Delaware District Dismisses Time-Barred Excessive Force Claims

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April 24, 2026 Get Citation Alerts Download PDF Add Note

Dwayne Cropper v. Philip D. Parker, Franchot Wallace, Robert Mock

District Court, D. Delaware

• Citations: None known
• Docket Number: 1:25-cv-00812

• Precedential Status: Unknown Status

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Trial Court Document

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE

DWAYNE CROPPER : CIVIL ACTION
:
v. : NO. 25-812-MAK
:
PHILIP D. PARKER, FRANCHOT :
WALLACE, ROBERT MOCK :

MEMORANDUM
KEARNEY, J. April 24, 2026
The Delaware General Assembly requires persons seeking recovery for personal injuries
file a case within two years of their harm. We apply this rule in federal court to excessive force
civil rights claims and similar claims brought by incarcerated persons against correctional officers
in their facilities. We today address an incarcerated man and his counsel’s filing of excessive force
and state law claims in mid-2025 arising from correctional officers’ alleged use of a pepper ball
shot to the incarcerated man’s eye in August 2018 causing him ongoing harm. The incarcerated
man did not grieve the correctional officers’ conduct but then eventually filed suit. Judge Bibas
dismissed his claims for not exhausting his internal grievances and our Court of Appeals affirmed
the dismissal. The incarcerated man then waited a few months before writing a letter complaining
about the officers’ conduct and over a year before filing this case in mid-2025.
His claim is facially time-barred by the two-year statute of limitations. Our Court of
Appeals afforded him the opportunity to plead facts allowing us to plausibly infer extraordinary
circumstances to equitably toll the statute of limitations. He did not do so. We find he cannot do
so given his other conduct confirming his capacity to file a medical grievance and Judge Bibas’s
finding the facility’s grievance system available to him. We dismiss the incarcerated man’s
complaint with prejudice as time-barred.
I. Alleged facts material to the timeliness of this action
The Delaware Department of Correction maintained custody over Dwayne Cropper in a
state correctional facility in August 2018.1 Mr. Cropper refused to be handcuffed in his cell on
August 15, 2018.2 The Facility’s Area Supervisor Franchot Wallace assembled a Quick Response
Team and designated Sergeant Robert Mock to lead it.3 Sergeant Mock shot Mr. Cropper in his

right eye with a pepper ball in response to Mr. Cropper’s refusal to be handcuffed.4 Deputy Warden
Philip D. Parker supervised Sergeant Mock and knew about “unwarranted and excessive uses of
force on” incarcerated persons “but did nothing to stop it.”5
The Facility placed Mr. Cropper in the infirmary after the shooting to aid his recovery.6
Mr. Cropper asked an unidentified officer for a grievance form; the officer responded they do not
“do grievances in the infirmary.”7 Mr. Cropper ultimately filed a medical grievance about seven
months later but he never asked for an investigation into the pepper ball shooting or otherwise
complained about “the officers’ use of force or their lack of training.”8
Mr. Cropper did not sue to recover for injuries arising from the pepper ball shooting until
almost a year and eleven months later on July 8, 2020.9 Judge Bibas granted summary judgment

for the correctional officers finding Mr. Cropper did not exhaust his administrative remedies before
suing.10 As part of finding Mr. Cropper did not exhaust his administrative remedies, Judge Bibas
found Mr. Cropper did not show the Facility’s administrative remedies were unavailable to him.11
Our Court of Appeals affirmed Judge Bibas’s decision on February 14, 2024.12
Two months after our Court of Appeals issued its decision, Mr. Cropper wrote a letter
complaining about the officers’ actions related to the pepper ball shooting and requesting an
investigation on April 18, 2024.13 Mr. Cropper did not receive a response to his letter.14 He again
sued to recover for his injuries over a year later on July 2, 2025.15 He sues Deputy Warden Parker,
Area Supervisor Wallace, and Sergeant Mock under section 1983 for violating his Eighth
Amendment rights and for assault, battery, and intentional infliction of emotional distress.16 Mr.
Cropper now has limited vision in his right eye.17
II. Analysis
The correctional officers move to dismiss Mr. Cropper’s counseled lawsuit arguing the

statute of limitations expired on August 15, 2020 and bars Mr. Cropper’s civil rights claims.18
They argue Mr. Cropper’s attempts to exhaust his administrative remedies did not toll the statute
of limitations because the limitations period already expired at the time he started the process on
April 18, 2024.19 Mr. Cropper responds by concluding there are extraordinary circumstances
warranting equitable tolling because the Department of Correction agreed to withdraw affirmative
defenses based on administrative exhaustion in another case and because equitable tolling would
not otherwise conflict with the purposes of the statute of limitations or Congress’s direction in the
Prison Litigation Reform Act.20 The correctional officers reply in part the Department of
Correction’s decision to stipulate to strike affirmative defenses based on administrative exhaustion

in a different case does not provide extraordinary circumstances for us to equitably toll the statute
of limitations in this case.21 We agree.
A. Mr. Cropper’s 2025 civil rights claims are time-barred unless there is a basis to
toll the statute of limitations.
We look to the “personal-injury law of the state where the alleged harm occurred” to
determine how much time a person suing under section 1983 has to bring his claim.22 Delaware’s
General Assembly provides for a two-year statute of limitations for personal injury claims.23 We
apply a two-year statute of limitations to Mr. Cropper’s section 1983 claims.24
We look to federal law to determine when a section 1983 claim accrues and the statute of
limitations begins to run.25 And federal law instructs section 1983 claims accrue when the person
“knows or has reason to know of [his] injury.”26 For example, a section 1983 claim based on
excessive force accrues at the time officers used excessive force.27
Mr. Cropper does not respond to the correctional officers’ assertion his claims accrued on
August 15, 2018 when Sergeant Mock shot him with the pepper balls.28 We agree Mr. Cropper’s
claims accrued on August 15, 2018. But Mr. Cropper did not file this lawsuit until almost seven

years later on July 2, 2025.29 Mr. Cropper’s claims are not timely unless the limitations period was
tolled.
B. Mr. Cropper does not plead a basis to apply equitable tolling.
Mr. Cropper only argues equitable tolling makes his claims timely.30 But he pleads no facts
allowing us to plausibly infer the extraordinary circumstances necessary to disregard Delaware’s
two-year statute of limitations.
Although federal law governs when a claim accrues, we look to state law to determine
“whether a limitations period should be tolled” except where state law is inconsistent with federal
law or policy.31 Mr. Cropper asks us to apply federal equitable tolling principles without first
addressing whether Delaware’s tolling principles conflict with federal law or policy.32 Some of

our colleagues suggest Delaware’s equitable tolling principles apply when a person relied on a
fiduciary’s representations and did not know or have reason to know about facts giving rise to his
claim.33 But others suggest both Delaware law and federal law allow equitable tolling when: (1)
“the defendant misled the plaintiff,” (2) “the plaintiff was prevented from asserting his rights in
some extraordinary way,” and (3) “the plaintiff has timely asserted his rights mistakenly in the
wrong forum.”34 The person asserting equitable tolling has the burden to show how a circumstance
warranting equitable tolling “prevented [him] from timely filing [his] complaint.”35 He must also
show he “exercised reasonable diligence in investigating and bringing [his] claims.”36 Equitable
tolling is an “extraordinary” remedy we only apply “sparingly.”37 And we can grant a motion to
dismiss based on a statute of limitations defense when it is “apparent on the face of the
complaint.”38
Mr. Cropper does not plead nor explain why the statute of limitations is tolled under
Delaware law.39 He instead concludes his claim is timely under federal tolling principles without

explaining why they apply.40 He argues his claims are equitably tolled under federal law because
he exercised reasonable diligence in bringing his claims and extraordinary circumstances warrant
equitable tolling.41
Even if we look to federal tolling principles, Mr. Cropper does not plead facts showing
extraordinary circumstances prevented him from asserting his claims.42 Our colleagues have only
found extraordinary circumstances warranting equitable tolling in limited situations, such as when
an incarcerated person suffered brain damage and could not access relevant medical and
correctional records until he obtained counsel or where a facility denied an incarcerated person
access to its grievance system.43 Other colleagues have found equitable tolling does not apply—

even at the motion to dismiss stage—where the party asserting it does not allege facts showing he
was incapacitated or barred from proceeding with his suit.44
Mr. Cropper does not plead facts allowing us to plausibly infer a physical or mental
inability to sue or the Facility otherwise barred him from accessing the grievance process earlier.45
He instead argues there are extraordinary circumstances warranting equitable tolling because the
Department of Correction agreed to strike affirmative defenses based on administrative exhaustion
in another case.46 But a defendant can decide whether to raise a particular affirmative defense in a
given case.47 Even accepting Mr. Cropper’s allegations as true, the Department of Correction’s
decision not to pursue affirmative defenses based on administrative exhaustion in another case
does not create extraordinary circumstances warranting equitable tolling in this case. We grant the
correctional officers’ Motion to dismiss Mr. Cropper’s section 1983 claims based on the statute of
limitations with prejudice because he has not pleaded facts allowing us to plausibly infer we should
equitably toll the statute of limitations under Delaware or federal law. We find further amendment
to add facts showing extraordinary circumstances would be futile because Judge Bibas already

found the Facility’s administrative remedies were available to Mr. Cropper and because Mr.
Cropper’s ability to file a medical grievance about seven months after his injury shows he had
capacity to complain about the officers’ conduct too.
Mr. Cropper’s claims for assault, battery, and intentional infliction of emotional distress
also have a two-year statute of limitations.48 We also grant the correctional officers’ Motion to
dismiss these claims with prejudice based on the statute of limitations.
III. Conclusion
Mr. Cropper has not pleaded facts allowing us to plausibly infer extraordinary
circumstances prevented him from filing his Complaint before the statute of limitations for his

claims expired. We grant the Department of Correction officers’ Motion and dismiss Mr.
Cropper’s claims with prejudice.

1 See D.I. 1 at 1 ¶ 1.

2 See id. at 3 ¶ 6.

3 See id.

4 See id. at 4–6 ¶¶ 9–12.

5 See id. at 19 ¶ 34.

6 See id. at 19 ¶ 35.

7 See id.
8 See Cropper v. McCarthy, No. 20-921, 2023 WL 2891267, at *2 (D. Del. Apr. 11, 2023), aff’d,
No. 23-2091, 2024 WL 615520 (3d Cir. Feb. 14, 2024). We can consider “matters of public record”
like judicial opinions when resolving a motion to dismiss. See Pension Benefit Guar. Corp. v.
White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993); Jean Alexander Cosms., Inc. v.
L’Oreal USA, Inc., 458 F.3d 244, 256 n.5 (3d Cir. 2006) (“[T]o resolve a 12(b)(6) motion, a court
may properly look at public records, including judicial proceedings, in addition to the allegations
in the complaint.” (quoting S. Cross Overseas Agencies, Inc. v. Wah Kwong Shipping Grp. Ltd., 181 F.3d 410, 426 (3d Cir. 1999))).

9 See D.I. 8-1.

10 See Cropper, 2023 WL 2891267, at *1–4.

11 See id. 12 See Cropper v. McCarthy, No. 23-2091, 2024 WL 615520, at *2–4 (3d Cir. Feb. 14, 2024).

13 See D.I. 1 at 19 ¶ 35.

14 See id. 15 See id. 16 See id. at 20–21 ¶¶ 38–40.

17 See D.I. 1 at 13 ¶ 20.

18 See D.I. 8 at 9.

19 See id. at 10–11.

20 See D.I. 10 at 9–19.

21 See D.I. 12 at 5–8.

22 See Coello v. DiLeo, 43 F.4th 346, 352 (3d Cir. 2022) (citing Dique v. N.J. State Police, 603
F.3d 181, 185 (3d Cir. 2010)) (“The amount of time a [section] 1983 claimant has to bring suit is
determined by the personal-injury law of the state where the alleged harm occurred.”).

23 See Del. Code Ann. tit. 10, § 8119.

24 See Gudzelak v. Jurden, 495 F. App’x 217, 219 (3d Cir. 2012) (“In Delaware, [section] 1983
claims are subject to a two-year period of limitations from the date upon which it is claimed that
such alleged injuries were sustained.” (citing Del. Code Ann. tit. 10, § 8119)).
25 See Coello, 43 F.4th at 352 (citing Wallace v. Kato, 549 U.S. 384, 388 (2007)).

26 See id. (citing Wallace, 549 U.S. at 388; Genty v. Resol. Tr. Corp., 937 F.2d 899, 919 (3d Cir.
1991)).

27 Cf. Brown v. Buck, 614 F. App’x 590, 592 (3d Cir. 2015) (“[The person] alleged that the officers
used excessive force against him when they shot him on March 22, 2011, and his claim accrued
then.”).

28 See D.I. 8 at 9; D.I. 10.

29 See D.I. 1.

30 See D.I. 10.

31 See Dique, 603 F.3d at 185; Kach v. Hose, 589 F.3d 626, 639 (3d Cir. 2009) (“The general rule
is that state tolling principles also govern [section] 1983 claims . . . . That rule is not absolute.
Where state tolling principles contradict federal law or policy, federal tolling principles may apply
in certain limited circumstances.” (citations omitted)).

32 See D.I. 10 at 9–10.

33 See Gregorovich v. E.I. du Pont de Nemours, 602 F. Supp. 2d 511, 519 n.9 (D. Del. 2009)
(“Under the doctrine of equitable tolling, the limitations period stops running while a plaintiff has
reasonably relied upon the competence and good faith of a fiduciary . . . . No evidence of actual
concealment is necessary . . . but the statute is only tolled until the [person] ‘knew or had reason
to know of the facts constituting the wrong.’” (quoting In re Tyson Foods, Inc., 919 A.2d 563, 585 (Del. Ch. 2007))); see also Davis v. Corr. Med. Sys., 480 F. Supp. 2d 754, 760 n.3 (D. Del. 2007)
(“Under Delaware law, equitable tolling occurs when the plaintiff can show he was ignorant of the
wrong due to the defendant’s fraud or fraudulent concealment or some other circumstance
justifying why plaintiff did not have reason to know of the facts constituting the alleged wrong.”
(citing Kahn v. Seaboard Corp., 625 A.2d 269, 276 (Del. Ch. 1993))).

34 See Owens v. Carman Ford, Inc., No. 12-214, 2013 WL 5496821, at *3 (Del. Super. Ct. Sept.
20, 2013); Shockley v. Minner, No. 06-478, 2008 WL 2699978, at *2 (D. Del. July 10, 2008)
(citing the three examples for federal equitable tolling without further explanation); see also Kach, 589 F.3d at 643 (noting our Court of Appeals has only recognized “three federal equitable tolling
principles: ‘(1) where a defendant actively misleads a plaintiff with respect to her cause of action;
(2) where the plaintiff has been prevented from asserting her claim as a result of other extraordinary
circumstances; or (3) where the plaintiff asserts her claims in a timely manner but has done so in
the wrong forum.’” (quoting Lake v. Arnold, 232 F.3d 360, 370 n.9 (3d Cir. 2000))).

35 Cf. Lloyd v. Ocean Twp. Counsel, 857 F. App’x 61, 64 (3d Cir. 2021) (suggesting an equitable
tolling argument is insufficient where the person asserting it relied “generally on ‘illness,’ attorney
neglect, poverty, homelessness, and childcare issues without explaining how these circumstances
prevented her from timely filing her complaint”).
36 See id. (quoting New Castle Cnty. v. Halliburton NUS Corp., 111 F.3d 1116, 1126 (3d Cir.
1997)).

37 See Frasier-Kane v. City of Phila., 517 F. App’x 104, 106 (3d Cir. 2013) (quoting Santos ex rel.
Beato v. United States, 559 F.3d 189, 197 (3d Cir. 2009)).

38 See Lloyd, 857 F. App’x at 63–64 (quoting Schmidt v. Skolas, 770 F.3d 241, 249 (3d Cir. 2014)).

39 See D.I. 10.

40 See id. at 9–10.

41 See id. at 9–11.

42 See Frasier-Kane, 517 F. App’x at 106 (explaining we do not need to consider whether state
“tolling principles frustrates the policies underlying [section 1983]” where “even our federal
equitable tolling principles would not toll the statute of limitations”).

43 See Moody v. Kearney, 380 F. Supp. 2d 393, 397–98 (D. Del. 2005); Dickens v. Taylor, 671 F.
Supp. 2d 542, 548 (D. Del. 2009); see also Bennett v. Susquehanna Cnty. Child. & Youth Servs., 592 F. App’x 81, 84 (3d Cir. 2014) (“Incidents that have warranted equitable tolling under the
extraordinary circumstances prong include egregious attorney behavior . . . preclusion of future
review for death penalty cases . . . and, as a guardian, conspiring to deprive a mentally incompetent
person of her constitutional and civil rights.” (citing Holland v. Florida, 560 U.S. 631 (2010);
Merritt v. Blaine, 326 F.3d 157, 169 (3d Cir. 2003); Lake, 232 F.3d at 360)).

44 See Lloyd, 857 F. App’x at 64–65 (affirming dismissal because alleged facts like “‘illlness,’
attorney neglect, poverty, homelessness, and childcare issues” did not support equitable tolling);
Brown, 614 F. App’x at 592 (affirming dismissal because alleged facts about mental and physical
incapacitation conflicted with person filing another law suit during period of alleged
incapacitation); Bennett, 592 F. App’x at 83–84 (affirming dismissal because alleged facts
regarding “duress and undue influence” did not support equitable tolling); Frasier-Kane, 517 F.
App’x at 106–07 (affirming dismissal because alleged facts regarding “duress” did not support
equitable tolling).

45 See D.I. 1. Although Mr. Cropper alleges an unidentified officer told him they “don’t do
grievances in the infirmary” after his injury, Judge Bibas previously granted summary judgment
in part because Mr. Cropper did not show the Facility rendered administrative remedies
unavailable to him. See id. at 19 ¶ 35; Cropper, 2023 WL 2891267, at *1–4. And Judge Bibas also
found Mr. Cropper filed a medical grievance about seven months after his injury. See Cropper, 2023 WL 2891267, at *2. This suggests Mr. Cropper had the capacity to write a letter complaining
about the officers’ conduct before suing the first time. Cf. Brown, 614 F. App’x at 592 (affirming
dismissal because alleged facts about mental and physical incapacitation conflicted with person
filing another law suit during period of alleged incapacitation).

46 See D.I. 10 at 10–11.
47 Cf. Fed. R. Civ. P. 8(c)(1) (requiring a defendant to “affirmatively state any avoidance or
affirmative defense, including . . . statute of limitations”); In re Cmty. Bank of N. Va., 622 F.3d
275, 292 (3d Cir. 2010) (“A ‘statute of limitations is an affirmative defense, and the burden of
establishing its applicability to a particular claim rests with the defendant.’” (quoting Bradford-
White Corp. v. Ernst & Whinney, 872 F.2d 1153, 1161 (3d Cir. 1989))).

48 See Del. Code Ann. tit. 10, § 8119.