Bowden v. Holt (INMATE 1)

Filing 7

ORDER directing as follows: 1) Mr. Bowden's 6 Objection is OVERRULED; 2) The 5 Recommendation is ADOPTED; and 3) Mr. Bowden's complaint, filed 11/30/2008, is DISMISSED with prejudice, as further set out in order; An appropriate judgment will be entered. Signed by Honorable William Keith Watkins on 12/28/2008. (wcl, ) Modified on 12/29/2008 to correct the signature date from 12/29/2008 to 12/28/2008 (wcl, ).

IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION A A R O N YANCEY BOWDEN, #228481, P l a in tif f , v. K A T H Y HOLT, D e f e n d a n t. ) ) ) ) ) ) ) ) )

C A S E NO. 2:08-CV-964-WKW (WO)

ORDER O n December 15, 2008, the Magistrate Judge filed a Recommendation (Doc. # 5) that P la in tif f Aaron Yancey Bowden's ("Mr. Bowden") 42 U.S.C. § 1983 complaint challenging t h e constitutionality of his confinement, filed November 30, 2008, be dismissed with p re ju d ice pursuant to 28 U.S.C. § 1915(e)(2)(B)(i). As the basis for dismissal, the Magistrate J u d g e concludes that it is apparent from the face of the complaint that the statute of lim ita tio n s expired on January 24, 2008, and that "the statutory tolling provision provides no b a sis for relief." (Recommendation at 4.) Mr. Bowden's Objection to the Recommendation w a s received by the Clerk of the Court on December 24, 2008. (Doc. # 6.) Mr. Bowden p rin c ip a lly argues that the time for him to "perfect" his § 1983 claim in this court was " u n b a la n c ed " because after January 23, 2006, he remained incarcerated on other charges and w a s "move[d]" twice, and that his complaint presents an issue of "exceptional importance." (O b j. at 4, 5.) Mr. Bowden does not rely upon a statutory basis for tolling, and the Magistrate J u d g e correctly found that § 6-2-8(a) of the Alabama Code "is unavailing" on these facts.

(R e c o m m e n d a tio n at 3). Instead, Mr. Bowden appears to argue that the court should employ e q u ita b le tolling. "Equitable tolling is applied sparingly and is an extraordinary remedy that is `limited to rare and exceptional circumstances, such as when the State's conduct prevents th e petitioner from timely filing.'" Powe v. Culliver, 205 F. App'x 729, 732 (11th Cir. 2006) (q u o tin g Lawrence v. Florida, 421 F.3d 1221, 1226 (11th Cir. 2005)); see also Wallace v. K a to , 549 U.S. 384, ___, 127 S. Ct. 1091, 1100 (2007) ("Equitable tolling is a rare remedy t o be applied in unusual circumstances, not a cure-all for an entirely common state of a f f a irs ." ). Mr. Bowden bears the burden of proof to show entitlement to equitable tolling. J u stic e v. United States, 6 F.3d 1474, 1479 (11th Cir. 1993). A p p lyin g the foregoing principles, the court finds that Mr. Bowden has not d e m o n s tra te d how his transports from the state prison to the county jail and back again to the sta te prison (Obj. at 3) created extraordinary circumstances which precluded him from timely f ilin g his § 1983 complaint. His mere allegation that he was not incarcerated in the same f a cility while the statute of limitations was running is not a difficulty that is either rare or e x c e p tio n a l. See, e.g., United States v. Gambini, No. 99-225, 2002 WL 1767418, at *2 (E.D. L a . July 30, 2002) (Prison "[t]ransfers . . . are hardly `rare and exceptional' circumstances th a t warrant equitable tolling."). In sum, the court having conducted an independent and de novo review of those p o rtio n s of the Recommendation to which objection is made, 28 U.S.C. § 636(b)(1)(C), it is O R D E R E D as follows:

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1. 2. 3.

M r. Bowden's objection (Doc. # 6) is OVERRULED; T h e Recommendation (Doc. # 5) is ADOPTED; and M r. Bowden's complaint, filed November 30, 2008, is DISMISSED with

p re ju d ic e pursuant to 28 U.S.C. § 1915(e)(2)(B)(i), as Mr. Bowden failed to file the c o m p l a in t within the time prescribed by the applicable statute of limitations. A n appropriate judgment will be entered. D o n e this 28th day of December, 2008. /s/ W. Keith Watkins UNITED STATES DISTRICT JUDGE

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