Harrel v Hierholzer

VIRGINIA: IN THE CIRCUIT COURT 'OF THE CITY OF NORFOLK

ALLEN HARRELL, JR., Plaintiff

Civil No.: L07-4655

v.

J.P. HIERHOLZER, Defendant

FINAL ORDER The plaintiff was an incarcerated felon on August 2, 2007, when he fued this pro.re action against the defendant for assault seelcing $100,000 in damages. The alleged assault occurred on l\.1ay 4, 2004, when the plaintiff was arrested on narcotics charges. The plaintiff subseguently pleaded guilty to otle charge and the Court sentenced him to four years imprisonment on October 29, 2004. It appears the plaintiff was released from incarceration on October 24,2007. The defendant has fued a special plea of the statute of limitations.

Cone of Virginia ยง8.01-G95 provides that oral argument on any motion in a prisoner's civil action shall only be heard at the Court's request and "whenever possible, the court shall rule upon the record before it." The record here is sufficient to aliow the Couft to rule without a hearing.

The limitation on an action for personal injuries is two years after accruaL Code ยง8.01-243(A). The plaintiffs cause of action here accrued on May 4, 2004-. The Court will assume, without deciding, that the statute of limitations was suspended during the plaintiffs prosecution until the entry of the amended sentencing order \iovember 22, 2004. Code ยง8.01-229(K). The plaintiff's action is thus timely only if the statute of limitations was tolled

under Code §8.01-229(/1) (2) (b) because of his incarceration. The COUIt fmds that subparagraph does not generally apply to prisoners for three reasons .

First, "incapacitated person" is defmed in the subparagraph as one "so adjudged by a

court of competent jurisdiction, or if it shall otherv.-;se appear

[0

the court ... detennining

the issue that such person is or was incapacita.ted" \\-;thin the prescribed period of the statute This clearly denotes a mental incapacity, not an U1capacity arising from status. The inclusion of the term "committee" in the exception in the subparagraph does not suggest a different result as a "committee" can be appointed to manage the estate of a prisoner, Code §53,l-221 et seq., and was formerly the title of one to whom the care of the person and estate of one of unsound mind couJd be entrusted. Bud's Committee v. Bird, 62 Va. (21 Gratt) 712 (1872). This conclusion is further confirmed by Code §8.01-2(6), \vhich, in defUling "person under a disability," distinguishes "a person convicted of a felony during the period he is confmed" from two classes of "incapacitated persons" and one class of "incapable" persons. See also Code §37.2-1000.

Second, convicts are not "civilly dead." "Unlike an infant or insane person, [an incarcera.ted felon] was not legally incompetent to transact business ... aftet his conviction in the criminal case. " Dunn v , Tel])', J\dm'r., 21 () Va. 234,239,217 S.E.2d 849,854 (1975). ]n Cross

Y.

Sundin, 222 Va. 37, 278 S.£.2d 805 (1981), the Supreme Court held it was error for

a circuit court to dismiss a prisoner's pro se civil action because the prisoner proceeded withom the appointment of a committee. Lastly, Code §8.01-690 recognizes that prisoners can

rue civil actions for money damages pro se.

Third, if cl1e subparagraph applied to prisoners in general, Code ยง8.01-229 (A)(3) would be unnecessa ry.

The Court sustains the defendant's special plea of the statute of limitatlo n s and this action is DIS?vfISSED WITH PREJCDlCE and removed ftom the d ocket with its papers

to

be pIKed among the ended causes.

Endorsements are waived pursuant to Rule 1:13. The Clerk shall send copies o f this order to the plaintj.ff at 507 Avondale Road, Portsmouth, Virginia 23701 and to counsel for the defendant.

Enter: N ovember ~, 2007