PARKER v. HERNANDEZ et al

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
ANTWAN BERNARD PARKER, 	)
)
Plaintiff, 	)
)
v. 	) 	1:24CV1116
)
WARDEN HERNANDEZ, et al., 	)
)
Defendants. 	)
MEMORANDUM ORDER
The Order and Recommendation of the United States Magistrate
Judge 	was 	filed 	with 	the 	court 	in 	accordance 	with 	28 	U.S.C.
§ 636(b) 	and, 	on 	January 	9, 	2025, 	was 	served 	on 	the 	parties 	in
this action. 	(Docs. 4, 5.) 	On January 27, 2025, Plaintiff filed
an objection to the Order and Recommendation within the prescribed
time 	limit. 	(Doc. 	6.) 	On 	February 	7, 	2025, 	Plaintiff 	filed 	an
amended complaint. 	(Doc. 7.) 	The court has appropriately reviewed
the portions of the Magistrate Judge’s Order and Recommendation to
which objection was made and has made a de novo determination, which
is in accord with the Magistrate Judge’s Order and Recommendation.
The 	court 	therefore 	adopts 	the 	Magistrate 	Judge’s 	Order 	and
Recommendation.
I. 	LEGAL STANDARD
A district court may designate a Magistrate Judge to “submit
to 	a 	judge 	of 	the 	court 	proposed 	findings 	of 	fact 	and
recommendations 	for 	the 	disposition” 	of 	dispositive 	pretrial
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matters, including motions to dismiss. 	28 U.S.C. § 636(b)(1)(B).
Any 	party 	may 	object 	to 	the 	Magistrate 	Judge’s 	proposed 	findings
and 	recommendations, 	and 	the 	court 	“shall 	make 	a 	de 	novo
determination of those portions of the report or specified proposed
findings 	or 	recommendations 	to 	which 	objection 	is 	made.” 	Id.
§ 636(b)(1)(C). 	The Court need not perform a de novo review where
a party makes only “general and conclusory objections that do not
direct the court to a specific error in the [M]agistrate[ Judge’s]
proposed 	findings 	and 	recommendations.” 	Orpiano 	v. 	Johnson, 	687
F.2d 44, 47 (4th Cir. 1982). 	After reviewing the record, the court
may 	accept, 	reject, 	or 	modify, 	in 	whole 	or 	in 	part, 	the 	findings
or 	recommendations 	made 	by 	the 	Magistrate 	Judge 	or 	recommit 	the
matter with instructions. 	28 U.S.C. § 636(b)(1).
II. 	BACKGROUND
No 	party 	has 	objected 	to 	the 	Magistrate 	Judge’s 	summary 	of
the 	background 	of 	this 	case. 	(See 	Doc. 	4 	at 	1.) 	Therefore, 	the
court 	adopts 	the 	facts 	as 	set 	forth 	in 	the 	Order 	and
Recommendation. 	See 	Thomas 	v. 	Arn, 	474 	U.S. 	140, 	150 	(1985)
(explaining 	the 	court 	is 	not 	required 	to 	review, 	under 	a 	de 	novo
or 	any 	other 	standard, 	the 	factual 	or 	legal 	conclusions 	of 	the
Magistrate Judge to which no objections have been raised).
III. ANALYSIS
A. 	Plaintiff’s Tolling-Related Objections.
In 	his 	Objection, 	Plaintiff 	states 	that 	he 	objects 	to 	the
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Order and Recommendation
because 	I 	feel 	my 	toll 	shall 	have 	not 	started 	until 	I
was 	released 	[from 	prison,] 	which 	was 	10-26-2023. 	And
the 	reason 	it 	took 	me 	so 	long 	to 	file 	a 	1983 	claim 	is
because I wasn’t aware of it until I filed a tort claim
with 	the 	Industrial 	Commission 	[and] 	it 	was 	dismissed
without 	prejudice 	because 	I 	put 	the 	Judge 	[and] 	D.A.
names in it, and I also mention my constitutional rights
that 	was 	violated 	[and] 	that[’]s 	when 	I 	was 	told 	about
the 1983 claim.1
(Doc. 6 at 1-2.) 	Plaintiff goes on to state, “I know and understand
that my claim should be barred by the statute of limitations;” but
then 	claims 	that 	two 	North 	Carolina 	state-court 	cases 	(Horton 	v.
Carolina Medicorp, Inc., 460 S.E.2d 567 (N.C. Ct. App. 1995), rev’d,
472 	S.E.2d 	778 	(N.C. 	1996), 	and 	House 	of 	Raeford 	Farms, 	Inc. 	v.
State ex rel. Env’t Mgmt. Comm’n, 449 S.E.2d 453 (N.C. 1994)), prove
that his 	“claim 	should be 	heard with the exception 	of these 	cases
[and] 	me 	not 	being 	aware 	of 	the 	three-year 	statute 	of 	limitation
for personal injuries.” 	(Doc. 6 at 2.)
The court construes the above as an argument by Plaintiff that
his 	lateness 	in 	filing 	this 	action 	should 	be 	excused 	pursuant 	to
the 	doctrine 	of 	equitable 	tolling.2 	“[P]rinciples 	of 	equitable
1 Some capitalization changed to improve readability.
2 	Although 	“[a] 	document 	filed 	pro 	se 	is 	‘to 	be 	liberally 	construed,’
and 	‘a 	pro 	se 	complaint, 	however 	inartfully 	pleaded, 	must 	be 	held 	to
less 	stringent 	standards 	than 	formal 	pleadings 	drafted 	by 	lawyers,’”
Erickson 	v. 	Pardus, 	551 	U.S. 	89, 	94 	(2007) 	(per 	curiam) 	(citation
omitted) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)), the United
States Court of 	Appeals for the 	Fourth Circuit has 	“not read Erickson
to 	undermine 	the 	requirement 	that 	a 	pleading 	contain 	more 	than 	labels
and conclusions,” Giarratano v. Johnson, 521 F.3d 298, 304 n.5 (4th Cir.
2008) (citation modified) (dismissing pro se complaint).
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tolling 	may, 	in 	the 	proper 	circumstances, 	apply 	to 	excuse 	a
plaintiff’s 	failure 	to 	comply 	with 	the 	strict 	requirements 	of 	a
statute 	of 	limitations.” 	Harris 	v. Hutchinson, 209 	F.3d 	325, 328
(4th Cir. 2000). 	“The equitable tolling doctrine is read into every
federal 	statute 	of 	limitations, 	and 	the 	decision 	whether 	the
doctrine 	should 	be applied 	lies 	within the 	sole 	discretion 	of 	the
court.” 	Delcid v. Isabella, Civ. No. MJM-20-3167, 2022 WL 17342048,
at 	*2 	(D. 	Md. 	Nov. 	30, 	2022) 	(citation 	modified). 	The 	doctrine
“turns 	on 	the 	facts 	and 	circumstances 	of 	a 	particular 	case 	[and]
does 	not 	lend 	itself 	to 	bright-line 	rules.” 	Harris, 	209 	F.3d 	at
330 (quoting Fisher v. Johnson, 174 F.3d 710, 713 (5th Cir. 1999)).
It is meant to be a “rare remedy available only where the plaintiff
has ‘exercise[d] due diligence in preserving [his] legal rights.’”
Cruz v. Maypa, 773 F.3d 138, 145 (4th Cir. 2014) (first alteration
in original) (quoting Chao 	v. Va. 	Dep’t of 	Transp., 291 F.3d 276,
283 (4th Cir. 2002)). 	As a result, the “circumstances under which
equitable tolling has been permitted are . . . quite narrow.” 	Chao,
291 F.3d at 283.
Plaintiff essentially argues that his status as a prisoner and
his lack of awareness of the law should have tolled the statute of
limitations 	for 	his 	action 	here. 	However, 	“one’s 	status 	as 	an
unrepresented 	prisoner 	does 	not 	constitute 	grounds 	for 	equitable
tolling.” 	Huneycutt 	v. 	Neely, 	No. 	12CV1052, 	2013 	WL 	1703561, 	at
*6 (M.D.N.C. Apr. 	19, 	2013) (collecting 	cases); see 	also 	Cadet v.
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United States, No. 09-CR-44, 2012 WL 4854381, at *4 (E.D. Va. Oct.
11, 	2012) 	(“Reliance 	on 	the 	difficulties 	inherent 	in 	prison
life . . . is 	insufficient 	to 	demonstrate 	equitable 	tolling.”).
Furthermore, 	“even 	in 	the 	case 	of 	an 	unrepresented 	prisoner,
ignorance of the law is not a basis for equitable tolling.” 	United
States v. Sosa, 364 F.3d 507, 512 (4th Cir. 2004); Clark v. United
States, 	No. 	18-CV-00453, 	2019 	WL 	2057276, 	at 	*2 	(W.D.N.C. 	May 	9,
2019) (same). 	Thus, the application of equitable tolling to excuse
Plaintiff’s late filing is unwarranted.
Moreover, neither of the cases cited by Plaintiff provides any
support 	for 	his 	objection. 	The 	“threshold 	issue” 	in 	Horton 	was
“whether 	the 	continued 	course 	of 	treatment 	doctrine 	applies 	in
medical malpractice actions against hospitals.” 	Horton, 460 S.E.2d
at 569. 	There, the court determined that the doctrine does in fact
apply in such cases, but ultimately found that “mere continuity of
the hospital-patient relationship, standing alone, is insufficient
to toll the statutory limitations period pursuant to the continuing
course of treatment doctrine.” 	Id. at 570. 	On appeal, the Supreme
Court 	of 	North 	Carolina 	reversed, 	holding 	that 	the 	doctrine 	tolls
the statute of limitations until correction of the consequences of
the negligent act. 	Horton 	v. 	Carolina 	Medicorp, 	Inc., 472 	S.E.2d
778, 	781 	(N.C. 	1996). 	Here, 	in 	the 	“Injuries” 	section 	of 	his
complaint, Plaintiff wrote the following:
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Excision 	cyst 	left 	ankle, 	idiopathlo 	[sic] 	gout, 	left
ankle 	& 	foot, 	cellulitis 	of 	left 	lower 	limb, 	localized
swelling, 	mass 	& 	lump, 	xerosis 	cutis. 	I 	was 	treated 	&
giv[en] medication for gout when I never had gout, I had
a skin infection. 	So I was diagnosed & treated for gout,
when 	I 	had 	a 	skin 	infection 	called 	cellulitis 	& 	that
caused me to have surgery.
(Doc. 	2 	at 	5.) 	Plaintiff’s 	Affidavit 	in 	support 	of 	his 	complaint
makes no mention of any injuries or medical procedures and does not
otherwise state anything in support of these conclusory allegations.
(Doc. 3.) 	Plaintiff did not bring a medical malpractice action and
made no argument for application of the continued course of treatment
doctrine. 	Thus, Horton is inapposite.
In 	House 	of 	Raeford 	Farms, 	the 	North 	Carolina 	Supreme 	Court
held that the time limit for filing a petition of review challenging
assessment 	by 	the 	Environmental 	Management 	Commission 	of 	civil
penalties 	for 	violating 	interim 	effluent 	limitations 	in 	a 	consent
decree 	was 	tolled 	by 	the 	Superior 	Court’s 	erroneous 	assertion 	of
jurisdiction. 	House 	of 	Raeford 	Farms, 	449 	S.E.2d 	at 	454. 	The
instant 	action 	alleges 	wrongful 	imprisonment; 	House 	of 	Raeford
Farms is therefore also inapposite. 	(See Docs. 3, 4, 7.)
Construing 	Plaintiff’s 	claims 	liberally, 	Plaintiff 	may 	be
attempting 	to 	argue 	that 	his 	continued 	detention 	was 	an 	ongoing
violation 	of 	his 	rights. 	Wrongful 	detention 	claims 	accrue 	upon
release from the 	wrongful 	detention. 	See Willis v. Ruff, No. 24-
CT-03102, 2024 WL 4982829, at *2 (E.D.N.C. Dec. 4, 2024) (claim for
false 	imprisonment 	accrued 	upon 	release 	from 	county 	jail); 	Manuel
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v. 	City 	of 	Joliet, 	903 	F.3d 	667, 	670 	(7th 	Cir. 	2018) 	(claim 	for
false 	imprisonment 	(wrongful 	detention) 	accrues 	upon 	release 	from
custody); Wallace 	v. 	Kato, 	549 	U.S. 384, 388 (2007) (holding 	that
federal law defines when a 42 U.S.C. § 1983 claim accrues). 	Here,
however, 	Plaintiff 	does 	not 	argue 	that 	his 	entire 	detention 	was
wrongful. 	Rather, he argues only that his detention while appealing
was wrongful. 	(See generally Docs. 2, 3.) 	The period of allegedly
wrongful detention ended more than three years before he filed the
instant action. 	Nothing Plaintiff claims calls the detention after
that into question. 	(See Docs. 2, 3.) 	Accordingly, this argument,
to 	the 	extent 	Plaintiff 	has 	attempted 	to 	make 	it, 	is 	likewise
unavailing and provides no support to his objection.
Ultimately, 	Plaintiff 	offers 	no 	meritorious 	argument 	in
support 	of 	the 	claims 	he 	makes 	in 	the 	objection 	to 	the 	Order 	and
Recommendation. 	Thus, his complaint will be dismissed as frivolous
because it is time-barred.
B. 	Plaintiff’s Amended Complaint Does Not Alter the
Court’s Determination That Dismissal Is Warranted.
After 	Plaintiff 	filed 	his 	objections, 	he 	filed 	a 	proposed
amended complaint asserting additional facts and claims. 	(Doc. 7.)
Amended 	pleadings 	are 	governed 	by 	Federal 	Rule 	of 	Civil 	Procedure
15(a). 	Rule 15(a) provides:
If the pleading is one to which a responsive pleading is
required, a party may amend its pleading once as a matter
of 	course 	no 	later 	than 	21 	days 	after 	service 	of 	a
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responsive pleading or 21 days after service of a motion
under Rule 12(b), (e), or (f), whichever is earlier.
Fed. 	R. 	Civ. 	P. 	15(a)(1)(B) 	(citation 	modified). 	No 	responsive
pleading 	has 	been 	filed 	in 	this 	case; 	no 	Defendants 	have 	been
served. 	Thus, Plaintiff’s amended complaint is allowed as a matter
of course.
Accordingly, 	at 	this 	juncture, 	the 	court 	must 	conduct 	a
frivolity review of Plaintiff’s amended complaint. 	See 28 U.S.C.
§ 	1915(e)(2); 	28 	U.S.C. 	§ 	1915A(a). 	Pursuant 	to 	§ 1915, 	courts
shall 	review 	complaints 	in 	which 	prisoners 	seek 	relief 	from 	a
governmental 	entity 	or 	officer, 	and 	“shall 	dismiss” 	any 	action
that 	is 	“frivolous 	or 	malicious” 	or 	that 	“fails 	to 	state 	a 	claim
on 	which 	relief 	may 	be 	granted.” 	§ 1915(e)(2)(B); 	see 	also
§ 1915A(b). 	Upon 	review, 	the 	court 	finds 	that 	Plaintiff’s
complaint, 	as 	amended, 	should 	be 	dismissed 	pursuant 	to
§ 1915(e)(2).
Plaintiff’s 	amended 	complaint 	contains 	statements 	about
statutes 	of 	limitations, 	most 	of 	which 	are 	unrelated 	and/or
inapplicable to his claims in the instant action. 	(See Doc. 7 at
2 (discussing “Bivens civil rights actions,” the Religious Freedom
Restoration 	Act, 	the 	Americans 	with 	Disabilities 	Act, 	and 	“the
equitable doctrine of laches”).) 	Plaintiff again attempts to bring
claims pursuant to the Eighth and Fourteenth Amendments. 	(Id. at
4.) 	Plaintiff also states the following in his “Claims for Relief”
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section: 	“[a]lternate 	version 	of 	damage 	demand 	for 	segregated
confinement 	reflecting 	Prison 	Litigation 	Reform 	Act 	(PLRA)
physical 	injury 	requirement.” 	(Id.) 	This 	court 	finds 	all 	the
above 	to 	be 	mere 	legal 	conclusions 	supported 	only 	by 	vague 	and
conclusory statements and thus insufficient to state any cause of
action. 	See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Plaintiff appears 	to attempt to 	argue that his 	claim in this
action 	should 	be 	subject 	to 	a 	four-year 	statute 	of 	limitations.
(Doc. 7 at 3.) 	However, as stated in the Magistrate Judge’s Order
and 	Recommendation, 	Plaintiff 	is 	incorrect. 	(Doc. 	4 	at 	2.)
Plaintiff has alleged claims under 	§ 1983, which are subject to a
three-year statute of limitations. 	See DePaola v. Clarke, 884 F.3d
481, 486 (4th Cir. 2018) (“In cases brought under Section 1983, we
apply the statute of limitations for personal injuries of the state
in 	which 	the 	alleged 	violations 	occurred.”); 	see 	also 	N.C. 	Gen.
Stat. 	§ 1-52(16) 	(establishing 	three-year 	statute 	of 	limitations
for personal injury).
Therefore, 	ultimately, 	Plaintiff’s 	amendment 	is 	futile
because 	the 	amended 	complaint 	fails 	to 	state 	any 	plausible 	claim
for 	relief. 	Accordingly, 	the 	court 	finds 	Plaintiff’s 	amended
complaint 	to 	be 	frivolous 	or 	otherwise 	failing 	to 	state 	a 	claim.
Mason 	v. 	Walmart 	Stores, 	Inc., 	No. 	23-CV-226, 	2024 	WL 	497137, 	at
*3 (E.D.N.C. Feb. 8, 2024); see also 28 U.S.C. § 1915(e)(2)(B)(i)-
(ii); 	Bullard 	v. 	Young, 	No. 	12-CT-3093, 	2012 	WL 	8466136, 	at 	*1
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(E.D.N.C. 	Aug. 	22, 	2012) 	(“A 	complaint 	may 	be 	found 	frivolous
because of either legal or factual deficiencies.”), aff’d, 510 F.
App’x 	305 	(4th 	Cir. 	2013); 	Katyle v. Penn Nat’l Gaming, Inc., 637
F.3d 462, 471 (4th Cir. 2011) (“Futility is apparent if the proposed
amended complaint fails to state a claim under the applicable rules
and accompanying standards . . . .”). 	Moreover, the court has also
considered 	Plaintiff’s 	amended 	complaint 	to 	the 	extent 	that 	it
could be considered to contain objections to the Magistrate Judge’s
Order 	and 	Recommendation, 	and 	the 	court 	has 	made 	a 	de 	novo
determination 	which 	is 	in 	accord 	with 	said 	Order 	and
Recommendation. 	Elabanjo 	v. 	F 	& 	W 	Mgmt., 	No. 	10CV518, 	2012 	WL
5493996, 	at 	*1 	(M.D.N.C. 	Nov. 	13, 	2012). 	Accordingly, 	the
Magistrate Judge’s Order and Recommendation is adopted in full.
C. 	Plaintiff’s Statement About Fees Raises a Moot Issue.
Lastly, Plaintiff states the following:
Also, 	I’m 	ordered 	to 	make 	an 	initial 	filing 	fee 	payment
of 	$23.07, 	I 	have 	that 	in 	my 	account, 	but 	I 	can[’]t 	get
no 	one 	here 	to 	tell 	me 	how 	to 	get 	it 	out 	my 	account 	to
send it in. 	So can some one call here & tell them I need
that money took out my account?
(Doc. 	6 	at 	2.) 	However, 	the 	docket 	indicates 	that 	the 	court
received a payment of $23.07 on January 27, 2025, thus fulfilling
the 	order 	by 	the 	Magistrate 	Judge 	that 	Plaintiff 	make 	an 	initial
filing 	fee 	payment 	of 	$23.07. 	(See 	Doc. 	4 	at 	4.) 	Accordingly,
Plaintiff’s statement is moot.
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IV. 	CONCLUSION
For these reasons, therefore,
IT 	IS 	ORDERED 	that 	Plaintiff’s 	objections 	are 	overruled 	and
the 	Magistrate 	Judge’s 	Order 	and 	Recommendation 	(Doc. 	4) 	is
ADOPTED.
IT IS FURTHER ORDERED that this action is DISMISSED pursuant
to 28 U.S.C. § 1915A for being frivolous.
A 	Judgment 	dismissing 	this 	action 	will 	be 	entered
contemporaneously with this Order.
/s/ 	Thomas D. Schroeder
United States District Judge
February 11, 2026
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