Orme v. Charleston Police Department

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF WEST VIRGINIA

AT CHARLESTON

DEREK MATTHEW ORME,

Plaintiff,

v. Civil Action No. 2:22-cv-00092

CITY OF CHARLESTON and

OFFICER J.L. OWENS,

Defendants.

MEMORANDUM OPINION AND ORDER

Pending is defendants’ motion to dismiss, ECF 9, filed

on June 1, 2022. This motion is ripe for adjudication.

I. Procedural Background

Derek Matthew Orme (“Mr. Orme”) proceeding pro se,

filed his complaint on February 22, 2022, ECF 2, alleging claims

against defendants under 42 U.S.C. § 1983. This action was then

referred to Dwane L. Tinsley, United States Magistrate Judge,

who on October 17, 2022, submitted his Proposed Findings and

Recommendation (“PF&R”) pursuant to the provisions of 28 U.S.C.

§ 636(b)(1)(B). ECF 27. The PF&R provided that, if service was

performed electronically, objections were due on October 31,

2022. Id. at 9. However, if the PF&R was served by mail,

objections were due by November 3, 2022. Id. On November 7,

2022, Mr. Orme filed his objections with the court. ECF 28.

His objections were filed by mail and the envelope was

postmarked November 4, 2022. Id. at 3. Although objections to

a magistrate judge’s PF&R must be filed timely, the court will

still consider Mr. Orme’s objections for two reasons. First,

the PF&R was served on Mr. Orme by mail, and he filed his

objections through the mail. Second, Mr. Orme claims he “has

just recently been released and just able to file the response.”

Id. at 2. Based on these factors, the court finds leniency is

appropriate and will consider the objections filed by Mr. Orme.

II. Factual Background

Mr. Orme alleges in his complaint that City of

Charleston Police Officer, J.L. Owens (“Officer Owens”),

effectuated a traffic stop on him on May 5, 2019. ECF 2 at 4.

After pulling over Mr. Orme’s vehicle, Officer Owens asked to

conduct a search of the vehicle. Id. Mr. Orme refused to

consent to a search. Id. Officer Owens detained Mr. Orme in

the back of his police cruiser and then “deployed a K9” on his

car. Id. During the encounter, Mr. Orme admitted to having

done “a line [of drugs],” “about two hours prior” to the traffic

stop. Id. Along with a small quantity of drugs, Officer Owens

also discovered $5,000 in Mr. Orme’s vehicle. Id. at 4-5.

Subsequently, Mr. Orme was charged with unlawful possession of a

controlled substance and driving under the influence. Id. at 4.

Mr. Orme was then taken to the Charleston Police Department

where he was given a field sobriety test and was allegedly

threatened with being jailed by Officer Owens if he did not sign

an administrative forfeiture notice regarding the $5,000 found

in his vehicle. Id. at 5. Mr. Orme claims the money came from

the sale of vehicles. Id. He then alleges efforts to recover

his money were stonewalled by the City of Charleston and the

prosecutor’s office. Id.

On February 22, 2022, Mr. Orme filed this suit against

Officer Owens, the Charleston Police Department, the City of

Charleston and the “Charleston Courthouse.”1 On June 1, 2022,

the City of Charleston and Officer Owens filed a motion to

dismiss, ECF 9, and accompanying memorandum of law. ECF 10.

The defendants argue Mr. Orme’s suit is barred by the statute of

limitations. ECF 10 at 2-3. On July 22, 2022, Mr. Orme filed

his response to the motion to dismiss. ECF 18. In his

response, Mr. Orme claims dismissal is improper because it was

his attorney’s fault that he was not informed of the need to

file a civil suit to attempt to recover his money and the COVID-

1 On September 21, 2022, the court entered an order dismissing the

Charleston Police Department and the “Charleston Courthouse” as

improper defendants. ECF 24.

19 pandemic caused his underlying criminal case to not be

resolved until December 2021. Id. at 1-3. Defendants filed a

reply on July 27, 2022, in which they assert Mr. Orme has failed

to show that the equitable tolling of the statute of limitations

is appropriate in this instance. ECF 20 at 2-3.

On October 17, 2022, Magistrate Judge Tinsley issued

his PF&R. ECF 27. The magistrate judge rejected Mr. Orme’s

equitable tolling arguments and recommended that the defendants’

motion to dismiss be granted on statute of limitation grounds.

On November 7, 2022, Mr. Orme filed his objections. ECF 28. In

his objections Mr. Orme once more argues his failure to comply

with the statute of limitations should be excused due to his

lack of knowledge concerning the need to file a civil suit and

the COVID-19 pandemic. Id. at 1-2.

III. Governing Standards

A district court reviewing a magistrate judge’s PF&R

is required to “make a de novo review of those portions of the

report or specified findings or recommendations to which

objection is made.” 28 U.S.C. § 636(b)(1). The court need not,

however, conduct a de novo review 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 (4th Cir.

1982).

Federal Rule of Civil Procedure 8(a)(2) requires that

a pleader provide “a short and plain statement of the claim

showing . . . entitle[ment] to relief.” Fed. R. Civ. P.

8(a)(2); Erickson v. Pardus, 551 U.S. 89, 93 (2007). The

required “short and plain statement” must provide “‘fair notice

of what the . . . claim is and the grounds upon which it

rests.’” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 545 (2007)

(quoting Conley v. Gibson, 355 U.S. 41, 47 (1957), overruled on

other grounds by Twombly, 550 U.S. at 563). Rule 8 does not

require “detailed factual allegations, but it demands more than

an unadorned, the-defendant-unlawfully-harmed-me accusation.”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation

marks omitted).

Rule 12(b)(6) correspondingly permits a defendant to

challenge a complaint that “fail[s] to state a claim upon which

relief can be granted.” Fed. R. Civ. P. 12(b)(6). In order to

survive a motion to dismiss, “a complaint must contain

sufficient factual matter, accepted as true, to ‘state a claim

to relief that is plausible on its face.’” Iqbal, 556 U.S. at

678 (quoting Twombly, 550 U.S. at 570). The “[f]actual

allegations [in the complaint] must be enough to raise a right

to relief above the speculative level” such that relief is

“plausible.” Twombly, 550 U.S. at 555-56. A “formulaic

recitation of the elements of a cause of action will not do.”

Id. at 555.

Nevertheless, “a Rule 12(b)(6) motion should only be

granted if, 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.” Edwards v. City

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

Additionally, while the merits of an affirmative

defense, such as the statute of limitations, generally cannot be

decided under Rule 12(b)(6), there are “rare circumstances where

facts sufficient to rule on an affirmative defense are alleged

in 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)). When this occurs,

“the defense may be reached by a motion to dismiss filed under

Rule 12(b)(6).” Id. However, “this principle only applies...if

all facts necessary to the affirmative defense ‘clearly appear[]

on the face of the complaint.’” Id. (emphasis omitted).

IV. Analysis

Here, while the allegations in Mr. Orme’s complaint

are not clear, the court finds he has attempted to raise a claim

based on unlawful search and seizure under the Fourth Amendment.

Such a claim is actionable in federal court under 42 U.S.C. §

1983, which provides:

Every person, who under color of any statute,

ordinance, regulation, custom, or usage, of any State

. . . subjects, or causes to be subjected, any citizen

of the United States or other person within the

jurisdiction thereof to the deprivation of any rights,

privileges, or immunities secured by the Constitution

and laws, shall be liable to the party injured in an

action at law, suit in equity, or other proper

proceedings for redress . . . .

42 U.S.C. § 1983. Section 1983, is not itself a source of

substantive rights, but provides a “method for vindicating

federal rights elsewhere conferred by those parts of the United

States Constitution and federal statutes that describe it.”

Baker v. McCollan, 443 U.S. 144, n.3 (1979). To prevail on a §

1983 claim, “a plaintiff must allege the violation of a right

secured by the Constitution and laws of the United States and

must show that the alleged deprivation was committed by a person

acting under color of state law.” Crosby v. City of Gastonia,

635 F.3d 634, 639 (4th Cir. 2011) (quoting West v. Atkins, 487

U.S. 42, 48 (1988)).

The Supreme Court in Owens v. Okure, 488 U.S. 235

(1989), clarified that because § 1983 does not provide a statute

of limitations period, the applicable limitations period is that

of the state’s general limitations period for personal injury

actions. Accordingly, in West Virginia, this statute of

limitations is two years. W.Va. Code § 55-2-12; see also

Courtney v. Courtney, 437 S.E.2d 436, 440 (W. Va. 1993). Yet,

federal law controls when a cause of action accrues, and thus,

when the statute of limitations begins to run. See Smith v.

Travelpiece, 31 F.4th 878, 833 (4th Cir. 2022) (“[G]eneral

common-law principles, without regard to West Virginia’s law,

determine when the claim accrues and when the statute of

limitations begins to run.”) (citing Wallace v. Kato, 549 U.S.

384, 388 (2007)); Cox v. Stanton, 529 F.2d 47, 50 (4th Cir.

1975) (“The time of accrual of a civil rights action is a

question of federal law.”).

Generally, under federal common law principles,

“accrual occurs when the plaintiff has a complete and present

cause of action, that is, when the plaintiff can file suit and

obtain relief.” Travelpiece, 31 F.4th at 883 (quoting Wallace,

549 U.S. at 388) (cleaned up) (footnote omitted). However, this

general rule “does not always control the start of a limitations

period for a § 1983 claim.” Travelpiece, 31 4th at 883 (quoting

Owens v. Baltimore City State Attorney’s Office, 767 F.3d 379,

389 (4th Cir. 2014)). The Fourth Circuit Court of Appeals has

noted, if “the common law provides a distinctive rule for

determining when the limitations period for a particular tort

begins to run, a court must consider this refinement in

determining when the limitations period for the plaintiff’s

analogous claim under § 1983 should commence.” Id. (cleaned

up).

In Travelpiece, our Circuit Court of Appeals

considered when the statute of limitations begins to run in a §

1983 claim, based on an unlawful search and seizure under the

Fourth Amendment. 31 F.4th at 882. To do this, the court had

to identify the “best common-law-tort analogy.” Id. at 885-87.

The court determined “trespass is the most natural common-law

analogy for a Fourth-Amendment unreasonable-search-and-seizure

claim.” Id. at 887. Thus, because a claim for trespass accrues

at the time the trespass occurs, a § 1983 claim based on an

unreasonable search and seizure under the Fourth Amendment also

begins to accrue at the time of the search. Id.

In this instance, Mr. Orme alleges the unlawful search

and seizure occurred on May 5, 2019.2 ECF 2 at 4. Thus, under

2 In his response in opposition to defendants’ motion to dismiss,

ECF 18, Mr. Orme discusses how, “[t]he occurance [sic] was in

May 2019 which is approximately 3 years...” before suit was

eventually filed. There can be no question that plaintiff’s §

1983 based on an unlawful search and seizure under the Fourth

Amendment accrued on May 5, 2019.

the foregoing principles Mr. Orme had until May 5, 2021, to file

suit. Quite clearly, as Mr. Orme did not file suit until

February 22, 2022, his suit was untimely filed.

However, this does not end the court’s analysis. Mr.

Orme argues in his response in opposition and objections to the

PF&R that his delay in filing suit should be excused for two

reasons.3 He first asserts the attorney representing him in the

underlying criminal prosecution did not tell him until January

2022 that a civil suit was needed if he wanted to attempt to

recover his money. He also claims his prosecution in state

court was delayed throughout 2020 due to the COVID-19 pandemic

and thus, his failure to comply with the statute of limitations

should be excused. As explained below, the court is unimpressed

by Mr. Orme’s position.

In instances such as here, where “a federal statute is

deemed to borrow a State’s limitations period, the State’s

tolling rules are ordinarily borrowed as well.” Heimeshoff v.

Hartford Life & Accident Ins. Co., 571 U.S. 99, 116 (2013).

While there is little West Virginia case law concerning the

issue of equitable tolling, the doctrine is “part of the

established backdrop of American law.” Massey v. Wriston, No.

3 While Mr. Orme does not explicitly argue the equitable tolling

of the statute of limitations is appropriate, the court

construes his pleadings as making such an argument.

2:13-cv-08842, 2016 WL 5172811 (S.D. W. Va. Sept. 21, 2016)

(Johnston, C.J.) (quoting Lozano v. Montoya Alvarez, 572 U.S. 1,

11 (2014)); see also Indep. Fire Co. No. 1 v. West Virginia

Human Rights Com’n, 376 S.E.2d 612,614 (W. Va. 1988) (looking to

federal law to determine applicability of equitable modification

doctrines to West Virginia cause of action). Our Circuit Court

of Appeals has noted equitable tolling is appropriate when “the

plaintiffs were prevented from asserting their claims by some

kind of wrongful conduct on the part of the defendant,” or when

“extraordinary circumstances beyond plaintiffs’ control made it

impossible to file the claims on time.” Cruz v. Maypa, 773 F.3d

138, 145 (4th Cir. 2014) (quoting Harris v. Hutchinson, 209 F.3d

325, 330 (4th Cir. 2000)) (internal quotation marks omitted).

Furthermore, “[e]quitable tolling is a rare remedy available

only when the plaintiff has ‘exercise[d] due diligence in

preserving [his] legal rights.’” Cruz, 773 F.3d at 146-47

(quoting Irwin v. Dep’t of Veterans Affs., 498 U.S. 89, 96

(1990)).

In this instance, Mr. Orme’s first ground for

equitable tolling is based on his attorney’s alleged error in

not telling him of the need to file a civil suit to attempt to

recover his money. However, the court is unpersuaded by this

argument. The United States Supreme Court, lower federal courts

and the Supreme Court of Appeals of West Virginia have all found

attorney error generally does not warrant equitable tolling.

See Irwin, 498 U.S. 89 (declining to apply equitable tolling

when plaintiff’s complaint was filed after the statute of

limitations expired due to attorney being out of the country);

Rouse v. Lee, 339 F.3d 238 (4th Cir. 2003) (finding attorney’s

error in calculating statute of limitations was not an

extraordinary circumstance which prevented petitioner from

complying with statute of limitations); Harris v. Hutchinson,

209 F.3d 325, 330-31 (4th Cir. 2000) (finding “innocent

misreading of statutory provision” by attorney did not warrant

use of equitable tolling); Parent v. DeJoy, No. 5:21-cv-00439,

2022 WL 3442493 (S.D. W. Va. Aug. 16, 2022) (refusing to apply

equitable tolling when error by attorney caused suit to be filed

after the statute of limitations expired) (Volk, J.); Perdue v.

Hess, 484 S.E.2d 182, 183 (W. Va. 1997) (“We hold that the

excusable neglect of an attorney does not toll the statute of

limitations....”).

In the case at hand, Mr. Orme has presented no

evidence to show the alleged error of his attorney is an

“extraordinary circumstance” which prevented him from timely

filing this action. Moreover, he has presented no evidence to

suggest he has “exercised due diligence” in preserving his legal

rights. Accordingly, the court rejects Mr. Orme’s tolling

argument based on alleged attorney error.

Mr. Orme also argues tolling of the statute of

limitations is warranted due to the COVID-19 pandemic causing

his underlying criminal prosecution to be delayed. The court is

once more unpersuaded by plaintiff’s argument.

Courts faced with determining whether the COVID-19

pandemic is a sufficient reason to toll the statute of

limitations have found a party seeking to invoke equitable

tolling must make more than a “passing reference to the pandemic

or resulting lockdown.” United States v. Aigbekaen, Crim. No.

JKB-15-0462, 2021 WL 1816967 (D. Md. May 6, 2021); see also

United States v. Callaham, No. 1:08CR00052-001, 2021 WL 2284606

at *2 (W.D. Va. June 4, 2021) (“Courts have held that ‘the

COVID-19 pandemic does not automatically warrant equitable

tolling for any movant who seeks it on that basis. The movant

must establish that he was pursuing his rights diligently.’”)

(quoting Howard v. United States, No. 4:20-CV-1632 JAR, 2021 WL

409841 at *3 (E.D. Mo. Feb. 5, 2021)). Instead, a party must

state with specificity how the COVID-19 pandemic prohibited the

timely filing of suit. See Day v. White, 1:22-2-MSN-IDID, 2022

WL 4585522 (E.D. Va. Sept. 29, 2022); Holmes v. Warden Lee Corr.

Inst., No. 6:22-1073-DCC-KFM, 2022 WL 4825281 (D. S.C. July 25,

2022) proposed findings and recommendation adopted 2022 WL

4808859 (D. S.C. October 3, 2022); Booker v. Clarke, No. 3:21-

cv-212, 2022 WL 464554 (E.D. Va. Feb. 15, 2022).

Here, Mr. Orme has made only passing references to the

COVID-19 pandemic. There is nothing before the court which

shows Mr. Orme diligently pursued his legal rights, or that the

pursuit of his legal rights was stifled by the COVID-19

pandemic. Thus, because Mr. Orme has failed to show how the

COVID-19 pandemic prevented him from timely filing suit, the

court finds equitable tolling on that ground is also

inapplicable in this instance.

Vv. Conclusion

Following a de novo review and having concluded that

the objections lack merit it is ORDERED that the essence of the

magistrate judge’s PF&R be, and it hereby is, adopted and

incorporated herein, and the plaintiff’s claim is adjudicated to

be barred by the statute of limitations. It is further ORDERED

the defendants’ motion to dismiss be, and it hereby is, GRANTED,

and this case is dismissed.

The Clerk is directed to transmit copies of this order

to all counsel of record and any unrepresented parties.

ENTER: December 8, 2022

c Be &

Jo . Copenhaver, Jr.

Senior United States District Judge

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