Rutledge v. Tew (INMATE 1)

Filing 5

REPORT AND RECOMMENDATIONS of the Magistrate Judge that this case be dismissed with prejudice prior to service of process in accordance with the provisions of 28 USC 1915(e(2)(B)(i) as the plaintiff failed to file the complaint within the time prescribed. On or before 6/18/2007 the parties may file objections to the Recommendations. Signed by Judge Susan Russ Walker on 6/4/2007. (cb, )

Rutledge v. Tew (INMATE 1)

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Case 2:07-cv-00477-WKW-SRW

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IN THE DISTRICT COURT OF THE UNITED STATES FOR THE MIDDLE DISTRICT OF ALABAMA NORTHERN DIVISION JONATHAN LOUIS RUTLEDGE, AIS #242515 Plaintiff, v. DEBORAH TEW, Defendant. ) ) ) ) ) ) ) ) ) ) )

CASE NO. 2:07-CV-477-WKW [WO]

RECOMMENDATION OF THE MAGISTRATE JUDGE

This cause of action is before the court on a 42 U.S.C. § 1983 complaint filed by Jonathan Louis Rutledge ["Rutledge"], a state inmate, on May 25, 2007.1 In this complaint, Rutledge asserts that Deborah Tew, an employee of the District Court of Barbour County,
Alabama, acted in violation of his constitutional rights and state law when, on April 29, 2005, she executed an arrest warrant and complaint against him for conspiracy to commit arson. Plaintiff's Complaint at 2. Specifically, Rutledge complains that "Deborah Tew ... did not possess the judicial authority to issue and sign a felony warrant/complaint without

Although the Clerk of this court stamped the complaint "filed" on May 30, 2007, it is clear that Rutledge presented the complaint to prison officials for mailing prior to this date. A review of the pleadings indicates that Rutledge executed the complaint on May 25, 2007. Plaintiff's Complaint - Court Doc. No. 1 at 3. 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 [Rutledge] signed it ...." Washington v. United States, 243 F.3d 1299, 1301 (11th Cir. 2001). In light of the foregoing, the court considers May 25, 2007 as the date of filing.

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a license[] to practice law in Alabama." Id. Upon review of the complaint, the court concludes that dismissal of this case prior to service of process is appropriate under 28 U.S.C. § 1915(e)(2)(B)(i).2 I. DISCUSSION Rutledge asserts that Tew violated his constitutional rights when she executed a warrant of arrest and complaint against him on April 29, 2005. It is clear from the face of the complaint that Rutledge's claims against the defendant are barred by the statute of limitations. Federal courts must look to state law to determine, first, what statute of limitations is applicable, and second, whether that limitations period is tolled. Whitson v. Baker, 755 F.2d 1406, 1409 (11th Cir. 1985). Selection of a limitations period for § 1983 actions changed several times [between 1985 and 1989]. Alabama law, however, provides that the applicable limitations period is the one in effect when the claim is filed, not when the cause of action arose. Tyson v. Johns Manville Sales Corp., 399 So.2d 263, 269-70 (Ala. 1981). It is undisputed that § 1983 claims were subject to a two year limitations period at that time. See Jones v. Preuit & Mauldin, 876 F.2d 1480, 1483-84 (11th Cir. 1989) (Jones II). Dukes v. Smitherman, 32 F.3d 535, 537 (11th Cir. 1994). At the time Rutledge filed the instant complaint, the applicable statute of limitations for actions brought under 42 U.S.C. § 1983 was two years. Owens v. Okure, 488 U.S. 235, 249-250 (1989)(the proper statute

A prisoner who is allowed to proceed in forma pauperis in this court will have his complaint screened in accordance with the provisions of 28 U.S.C. § 1915(e)(2)(B). This screening procedure requires the court to dismiss a prisoner's civil action prior to service of process if it determines that the complaint is frivolous, malicious, fails to state a claim upon which relief may be granted, or seeks monetary damages from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B)(i)-(iii).

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of limitations for § 1983 actions is the forum state's general or residual statute of limitations for personal injury actions); see also Lufkin v. McCallum, 956 F.2d 1104, 1105 (11th Cir. 1992). In Alabama, the general statute of limitations for personal injury actions is two years. Ala. Code § 6-2-38(l). The alleged unconstitutional actions occurred on April 29, 2005. On May 17, 1996, the Alabama legislature rescinded that portion of the tolling provision which previously applied to convicted prisoners. See Ala. Code § 6-2-8(a) (1975, as amended). The tolling provision of Ala. Code § 6-2-8(a) is therefore unavailing. Consequently, the applicable statute of limitations expired on the claims arising from issuance of the arrest warrant/complaint on April 30, 2007.3 Rutledge filed the instant complaint on May 25, 2007. This filing occurred after the applicable limitations period had lapsed. Unquestionably, the statute of limitations is usually a matter which may be raised as an affirmative defense. The court notes, however, that in an action proceeding under section 1983, it may consider, sua sponte, affirmative defenses that are apparent from the face of the complaint. Clark v. Georgia Pardons and Parole Board, 915 F.2d 636, 640 n.2 (11th Cir. 1990); see also Ali v. Higgs, 892 F.2d 438 (5th Cir. 1990). "[I]f the district court sees that an affirmative defense would defeat the action, a section 1915[(e)(2)(B)(i)] dismissal is allowed." Clark, 915 F.2d at 640. "The expiration of the statute of limitations

"[T]he day of the act [or] event ... from which the designated period of time begins to run shall not be included" in computing the running of the limitation period. Rule 6(a), Federal Rules of Civil Procedure.

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is an affirmative defense the existence of which warrants dismissal as frivolous. See Franklin [v. State 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 frivolousness or maliciousness even before service of process or before the filing of the answer." Ali, 892 F.2d at 440. "It necessarily follows that in the absence of ... defendants the ... court must evaluate the merit of the claim sua sponte." Id. An early determination of the merits of an IFP proceeding provides a significant benefit to courts (because it will allow them to use their scarce resources effectively and efficiently), to state officials (because it will free them from the burdens of frivolous and harassing litigation), and to prisoners (because courts will have the time, energy and inclination to give meritorious claims the attention they need and deserve). "We must take advantage of every tool in our judicial workshop." Spears [v. McCotter], 766 F.2d [179, 182 (5th Cir. 1985)]. Green v. McKaskle, 788 F.2d 1116, 1120 (5th Cir. 1986). Based on the facts apparent from the face of the present complaint, Rutledge has no legal basis on which to proceed as he filed this cause of action more than two years after the violations which form the basis of the complaint accrued. As previously determined, the statutory tolling provision provides no basis for relief. In light of the foregoing, the court concludes that Rutledge's challenges to the actions of the defendant with respect to execution of the arrest warrant/complaint are barred by the applicable statute of limitations and these claims are 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

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Board, 915 F.2d 636 (11th Cir. 1990); see also Neitzke v. Williams, 490 U.S. 319 (1989).4 II. CONCLUSION Accordingly, it is the RECOMMENDATION of the Magistrate Judge that this case be dismissed with prejudice prior to service of process in accordance with the provisions of 28 U.S.C. § 1915(e)(2)(B)(i) as the plaintiff failed to file the complaint within the time prescribed by the applicable period of limitations. It is further ORDERED that on or before June 18, 2007 the parties may file objections to the Recommendation. Any objections filed must specifically identify the findings in the Magistrate Judge's Recommendation to which the party is objecting. Frivolous, conclusive or general objections will not be considered by the District Court. The parties are advised that this Recommendation is not a final order of the court and, therefore, it is not appealable. Failure to file written objections to the proposed findings and advisements in the Magistrate Judge's Recommendation shall bar the party from a de novo determination by the District Court of issues covered in the Recommendation and shall bar the party from attacking on appeal factual findings in the Recommendation accepted or adopted by the District Court except upon grounds of plain error or manifest injustice. Nettles v.

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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Wainwright, 677 F.2d 404 (5th Cir. 1982). See Stein v. Reynolds Securities, Inc., 667 F.2d 33 (11th Cir. 1982). See also Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981, en banc), 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. DONE, this 4th day of June, 2007.

/s/ Susan Russ Walker SUSAN RUSS WALKER UNITED STATES MAGISTRATE JUDGE

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