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:
2
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
3
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?