                              STATE OF WEST VIRGINIA

                            SUPREME COURT OF APPEALS


Michelle Nicole Evans,
Plaintiff Below, Petitioner                                                 FILED
                                                                        October 17, 2017
vs)      No. 16-0288                                                         released at 3:00 p.m.
                                                                           RORY L. PERRY II, CLERK

                                                                         SUPREME COURT OF APPEALS

                                                                              OF WEST VIRGINIA

Daniel North et. al.,

Defendants Below, Respondents



                               MEMORANDUM DECISION

        Petitioner Michelle Evans1 appeals the Circuit Court of Berkeley County’s
February 23, 2016 order dismissing her complaint against Respondent police officers,2
the Martinsburg Police Department and the City of Martinsburg.3 On appeal, Petitioner
asserts that the circuit court erroneously ruled that her action was barred by the statute of
limitations. The Court has considered the parties’ briefs, oral argument and the record on
appeal and finds no substantial question of law and no prejudicial error. Therefore, in
these limited circumstances, this case is appropriate for resolution by memorandum
decision pursuant to Rule 21 of the Rules of Appellate Procedure and we affirm the
circuit court’s order.

       Petitioner alleges that on the night of March 7, 2012, she was stopped by the
Martinsburg City Police without reasonable cause while driving along West King Street
in Martinsburg. Petitioner claims that Respondent police officers were present at the
traffic stop and used unnecessary and excessive force causing her physical and
psychological injury.

       Petitioner first filed a pro se lawsuit under 42 U.S.C. § 1983 in the United States
District Court for the Northern District of West Virginia against the Respondent police
officers and the City of Martinsburg alleging claims of excessive force. Following
discovery in that case, Petitioner sought to remand that action to state court and for leave

1
    Petitioner is represented by counsel, William Carey.
2
 Respondent police officers are Daniel North, Teresa Gibbons, Craig Phelps and Adam
Albaugh.
3
    Respondents are represented by counsel, Keith Gamble.

                                               1

to amend her complaint to remove her § 1983 claims. Because the case originated in
federal court, it could not be remanded to state court. Accordingly, the District Court
treated Petitioner’s request to remand as a request for voluntary dismissal, explaining:

              [Petitioner] is essentially requesting that she be permitted to
              dismiss her case so that she may attempt to file her claim in
              Berkeley County Circuit Court. Therefore, this Court
              construes [Petitioner’s] request as a motion to dismiss her
              complaint pursuant to Federal Rule of Civil Procedure 41.
              Federal Rule of Civil Procedure 41(a) governs voluntary
              dismissals.

The federal case was dismissed without prejudice on September 16, 2014. Petitioner did
not appeal the dismissal order.

        On September 15, 2015—one year after the federal court dismissal and three years
after the events at issue—Petitioner filed this case in Berkeley County based on
essentially the same facts and claims and added the Martinsburg Police Department as an
additional party.4 She asserts claims for assault and battery against Respondents and
relies on the West Virginia savings statute—West Virginia Code § 55-2-18(a)—to toll the
two-year statute of limitations. The circuit court granted Respondents motion to dismiss
Petitioner’s complaint on the grounds that Petitioner’s claims were barred by the statute
of limitations. Petitioner appeals that order.

       Under West Virginia Code § 55-2-12, the statute of limitations for personal injury
actions is two years. Acknowledging that her complaint was not filed within the two-
year statute of limitations, Petitioner contends that the action was timely pursuant to West
Virginia Code § 55-2-18(a), which extends the statute of limitations in limited
circumstances:

              (a)	 For a period of one year from the date of an order
                   dismissing an action or reversing a judgment, a party may
                   refile the action if the initial pleading was timely filed
                   and: (i) the action was involuntarily dismissed for any
                   reason not based upon the merits of the action; or (ii) the
                   judgment was reversed on a ground which does not
                   preclude a filing of new action for the same cause.

4
  In state court, Petitioner added one new claim seeking injunctive relief and damages
based on the Martinsburg Police Department allegedly maintaining a “rogue’s gallery” of
photographs of all women who have been arrested in the city for prostitution, which
included Petitioner.

                                             2

W. Va. Code § 55-2-18(a) (2016). The savings statute clearly does not apply to cases
that are voluntarily dismissed.5 Thus, in order to determine whether the savings statute is
applicable, we must decide whether Petitioner’s federal case was voluntarily or
involuntarily dismissed.

        Petitioner asserts that she never moved to have her federal case dismissed, but
rather, simply sought a transfer of the case to state court. She alleges that the federal
court’s re-characterization of her motion and sua sponte dismissal of her case was
erroneous and that the circuit court should have considered the intent of her motion to
remand, not what the federal court ordered.

       Observing that it did not have jurisdiction to vacate, modify, or reverse the order
of the District Court, the circuit court determined that it was a voluntary dismissal. We
find no error with this conclusion and the dismissal of Petitioner’s complaint.

         With regard to the application of the savings statute, we have cautioned:

                [i]n several cases this Court has pointed out the breadth of the
                [savings] statute and that, its purpose being remedial, it
                should be liberally construed. . . . But the breadth of a statute
                or the duty to construe a remedial statute liberally can not
                amount to authority to a court to extend a statute to a case
                wholly beyond its effects.6

Because the savings statute clearly is not applicable, we affirm the circuit court’s
dismissal of Petitioner’s claims as barred by the statute of limitations.

                                                                                     Affirmed.


5
  See Henthorn v. Collins, 146 W. Va. 108, 111, 118 S.E.2d 358, 360 (1961) (“[A]
dismissal of an action which will save a second action from the effects of a statute of
limitations must not be the result of voluntary action on the part of plaintiff, or must not
amount to an abandonment of the action by the plaintiff.”); McClung v. Tieche, 126
W.Va. 575, 578, 29 S.E.2d 250, 252 (1944) (“Where the former action has been
dismissed by the voluntary act of the plaintiff or by conduct equivalent thereto, the statute
of limitations is not tolled and a subsequent one, if commenced after the limitation has
accrued, is barred.”); Armor v. Michelin Tire Corp., 923 F.Supp. 103, 108 (S.D. W.Va.
1996) (“Because the Complaint in this action was filed more than two years after the
accident at issue, Plaintiffs’ claims are barred by West Virginia Code § 55–2–12(b) . . .
voluntarily dismissed actions are not saved” by West Virginia’s savings statute).
6
    Henthorn, 146 W. Va. at 111, 118 S.E.2d at 360.
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ISSUED:      October 17, 2017


CONCURRED IN BY:

Chief Justice Allen H. Loughry II
Justice Robin Jean Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Elizabeth D. Walker




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