# McKenzie v. Delong

> District Court, N.D. West Virginia · July 17, 2018

URL: https://www.frixlaw.com/law-library/cases/10725021

## Case

- **Court:** District Court, N.D. West Virginia
- **Decided:** July 17, 2018
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
JUSTIN PAUL MCKENZIE,
Plaintiff,
v. CIVIL ACTION NO. 1:17CV154
(Judge Keeley)
JOSEPH DELONG, Executive Director;
SHANNON MARKLE, CRJ Administrator;
JOHN DOE(S), Correctional Officers;
TRAVIS CROOK, C.O.;
LT. SHAVER; and JOHN DOE Team Members
Defendants.
ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 89]
AND DISMISSING THE COMPLAINT WITH PREJUDICE [DKT. NO. 1]
I. PROCEDURAL BACKGROUND
On August 21, 2017,1 the pro se plaintiff, Justin Paul
McKenzie (“McKenzie”), filed this complaint pursuant to 42 U.S.C.
§ 1983, naming as defendants numerous employees of the Central
Regional Jail (“CRJ”) (Dkt. No. 1). In his complaint, McKenzie
alleges that, while he was incarcerated at CRJ, the defendants
utilized excessive force on him, assaulted and battered him, and
otherwise violated his rights during a raid performed by a Special
Response Team on September 12, 2014. Id. at 7-8. For relief, he
seeks a medical evaluation and treatment for post-traumatic stress
disorder (PTSD), an expungement of his disciplinary convictions,
1 As discussed in Magistrate Judge Aloi’s report and
recommendation, the plaintiff originally filed suit in this Court
on August 21, 2017. See Dkt. No. 89 at 11. On September 7, 2017, the
plaintiff re-filed his complaint on the court-approved form (Dkt.
No. 1).
MCKENZIE V. DELONG 1:17CV154

ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 89]
AND DISMISSING THE COMPLAINT WITH PREJUDICE [DKT. NO. 1]
the discharge of his remaining sentence of incarceration, and
damages. Id. at 9. Pursuant to 28 U.S.C. § 636 and the local rules,
the Court referred the matter to the Honorable Michael J. Aloi,
United States Magistrate Judge, for initial review.
On December 28, 2017, defendant Lt. Shaver (“Shaver”) moved to
dismiss McKenzie’s complaint pursuant to Fed. R. Civ. P. 12(b)(6)
(Dkt. No. 39), primarily on the basis that the complaint was not
filed within the applicable statute of limitations and, therefore,
must be dismissed for failure to state a claim upon which relief
can be granted. Id. at 4-6. Alternatively, Shaver argued that
McKenzie had failed to allege sufficient facts to support a claim
against him, that McKenzie had failed to state a cognizable § 1983
claim, and that Shaver was entitled to qualified immunity. Id. at
6-17. On January 21, 2018, defendants Joseph Delong (“Delong) and
Shannon Markle (“Markle”) also moved to dismiss the complaint on
the same grounds (Dkt. No. 51).
In a report and recommendation (“R&R”) entered on May 17,
2018, Magistrate Judge Aloi recommended that the Court grant the
defendants’ motions and dismiss the complaint with prejudice
because of McKenzie’s failure to comply with the applicable two-
year statute of limitations (Dkt. No. 89). The R&R also
2
MCKENZIE V. DELONG 1:17CV154

ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 89]
AND DISMISSING THE COMPLAINT WITH PREJUDICE [DKT. NO. 1]
specifically warned McKenzie that his failure to object to the
recommendation would result in the waiver of any appellate rights
he might otherwise have on this issue. Id. at 17. On June 5, 2018,
McKenzie filed objections to the R&R (Dkt. No. 91).2
II. STANDARD OF REVIEW
A. Motion to Dismiss
In reviewing the sufficiency of a complaint under Rule
12(b)(6), a district 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)). However, while a complaint does
not need detailed factual allegations, a plaintiff's obligation to
provide the grounds of his entitlement to relief requires more than
labels and conclusions, and a formulaic recitation of the elements
of a cause of action will not do. Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007). Indeed, courts “are not bound to accept as
true a legal conclusion couched as a factual allegation.” Papasan
v. Allain, 478 U.S. 265, 286 (1986). In considering whether the
2 On June 12, 2018, defendants Shaver, Delong, and Markle
filed a joint Response to Plaintiff’s Objections, in which they
requested that the Court enter an order overruling McKenzie’s
objections and adopting Magistrate Judge Aloi’s recommendations
(Dkt. No. 96).
3
MCKENZIE V. DELONG 1:17CV154

ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 89]
AND DISMISSING THE COMPLAINT WITH PREJUDICE [DKT. NO. 1]
facts alleged are sufficient, “a complaint must contain ‘enough
facts to state a claim to relief that is plausible on its face.’”
Anderson, 508 F.3d at 188 (quoting Twombly, 550 U .S. at 547).
“A motion to dismiss under Rule 12(b)(6) tests the sufficiency
of a complaint; importantly, it does not resolve contests
surrounding the facts, the merits of a claim, or the applicability
of defenses.” Republican Party of N.C. v. Martin, 980 F.2d 943, 952
(4th Cir. 1992). “But in the relatively rare circumstances where
facts sufficient to rule on an affirmative defense are alleged in
the complaint, the defense may be reached by a motion to dismiss
filed under Rule 12(b)(6),” so long as “all facts necessary to the
affirmative defense ‘clearly appear[ ] on the face of the
complaint.’” Goodman v. Praxair, Inc., 494 F.3d 458, 464 (4th
Cir.2007) (quoting Richmond, Fredericksburg & Potomac R.R. v.
Forst, 4 F.3d 244, 250 (4th Cir. 1993)).
B. Review of the R&R
When considering a magistrate judge’s R&R made pursuant to 28
U.S.C. § 636(b)(1), the Court must review de novo those portions to
which objection is timely made. Otherwise, “the Court may adopt,
without explanation, any of the magistrate judge’s recommendations
to which the [parties do] not object.” Dellacirprete v. Gutierrez,
4
MCKENZIE V. DELONG 1:17CV154

ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 89]
AND DISMISSING THE COMPLAINT WITH PREJUDICE [DKT. NO. 1]
479 F. Supp. 2d 600, 603–04 (N.D.W.Va. 2007) (citing Camby v.
Davis, 718 F.2d 198, 199 (4th Cir. 1983)). Courts will uphold
portions of a recommendation to which no objection has been made
unless they are “clearly erroneous.” See Diamond v. Colonial Life
& Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005).
III. DISCUSSION
“The raising of the statute of limitations as a bar to
plaintiffs' cause of action constitutes an affirmative defense and
may be raised by motion pursuant to Fed.R.Civ.P. 12(b)(6), if the
time bar is apparent on the face of the complaint.” Dean v.
Pilgrim's Pride Corp., 395 F.3d 471, 474 (4th Cir. 2005) (citations
omitted). Here, the defendants contend that the claims asserted in
the complaint are time-barred because McKenzie did not file suit
until August of 2017, nearly three years after the incident giving
rise to his claims.
While § 1983 provides a federal cause of action, it looks to
the most analogous state law cause of action to establish the
applicable statute of limitations. Wallace v. Kato, 549 U.S. 384,
387 (2007). For § 1983 suits, that cause of action is a personal
injury suit. Owens v. Okure, 488 U.S. 235, 249–50 (1989); Owens v.
Baltimore City State's Attorneys Office, 767 F.3d 379, 388 (4th
5
MCKENZIE V. DELONG 1:17CV154

ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 89]
AND DISMISSING THE COMPLAINT WITH PREJUDICE [DKT. NO. 1]
Cir. 2014). Under West Virginia Code § 55–2–12, the period to bring
a claim for personal injury is two years. Hence, a two-year statute
of limitations applies to McKenzie’s claims.
In his objections, McKenzie contends that his claims are not
time-barred because the otherwise applicable two-year statute of
limitations is tolled while he awaits resolution of his
administrative grievances (Dkt. No. 91). Specifically, he objects
to the R&R’s conclusion that the relevant limitations period began
to run on November 12, 2014, i.e., sixty (60) days from his filing
of grievances related to the alleged assault and battery. McKenzie
argues that his administrative grievances “are still pending and
still unresolved” and the statute of limitations therefore “has not
even begun” to run. Id. at 3-4; 5-6.
A. Accrual
"The applicable statute of limitations begins to run once a
claim accrues, and federal law controls that determination." A
Soc’y Without a Name v. Virginia, 655 F.3d 342, 348 (4th Cir. 2011)
(citing Cox v. Stanton, 529 F.2d 47, 50 (4th Cir. 1975)). "A civil
rights claim accrues when the plaintiff knows or has reason to know
of the injury which is the basis of the action." Id. (internal
quotation omitted). This occurs “when the plaintiff possesses
6
MCKENZIE V. DELONG 1:17CV154

ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 89]
AND DISMISSING THE COMPLAINT WITH PREJUDICE [DKT. NO. 1]
sufficient facts about the harm done to him that reasonable inquiry
will reveal his cause of action.” Nasim v. Warden, Md. House of
Corr., 64 F.3d 951, 955 (4th Cir. 1995) (en banc).
Here, the parties do not dispute that the incident giving rise
to McKenzie’s complaint occurred on September 12, 2014 (Dkt. Nos.
1-5 at 3; 40 at 1, 4; 52 at 1, 4). Based on McKenzie’s allegations
that the defendants assaulted and battered him, and used excessive
force against him during the incident (Dkt. No. 1-5), he clearly
knew, or had reason to know, of the injury giving rise to his
action on that date. A Soc’y Without a Name, 655 F.3d at 348. In
point of fact, McKenzie filed no less than seven (7) administrative
grievances on the same date as the alleged assault and battery, at
least one of which relates to the claims at issue in the complaint.
See Dkt. No. 71 at 23-29. Accordingly, his § 1983 claims accrued--
and the statute of limitations began to run--on that date,
September 12, 2014. A Soc’y Without a Name, 655 F.3d at 348.
B. Tolling
A finding that the statute of limitations began to run on
September 12, 2014 does not end the Court's inquiry, however. While
the Fourth Circuit has not directly addressed the issue, circuits
that have considered the question have uniformly held that the
7
MCKENZIE V. DELONG 1:17CV154

ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 89]
AND DISMISSING THE COMPLAINT WITH PREJUDICE [DKT. NO. 1]
statute of limitations for a § 1983 action should be equitably
tolled while a prisoner exhausts the administrative process. Lopez
v. S.C.D.C., 2007 WL 2021875 *2 (D.S.C. 2007); see also Brown v.
Valoff, 422 F.3d 926, 943 (9th Cir. 2005) (citing Johnson v.
Rivera, 272 F.3d 519, 522 (7th Cir. 2001)); Brown v. Morgan, 209
F.3d 595, 596 (6th Cir. 2000); Gonzales v. Hasty, 651 F.3d 318,
323-324 (2d Cir. 2011).
This Court has previously observed, and the parties do not
dispute, that the West Virginia Regional Jail Authority (WV RJA)
makes available to its inmates a grievance procedure through which
they may seek review of complaints related to the conditions of
their confinement. See, e.g., Chase v. Trent, No. 1:11CV108, 2012
WL 5845361, at *4 (N.D.W. Va. Oct. 16, 2012), report and
recommendation adopted, No. 1:11CV108, 2012 WL 5845219 (N.D.W. Va.
Nov. 19, 2012).3 It is also undisputed that, under this procedure,
3 The Court has previously summarized the WV RJA grievance
procedure, in relevant part, as follows:
Under this procedure, inmates must first submit a
grievance to the Administrator of the facility in which
they are confined. Upon receipt of the grievance, the
Administrator may reject the grievance if it appears on
its face to have been filed in bad faith, or if other
administrative procedures exist that have not been
utilized. If the grievance is rejected, the Administrator
must advise the inmate of the rejection.
8
MCKENZIE V. DELONG 1:17CV154

ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 89]
AND DISMISSING THE COMPLAINT WITH PREJUDICE [DKT. NO. 1]
the grievance process must be concluded within sixty (60) days,
inclusive of any extensions. Id.; see also Dkt. No. 91 at 3,5.
A careful review of the record in this case establishes that,
on September 12, 2014, McKenzie filed at least one grievance
related to the claims giving rise to this action (Dkt. No. 71 at
26). Thus, at best, the statute of limitations for McKenzie’s §
1983 action would have been tolled from the filing of his grievance
on September 12, 2014, until the conclusion of the grievance
process, a maximum of sixty (60) days later, i.e., until November
14, 2014.
Despite McKenzie’s general contention that his grievances
related to the September 12, 2014 incident remain “pending,” the
unrefuted evidence demonstrates that, pursuant to WV CJA policy,
each of McKenzie’s grievances,4 including the September 12, 2014
grievance related to his excessive force claim, was timely resolved
within the mandatory sixty-day period. That McKenzie’s excessive
force grievance, which requested “a copy of the tape recording of
[him] being tased,” was rejected does not mean that his grievance
Chase, 2012 WL 5845361, at *4.
4 As noted in the R&R, McKenzie filed no less than two hundred
and thirty-five (235) “Inmate Request/Grievance” forms between
October 3, 2013, and December 7, 2015. See Dkt. No. 71.
9
MCKENZIE V. DELONG 1:17CV154

ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 89]
AND DISMISSING THE COMPLAINT WITH PREJUDICE [DKT. NO. 1]
was not resolved (Dkt. No. 71 at 26). Therefore, the two-year
limitations period for McKenzie’s § 1983 claims began to run no
later than November 14, 2014.5
Accordingly, McKenzie needed to file his complaint in this
Court no later than two years from that date, or by November 16,
2016. Because McKenzie did not initiate this action until August
21, 2017 (Dkt. No. 89 at 11), over nine months after the expiration
of the two-year filing period, his complaint was untimely and his
claims are time-barred.
IV. CONCLUSION
Therefore, for the reasons discussed, the Court:
1) ADOPTS the R&R (Dkt. No. 89);
2) GRANTS Defendants DeLong and Markle’s motion to dismiss
(Dkt. No. 51);
3) GRANTS Defendant Shaver’s motion to dismiss (Dkt. No.
39);
4) DENIES AS MOOT McKenzie’s motion for leave to amend the
complaint (Dkt. No. 69), Defendant Crook’s motion to

5 Despite the fact that McKenzie’s grievance was rejected by
defendant Markle on September 15, 2014 (Dkt. No. 71 at 26), the
Court will give McKenzie the benefit of the full sixty-day grievance
resolution period, or until November 14, 2014, for tolling purposes.
10
MCKENZIE V. DELONG 1:17CV154

ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 89]
AND DISMISSING THE COMPLAINT WITH PREJUDICE [DKT. NO. 1]
quash service of process (Dkt. No. 85), and Defendant
Delong, Markle, and Shaver’s motion to quash subpoena
duces tecum (Dkt. No. 97) and
5) DISMISSES this case WITH PREJUDICE.
It is so ORDERED.
The Court DIRECTS the Clerk to transmit copies of this Order
to counsel of record and the pro se plaintiff, certified mail and
return receipt requested, and to enter a separate judgment order.
DATED: July 17, 2018.
/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE

11

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10725021. Public record. Not legal advice.