United States District Court, N.D. West Virginia
ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO.
89] AND DISMISSING THE COMPLAINT WITH PREJUDICE [DKT. NO.
M. KEELEY, UNITED STATES DISTRICT JUDGE.
August 21, 2017,  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, 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.
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.
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 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).
STANDARD OF REVIEW
Motion to Dismiss
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 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).
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)).
Review of the R&R
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, 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
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.
§ 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
Cir. 2014). Under West Virginia Code § 55-2-12, the