Johnson v. Albright et al (INMATE1)

Filing 11

REPORT AND RECOMMENDATIONS that: (1) The claims arising from actions which occurred on or before June 18, 2004 be dismissed with prejudice; (2) Plaintiff's claims against Kim Tobias Thomas be dismissed with prejudice prior to service of process pursuant to the provisions of 28 U.S.C. 1915(e)(2)(B)(I); (3)Kim J. Thomas be dismissed as a defendant in this cause of action; (4) This case, with respect to the plaintiff's claims against defendants Albright, Wheeler, Allen and Mason, be referred back to the undersigned for appropriate proceedings. On or before July 12, 2006 the parties may file objections to this Recommendation. Objections to R&R due by 7/12/2006. Signed by Judge Charles S. Coody on 6/29/2006. (cb, )

Johnson v. Albright et al (INMATE1)

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IN THE DISTRICT COURT OF THE UNITED STATES F O R THE MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION M A R T H A JANE JOHNSON, #202230, Plaintiff, v. ) ) ) ) ) ) ) ) ) )

C I V IL ACTION NO. 2:06-CV-546-CSC [WO]

F R A N K ALBRIGHT, et al., Defendants.

R E C O M M E N D A T I O N OF THE MAGISTRATE JUDGE O n June 19, 2006, Martha Jane Johnson ["Johnson"], a state inmate, filed this 42 U .S .C . § 1983 action in which she challenges her access to the courts provided by officials a t the Julia Tutwiler Prison for Women ["Tutwiler"].1 Johnson names Frank Albright, the w a r d e n at Tutwiler, Richard Allen, commissioner of the Alabama Department of Corrections, K im Tobias Thomas, an assistant attorney general with the Alabama Department of C o rre c tio n s , and Cynthia Wheeler and June Mason, correctional officers at Tutwiler, as d e f e n d a n ts in this cause of action. Upon review of the complaint, the court concludes that Johnson's claims relating to

1. Although the Clerk of this court stamped the complaint "filed" on June 20, 2006, it is clear that Johnson presented the complaint to prison officials for mailing prior to this date. Johnson certified that she executed the complaint on June 19, 2006. The law is well settled that a pro se inmate's complaint is deemed filed the date it is delivered to prison officials for mailing. Houston v. Lack, 487 U.S. 266, 271-272 (1988); Adams v. United States, 173 F.3d 1339, 1340-41 (11th Cir. 1999); Garvey v. Vaughn, 993 F.2d 776, 780 (11th Cir. 1993). "Absent evidence to the contrary in the form of prison logs or other records, [this court] must assume that [the instant complaint] was delivered to prison authorities the day [Johnson] signed it . . ." Washington v. United States, 243 F.3d 1299, 1301 (11th Cir. 2001). In light of the foregoing, the court considers June 19, 2006 as the date of filing.

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a c tio n s which occurred prior to June 19, 2004 and his claims against Kim Tobias Thomas s h o u ld be dismissed prior to service of process in accordance with the provisions of 28 U .S .C . § 1915(e)(2)(B)(I).2 I. DISCUSSION J o h n s o n references actions which occurred over two years prior to the filing of the instan t complaint. She also assert that defendant Thomas "is not fully informed [of the law]; o r he's not relaying information properly to [officials at Tutwiler]; or the authorities at [ T u tw ile r] are misrepresenting Attorney Thomas' advice." Memorandum Brief in Support o f Complaint at 17. I . Claims Barred by the Statute of Limitations U p o n review of the documents filed by Johnson, it is clear that those claims arising f ro m adverse actions which occurred prior to June 19, 2004 are barred by the statute of lim ita tio n s . F e d e ra l courts must look to state law to determine, first, what statute of lim ita tio n s is applicable, and second, whether that limitations period is tolled. W h its o n v. Baker, 755 F.2d 1406, 1409 (11 th Cir. 1985). Selection of a lim ita tio n s period for § 1983 actions changed several times [between 1985 a n d 1989]. Alabama law, however, provides that the applicable limitations p e rio d is the one in effect when the claim is filed, not when the cause of action a r o s e . Tyson v. Johns Manville Sales Corp., 399 So.2d 263, 269-70 (Ala. 1 9 8 1 ). It is undisputed that § 1983 claims were subject to a two year
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2. A prisoner who is allowed to proceed in forma pauperis in this court will have his complaint screened in

acco rdance with the provisions of 28 U.S.C. § 1915(e)(2)(B). This screening procedure requires the court to d is mis s a prisoner's civil action prior to service of process, regardless of the payment of a filing fee, if it determines tha t the complaint is frivolous, malicious, fails to state a claim upon which relief may be granted, or seeks monetary d am ag es from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B)(i)-(iii).

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lim ita tio n s period at that time. See Jones v. Preuit & Mauldin, 876 F.2d 1480, 1 4 8 3 -8 4 (11 th Cir. 1989) (Jones II). D u k e s v. Smitherman, 32 F.3d at 537. At the time Johnson filed the instant complaint, the a p p lic a b l e statute of limitations for actions brought under 42 U.S.C. § 1983 was two years. O w e n s v. Okure, 488 U.S. 235, 249-250 (1989)(the proper statute of limitations for § 1983 ac tio n s is the forum state's general or residual statute of limitations for personal injury a c tio n s); see also Lufkin v. McCallum, 956 F.2d 1104, 1105 (11 th Cir. 1992). In Alabama, th e general statute of limitations for personal injury actions is two years. Ala. Code § 6-23 8 (l ). Johnson asserts claims with respect to adverse actions taken against her which tra n sp ire d prior to June 19, 2004. On May 17, 1996, the Alabama legislature rescinded that p o rtio n of the tolling provision which previously applied to convicted prisoners. See Ala. C o d e § 6-2-8(a) (1975, as amended). The tolling provision of Ala. Code § 6-2-8(a) is th e re f o re unavailing. Consequently, the applicable statute of limitations expired on the c la im s arising from actions which occurred on or before June 18, 2004 on June 18, 2006. J o h n s o n filed the instant complaint on June 19, 2006. This filing occurred several years after th e applicable limitations period had lapsed. Unquestionably, the statute of limitations is usually a matter which may be raised as a n affirmative defense. The court notes, however, that in an action proceeding under section 1 9 8 3 , it may consider, sua sponte, affirmative defenses that are apparent from the face of the

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c o m p la in t. Clark v. Georgia Pardons and Parole Board, 915 F.2d 636, 640 n.2 (11 th Cir. 1 9 9 0 ); see also Ali v. Higgs, 892 F.2d 438 (5 th Cir. 1990). "[I]f the district court sees that an a f f irm a tiv e defense would defeat the action, a section 1915[(e)(2)(B)(I)] dismissal is a llo w e d ." Clark, 915 F.2d at 640. "The expiration of the statute of limitations is an a f f i rm a tiv e defense the existence of which warrants dismissal as frivolous. See Franklin [v. S ta te of Oregon], 563 F.Supp. [1310] at 1330, 1332." Id. at n.2. In analyzing § 1983 cases, "the court is authorized to test the proceeding for f riv o lo u s n e ss or maliciousness even before service of process or before the filing of the a n s w e r." Ali, 892 F.2d at 440. "It necessarily follows that in the absence of . . . defendants th e . . . court must evaluate the merit of the claim sua sponte." Id. A n early determination of the merits of an IFP proceeding provides a s ig n if ic a n t benefit to courts (because it will allow them to use their scarce r e s o u rc e s effectively and efficiently), to state officials (because it will free them from the burdens of frivolous and harassing litigation), and to prisoners (b e c au s e courts will have the time, energy and inclination to give meritorious c la im s the attention they need and deserve). "We must take advantage of every tool in our ju d ic ia l workshop." Spears [v. McCotter], 766 F.2d [179, 182 (5th Cir. 1985)]. G re e n v. McKaskle, 788 F.2d 1116, 1120 (5 th Cir. 1986). B a se d on the facts apparent from the face of the present complaint, Johnson has no le g a l basis on which to proceed with respect to claims that occurred on or before June 18, 2 0 0 4 as she filed this cause of action more than two years after such violations accrued. As p re v io u s ly determined, the statutory tolling provision provides no basis for relief. In light o f the foregoing, the court concludes that Johnson's challenges to actions taken against her

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o n or before June 18, 2004 are barred by the applicable statute of limitations and these claims a re therefore subject to dismissal as frivolous in accordance with the directives of 28 U.S.C. § 1915(e)(2)(B)(i). See Clark v. Georgia Pardons and Parole Board, 915 F.2d 636 (11th C ir. 1990); see also Neitzke v. Williams, 490 U.S. 319 (1989).3 I I . Claims Against Counsel for the Department of Corrections T h e language of 42 U.S.C. § 1983 requires proof of an affirmative causal connection b e tw e e n the actions taken by a defendant and the alleged constitutional deprivation. Swint v . City of Wadley, Ala., 51 F.3d 988, 999 (11 th Cir. 1995); Jones v. Preuit & Mauldin, 851 F .2 d 1321 (11 th Cir. 1988). The law of this Circuit directs "`that the inquiry into causation m u s t be a directed one, focusing on the duties and responsibilities of each of the individual d e f en d a n ts whose acts or omissions are alleged to have resulted in a constitutional d e p riv atio n .' Williams v. Bennett, 689 F.2d 1370, 1381 (11 th Cir. 1982), cert. denied, 464 U .S . 932, 104 S.Ct. 335, 78 L.Ed.2d 305 (1983)." Swint, 51 F.3d at 999. It is clear that d e f en d a n t Thomas has no authority over the law library or legal materials provided at T u tw ile r and is not in any way responsible for allowing inmates access to the library or legal m a te ria ls ; rather, such access is administered by correctional officials employed at the c o rre c tio n a l facility. Consequently, the requisite causal connection fails to exist in this case.

3. Although Neitzke interpreted 28 U.S.C. § 1915(d), the predecessor to § 1915(e)(2), the analysis contained therein remains applicable to the directives contained in the present statute.

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T o the extent Johnson maintains that defendant Thomas is liable for the actions of c o rre c tio n a l officials due to his position as counsel for the Alabama Department of C o rre c tio n s , Johnson's claims must likewise fail. The law is well settled that a defendant c a n n o t be held liable in an action brought pursuant to 42 U.S.C. § 1983 under the theory of re s p o n d e a t superior or on the basis of vicarious liability. Monell v. Dep't of Social Servs., 4 3 6 U.S. 658, 690-92, 98 S.Ct. 2018, 2036, 56 L.Ed.2d 611 (1978); Harris v. Ostrout, 65 F .3 d 912, 917 (11 th Cir. 1995); Belcher v. City of Foley, 30 F.3d 1390, 1396 (11 th Cir. 1994); L a M a r c a v. Turner, 995 F.2d 1526, 1538 (11th Cir.1993), cert. denied, 510 U.S. 1164, 114 S .C t. 1189, 127 L.Ed.2d 539 (1994). In light of the foregoing, the court concludes that Jo h n so n 's claims against defendant Thomas lack an arguable basis in law and are therefore s u b je c t to summary dismissal in accordance with the directives of 28 U.S.C. § 1 9 1 5 (e )( 2 )( B )( i). Neitzke v. Williams, 490 U.S. 319, 327 (1989).4 I I . CONCLUSION A c c o rd in g ly, it is the RECOMMENDATION of the Magistrate Judge that: 1 . Those claims arising from actions which occurred on or before June 18, 2004 be d is m is s e d with prejudice pursuant to the directives of 28 U.S.C. § 1915(e)(2)(B)(I) as J o h n s o n failed to file such claims within the time allowed by the applicable period of lim ita tio n .

4. Although Neitzke interpreted 28 U.S.C. § 1915(d), the predecessor to § 1915(e)(2), the analysis contained therein remains applicable to the directives contained in the present statute.

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2 . The plaintiff's claims against Kim Tobias Thomas be dismissed with prejudice p rio r to service of process pursuant to the provisions of 28 U.S.C. § 1915(e)(2)(B)(I). 3. Kim J. Thomas be dismissed as a defendant in this cause of action. 4 . This case, with respect to the plaintiff's claims against defendants Albright, W h e e l e r, Allen and Mason, be referred back to the undersigned for appropriate proceedings. It is further ORDERED that on or before July 12, 2006 the parties may file objections to this R e c o m m e n d a tio n . Any objections filed must specifically identify the findings in the M a g is tra te Judge's Recommendation to which the party is objecting. Frivolous, conclusive o r general objections will not be considered by the District Court. The parties are advised th a t this Recommendation is not a final order of the court and, therefore, it is not appealable. F a i l u r e to file written objections to the proposed findings and advisements in the M a g is tra te Judge's Recommendation shall bar the party from a de novo determination by the D is tric t Court of issues covered in the Recommendation and shall bar the party from a tta c k in g on appeal factual findings in the Recommendation accepted or adopted by the D i s t ric t Court except upon grounds of plain error or manifest injustice. Nettles v.

W a in w r ig h t, 677 F.2d 404 (5th Cir. 1982). See Stein v. Reynolds Securities, Inc., 667 F.2d 3 3 (11th Cir. 1982). See also Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981, en b a n c ), adopting as binding precedent all of the decisions of the former Fifth Circuit handed down prior to the close of business on September 30, 1981.

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D o n e this 29 th day of June, 2006.

/s/Charles S. Coody CHARLES S. COODY C H IE F UNITED STATES MAGISTRATE JUDGE

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