Blackmon v. Perez, Civ. A. No. 91-552-N

• Decision Date: 05 May 1992
• Docket Number: Civ. A. No. 91-552-N,91-553-N.
• Citation: 791 F. Supp. 1086
• Parties: Randy J. BLACKMON, Plaintiff, v. Jose M. PEREZ, et al., Defendants. and Denise L. HECKMAN, Plaintiff, v. Jose M. PEREZ, et al., Defendants.
• Court: U.S. District Court — Eastern District of Virginia

791 F. Supp. 1086

Randy J. BLACKMON, Plaintiff, v. Jose M. PEREZ, et al., Defendants. and Denise L. HECKMAN, Plaintiff, v. Jose M. PEREZ, et al., Defendants.

Civ. A. Nos. 91-552-N, 91-553-N.

United States District Court, E.D. Virginia, Norfolk Division.

May 5, 1992.

James D. Crutchfield, Norfolk, Va., for plaintiffs.

Allan S. Reynolds, Norfolk, Va., for defendant Jose M. Perez.

Alan B. Rashkind, Norfolk, Va., for defendants J.M. Edmonds and J.E. Tatem.

Harold P. Juren, Norfolk, Va., for defendants H.P. Henson and the City of Norfolk.

ORDER

CLARKE, Senior District Judge.

On February 10, 1992, this Court referred to Magistrate Judge William T. Prince these consolidated matters for a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). The Magistrate Judge has prepared and filed his Report and Recommendation and each party has had an opportunity to respond by filing objections to the Report with supporting memorandum, and by memorandum in support of the Magistrate Judge's Report and Recommendation, and by reply briefs.

The Court has made a thorough de novo review of the file and the briefs filed by the parties and finds that the Magistrate Judge is clearly right in his interpretation of the law and that the record substantiates his factual conclusions. This matter was before him on a Motion of the various defendants to Dismiss or in the Alternative, for Summary Judgment. Because the Court finds the Magistrate Judge correct in both his interpretation of the law and his recitation of the facts, the Court, pursuant to 28 U.S.C. § 636(b)(1)(C), accepts the recommendation of the Magistrate Judge.

Based upon the Court's acceptance of the Magistrate Judge's recommendation, these actions are DISMISSED with prejudice as to all plaintiffs and all defendants.

The Clerk is DIRECTED to send a copy of this Order to all counsel of record.

IT IS SO ORDERED.

MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

ORDER OF DESIGNATION

PRINCE, United States Magistrate Judge.

United States District Judge J. Calvitt Clarke, Jr., by an Order entered on February 10, 1992, designated the undersigned magistrate judge to conduct a hearing and submit to a Judge of this Court, pursuant to 28 U.S.C. § 636(b)(1)(B), proposed recommendations for disposition by a Judge of this Court of the various defendants' Motions to Dismiss or, in the Alternative, for Summary Judgment. A hearing was held on February 10, 1992, at which James D. Crutchfield, Esquire, appeared on behalf of plaintiffs Randy J. Blackmon and Denise L. Heckman; Alan B. Rashkind appeared on behalf of defendants J.M. Edmonds and J.E. Tatum;¹ Harold P. Juren appeared on behalf of H.P. Henson and the City of Norfolk; and Allan S. Reynolds appeared on behalf of defendant Jose M. Perez.

NATURE OF THE CASE

The plaintiffs, Randy J. Blackmon and Denise L. Heckman, bring this action against the remaining defendants: two Norfolk police officers, Jose M. Perez and J.M. Edmonds; the Chief of Police, H.P. Henson; and the City of Norfolk. The plaintiffs allege deprivation of their constitutional rights under 42 U.S.C. § 1983, conspiracy by defendants Perez and Edmonds to deprive the plaintiffs of their constitutional rights under 42 U.S.C. § 1985(3) and supplemental state law claims of assault and battery, malicious prosecution and unlawful search and seizure. This action stems from incidents following a traffic accident involving the plaintiffs late in the evening of September 1, 1989.

A. Factual Allegations

On the night of September 1, 1989, Denise Heckman had an accident while driving a pick-up truck in which Randy Blackmon was a passenger. Heckman was knocked unconscious by the collision. Blackmon, who had called Heckman for a ride because he'd been drinking and didn't feel able to drive, removed Heckman from the vehicle and laid her out on the street.

An unmarked car pulled up to the plaintiffs. Officer J.M. Edmonds, dressed in plain clothes, got out of the car and approached the plaintiffs without identifying himself as a police officer or displaying his badge. Blackmon, unaware that Edmonds was a police officer, told him "in harsh language" (Am.Compl. ¶ 17) to stay away. Edmonds then told Blackmon to "get your white ass on the sidewalk." (Am. Compl. ¶ 17).² Edmonds then grabbed Blackmon by the arm.

Officer Jose M. Perez then approached, also in plain clothes and without identifying himself as a police officer. Perez threw Blackmon against a car and searched him, finding a small amount of marijuana. Perez then handcuffed Blackmon. When Blackmon protested, Perez slapped him and placed him in the unmarked car. Shortly thereafter, Blackmon was taken out of the car and the handcuffs were removed. Perez then told Blackmon to sign a warrant. Before Blackmon could comply, however, Edmonds threw him against a car and told him, "I love beating up white boys." Blackmon was then placed in a police car driven by another officer and taken to the hospital where Heckman had been taken. While being removed from the police car upon arrival at the hospital, Blackmon was knocked to the ground and repeatedly punched and kicked by Perez and Edmonds. He was then taken, handcuffed, into the emergency room for medical treatment. While awaiting treatment, Perez slapped Blackmon, still handcuffed, several times in the face.

Meanwhile, Heckman had been taken from the accident scene to the emergency room, where she regained consciousness and was treated for her injuries. She saw Blackmon being brought into the emergency room. Blackmon called to Heckman, telling her that he had been beaten by the police and that she should contact his parents. Heckman left the emergency room to find a phone. In doing so, she passed Perez, whom she had not seen before, having been unconscious at the scene of the accident. Perez, still in plain clothes and again without identifying himself, grabbed Heckman. A struggle ensued, during which Perez threw Heckman to the ground and slapped her repeatedly. When Heckman pulled free and attempted to flee, Perez threw her down again and choked her until a hospital security guard intervened.

After the plaintiffs received medical treatment, both were taken to police division headquarters. At the request of Blackmon's parents, the plaintiffs were driven to headquarters by an Officer Flynn. Edmonds rode in the passenger seat of Flynn's vehicle, with the plaintiffs in the back seat. Blackmon's parents followed. During the ride, Edmonds threatened Blackmon. In response to a subsequent request from the plaintiffs that the officers not smoke cigars in the vehicle because the smoke made it difficult to breathe, Edmonds cursed Heckman and called her a "slut" and called Blackmon "white trash." Upon arrival at headquarters, Edmonds took a quantity of money from Blackmon without giving him a receipt or an explanation. When Blackmon protested, Edmonds sprayed a Mace-like irritant in Blackmon's face.

Blackmon was charged with possession of marijuana and disorderly conduct. On January 3, 1990, the disorderly conduct charge was dismissed. Blackmon pled guilty to the possession charge, which was ultimately dismissed pursuant to Va.Code Ann. § 18.2-251 because of Blackmon's status as a first-time offender. Heckman was charged with disorderly conduct and assault and battery of a police officer. Her case, originally scheduled for trial on October 4, 1989, was continued. Despite that continuance, Perez and Edmonds wrongfully obtained a warrant for Heckman's arrest for failure to appear on October 4. Edmonds arrested Heckman on that warrant on December 5, 1989 and she was held until Blackmon secured her bond.

B. Procedural History

The complaints in these matters were initially filed on September 4, 1991. All defendants except Perez filed Motions to Dismiss on October 22, 1991.³ Argument on those motions was heard on December 5, 1991, based on which plaintiffs were granted leave to file an Amended Complaint by December 20, 1991. The Amended Complaint deleted counts seeking damages for false arrest and negligent hiring and training and added a count for malicious prosecution. Subsequent to the filing of the Amended Complaint, the defendants filed the motions currently before this court.

DISCUSSION

The primary arguments of all defendants in support of dismissal or summary judgment are twofold: First, that the claims alleged are barred by the statute of limitations; and, second, that the complaint fails to state a claim under 42 U.S.C. §§ 1983 and 1985(3).

A. Statute of Limitations

Defendants first contend that the plaintiffs' claims, both state and federal, are barred by the applicable statutes of limitations. Much of the argument of the parties is addressed to the appropriate statute of limitations to be applied to the federal claims.

Congress has never enacted a specific statute of limitations applicable to sections 1983 or 1985(3).⁴ Instead, the United States Supreme Court has held that the state statute of limitations for personal injury actions applies to all section 1983 claims. Wilson v. Garcia, 471 U.S. 261, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985). The Commonwealth of Virginia has a two-year limitation period for personal injury actions. Va.Code Ann. § 8.01-243(A) (Michie Supp.1991). "While the time limitation itself is borrowed from state law, the federal rule fixes the time of accrual of a right of action." Bireline v. Seagondollar, 567 F.2d 260, 262 (4th Cir.1977) (emphasis added), cert. denied, 444 U.S. 842, 100 S.Ct. 83, 62 L.Ed.2d 54 (1979). The general rule for the time of accrual under federal law is "that point ... where the plaintiff knows or has reason to know of the injury which is the basis of his action." Id.; see also Cox v. Stanton, 529 F.2d 47, 50 (4th Cir. 1975).

The defendants argue that the federal claims are all barred by the statute of limitations. The plaintiffs have pled that the arrests and assaults complained of all occurred on the night of September...