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Excessive force claims against arresting officer filed too late

Where a man sued an arresting officer for excessive force based on injuries allegedly suffered in July 2015, the suit was dismissed because it was filed beyond the two years applicable to § 1983 claims in Virginia.


On July 30, 2015, defendant secured arrest warrants for plaintiff, charging him with driving on a suspended license and obstruction of a law enforcement office. On Sept. 10, those charges were dismissed on the prosecution’s motion for nolle   prosequi.

Plaintiff initially filed suit in this court against defendant and others Nov. 7, 2016, while plaintiff was incarcerated on other charges. That case was dismissed without prejudice due to plaintiff’s failure to pay the filing fee as instructed.

Plaintiff filed the present suit Feb. 6, 2019, alleging a single count of excessive force under 42 U.S.C. § 1983. On April 5, defendant filed a motion to dismiss, arguing that plaintiff’s claim is barred by the two-year statute of limitations applicable to actions under § 1983. The motion was fully briefed by the parties and referred to a magistrate judge for recommendation.

U,S. Magistrate Judge Joel C. Hoppe filed his Report and Recommendation June 20, 2019. Judge Hoppe recommended the court grant defendant’s motion to dismiss. Plaintiff filed a timely objection to the R&R, making this matter ripe for disposition.


Although § 1983 does not set forth a statute of limitations, it is well-settled that “[t]he statute of limitations for a § 1983 claim is borrowed from the applicable state’s statute of limitations for personal-injury actions, even when a plaintiff’s particular § 1983 claim does not involve personal injury.” Virginia has a two-year statute of limitations for personal-injury actions, which applies in § 1983 actions. In addition to state statutes of limitations, state tolling statutes are applied to § 1983 actions as well.

Plaintiff’s claim is barred by the applicable two-year statute of limitations. Plaintiff asserts his injury arose July 29, 2015. The statute of limitations commenced on that day, but was tolled from July 30, 2015, when defendant filed charges against plaintiff, starting a criminal prosecution that arose “out of the same facts” as plaintiff’s § 1983 claim. Those charges were dismissed on Sept. 10, 2015, meaning the statute of limitations began to run again on that date.

The limitations period was tolled a second time when plaintiff filed his first suit over this stop and the alleged constitutional violations Nov. 4, 2016. From Sept. 10, 2015, until Nov. 4, 2016, 421 days elapsed.

Plaintiff’s first suit was dismissed without prejudice Jan. 5, 2018, which restarted the limitations clock. When plaintiff filed this suit Feb. 6, 2019, an additional 397 days had elapsed. In total, at the time plaintiff filed the present action, 818 days had elapsed. The two-year statute of limitations gave plaintiff 730 days to institute his action. Because he waited too long (88 days too long, to be exact), his claim is barred.

Plaintiff argues that his criminal case was disposed of at sentencing Jan. 21, 2016, not Sept. 5, 2015. But the charges to which plaintiff refers were not charges that arose from his encounter with defendant. Accordingly, plaintiff’s complaint is time-barred, and plaintiff’s complaint will be dismissed.

Defendant’s motion to dismiss granted.

Gladden v. Oberholzer, Case No. 19-cv-00009, Dec. 12, 2019. WDVA at Charlottesville (Kiser). VLW 019-3-604. 6 pp.

VLW 019-3-604

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