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LAGON v. BARRY

February 28, 1987

Van David LaGon, Plaintiff,
v.
Marion S. Barry, Jr., Et Al., Defendants



The opinion of the court was delivered by: GASCH

 I. INTRODUCTION

 The plaintiff, Van David LaGon, an inmate at the Lorton Reformatory, seeks to recover for severe head injuries he sustained while in prison which are allegedly the direct or proximate result of conduct by the defendants, the District of Columbia and several District officials. *fn1" LaGon grounds federal jurisdiction on the Civil Rights Act, 42 U.S.C. § 1983, and 28 U.S.C. § 1343. In addition, the plaintiff brings several pendant state claims. Several motions are before the Court. The plaintiff moves to voluntarily dismiss pursuant to Federal Rule of Civil Procedure ("Rule") 41(a)(2) those claims in his complaint involving an attack on LaGon by another inmate in 1980 ("1980 assault"). The defendants oppose voluntary dismissal and move alternatively to dismiss the plaintiff's entire complaint. *fn2"

 II. BACKGROUND

 A. The 1980 Assault

 Plaintiff LaGon was admitted to Lorton on December 14, 1976. *fn3" His complaint alleges that on January 2, 1980, another inmate assaulted him, striking him on the left side of his head with a baseball bat. LaGon did not report this incident. Nearly three years later, on November 14, 1982, he lost consciousness after drinking a homemade alcoholic beverage. He was transported to D.C. General Hospital and underwent radical surgery of the skull. During this operation, a portion of the plaintiff's cranium was removed. Subsequently, in March of 1984, LaGon underwent further surgery in order to have plastic sheathing inserted in his head to protect a part of his brain which had become exposed. The plaintiff maintains that these operations were a proximate result of the 1980 assault. He further claims that consequently he has "significant intellectual and other impairment . . . [and] great pain and suffering." Plaintiff's Complaint at 4. Plaintiff charges that the defendants are responsible for his injuries because they knew, or reasonably should have known, that assaults of the kind which injured him were commonplace at Lorton and were the result of deficient policies and practices at the prison which did not offer inmates adequate protection from assaults by other prisoners. *fn4"

 B. The 1985 Assault

 The plaintiff alleges that on August 16, 1985, he was in a locked cell in the maximum security unit at Lorton when a correctional officer named Alston entered his cell and struck the left side of his head with a club. Officer Alston then purportedly took hold of the plaintiff's throat and struck his head against the cell wall and against a commode in the cell. LaGon claims that these actions were totally unprovoked. The complaint states that plaintiff immediately lost consciousness and was again taken to D.C. General Hospital for treatment. Complaint at para. 20. On December 5, 1985, LaGon underwent surgery for the third time. The plastic sheathing previously inserted in his head to protect his brain was removed to permit treatment of an infection caused by the most recent attack. LaGon remained incapacitated for six months. At the end of that period, he returned to Lorton. To protect the vulnerable portion of his skull, LaGon was required to wear a helmet.

 As a result of the 1985 assault, LaGon again claims to have suffered greatly. In addition, he states that the necessity of wearing a helmet at Lorton made him the object of other prisoners' derision. The plaintiff claims that the District of Columbia and the other named defendants are liable to him under the doctrine of respondeat superior or, alternatively, for negligence. Plaintiff claims that the defendants either knew or reasonably should have known that Officer Alston had demonstrated a pattern of violent attacks on inmates in his custody. *fn5"

 III. DISCUSSION

 A. Defendants' Motion to Dismiss

 The defendants move to dismiss on the ground that the plaintiff's cause of action is barred by the applicable statute of limitations. *fn6" For the reasons set out below, the Court denies the defendants' motion.

 The plaintiff rests this Court's jurisdiction on Count II of his complaint which asserts a cause of action under the Civil Rights Act, 42 U.S.C. § 1983. Because this statute does not state a limitations period, it is settled that federal courts will borrow an appropriate statute of limitations from state law. Burnett v. Grattan, 468 U.S. 42, 49, 82 L. Ed. 2d 36, 104 S. Ct. 2924 (1983). The parties agree that the relevant statute of limitations is D.C. Code Ann. § 12-301 (1981). Section 12-301 lists eight different limitations periods the lengths of which are determined by the type of action pleaded. Two of these limitations periods arguably apply in the instant case: section 12-301(4), a one year limitations period for "liable, slander, assault, battery, mayhem, wounding, malicious prosecution, false imprisonment," or section 12-301(8), a three year limitations period employed if the action is not specifically covered by sections 12-301(1) - 12-301(7). See D.C. Code Ann. §§ 12-301(4), (8) (1981).

 The Court need not decide which of these periods is more appropriate and whether the plaintiff's action is barred pursuant to the correct one because of an exception to section 12-301 embodied in D.C. Code Ann. § 12-302(a) (1981). Section 12-302(a)(3) provides, in relevant part, that "when a person entitled to maintain an action is, at the time the right of action accrues: . . . (3) imprisoned -- he or his proper representative may bring action within the time limited after the disability is removed." See D.C. Code Ann. 12-302(a)(3). The Supreme Court has stated on several occasions that tolling rules are coequal to and coordinate with state statutes of limitations and thus are "an integral part of a complete limitations policy." Board of Regents v. Tomanio, 446 U.S. 478, 488, 64 L. Ed. 2d 440, 100 S. Ct. 1790 (1979); e.g., Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 44 L. Ed. 2d 295, 95 S. Ct. 1716 (1975). The Supreme Court has therefore ...


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