Washington v. The City of Beckley, Civil Action 5:21-CV-00349

• Decision Date: 25 October 2021
• Docket Number: Civil Action 5:21-CV-00349
• Parties: CARL D. WASHINGTON, Plaintiff, v. THE CITY OF BECKLEY, ET AL.,
• Court: U.S. District Court — Southern District of West Virginia

CARL D. WASHINGTON, Plaintiff, v. THE CITY OF BECKLEY, ET AL.,

Civil Action No. 5:21-CV-00349

United States District Court, S.D. West Virginia, Beckley Division

October 25, 2021

PROPOSED FINDINGS AND RECOMMENDATION

Omar J. Aboulhosn, United States Magistrate Judge.

On June 21, 2021, Plaintiff, who is acting pro se, filed his Complaint against the City of Beckley and the Beckley Police Department, alleging the Beckley Police Department was negligent in handling the homicide investigation into his mother's murder case on or about April 16, 2014 by failing to secure a crime scene.^[1] (ECF No. 1 at 4, ECF No 1-2) Plaintiff asks for $1 million in relief for his and his family's pain and suffering because of the compromised investigation. (Id.) By Standing Order, this matter was referred to the undersigned for the submission of proposed findings of fact and a recommendation for disposition pursuant to 28 U.S.C. § 636(b)(1)(B). (ECF No. 2) Having examined the Complaint, the undersigned concludes that this case must be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) which provides that the Court shall dismiss a case at any time if the Court determines that the action fails to state a claim for which relief can be granted.^[2]

THE STANDARD

Plaintiff's Complaint is subject to pre-service screening pursuant to 28 U.S.C. § 1915A. See Johnson v. Hill, 965 F.Supp. 1487 (E.D. Va. Jun. 10, 1997); see also Randolph v. Baltimore City States Atty., 2014 WL 5293708, at *2 (D. Md. Oct. 14, 2014), aff'd, Randolph v New Technology, 588 Fed. App'x. 219 (4^th Cir. 2014). On screening, the Court must recommend dismissal of the case if the complaint is frivolous, malicious or fails to state a claim upon which relief can be granted. A “frivolous” complaint is one which is based upon an indisputably meritless legal theory. Denton v Hernandez, 504 U.S. 25 (1992). A pro se Complaint may therefore be dismissed for failure to state a claim only if it appears “beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Haines v Kerner, 404 U.S. 519, 521 (1972), quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957). Where a pro se Complaint can be remedied by an amendment, however, the District Court may not dismiss the Complaint, but must permit the amendment. Denton v. Hernandez, 504 U.S. 25, 34 (1992).

Though this Court is required to liberally construe pro se documents and hold them to a less stringent standard than those drafted by attorneys^[3], liberal construction “does not require courts to construct arguments or theories for a pro se plaintiff because this would place a court in the improper role of an advocate seeking out the strongest arguments and most successful strategies for a party.” Miller v. Jack, 2007 WL 2050409, at *3 (N.D. W.Va. 2007) (citing Gordon v. Leeke, 574 F.2d 1147, 1151 (4^th Cir.1978)). Further, liberal construction does not require the “courts to conjure up questions never squarely presented to them.” Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4^th Cir. 1985). In other words, a court may not construct legal argument for a plaintiff. Small v. Endicott, 998 F.2d 411 (7^th Cir.1993). Finally, the requirement of liberal construction does not mean that the Court can ignore a clear failure in the pleadings to allege facts which set forth a claim currently cognizable in a federal district court. Weller v. Department of Social Servs., 901 F.2d 387 (4^th Cir.1990)).

ANALYSIS

Federal Courts are courts of limited jurisdiction that are empowered to consider cases authorized by Article III of the United States Constitution and statutes enacted by Congress. Bender v. Williamsport Area School District, 475 U.S. 534, 541, 106 S.Ct. 1326, 1331, 89 L.Ed.2d 501 (1986). Title 28 U.S.C. §§ 1331 and 1332 provide that the Federal Courts have jurisdiction over cases involving federal questions and diversity of citizenship. Title 28 U.S.C. § 1331 provides that “[t]he district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.” Title 28 U.S.C. § 1332 provides that the District Courts shall have original jurisdiction of all civil actions where the matter in controversy (1) exceeds the sum or value of $75, 000, exclusive of interests or costs, and (2) is between citizens of different states. 28 U.S.C. § 1332(a)(1).^[4]

Plaintiff alleges no specific basis for this Court's jurisdiction, however, he gives a Georgia address as his residence and the request for $1 million clearly exceeds the sum of $75, 000. Accordingly, the undersigned construes Plaintiff's action as one based on diversity pursuant to Section 1332. See Owen Equip., & Erection Co. v. Kroger, 437 U.S. 365, 373, 98 S.Ct. 2396, 57 L.Ed.2d 274 (1978) (diversity jurisdiction does not exist unless each defendant is a citizen of a different State from each plaintiff.”); see also, Wisconsin Dept. Of Corrections v. Schacht, 524 U.S. 381, 388, 118 S.Ct. 2047, 2052, 141 L.Ed.2d 364 (1998) (“A case falls within the federal district court's ‘original' diversity ‘jurisdiction' only if diversity of citizenship among the parties is complete, i.e., only if there is no plaintiff and no defendant who are citizens of the same State.”). “The statute establishing diversity jurisdiction is to be strictly construed and all doubts are to be resolved against federal jurisdiction.” Frontier Energy Corp. v. Broda, 882 F.Supp. 82, 85 (N.D. W.Va. 1995). For purposes of diversity jurisdiction, an individual's citizenship has been equated to the place of domicile. See Linville v. Price, 572 F.Supp. 345 (S.D. W.Va. 1983).

Regardless, Plaintiff's claims are time-barred:

A federal court sitting in diversity must apply the “substantive” law of its forum state. Gasperini v. Ctr. For Humanities, 518 U.S. 415, 426-427, 116 S.Ct. 2211, 2219-2220, 135 L.Ed.2d 659 (1996) (citing and quoting Erie R.R. Co. v. Tompkins, 304 U.S. 99, 65 S.Ct. 1464, 89 L.Ed. 2079 (1938)). A state's statute of limitations for a state-law claim is substantive law. Walker v. Armco Steel Corp., 446 U.S. 740, 745, 100 S.Ct. 1978, 1982, 64 L.Ed.2d 659 (1980); Guaranty Trust Co. v. York, 326 U.S. 99, 110-111, 65 S.Ct. 1464, 1470, 89 L.Ed. 2079 (1945). Under West Virginia law, the applicable period of limitation upon a plaintiff's right to file a personal injury is two-years from the time the cause of action accrued. See W.Va. Code § 55-2-12(b).^[3] Although the limitation period is borrowed from State law, the question of when a cause of action accrues is answered according to federal law. See Brooks v. City of Winston-Salem, NC, 85 F.3d 178, 181 (4^th Cir. 1996). Under federal law, a cause of action accrues “when the plaintiff possesses sufficient facts about the harm done to him that reasonable inquiry will reveal his cause of action.” Nasim v. Warden, MD House of Corr., 64 F.3d 951, 955 (4^th Cir. 1995) (en banc), cert. denied, 516 U.S. 1177, 116 S.Ct. 1273, 134 L.Ed.2d 219 (1996) (citing United States v. Kubrick, 444 U.S. 111, 122-24, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979)). “Accrual of a claim does not ‘await awareness by the plaintiff that his injury was negligently inflicted.' ” Nasim, 64 F.3d at 955 (quoting Childers Oil Co., Inc. v. Exxon Corp., 960 F.2d 1265, 1272 (4^th Cir. 1992)).

Thus, it is clear Plaintiff's negligence claims accrued when he possessed sufficient facts about the harm done to him that reasonable inquiry would have revealed his cause of action, or two years from the alleged murder investigation, on or about April 16, 2016. Nasim, 64 F.3d at 955. Given that Plaintiff did not file this civil action until June 21, 2021, more than seven years after the alleged harm, and more than five years after the expiration of the two-year statute of limitations, Plaintiff's Complaint as it pertains to these claims should be dismissed with prejudice.^[5]Plaintiff's Complaint is not salvageable even if permitted to amend in the spirit of Denton v. Hernandez, supra.

As an additional matter, while individuals have a statutory right pursuant to 28 U.S.C. § 1654^[6] to prosecute their own cases pro se in federal courts, “[t]he right to litigate for oneself, however, does not create a coordinate right to litigate for others.” Myers, 418 F.3d at 400 (emphasis in original) (holding that generally a parent may not proceed pro se on behalf of his or her child); see also Osborne v. Bank of the United States, 22 U.S. 738, 6 L.Ed. 204 (1824) (A corporation can appear only by an attorney, while a natural person may appear for himself.) The Fourth Circuit has explained that “we consider the competence of a layman representing himself to be clearly too limited to allow him to risk the rights of others.” Oxendine v. Williams, 509 F.2d 1405, 1407 (4^th Cir. 1975) (finding that an individual may not proceed pro se on behalf of a class of plaintiffs); see also Guest v. Hansen, 603 F.3d 15, 20 (2^nd Cir. 2010) (“The law contains so many esoteric pitfalls for an untrained advocate . . . that the risk of inadvertent waiver or abandonment of an issue is too high for us to allow a pro se litigant to represent another person.”). In the instant case, Plaintiff, acting pro se, has alleged he is seeking monetary relief for himself and his family, supra. Thus, in addition to the clear expiration of the applicable statute of limitations described herein, Plaintiff cannot proceed on behalf of his family in this case.

PROPOSAL AND RECOMMENDATION

The undersigned therefore respectfully PROPOSES that the District Court confirm and accept the foregoing findings and RECOMMENDS that the District Court DISMISS Plaintiff's Complaint (ECF No. 1) with prejudice and remove this matter from the Court's docket.

The parties are notified...