Philip Sebolt v. John Pindelski

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 18-7042
PHILIP M. SEBOLT,
Plaintiff - Appellant,
v.
JOHN A. PINDELSKI, in his individual capacity; STEPHANIE K. RUSH, in her
individual capacity; ANDRES E. HERNANDEZ, in his individual capacity;
DOUGLAS L. STINE, in his individual capacity; WILLIAM T. BICKART, in his
individual capacity; ROB NAGLE, in his individual capacity; KELLI L. HECK, in
her individual capacity; ANDREA R. WEISMAN, in her individual capacity;
HOLLY ANDERSON, in her individual capacity,
Defendants - Appellees.
No. 20-6867
PHILIP M. SEBOLT,
Plaintiff - Appellant,
v.
JOHN A. PINDELSKI, in his individual capacity; STEPHANIE K. RUSH, in her
individual capacity; ANDRES E. HERNANDEZ, in his individual capacity;
DOUGLAS L. STINE, in his individual capacity; WILLIAM T. BICKART, in his
individual capacity; ROB NAGLE, in his individual capacity; KELLI L. HECK, in
her individual capacity; ANDREA R. WEISMAN, in her individual capacity;
HOLLY ANDERSON, in her individual capacity,
Defendants - Appellees.
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Appeals from the United States District Court for the Eastern District of Virginia, at
Alexandria. Anthony John Trenga, Senior District Judge. (1:17-cv-01212-AJT-MSN)
Submitted: May 20, 2022 Decided: July 20, 2022
Before MOTZ, DIAZ, and HEYTENS, Circuit Judges.
No. 18-7042, dismissed; No. 20-6867, affirmed by unpublished per curiam opinion.
Philip Michael Sebolt, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
In these consolidated appeals, Philip M. Sebolt appeals the district court’s orders
dismissing his original and amended complaints for failure to state a claim, pursuant to
28 U.S.C. § 1915A(b)(1) and 28 U.S.C. § 1915(e)(2)(B)(ii). We dismiss appeal No. 18-
7042 for lack of jurisdiction and affirm the district court’s judgment in appeal No. 20-6867.
As a threshold matter, we “have an independent obligation to verify the existence
of appellate jurisdiction,” even if the parties do not raise the issue. Williamson v. Stirling,
912 F.3d 154, 168 (4th Cir. 2018) (internal quotation marks omitted). A case “may become
moot during the pendency of an appeal when an intervening event makes it impossible for
the court to grant effective relief to the prevailing party,” CVLR Performance Horses, Inc.
v. Wynne, 792 F.3d 469, 474 (4th Cir. 2015), or “when the issues presented are no longer
live or the parties lack a legally cognizable interest in the outcome,” Williams v. Ozmint,
716 F.3d 801, 809 (4th Cir. 2013) (internal quotation marks omitted). When a case
becomes moot, we are deprived of jurisdiction. Id. at 808-09.
Appeal No. 18-7042 challenges only the district court’s November 2017 order
dismissing Sebolt’s original complaint. Upon our limited remand, the district court vacated
that order and granted Sebolt leave to file an amended complaint that superseded the
original complaint. Accordingly, we conclude that Sebolt’s appeal of the November 2017
order is moot, and we dismiss No. 18-7042 for lack of jurisdiction.
Turning to No. 20-6867, Sebolt’s appeal of the district court’s April 2020 order
dismissing his amended complaint, we review the district court’s dismissal order de novo,
applying the same standards applicable to review of a Fed. R. Civ. P. 12(b)(6) dismissal.
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Wilcox v. Brown, 877 F.3d 161, 166 (4th Cir. 2017); Martin v. Duffy, 858 F.3d 239, 248
(4th Cir. 2017). “To survive a motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Carey
v. Throwe, 957 F.3d 468, 474 (4th Cir. 2020) (internal quotation marks omitted). “[I]n
evaluating a complaint filed in forma pauperis pursuant to § 1915, a district court may
consider a statute of limitations defense sua sponte when the face of the complaint plainly
reveals the existence of such defense.” Eriline Co. S.A. v. Johnson, 440 F.3d 648, 656 (4th
Cir. 2006).
Sebolt’s amended complaint alleged a Bivens * claim for deliberate indifference to
his serious medical needs and two related negligence claims pursuant to the Federal Tort
Claims Act, 28 U.S.C. §§ 1346(b), 2671-2680 (FTCA). We apply the state’s personal
injury statute of limitations to Bivens claims. Reinbold v. Evers, 187 F.3d 348, 359 n.10
(4th Cir. 1999). Sebolt’s Bivens claim was subject to, at most, a two-year statute of
limitations, running from the date the claim accrued. See A Soc’y Without A Name v.
Virginia, 655 F.3d 342, 348 (4th Cir. 2011); 735 Ill. Comp. Stat. § 5/13-202; Va. Code
Ann. § 8.01-243(A); Ky. Rev. Stat. Ann. § 413.140(1)(a); Mitchell v. Chapman, 343 F.3d
811, 825 (6th Cir. 2003) (Kentucky); Delgado-Brunet v. Clark, 93 F.3d 339, 342 (7th Cir.
1996) (Illinois). Sebolt also must have presented his FTCA claims to the Federal Bureau
of Prisons (“BOP”) within two years after those claims accrued. See 28 U.S.C. § 2401(b);
*
Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388(1971).
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28 C.F.R. § 14.2(a) (2021). Thus, to be timely, Sebolt’s Bivens claim must have accrued
no earlier than October 5, 2015, two years prior to the filing of his original complaint. See
Houston v. Lack, 487 U.S. 266, 276 (1988). And, Sebolt’s FTCA claims must have accrued
no earlier than September 29, 2015, two years prior to the date he alleges that he presented
his claims in writing to the BOP.
“A federal 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.” Baldwin v.
City of Greensboro, 714 F.3d 828, 839 (4th Cir. 2013) (internal quotation marks omitted).
Put differently, federal law “conforms to common-law tort principles,” under which
“accrual occurs when the plaintiff has a complete and present cause of action against a
defendant—that is, when the plaintiff knows or has reason to know of his injury.” Owens
v. Balt. City State’s Atty’s Office, 767 F.3d 379, 389 (4th Cir. 2014) (cleaned up); see
United States v. Kubrick, 444 U.S. 111, 120-22 (1979) (holding that FTCA medical-
malpractice claim accrues when plaintiff knows, or in exercise of due diligence should
know, of both injury and its likely cause).
Although “it is critical that the plaintiff know that he has been hurt and who inflicted
the injury,” Nasim v. Warden, Md. House of Corr., 64 F.3d 951, 955 (4th Cir. 1995) (en
banc), a plaintiff’s cause of action accrues “when the wrongful act or omission results in
damages,” “even though the full extent of the injury is not then known or predictable,”
Wallace v. Kato, 549 U.S. 384, 391 (2007) (internal quotation marks omitted). “Were it
otherwise, the statute would begin to run only after a plaintiff became satisfied that he has
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been harmed enough, placing the supposed statute of repose in the sole hands of the party
seeking relief.” Id.We have reviewed the record in light of these standards and find no reversible error
in the district court’s determination that each of Sebolt’s claims accrued well before
September 29, 2015. See id.; Owens, 767 F.3d at 389; see also Md. Shall Issue, Inc. v.
Hogan, 963 F.3d 356, 361 (4th Cir. 2020) (describing standing); Scoggins v. Lee’s
Crossing Homeowners Ass’n, 718 F.3d 262, 270 (4th Cir. 2013) (describing ripeness).
Because we agree that Sebolt’s claims are facially time-barred, we affirm the district
court’s judgment dismissing Sebolt’s amended complaint.
We dispense with oral argument because the facts and legal contentions are
adequately presented in the materials before this court and argument would not aid the
decisional process.
No. 18-7042, DISMISSED;
No. 20-6867, AFFIRMED
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