff may utilize the rule, and determine
whether the rule is “inconsistent” with federal law.
West Virginia law follows the discovery rule, which tolls
the statute of limitations until a claimant knows or by
reasonable diligence should know his claim.

See Gaither v. City

Hospital, Inc., 487 S.E.2d 901 (1997); see also Dunn v. Rockwell,
689 S.E.2d 255, 265 (2009).

The discovery rule generally applies

to all torts, unless a specific statute states otherwise.
v. United Bank, Inc., 775 S.E.2d 500, 507 (W. Va. 2015).

Evans
Here

there is no specific statute that states specific tolling rules
for § 1983 claims.

The discovery rule does not benefit

plaintiff, as he was aware of his claims in 2016 but did not file
suit against Sommers until 2019, after the statute of limitations
had run.

This rule is also not inconsistent with federal law, as

it is the same default rule as used in the federal system.

See

Owens v. Baltimore City State's Attorneys Office, 767 F.3d 379,
392 (4th Cir. 2014) (“[T]he limitations period for common law
torts commences when the plaintiff knows or has reason to know of
his injury.”).

The fact that this rule precludes tolling in the

circumstances of this case does not make it “inconsistent” with
18

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the provisions of § 1983.

Tomanio, 446 U.S. at 491.4

Nor does

the lack of a tolling statute specific to § 1983 claims
demonstrate inconsistency:

“a State reasonably could decide that

there is no need to enact a tolling statute applicable to [§
1983] suits.”

Hardin, 490 U.S. at 544.

West Virginia’s tolling rule is not inconsistent with
federal law, and its state law tolling rule must be applied by
this court.

Applying the discovery rule shows that there is no

basis under West Virginia law to toll the statute of limitations
in this case.

Therefore, plaintiff’s objection that tolling is

appropriate in this case is OVERRULED.
B. Objection three: deliberate indifference
Plaintiff’s third objection is to the PF&R’s conclusions
that his deliberate indifference claim is untimely and fails to
state a claim.

Plaintiff argues that he states a valid claim for

deliberate indifference if he shows that defendant’s actions
exposed him to a substantial risk of serious harm.

Plaintiff

4

Moreover, “a state statute cannot be considered ‘inconsistent’
with federal law merely because the statute causes the plaintiff
to lose the litigation.” Robertson v. Wegmann, 436 U.S. 584
(1978). The two principal policies embodied in § 1983 are
deterrence and compensation. See id. Neither of these policies
is inconsistent with West Virginia’s discovery rule since
plaintiffs can still readily enforce their claims - thereby
recovering compensation and fostering deterrence - simply by
commencing their actions within the appropriate statute of
limitations period for their claims. Cf. Tomanio, 446 U.S. at
488.
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Case 1:17-cv-03633 Document 138 Filed 07/24/20 Page 20 of 22 PageID #: 942

then alleges that defendant Sommers, by placing him in Southern
Regional Jail (“SRJ”) with an injured wrist, exposed and ignored
an excessive risk to plaintiff’s health and safety, because
inmates at SRJ are allegedly beating each other to death.
Plaintiff’s objection fails on multiple grounds.

First,

plaintiff made no direct objection to the PF&R’s conclusion that
his deliberate indifference claim is untimely.

Second, and more

starkly, the fact that defendant Sommers placed him at SRJ does
not state a valid deliberate indifference claim.
To state a cognizable Eighth Amendment claim, an inmate must
satisfy two prongs: one objective and one subjective.

First, the

inmate must demonstrate the existence of a need that is
objectively serious.
(1976).

Estelle v. Gamble, 429 U.S. 97, 103, 104

“Compelling a showing of significant physical or

emotional harm, or a grave risk of such harm, infuses an element
of objectivity into the analysis, lest resolution of the
seriousness of the deprivation devolve into an application of the
subjective views of the judges deciding the question.”

Shakka v.

Smith, 71 F.3d 162, 166 (4th Cir. 1995) (citing Strickler v.
Waters, 989 F.2d 1375, 1379–80 (4th Cir. 1993)).

Second, the

inmate must show that the official subjectively knew of, but
disregarded, “an excessive risk to inmate health or safety.”
Farmer v. Brennan, 511 U.S. 825, 837 (1994).

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Case 1:17-cv-03633 Document 138 Filed 07/24/20 Page 21 of 22 PageID #: 943

Neither prong is present in plaintiff’s deliberate
indifference claim.

There was not a risk of significant harm in

placing plaintiff in jail.

Plaintiff gives no reason why he is

particularly predisposed to be harmed while incarcerated.
Moreover, it would be ridiculous to hold that placing a person in
jail (apart from demonstrated, individualized safety concerns)
constituted a risk of significant harm sufficient to satisfy
deliberate indifference.
present.

The subjective prong is likewise not

Plaintiff argues that Sommers should have known that

inmates at SRJ were beating other inmates to death, but gives no
evidence why Sommers would be aware of that fact.

And though the

court can find the example plaintiff purportedly referred to that in 2019 an inmate at SRJ was beaten to death by other
inmates5 - it is physically impossible that Sommers would have
been aware of this incident back in 2016 when he placed plaintiff
in SRJ.6
Therefore, because plaintiff cannot satisfy either prong of
the deliberate indifference analysis, the court OVERRULES his
objection.

5

See Pete Davis, Five indicted in beating death of Southern
Regional Jail inmate, METRONEWS (Oct. 2, 2019),
https://wvmetronews.com/2019/10/02/five-indicted-for-beatingdeath-of-man-at-southern-regional-jail/.
6
The court also notes that it was unable to find any 2016
incident where inmates at SRJ beat another inmate to death.
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All other arguments made by plaintiff are either duplicative
or are unresponsive to the PF&R and irrelevant, and therefore
must be OVERRULED.

See Kesterson v. Toler, 2009 WL 2060090, at

*1 (S.D.W. Va. July 7, 2009) (citing Orpiano, 687 F.2d at 47).
I.

Conclusion
Accordingly, the court adopts the Findings and

Recommendation of Magistrate Judge Eifert as follows:
1.

Defendants’ Motion and Amended Motion to Dismiss, (ECF
Nos. 120, 121), are GRANTED;

2.

Plaintiff’s Complaint in action No. 1:19-cv-00186, (ECF
No. 115), is DISMISSED WITH PREJUDICE;

3.

The Clerk is directed to close Case No. 1:19-cv-00186
and remove it from the court’s active docket, and
permit plaintiff to proceed with the remaining claim
pending in Case No. 1:17-cv-03633.

The Clerk is directed to send a copy of this Memorandum
Opinion and Order to counsel of record and unrepresented parties.

IT IS SO ORDERED this 24th day of July, 2020.
ENTER:

David A. Faber
Senior United States District Judge

22