Wolfe v. Roanoke City Jail , 356 F. App'x 645 ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-7162
DAVID V. WOLFE,
Plaintiff - Appellant,
v.
ROANOKE CITY JAIL; CARILION HOSPITAL STAFF; THOMAS BOLTON,
Dr.; UNITED STATES MARSHAL SERVICE,
Defendants - Appellees.
Appeal from the United States District Court for the Western
District of Virginia, at Roanoke. Samuel G. Wilson, District
Judge. (7:09-cv-00220-sgw-mfu)
Submitted: October 30, 2009 Decided: December 14, 2009
Before WILKINSON, NIEMEYER, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
David V. Wolfe, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
David V. Wolfe, a federal inmate formerly housed in a
local Virginia jail, appeals the district court’s order
dismissing his civil action, filed pursuant to 42 U.S.C. § 1983(2006) and the Federal Tort Claims Act (“FTCA”), 28 U.S.C.
§§ 2671 to 2680 (2006), as untimely. We have reviewed the
record and find no reversible error. Accordingly, we affirm for
the reasons stated by the district court. * See Wolfe v. Roanoke
City Jail, No. 7:09-cv-00220-sgw-mfu (W.D. Va. June 11, 2009).
We dispense with oral argument because the facts and legal
*
To the extent Wolfe argues he is entitled to tolling of
the limitations period for his § 1983 claim, even with the
benefit of such tolling his complaint would remain untimely. At
most, Wolfe is entitled to tolling for thirty-five days, the
time during which his previously filed complaint asserting the
same claim was pending with the district court. See Va. Code
Ann. § 8.01-229(E)(1) (2007) (explaining that, if an action is
initiated within the limitations period, “and for any cause
abates or is dismissed without determining the merits, the time
such action is pending shall not be computed as part of the
period within which such action may be brought, and another
action may be brought within the remaining period”); Wolfe v.
Roanoke City Jail, No. 7:07-cv-00362-sgw-mfu (W.D. Va. July 26,
2007) (filed July 26, 2007, and dismissed without prejudice on
August 30, 2007, pursuant to Wolfe’s motion for voluntary
dismissal). As the underlying complaint was filed more than
four months beyond the limitations period, tolling for
thirty-five days would not render the complaint timely. As
well, Wolfe’s claims that the limitations period should have
re-started after his initial complaint was dismissed and that he
was entitled to tolling during the pendency of his
administrative remedies are both foreclosed by Virginia law.
See Va. Code Ann. § 8.01-229 (2007).
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contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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