United States District Court, D. South Carolina
REPORT AND RECOMMENDATION
V. HODGES UNITED STATES MAGISTRATE JUDGE
Cruz (“Plaintiff”), proceeding pro se and in
forma pauperis, is an inmate incarcerated at Allendale
Correctional Institution in the custody of the South Carolina
Department of Corrections. He filed this action pursuant to
42 U.S.C. § 1983 alleging violations of his
constitutional rights by the Greenville County Sheriff
Office, and deputies Zachary Hilton (“Hilton”),
Matthew Waters (“Waters”), Jonathan Garrett
(“Garrett”), Chad Maltby (“Maltby”),
Johnny Westmoreland (“Westmoreland”), Mason
Hubber (“Hubber”), and William Donohue
(collectively “Defendants”). Pursuant to the
provisions of 28 U.S.C. § 636(b)(1)(B), and Local Civ.
Rule 73.02(B)(2)(d) (D.S.C.), this matter has been assigned
to the undersigned for all pretrial proceedings.
matter comes before the court on Defendants' motion to
dismiss [ECF No. 29]. Pursuant to Roseboro v.
Garrison, 528 F.2d 309 (4th Cir. 1975), the court
advised Plaintiff of the dismissal procedures and the
possible consequences if he failed to respond adequately to
Defendants' motion. [ECF No. 30]. On December 11, 2017,
Plaintiff filed a motion to stay, which the court denied on
December 28, 2017, finding Plaintiff failed to state a legal
reason for staying his action. [ECF Nos. 32, 34]. On January
18, 2018, the court denied Plaintiff's motion to appoint
counsel. [ECF Nos. 37, 38]. The court issued an order on
February 5, 2018, directing Plaintiff to advise the court
whether he wished to continue with his case and to file a
response to the motion by February 20, 2018. [ECF No. 40].
Plaintiff filed a motion to amend his complaint on February
15, 2018 [ECF No. 42], which Defendants oppose [ECF No. 45].
Plaintiff also filed a response to the motion to dismiss on
February 20, 2018 [ECF No. 43], and Defendant filed a reply
on February 27, 2018. [ECF No. 44]. Both motions having been
fully briefed, they are ripe for disposition.
carefully considered the record in this case, the undersigned
recommends the district judge grant Defendants' motion to
dismiss and deny Plaintiff's motion to amend.
alleges on July 2, 2014, while he was recovering from recent
surgery, Defendants kicked in his door to arrest his
neighbor, who was visiting. [ECF No. 1-2 at 6-8]. Plaintiff
states he did not know English well enough to effectively
communicate his cooperation, and he alleges he was threatened
while he begged the officers to stop beating his neighbor.
Id. at 7- 8. Plaintiff contends the officers kicked
him in his abdomen and reopened his surgical site.
Id. Plaintiff also alleges his left arm was broken.
Id. Plaintiff claims he told Defendants he needed
medical treatment, but they refused to transport him to the
hospital to be treated. Id. Plaintiff seeks monetary
damages and injunctive relief. Id. at 8.
Standard on Motion to Dismiss
survive a motion to dismiss under Fed.R.Civ.P. 12(b)(6),
“a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is
plausible on its face.'” Ashcroft v.
Iqbal, 129 S.Ct. 1937 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The court
is “not required to accept as true the legal
conclusions set forth in a plaintiff's complaint.”
Edwards v. City of Goldsboro, 178 F.3d 231, 244 (4th
Cir. 1999). Indeed, “[t]he presence of a few conclusory
legal terms does not insulate a complaint from dismissal
under Rule 12(b)(6) when the facts alleged in the complaint
cannot support” the legal conclusion. Young v. City
of Mount Ranier, 238 F.3d 567, 577 (4th Cir. 2001).
Furthermore, in analyzing a Rule 12(b)(6) motion to dismiss,
a court may consider “documents incorporated into the
complaint by reference, and matters of which a court may take
judicial notice.” Tellabs, Inc. v. Makor Issues
& Rights, Ltd., 551 U.S. 308, 322 (2007).
complaints are held to a less stringent standard than those
drafted by attorneys. Gordon v. Leeke, 574 F.2d
1147, 1151 (4th Cir. 1978). A federal court is charged with
liberally construing a complaint filed by a pro se litigant
to allow the development of a potentially meritorious case.
Erickson v. Pardus, 551 U.S. 89, 94 (2007). In
evaluating a pro se complaint, the plaintiff's
allegations are assumed to be true. Fine v. City of
N.Y., 529 F.2d 70, 74 (2d Cir. 1975). The mandated
liberal construction afforded to pro se pleadings means that
if the court can reasonably read the pleadings to state a
valid claim on which the plaintiff could prevail, it should
do so. Nevertheless, the requirement of liberal construction
does not mean that the court can ignore a clear failure in
the pleading to allege facts that set forth a claim currently
cognizable in a federal district court. Weller v.
Dep't of Soc. Servs., 901 F.2d 387, 390-91 (4th Cir.
argue Plaintiff's claims are barred by the statute of
limitations because the events that are the subject of his
complaint occurred on July 2, 2014, and Plaintiff did not
file his complaint until August 14, 2017. [ECF No. 29-1 at
3-5]. Plaintiff concedes the events in question took place on
July 2, 2014, but argues he was not aware that his rights
were violated, or the extent of his injuries, until he was
examined by a licensed physician on October 2014. [ECF No. 43
at 1, 4].
1983 does not contain an express statute of limitations.
Therefore, in civil rights cases filed in the District of
South Carolina, this court applies South Carolina's
general or residual personal injury statute of limitations,
which is three years. S.C. Code Ann. § 15-3-530(5);
see Owens v. Okure, 488 U.S. 235, 249-50 (1989)
(holding that “where state law provides multiple
statutes of limitations for personal injury actions, courts
considering § 1983 claims should borrow the general or
residual statute for personal injury actions”);
Hoffman v. Tuten, 446 F.Supp.2d 455, 459 (D.S.C.
2006). South Carolina determines accrual of the limitations
period based on the date the person knew, or should by the
exercise of reasonable diligence know, that he had a claim.
S.C. Code Ann. § 15-78-110, § 15-3-535.
undersigned finds, in light of the nature of Plaintiff's
alleged injuries and Defendants' alleged subsequent
refusal to transport him to the hospital, a person of
reasonable diligence would have been aware of Plaintiff's
claims on July 2, 2014, when the event allegedly occurred.
Accordingly, as Plaintiff filed this case on August 10, 2017,
claim related to events that occurred in July 2014 ...