Gravely v. U.S. Department of Justice

Filing 9

MEMORANDUM OPINION AND ORDER directing that the 7 Proposed Findings and Recommendation be adopted and incorporated herein; this action is dismissed with prejudice as frivolous and for failure to state a claim; denying the 1 Application to Proceed Without Prepayment of Fees and Costs; this action is stricken from the docket. Signed by Judge John T. Copenhaver, Jr. on 12/26/2012. (cc: attys; pro se plaintiff; United States Magistrate Judge) (tmh)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
RICHARD GRAVELY,
Plaintiff,
v.

Civil Action No. 2:12-5444

U.S. DEPARTMENT OF JUSTICE,
Defendant.
MEMORANDUM OPINION AND ORDER
This action was previously referred to Mary E.
Stanley, United States Magistrate Judge, who has submitted her
Proposed Findings and Recommendation ("PF&R") pursuant to the
provisions of 28 U.S.C. § 636(b)(1)(B).
The court has reviewed the PF&R entered by the
magistrate judge on September 28, 2012.

The magistrate judge

recommends that the court dismiss the complaint pursuant to 28
U.S.C.§ 1915A and for failure to state a plausible claim.

The

magistrate judge further recommends that the Application to
Proceed Without Prepayment of Fees and Costs be denied.
On October 1, 2012, Mr. Gravely objected.

He asserts

that the warrant issued for his arrest was unsigned by the
magistrate judge.

That appears to be the case upon review of

the arrest warrant found in the record.
immaterial.

Pursuant to

That fact, however, is

Brooks v. City of Winston-Salem, 85

F.3d 178 (4th Cir. 1996), Gravely's claim is nevertheless barred
by the applicable two-year limitations period.
court of appeals addressed a similar situation.

In Brooks, the
Brooks was

arrested on charges of kidnapping, rape, and other sexual
offenses on June 28, 1989.

He protested his innocence.

charges were ultimately dismissed on February 18, 1991.

The
On

February 17, 1994, Brooks instituted an action pursuant to 42
U.S.C. § 1983 based upon the wrongful arrest and prosecution.
He claimed, inter alia, that he was illegally seized,
namely, arrested, without probable cause in violation of the
Fourth Amendment.

Specifically, Brooks asserted that he was

victimized by a warrantless arrest unsupported by probable
cause.

The court of appeals agreed that the claim was time

barred:
The magistrate judge apparently viewed Brooks' § 1983
complaint as alleging an unlawful warrantless arrest
and held that such a claim accrued on the date of his
arrest. We agree that this was the appropriate time of
accrual of Brooks' claim to the extent that it charges
a warrantless arrest unsupported by probable cause.
There is no question that on the day of his arrest
Brooks knew or should have known both of the injury
resulting from his allegedly illegal seizure and who
was responsible for any injury.
Id. at 182.

The court of appeals specifically addressed, and

rejected, the claim that Heck v. Humphrey, 512 U.S. 477 (1994),
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dictated a different result.

Id. at 182 ("We do not read Heck

to compel a conclusion that all claims of unconstitutional
seizure accrue only upon a termination of the criminal
proceedings favorable to the § 1983 plaintiff. Heck did not
purport to address the accrual of a § 1983 cause of action for
damages resulting from actions that would not implicate the
validity of a conviction or sentence.").
It is noteworthy that any defect in the warrant in Mr.
Gravely's case was remedied no later than May 6, 1994, with the
magistrate judge's finding of probable cause following the
preliminary hearing.

Inasmuch as that intervening finding of

probable cause occurred, any warrant defect would not implicate
the validity of Mr. Gravely's conviction or sentence.

His claim

thus accrued, if at all, in 1994 and is now barred.1
Having found Mr. Gravely's objections to lack merit,
it is, accordingly, ORDERED as follows:
1.

That the PF&R be, and it hereby is, adopted by the
court and incorporated herein;

1

It is also the case that Mr. Gravely cannot maintain this
action against the named defendant. See FDIC v. Meyer, 510 U.S.
471, 484-86 (1994) (holding that a Bivens action is unavailable
against agencies); Randall v. United States, 95 F.3d 339, 345
(4th Cir.1996) (“Any remedy under Bivens is against federal
officials individually, not the federal government.”).
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2.

That this action be, and it hereby is, dismissed with
prejudice as frivolous and for failure to state a
claim and the Application to Proceed Without
Prepayment of Fees and Costs is denied; and

3.

That this action be, and it hereby is, stricken from
the docket.
The Clerk is directed to forward copies of this

written opinion and order to the pro se plaintiff, all counsel
of record, and the United States Magistrate Judge.
DATED: December 26, 2012
John T. Copenhaver, Jr.
United States District Judge

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