# Orme v. Charleston Police Department

> District Court, S.D. West Virginia · December 8, 2022

URL: https://www.frixlaw.com/law-library/cases/10730706

## Case

- **Court:** District Court, S.D. West Virginia
- **Decided:** December 8, 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/10730706

## How later opinions describe it (automated extraction)

- finding “innocent misreading of statutory provision” by attorney did not warrant use of equitable tolling

## Opinion text

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

14

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10730706. Public record. Not legal advice.