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McKenzie v. Delong

United States District Court, N.D. West Virginia

July 17, 2018

JOSEPH DELONG, Executive Director; SHANNON MARKLE, CRJ Administrator; JOHN DOES, Correctional Officers; TRAVIS CROOK, C.O.; LT. SHAVER; and JOHN DOE Team Members Defendants.




         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, 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 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]


         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 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, 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).


         “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 Cir. 2014). Under West Virginia Code ยง 55-2-12, the ...

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