Prasad v. Berger

• Decision Date: 04 May 2018
• Docket Number: Civil Action No. 3:17CV74
• Citation: Prasad v. Berger, Civil Action No. 3:17CV74 (E.D. Va. May 04, 2018)
• Parties: SUNDARI K. PRASAD, Plaintiff, v. INVESTIGATOR BERGER, et al., Defendants.
• Court: U.S. District Court — Eastern District of Virginia

SUNDARI K. PRASAD, Plaintiff, v. INVESTIGATOR BERGER, et al., Defendants.

Civil Action No. 3:17CV74

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Richmond Division

May 4, 2018

MEMORANDUM OPINION

Sundari K. Prasad, a Virginia inmate proceeding pro se and in forma pauperis, filed this 42 U.S.C. § 1983 action.¹The matter is before the Court for evaluation pursuant to 28 U.S.C. §§ 1915(e)(2)and1915A.

I.Preliminary Review

Pursuant to the Prison Litigation Reform Act ("PLRA")this Court must dismiss any action filed by a prisoner if the Court determines the action (1)"is frivolous" or (2)"fails to state a claim on which relief may be granted."28 U.S.C. § 1915(e)(2).The first standard includes claims based upon "an indisputably meritless legal theory," or claims where the "factual contentions are clearly baseless."Clay v. Yates, 809 F. Supp. 417, 427(E.D. Va.1992)(quotingNeitzke v. Williams, 490 U.S. 319, 327(1989)), aff'd, 36 F.3d 1091(4th Cir.1994).The second standard is the familiar standard for a motion to dismiss under Fed. R. Civ. P. 12(b)(6).

"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)(citing 5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure§ 1356(1990)).In considering a motion to dismiss for failure to state a claim, a plaintiff's well-pleaded allegations are taken as true and the complaint is viewed in the light most favorable to the plaintiff.Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134(4th Cir.1993);see alsoMartin, 980 F.2d at 952.This principle applies only to factual allegations, however, and "a court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth."Ashcroft v. Iqbal, 556 U.S. 662, 679(2009).

The Federal Rules of Civil Procedure"require[] only 'a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to 'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'"Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555(2007)(second alteration in original)(quotingConley v. Gibson, 355 U.S. 41, 47(1957)).Plaintiffs cannot satisfy this standard with complaints containing only "labels and conclusions" or a "formulaic recitation of the elements of a cause of action."Id.(citations omitted).Instead, a plaintiff must allege facts sufficient "to raise a right to relief above the speculative level,"id.(citation omitted), stating a claim that is "plausible on its face,"id. at 570, rather than merely "conceivable."Id."A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged."Iqbal, 556 U.S. at 678(citingBell Atl. Corp., 550 U.S. at 556).In order for a claim or complaint to survive dismissal for failure to state a claim, the plaintiff must "allege facts sufficient to state all the elements of [his or] her claim."Bass v. E.I. DuPont deNemours & Co., 324 F.3d 761, 765(4th Cir.2003)(citingDickson v. Microsoft Corp., 309 F.3d 193, 213(4th Cir.2002);Iodice v. United States, 289 F.3d 270, 281(4th Cir.2002)).Lastly, while the Court liberally construes pro se complaints, Gordon v. Leeke, 574 F.2d 1147, 1151(4th Cir.1978), it will not act as the inmate's advocate and develop, sua sponte, statutory and constitutional claims that the inmate failed to clearly raise on the face of his or her complaint.SeeBrock v. Carroll, 107 F.3d 241, 243(4th Cir.1997)(Luttig, J., concurring);Beaudett v. City of Hampton, 775 F.2d 1274, 1278(4th Cir.1985).

II.Prasad's Particularized Complaint

The action proceeds on Prasad's Particularized Complaint ("Complaint,"ECF No. 12).In her Complaint, Prasad names Investigator Berger, Jonathan David Headlee, Hamilton L. Hendrix, Jane "Justice" Carpenter a/k/a Paradox Jane, David Arnold Carpenter, Sean Karn/Kelly Lind, and Sinnamon Love as Defendants.(Id. at 1.)To the best of its ability,²the Court sets forth Prasad's allegations as follows:

In or around 2010-2011, Sundari Prasad was kidnapped and held against her will by two Hispanic men in the District of Columbia and held hostage for 4 days (apx.).She was drugged and repeatedly raped [and] sodomized by these two men.D.C. firemen were called to the scene when she found a cellphone in one man's room (she was padlocked in both rooms and could not get out) and they(firemen) had to axe [the] door in.In the room, they found Prasad in disarray, dirty, [and] disheveled - and disoriented.There was a bucket in the room which she was forced to defecate and urinate in for these days.D.C. investigators questioned her at [the] hospital and were overly discriminatory - commenting on her hair, her body, and her knowledge of the Spanish language - all making negative comments, "You must've had a gastric bypass - I can see by all the fat on your arms/legs/etc.;""Don't butcher my Spanish language" when asked if she spoke fluent Spanish and Prasad tried to demonstrate that she does - but was nervous.All through - the investigators made rude, off-color comments ("Why did you want to leave?X ([] one of the men) brought you food to eat!").Prasad's mother - Carolyn D. Nelson sent in ex-parte [and] numerous letters to detectives that was/were contrary to the statements made in case [] a missing persons reportwas supposedly filed by V.Cheek [and]Carolyn Nelson of which they made a comment to police "You didn't find her dead in a ditch yet?"Sarcastically and C. Nelson's off comment about money and a report for insurance of Prasad.During this time, Nelson got on Prasad's social media (Facebook) asking "friends" where she was and Headlee, Justice, Karn, Love, and Carpenter committed acts of . . . libel/slander, threats, celebrated her rape online, called out names and made monetary bets on if she was going to be found alive etc.Hamilton L. Hendrix harassed Prasad later all throughout custody case on details of rape that she didn't want to divulge - and maligned her as well on social media, etc. - taking video illegally - selling her personal items for profit, etc. for Headlee put coordinates of Prasad's last whereabouts via her IP address and cellphone info online [with] Justice [and] Carpenter and advertised "drunk prostitute for sale,""rape encounters," etc. on Craigslist . . . along [with] Karn [and] Love that would have added to the entire incident

Headlee/Karn [and] Love/Carpenter/Justice cyberstalked and cyber-harassed as well as physically stalked Prasad in D.C. and posted photos [and] live online updates via website and social media until her phone died and Prasad was found by fire [department] 4 days later. . . .Investigator Berger was given the case to investigate when she returned to Richmond, Va.In addition - Human Rights Watch . . . conducted an in-depth investigation into her case and 192 others (apx.) that were not processed and a report was presented formally in D.C.

(Id. at 1-3.)

Prasad alleges violations of, inter alia, the Americans with Disabilities Act("ADA"), "ex parte,""human rights violations," state law and constitutional violations,³ several federal statutes,⁴ and the First,⁵ Fifth,⁶ Sixth,⁷ Eighth,⁸ Ninth,⁹ Tenth,¹⁰ Thirteenth,¹¹ and, Fourteenth¹²Amendments.(Id. at 4-10.)Prasad seeks, among other things, "injunctive, declaratory, and monetary relief[]," that this case"be treated as a full criminal case," and that her "identity be changed along with [her] son's."(Id. at 11.)

III.Analysis

It is both unnecessary and inappropriate to engage in an extended discussion of Prasad's theories for relief.SeeCochran v. Morris, 73 F.3d 1310, 1315(4th Cir.1996)(emphasizing that "abbreviated treatment" is consistent with Congress's vision for the disposition of frivolous or "insubstantial claims"(citingNeitzke v. Williams, 490 U.S. 319, 324(1989))).Although Prasad's Complaint has many legal infirmities, it ultimately will be dismissed as frivolous for falling well outside the applicable statutes of limitations for 42 U.S.C. § 1983 and ADA actions.

A.The Applicable Statute of Limitations Bars Prasad's 42 U.S.C. § 1983 Claims

Because no explicit statute of limitations for 42 U.S.C. § 1983 actions exists, federal courts borrow the personal injury statute of limitations from the relevant state.Nasim v. Warden, 64 F.3d 951, 955(4th Cir.1995)(citingWilson v. Garcia, 471 U.S. 261, 266-69(1985)).Virginia applies a two-year statute of limitations to personal injury claims.SeeVa. Code Ann. § 8.01-243(A)(West 2018).Thus, Prasad was required to file her Complaint within two years from when the underlying claims accrued.

When a 42 U.S.C. § 1983 claim accrues is dictated by federal law.SeeNasim, 64 F.3d at 955."A claim accrues when the plaintiff becomes aware of his or her injury, United States v. Kubrick, 444 U.S. 111, 123(1979), or when he or she'is put on notice . . . to make reasonable inquiry' as to whether a claim exists."Almond v. Sisk, No. 3:08CV138, 2009 WL 2424084, at *4(E.D. Va.Aug. 6, 2009)(omission in original)(quotingNasim, 64 F.3d at 955), aff'd, 372 F. App'x 432(2010).Further, in order to dismiss a 42 U.S.C. § 1983 action because the applicable statute of limitations has expired, "the court must find that the expiration of the statute of limitations is clear on the face of the complaint."In re Davis, Nos. 4:11CV11, 11CV12, 11CV13, 11CV14, 11CV15, 11CV16, 11CV17, 11CV18, 11CV19, 11CV 20, 2011 WL 9669470, at *2(E.D. Va.Jan. 26, 2011)(citation omitted), aff'd sub nom.Davis v. Wilkinson, 443 F. App'x 812(4th Cir.2011).

It is clear from the face of her...