Miller v. King George County, VA , 277 F. App'x 297 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-1405
DOUGLAS L. MILLER; DEBORA A. MILLER,
Plaintiffs - Appellants,
versus
KING GEORGE COUNTY, VIRGINIA; BOARD OF
SUPERVISORS OF KING GEORGE COUNTY, VIRGINIA;
COUNTY ADMINISTRATOR OF KING GEORGE COUNTY,
VIRGINIA; JACK GREEN, Director of Community
Development, King George County, Virginia,
Defendants - Appellees.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Henry E. Hudson, District
Judge. (3:07-cv-00010-HEH)
Submitted: January 30, 2008 Decided: May 12, 2008
Before NIEMEYER and MICHAEL, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Philip Carter Strother, Robert Jackson Allen, STROTHER LAW OFFICES,
PLC, Richmond, Virginia, for Appellants. Edward W. Cameron,
David C. Gutkowski, ODIN, FELDMAN & PITTLEMAN, P.C., Fairfax,
Virginia; Matthew J. Britton, County Attorney, King George,
Virginia, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Douglas L. and Debora A. Miller appeal the district
court’s order dismissing their 42 U.S.C. § 1983 (2000) complaint as
barred by the statute of limitations and for failure to exhaust
state remedies. Their complaint asserted that an ordinance
regulating their well water system was unconstitutional. On
appeal, they challenge only the dismissal of their due process
claims. We affirm.
The Millers first contend that they may challenge an
unconstitutional ordinance at any time, and therefore, the statute
of limitations is inapplicable. Section 1983 suits are generally
subject to statutes of limitations, and the particular statute used
is the most analogous state limitations period. See National
Advert. Co. v. Raleigh, 947 F.2d 1158, 1161 (4th Cir. 1991). The
parties do not dispute that, if this case is subject to a statute
of limitations, the appropriate limitations statute is two years.
See Va. Code Ann. § 8.01-243(A) (Michie 2007). We reject the
Millers’ contention that this statute of limitations does not apply
to § 1983 suits challenging the constitutionality of a state
ordinance.
The Millers next contend that the statute was tolled
under Va. Code Ann. § 8.01-229(E)(1) (Michie 2007), which reads as
follows:
[I]f any action is commenced within the prescribed
limitation period and for any cause abates or is
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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.
Specifically, the Millers assert that the time period during which
their state cases challenging the ordinance were pending should not
count against them and that tolling the statute during the pendency
of the state cases would render their action timely.
While it is debatable whether the Millers’ civil cases
could toll the statute, there is no question that a criminal case
instituted against Mr. Miller would not satisfy the statutory
requirements for tolling. The term “action” in the statute refers
to “civil litigation in both the state and federal courts.”
Welding, Inc. v. Bland County Srv. Auth., 541 S.E.2d 909, 912 (Va.
2001). Therefore, at the latest, the statute began to run on
March 10, 2004, when the Millers’ petition for appeal was denied in
their most recent civil case. Because the Millers filed the
instant complaint in January 2007, over two years later, their
complaint was untimely filed.
Finally, The Millers assert that they have been and still
are subject to continuing harassment and unconstitutional actions
by the Defendants. Thus, they claim that their complaint should be
considered timely filed within two years of the latest
unconstitutional actions.
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“A continuing violation is occasioned by continual
unlawful acts, not continual ill effects from an original
violation.” National Advert., 947 F.2d at 1166. If the statutory
violation does not occur at a single moment and instead is a series
of separate acts and if the same alleged violation is committed at
the time of each act, the limitations period begins anew with each
violation and only those violations preceding the filing of the
complaint by the full limitations period are foreclosed. Id. at
1167. With regard to statutory or regulatory challenges, we have
found continuing violations where regulations continued to be
applied to persons within the statutory limitations period. Id.
In such cases, we consider the following factors: (1) the harm to
the plaintiff and whether that harm has been compounded by further
governmental actions and (2) whether unfairness results from
finding the continuing wrong exception inapplicable. Id. at
1167-68 (finding no continuing violation where statute applied once
to discrete set of individuals with a foreseeable, ascertainable
harm).
Applying these factors, we conclude that there was no
continuing violation in this case. Here, the harm to the Millers
occurred when they were found in violation of the zoning ordinance
in 2001. The additional “violations” cited by the Millers were
merely the County’s attempts to bring the Millers into compliance
and were in large part caused by the Millers’ refusal to comply
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with county and court orders.* It was entirely foreseeable to the
Millers that their continued failure to conform to the zoning
requirements would result in civil and criminal penalties. Once
they were cited for a zoning violation, the Millers were in a
position to challenge the ordinance in state and federal court. In
fact, if any unfairness could occur in this case, it would result
from permitting the Millers to challenge the 2001 finding that they
were in violation of zoning laws nearly six years after notice of
the violation. Accordingly, we find that the continuing violation
exception is inapplicable in this case. See id. at 1168 (holding
that there was no continuing violation when ordinance’s enactment
caused the alleged harm, even though the city took later
enforcement action).
Accordingly, we affirm. We dispense with oral argument
because the facts and legal contentions are adequately presented in
the materials before the court and argument would not aid the
decisional process.
AFFIRMED
*
The Millers attempt to show that the unconstitutional actions
of the Defendants are still continuing by filing documents about
current state proceedings with their appeal. However, these
documents were not before the district court, and we previously
denied the Millers’ motion for leave to file attachments.
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