# Burr v. Macon County Sheriff's Department

> District Court, W.D. North Carolina · April 25, 2022

URL: https://www.frixlaw.com/law-library/cases/10258390

## Case

- **Court:** District Court, W.D. North Carolina
- **Decided:** April 25, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10258390

## How later opinions describe it (automated extraction)

- applying the prisoner mailbox rule to a § 1983 case
- applying the prisoner mailbox rule to a § 1983 case

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL CASE NO. 1:21-cv-00268-MR

JOSHUAH L. BURR,1 )
)
Plaintiff, )
)
vs. )
)
MACON COUNTY SHERIFF’S ) MEMORANDUM OF
DEPARTMENT, et al., ) DECISION AND ORDER
)
Defendants. )
_______________________________ )

THIS MATTER is before the Court on initial review of the pro se
Complaint. [Doc. 1]. The Plaintiff is proceeding in forma pauperis. [Doc. 7]
I. BACKGROUND
On October 2, 2021,2 the incarcerated Plaintiff filed the Complaint
pursuant to 42 U.S.C. § 1983, addressing an incident that allegedly occurred

1 According to the North Carolina Department of Public Safety’s website, the Plaintiff’s
name is Joshua Burr. See https://webapps.doc.state.nc.us/opi/viewoffender.do?method=
view&offenderID=0640143&searchOffenderId=0640143&searchDOBRange=0&listurl=p
agelistoffendersearchresults&listpage=1; Fed. R. Evid. 201. The Plaintiff now claims that
NCDPS’s spelling is incorrect. [Doc. 9 at 2]. However, the Plaintiff has spelled his first
name “Joshua” in other cases previously filed in this Court. See Case Nos. 1:16-cv-
00401-FDW, 1:17-cv-00076-FDW.

2 See Houston v. Lack, 487 U.S. 266, 276 (1988) (establishing the prisoner mailbox rule);
Lewis v. Richmond City Police Dep’t, 947 F.2d 733 (4th Cir. 1991) (applying the prisoner
mailbox rule to a § 1983 case).
at the Macon County Detention Center on December 12, 2016.3 [Doc. 1].
The Plaintiff names as Defendants the Macon County Sheriff’s Department

and Robbie Holland.4 [Id. at 2]. He asserts claims of “failure to protect,
medical abuse” as follows:
I was in an argument in dorm 2 of the Macon County
Detention Center, when Karen a employee of the sheriff’s office
stepped in between me and [inmate] Kristopher Prince with tazer
drawn and ordered me to leave the dorm and then allowed Mr.
Prince to assault me from behind.

[Id. at 3, 5]. As injury, he states:
My neck was broken and I was taken to Angel Medical
Center in Macon County, then flown to Asheville Memorial
Hospital where I received spinal fusions, physical therapy,
chronic pain treatment, and have permanent spinal stenosis and
chronic pain issues as well as limited mobility.

[Id. at 5]. The Plaintiff seeks a total of $13,600,000 in compensatory and
punitive damages. [Id.].
On March 4, 2022, the Court ordered that the Plaintiff file a
memorandum addressing the applicable statute of limitations. [Doc. 8]. The
Plaintiff filed a Memorandum [Doc. 9] arguing that no statute of limitations
applies because the injury resulted from an assault; that Mr. Prince is now
deceased, making it impossible for the Plaintiff to seek relief from him

3 The Plaintiff is presently incarcerated at the Alexander Correctional Institution.

4 This appears to refer to Robert L. Holland, the sheriff of Macon County.
personally; that Plaintiff was paralyzed for “some time” and was unable to fill
out the required forms; that he has been treated for “ongoing mental health

problems” as a result of trauma from the incident; and that he previously filed
a claim against the Sheriff’s Department and Macon County Sheriff
Department’s medical staff, which was dismissed.5 [Id. at 1].

II. STANDARD OF REVIEW
Because the Plaintiff is proceeding in forma pauperis, the Court must
review the 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); see 28 U.S.C. §
1915A (requiring frivolity review for prisoners’ civil actions seeking redress

from governmental entities, officers, or employees).
In its frivolity review, a court must determine whether a complaint
raises an indisputably meritless legal theory or is founded upon clearly

5 The Court’s records reveal that the Plaintiff has addressed the December 12, 2016
incident in two prior actions in this Court: Burr v. Macon County Sheriff’s Office, et al.,
Case No. 1:16-cv-00401-FDW, which was filed on December 18, 2016 and was
dismissed on initial review on January 12, 2017 for failure to state a claim upon which
relief can be granted; and Burr v. Macon County Sheriff’s Office, et al., Case No. 1:20-cv-
00131-MR, which was filed on May 19, 2020 and was dismissed on July 15, 2020 for lack
of prosecution. Fed. R. Ev. 201. The Plaintiff also sued the Macon County Sheriff’s Office
in this Court on March 7, 2017 in Burr v. Macon County Sheriff’s Office, et al., 1:17-cv-
0076-FDW; however, that case relates to a separate incident.
baseless factual contentions, such as fantastic or delusional scenarios.
Neitzke v. Williams, 490 U.S. 319, 327-28 (1989). Furthermore, a pro se

complaint must be construed liberally. Haines v. Kerner, 404 U.S. 519, 520
(1972). 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).
III. DISCUSSION
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 (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 analogous state statute
of limitations most appropriate for § 1983 actions is the limitations period for

personal injury actions). “[W]hen a federal statute is deemed to borrow a
State’s limitations period, the State’s tolling rules are ordinarily borrowed as
well because ‘[i]n virtually all statutes of limitations the chronological length

of the limitation period is interrelated with provisions regarding tolling….’”
Heimeshoff v. Hartford Life & Acc. Ins. Co., 571 U.S. 99, 116 (2013) (quoting
Hardin v. Straub, 490 U.S. 536, 539 (1989)) (distinguishing actions in which

there is no need to borrow a state’s statute of limitations or tolling rules); see
Leardini v. Charlotte-Mecklenburg Bd. of Ed., No. 3:09-cv-264-GCM, 2011
WL 1234732, at *2 (W.D.N.C. March 29, 2011) (“The Supreme Court has

been clear that both the state’s statute of limitations and the state’s
‘provisions regarding tolling, revival and equations of application’ should be
applied to § 1983 actions.”).
The limitations period for a Section 1983 claim begins to run when the

plaintiff has “a complete and present cause of action” – in other words, when
he 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 (1997)); see also CTS Corp. v. Waldburger, 573
U.S. 1, 8 (2014) (“North Carolina … has a statute of limitations that allows a
person three years to bring suit for personal injury or property damage,
beginning on the date that damage ‘becomes apparent or ought reasonably

to have become apparent to the claimant, whichever event first occurs.’”)
(quoting N.C. Gen. Stat. § 1-52(16)).
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 § 1915 review when the face of the complaint plainly reveals the existence

of such defense. See Nasim v. Warden, Md. House of Corr., 64 F.3d 951,
953-54 (4th Cir. 1995).
Here, it is clear on the face of the Complaint, which addresses incidents

that allegedly occurred on December 12, 2016, that it was filed well outside
the three-year statute of limitations on October 2, 2021. The Court provided
Plaintiff the opportunity to address the statute of limitations before applying
this obvious time-bar.

First, the Plaintiff argues that no statute of limitations applies because
Mr. Prince assaulted him, and is now deceased. [Id. at 1]. The Plaintiff has
failed to explain why the statute of limitations should not apply because he

was assaulted, or how Mr. Prince’s death has affected the statute of
limitations in any way. See generally Wallace, 549 U.S. at 388 (a cause of
action’s accrual is a question of federal law, and is presumptively when the
plaintiff has a complete and present cause of action); Nat’l Advertising Co.,

947 F.2d at 1162 n.2.
Next, the Plaintiff appears to suggest that tolling applies under North
Carolina law because he was physically and/or mentally incapacitated as a

result of the incident. [Doc. 9 at 1]. The North Carolina General Statutes
provide that a “person entitled to commence an action who is under a
disability at the time the cause of action accrued may bring his or her action

within the time limited in this Subchapter, after the disability is removed[.]”
N.C. Gen. Stat. § 1-17(a); see Shreve v .Jones, No. 5:19-cv-178-FL, 2020
WL 3076603 (E.D.N.C. June 10, 2020) (applying North Carolina’s disability

tolling rules of a plaintiff’s § 1983 claims). “For tolling in this manner, a
disability must exist when the right of action accrues, because ‘when the
statute of limitations has begun to run, no subsequent disability will interfere
with it.’” Lee v. City of Fayetteville, No. 5:16-cv-759, 2017 WL 2274970, at

*7 (E.D.N.C. May 24, 2017) (quoting Battle v. Battle, 235 N.C. 499, 502, 70
S.E.2d 492, 494 (1952)). For the purposes of Section 1-17(a), an adult is “a
person is under a disability if the person … is incompetent as defined in N.C.

Gen. Stat. 35A-1101(7)…” that is, if he “lacks sufficient capacity to manage
[his] own affairs or to make or communicate important decisions concerning
[his] person, family, or property whether the lack of capacity is due to mental
illness, … injury, or similar cause or condition.” N.C. Gen. Stat. §§ 1-17(a),

35A-1101(7).
The Plaintiff’s claim that he had “ongoing mental health problems” is
too vague to demonstrate that he was mentally incapacitated at the time this

action accrued. See N.C. Gen. Stat. § 35A-1101(7); Lee, 2017 WL 2274970,
at *7. As to his claim that he was paralyzed and sustained other physical
injuries on December 12, 2016, his filing of Case No. 1:16-cv-401 on

December 18, 2016 demonstrates that any disability had ended by that date.
Therefore, assuming arguendo that the Plaintiff’s physical injuries were
sufficiently severe, the resulting disability tolled the statute of limitations for,

at most, six days.
Next, the Plaintiff appears to argue that the statute of limitations was
tolled under North Carolina law while his prior lawsuits addressing the
incident were pending in this Court. [Doc. 9 at 1]. Under North Carolina law,

the statute of limitations is tolled “when suit is properly instituted, and it stays
tolled as long as the action is alive, [however,] the tolling stops if the suit is
discontinued by operation of law because of the plaintiff’s failure to keep the

action alive….” Long v. Fink, 80 N.C.App. 482, 485, 342 S.E.2d 557, 559
(1986).
Here, even if the statute of limitations were tolled when the Plaintiff filed
his lawsuit in Case No. 1:16-cv-401 on December 18, 2016, and remained

tolled for 25 days, it then began running when that case was dismissed on
January 12, 2017. More than three years and four months ran before the
Plaintiff filed his lawsuit in Case No. 1:20-cv-131 on May 19, 2020. By that

time, the three-year statute of limitations had expired and no time remained
to be tolled. Moreover, after Case No. 1:20-cv-131 was dismissed on July
15, 2020, the Plaintiff waited more than one year and two months before

filing the Complaint in the instant case. Therefore, the Plaintiff’s attempt to
rely on tolling while his prior lawsuits were pending is rejected.
Finally, the Plaintiff appears to argue that equitable tolling is warranted.

Equitable tolling is “reserved for ‘those rare instances where – due to
circumstances external to the party's own conduct – it would be
unconscionable to enforce the limitations period against the party and gross
injustice would result.’” Battle v. Ledford, 912 F.3d 708, 718 (4th Cir. 2019)

(quoting Raplee v. United States, 842 F.3d 328, 333 (4th Cir. 2016); Harris v.
Hutchinson, 209 F.3d 325, 330 (4th Cir. 2000)). Generally, a litigant seeking
equitable tolling bears the burden of establishing: (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); see
Holland v. Florida, 560 U.S. 631, 653 (2010).
The Plaintiff’s allusions to physical and emotional injuries are too

vague and conclusory for the Court to conclude that equitable tolling is
warranted. While the Plaintiff’s refers to physical “injury” and “ongoing
mental health problems,” such references are too vague to demonstrate the

existence of a sufficiently debilitating physical or mental condition, aside from
the first six days after the incident occurred, as discussed previously. See
generally United States v. Sosa, 364 F.3d 507, 513 (4th Cir. 2004) (“As a

general matter, the federal courts will apply equitable tolling because of a
petitioner’s mental condition only in cases of profound mental incapacity”
such as institutionalization or adjudged mental incompetence); N.C. Gen.

Stat. § 35A-1101(7). Further, the Plaintiff has failed to identify the dates
when these alleged disabilities arose or the length of time that they persisted.
His conclusory allegations of disability are undermined by his record in this
Court of filing lawsuits in December 2016, in March 2017, and in May 2020.

He has failed to adequately allege that there were periods when he was so
severely impaired that he was unable to timely file the instant lawsuit. The
Court thus declines to apply equitable tolling to this action.

In sum, the Court finds that the Complaint is untimely on its face, and
the Plaintiff has failed to come forward with any facts or legal theory under
which the Complaint could be considered to be timely filed. This action will,
therefore, be dismissed with prejudice as time-barred.

IV. CONCLUSION
For the reasons stated herein, this action is dismissed with prejudice
and this case will be closed.
ORDER
IT IS, THEREFORE, ORDERED that this action is DISMISSED WITH
PREJUDICE pursuant to 28 U.S.C. §§ 1915A and 1915(e).
The Clerk is respectfully instructed to close this case.
IT IS SO ORDERED.

Signed: April 23, 2022

Martifi Reidinger ee
Chief United States District Judge “AES

11

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10258390. Public record. Not legal advice.