Hudgins v. Buncombe County

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NORTH CAROLINA

ASHEVILLE DIVISION

1:19-cv-101-FDW

BARRY WILLIAM HUDGINS, )

)

Plaintiff, )

)

vs. )

) ORDER

BUNCOMBE COUNTY, et al., )

)

Defendants. )

____________________________________)

THIS MATTER is before the Court on initial review of pro se Plaintiff’s Complaint, (Doc.

No. 1). Plaintiff is proceeding in forma pauperis. See (Doc. No. 6).

I. BACKGROUND

Plaintiff, who is presently incarcerated at the Albemarle Correctional Institution, filed this

action pursuant to 42 U.S.C. § 1983 about incidents that allegedly occurred at the Alexander

Correctional Institution (“AXCI”) and Buncombe County Jail (“BCJ”). The Complaint was filed

under the prison mailbox rule on March 27, 2019.1 Plaintiff names as Defendants: Buncombe

County, Buncombe County Sheriff FNU Vanduncan,2 BCJ Officer Jane Doe (1), NCDPS

Secretary Eric A. Hooks, NCDPS Director Kenneth E. Lassiter, and AXCI Correctional Sergeant

Jane Doe (2).

Construing the Complaint liberally and accepting the allegations as true, Plaintiff was

writted from AXCI to BCJ for a hearing before Judge Mark E. Powell, who ordered that Plaintiff

be held at BCJ and not be returned to NCDPS. Within a couple of days, in violation of the court

1 Houston v. Lack, 487 U.S. 266 (1988) (recognizing the prison mailbox rule).

2 It appears that Plaintiff is attempting to name prior Sheriff Van Duncan who has retired. The present Sheriff

of Buncombe County is Quentin Miller.

order, Plaintiff was returned to ACXI “by Defendant Buncombe County and Sheriff Vanduncan.”

(Doc. No. 1 at 6). BCJ Officer Jane Doe (1) “argued with NCDPS Sergeant Defendant Jane Doe

Two that Plaintiff was to be at AXCI and left Plaintiff at AXCI.” (Doc. No. 1 at 6-7). Plaintiff was

again written back to BCJ by “Defendant Buncombe County and Defendant Sheriff Vanduncan.”

(Doc. No. 1 at 7). Plaintiff was placed in general population at BCJ. On February 2, 2015, Judge

Powell granted Plaintiff’s Motion for Appropriate Relief and entered an order that Plaintiff be

released from custody immediately. Plaintiff was not released and was placed back into BCJ

general population. Plaintiff was not released for weeks and, “by deliberate indifference ... Plaintiff

was falsely imprisoned at BCJ with no probable cause, no warrant or any pending charges.” (Doc.

No. 1 at 7). The actions of Defendants Buncombe County, Vanduncan, Hooks, Lassiter, and Jane

Does (1) and (2) constituted deliberate indifference, denied Plaintiff due process, was negligent,

and constituted respondeat superior under North Carolina law. (Doc. No. 1 at 8).

Plaintiff requests the appointment of counsel, compensatory and punitive damages,

declaratory judgment, a jury trial, costs and fees, and any additional relief that the Court deems

just and equitable.

The Court ordered that Plaintiff file a memorandum addressing the applicable statute of

limitations, (Doc. No. 8), and Plaintiff has done so, (Doc. Nos. 11, 12). Plaintiff notes that he filed

a civil action in this Court, 1:17-cv-111-FDW, which was dismissed without prejudice on initial

review. He argues that this was a “mistake of law” that should be treated as lack of knowledge.

(Doc. No. 11 at 3). Plaintiff asks that the Court apply equitable tolling because he has exercised

due diligence and his incarceration hindered him from properly filing his suit. He further argues

that he could have moved to amend in the 2017 case under Rule 15 and asks the Court to treat his

Complaint in the instant case as an Amended Complaint in that case under Rule 60(b)(4), (6). He

argues that he made a mistake by believing that the dismissal without prejudice in the 2017 case

was a “dismissal that could not be refiled,” and constitutes excusable neglect. (Doc. No. 11 at 6).

II. STANDARD OF REVIEW

Because Plaintiff is a prisoner proceeding in forma pauperis, the Court must review the

Amended Complaint to determine whether it is subject to dismissal on the grounds that it is “(i)

frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks

monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B).

In its frivolity review, the Court must determine whether the Amended Complaint raises an

indisputably meritless legal theory or is founded upon clearly baseless factual contentions, such as

fantastic or delusional scenarios. Neitzke v. Williams, 490 U.S. 319, 327-28 (1989). A complaint

should not be dismissed for failure to state a claim “unless ‘after accepting all well-pleaded

allegations in the plaintiff’s complaint as true and drawing all reasonable factual inferences from

those facts in the plaintiff’s favor, it appears certain that the plaintiff cannot prove any set of facts

in support of his claim entitling him to relief.’” Veney v. Wyche, 293 F.3d 726, 730 (4th Cir. 2002)

(quoting Edwards v. City of Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999)).

A pro se complaint must be construed liberally. Haines v. Kerner, 404 U.S. 519, 520

(1972); see also Smith v. Smith, 589 F.3d 736, 738 (4th Cir. 2009) (“Liberal construction of the

pleadings is particularly appropriate where … there is a pro se complaint raising civil rights

issues.”). However, the liberal construction requirement will not permit a district court to ignore

a clear failure to allege facts in his complaint which set forth a claim that is cognizable under

federal law. Weller v. Dep’t of Soc. Servs., 901 F.2d 387 (4th Cir. 1990). A pro se complaint must

still contain sufficient facts “to raise a right to relief above the speculative level” and “state a claim

to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007);

see Ashcroft v. Iqbal, 556 U.S. 662 (2009) (the Twombly plausibility standard applies to all federal

civil complaints including those filed under § 1983). This “plausibility standard requires a plaintiff

to demonstrate more than a sheer possibility that a defendant has acted unlawfully.” Francis v.

Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009) (internal quotation marks omitted). He must

articulate facts that, when accepted as true, demonstrate he has stated a claim entitling him to relief.

Id.

III. DISCUSSION

In an inmate’s federal civil rights action, a state’s limitations and tolling rules are to be

followed unless doing so “defeat[s] either § 1983’s chief goals of compensation and deterrence or

its subsidiary goals of uniformity and federalism.” Hardin v. Straub, 490 U.S. 536, 539, 109 S.Ct.

1998, 104 L.Ed.2d 582 (1989) (footnote omitted). The statute of limitations for § 1983 claims is

borrowed from the applicable state’s statute of limitations for personal-injury actions. See Wallace

v. Kato, 549 U.S. 384, 387, 127 S.Ct. 1091, 166 L.Ed.2d 973 (2007); Tommy Davis Const., Inc.

v. Cape Fear Pub. Util. Auth., 807 F.3d 62, 66-67 (4th Cir. 2015). Section 1983 claims arising in

North Carolina are limited by the three-year period for personal injury actions. See N.C.G.S. § 1–

52; Nat’l Advertising Co. v. City of Raleigh, 947 F.2d 1158, 1162 n. 2 (4th Cir. 1991). The

limitations period for a § 1983 claim begins to run when the plaintiff has “a complete and present

cause of action”—in other words, when it could have “file[d] suit and obtain[ed] relief.” Wallace,

549 U.S. at 388 (quoting Bay Area Laundry & Dry Cleaning Pension Tr. Fund v. Ferbar Corp. of

Cal., 522 U.S. 192, 201, 118 S.Ct. 542, 139 L.Ed.2d 553 (1997)).

Although a court generally cannot raise the statute of limitations sua sponte because a

statute of limitations argument is an affirmative defense, Fed. R. Civ. P. 8, an exception to the

general rule exists within the context of 28 U.S.C. § 1915(e)(2)(B) review when the face of the

complaint plainly reveals the existence of such defense. See Barkley v. Maryland, 618 Fed. Appx.

182, 182 (4th Cir. 2015) (citing Eriline Co. S.A. v. Johnson, 440 F.3d 648, 656 (4th Cir. 2006));

Nasim v. Warden, Md. House of Corr., 64 F.3d 951, 953–54 (4th Cir. 1995).

It is clear on the face of the Complaint, which addresses incidents in February 2015, that it

was filed well outside the three-year statute of limitations on March 27, 2019. The Court provided

Plaintiff the opportunity to address the statute of limitations before applying this obvious time bar.

Plaintiff filed a Memorandum urging the Court to find the Complaint timely based on equitable

tolling.

Equitable tolling applies in “those rare instances where—due to circumstances external to

the party’s own conduct—it would be unconscionable to enforce the limitation against the party.”

Hill v. Braxton, 277 F.3d 701, 704 (4th Cir. 2002) (citing Harris v. Hutchinson, 209 F.3d 325, 330

(4th Cir. 2000)). As a general matter, “a litigant seeking equitable tolling bears the burden of

establishing two elements: (1) that he has been pursuing his rights diligently, and (2) that some

extraordinary circumstance stood in his way.” Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005);

Holland v. Florida, 560 U.S. 631, 130 S.Ct. 2549, 177 L.Ed.2d 130 (2010); see also Aikens v.

Ingram, 524 Fed. Appx. 873, 882 (4th Cir. 2013) (noting that equitable tolling is “entirely consistent

with [the North Carolina Supreme Court’s] jurisprudence); Glynne v. Wilson Med. Ctr., 236 N.C.

App. 42 (2014) (addressing equitable tolling, equitable estoppel, and fraudulent concealment).

Plaintiff argues that he pursued his claims diligently, was ignorant of the law, was

misadvised about the statute of limitations,3 and that his incarceration prevented him from timely

filing the Complaint. However, neither ignorance of the law, misadvice of counsel, nor

incarceration justifies equitable tolling. See Edmonson v. Eagle Nat’l Bank, 922 F.3d 535 (4th Cir.

3 Plaintiff alleges that his appellate lawyer in his criminal case misadvised him that the statute of limitations

would not start until he filed suit. See (Doc. No. 12 at 2).

2019) (noting that a garden variety claim of excusable neglect such as a simple miscalculation that

leads a lawyer to miss a filing deadline is insufficient to meet the “extraordinary circumstances”

standard) (quoting Meniminee Indian Tribe of Wis. v. United States, 136 S.Ct. 750, 193 L.Ed.2d

652 (2016)); Rouse v. Lee, 339 F.3d 238 (4" Cir. 2003) (“a mistake by a party’s counsel in

interpreting a statute of limitations does not present the extraordinary circumstance beyond the

party’s control where equity should step in to give the party the benefit of his erroneous

understanding.”) (quoting Harris v. Hutchinson, 209 F.3d 325, 331 (4 Cir. 2000)); United States

Sosa, 364 F.3d 507, 512 (4 Cir. 2004) (“even in the case of an unrepresented prisoner,

ignorance of the law is not a basis for equitable tolling”); Henriquez v. United States, 2012 WL

1564158, *2 (E.D.N.C. May 2, 2012) (prison conditions such as lock-downs, misplacement of

legal papers, and lack of access to legal materials typically are not grounds for equitable tolling).

The Complaint will therefore be dismissed pursuant to § 1915(e)(2)(B).

To the extent that Plaintiff seeks relief in his 2017 civil rights case, he must seek relief in

that case.

V. CONCLUSION

For the reasons stated herein, the Complaint will be dismissed and this case will be closed.

IT IS, THEREFORE, ORDERED that:

1. The Complaint is DISMISSED pursuant to 28 U.S.C. § 1915(e)(2)(B) Gi).

2. The Clerk is instructed to close this case.

Signed: March 21, 2020

Frank D. Whitney ¥

Chief United States District Judge ~“#*"