Johnson v. The Alabama Board of Pardon and Paroles et al (INMATE 2)

Filing 14

REPORT AND RECOMMENDATIONS that Plaintiff's claims for monetary damages against Defendants Wynn, McGill, and Weatherly be DISMISSED with prejudice prior to service of process under 28 U.S.C. § 1915(e)(2)(B)(iii); that Plaintiff's claim s arising from actions which occurred prior to January 5, 2007 be DISMISSED with prejudice prior to service of process pursuant to 28 U.S.C. §1915(e)(2)(B)(i); that Plaintiff's claims against the Alabama Board of Pardons and Paroles be DISM ISSED with prejudice prior to service of process under 28 U.S.C. § 1915(e)(2)(B)(i); that the Alabama Board of Pardons and Paroles be DISMISSED as a party to this cause of action; that Plaintiff's challenge to Defendants' decision to d eny him parole and his request for injunctive relief, construed as a request for a new parole consideration hearing, be referred back to the magistrate judge for additional proceedings; Objections to R&R due by 3/10/2009. Signed by Honorable Wallace Capel, Jr on 2/24/2009. (cc, ) Copies mailed to General Counsel for the Alabama Board of Pardons and Paroles, to General Counsel for the ADOC, and to Alabama Attorney General.

IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION _______________________________ L A R R Y JOHNSON, #115808, P l a in tif f , v. T H E ALABAMA BOARD OF PARDONS A N D PAROLES, et al., D e f e n d a n ts . _______________________________ R E C O M M E N D A T I O N OF THE MAGISTRATE JUDGE P la in tif f , an inmate incarcerated at the Easterling Correctional Facility, filed the a b o v e -c a p tio n e d action on January 5, 2009, alleging therein violations of his constitutional rig h ts during the parole consideration process. He names as defendants William Wynn, S te v e McGill, and VeLinda Weatherly, members of the Alabama Board of Pardons and P a r o le s . Plaintiff seeks injunctive relief and monetary damages from Defendants. U p o n review of the complaint, as amended (see Doc. Nos. 10, 12), the court c o n c lu d e s that Plaintiff's request for monetary damages from the parole board members, all c la im s which occurred prior to January 5, 2007, and Plaintiff's claims against the Alabama B o a rd of Pardons and Paroles are subject to dismissal in accordance with the provisions of * * * * * 2:09-CV-11-TMH (WO)

2 8 U.S.C. § 1915(e)(2)(B)(i) and (iii).1 I . DISCUSSION A . The Claims for Monetary Damages Against Members of the Alabama Board of Pardons a n d Paroles. Plaintiff seeks monetary damages from Defendants Wynn, Weatherly, and McGill w ith respect to actions undertaken in the parole consideration process. This Circuit has long r e c o g n iz e d that parole board members are entitled to quasi-judicial immunity from suits re q u e s tin g damages based upon decisions to grant, deny or revoke parole. Fuller v. Georgia S ta te Board of Pardons and Parole, 851 F.2d 1307 (11 th Cir. 1988); Cruz v. Skelton, 502 F .2 d 1101, 1101-02 (5 th Cir. 1974). The actions about which Plaintiff complains concern p r o c e e d in g s related to his consideration for release on parole. Under these circumstances, th e actions of the defendant parole board members are inextricably intertwined with their d e c i sio n - m a k i n g authority, and they are, therefore, absolutely immune from damages. Thus, P la in tif f 's claims for monetary damages against Defendants are due to be dismissed under 2 8 U.S.C. § 1915(e)(2)(B)(iii). B. Claims Barred by the Statute of Limitations. W ith respect to any claims for relief related to actions taken against Plaintiff prior to

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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J a n u a ry 5, 2007 the court finds that such claims are barred by the statute of limitations. Federal courts must look to state law to determine, first, what s ta tu te of limitations is applicable, and second, whether that lim ita tio n s period is tolled. Whitson v. Baker, 755 F.2d 1406. 1 4 0 9 (11 th Cir. 1985). Selection of a limitations period for § 1 9 8 3 actions changed several times [between 1985 and 1989]. A la b a m a law, however, provides that the applicable limitations p e rio d is the one in effect when the claim is filed, not when the c a u s e 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 (11 th Cir. 1989) (Jones II). D u k e s v. Smitherman, 32 F.3d 535, 537 (11 th Cir. 1994). T h e statute of limitations applicable to actions filed under 42 U.S.C. § 1983 is two ye a rs . Owens v. Okure, 488 U.S. 235, 249-250 (1989) (the proper statute of limitations for § 1983 actions 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 (11th Cir. 1992). In Alabama, th e general statute of limitations for personal injury actions is two years. Ala. Code § 6-23 8 (l ). To the extent Plaintiff complains about events which occurred prior to January 5, 2 0 0 7 , such claims are subject to dismissal. That portion of the tolling provision which p re v io u s ly applied to convicted prisoners was rescinded by the Alabama legislature on May 1 7 , 1996. See Ala. Code § 6-2-8(a) (1975, as amended).2 Consequently, the tolling provision
The 1996 amendment, effective May 17, 1996, removed imprisonment as a disability entitled to protection under the tolling provision.
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p ro v id e s Plaintiff no means of obtaining relief with respect to those claims presented in the in s ta n t complaint, as amended, which occurred prior to January 5, 2007. 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 th e complaint. Clark v. Georgia Pardons and Parole Board, 915 F.2d 636, 640 n.2 (11th C ir. 1990); see also Ali v. Higgs, 892 F.2d 438 (5th Cir. 1990). "[I]f the district court sees th a t an affirmative 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 p ro v id e s a significant benefit to courts (because it will allow th e m to use their scarce resources effectively and efficiently), to s ta te officials (because it will free them from the burdens of f r iv o lo u s and harassing litigation), and to prisoners (because c o u rt s will have the time, energy and inclination to give m e rito rio u s claims the attention they need and deserve). 'We must take advantage of every tool in our judicial workshop.' S p e a r s [v. McCotter], 766 F.2d [179, 182 (5th Cir. 1985)]. 4

G re e n v. McKaskle, 788 F.2d 1116, 1120 (5th Cir. 1986). B a se d on the facts apparent from the face of the present complaint, Plaintiff has no le g a l basis on which to proceed as he brings this action with respect to those claims involving m a tte rs which occurred prior to January 5, 2007 or more than two years after the violations a b o u t which he complains accrued . As previously determined, the statutory tolling provision is unavailing. Thus, the court concludes that Plaintiff's challenges to actions which occurred p rio r to January 5, 2007 are barred by the applicable statute of limitations and they are, th e re f o re , subject to dismissal as frivolous under 28 U.S.C. § 1915(e)(2)(B)(i). See Clark v. G e o rg ia Pardons and Parole Board, 915 F.2d 636 (11th Cir. 1990); see also Neitzke v. W illia m s, 490 U.S. 319 (1989). C . The Alabama Board of Pardons and Paroles T h e Alabama Board of Pardons and Paroles is not subject to suit or liability under § 1 9 8 3 . The Eleventh Amendment bars suit directly against a state or its agencies, regardless o f the nature of relief sought. Papasan v. Allain, 478 U.S. 265 (1986); Pennhurst State S c h o o l & Hosp. v. Halderman, 465 U.S. 89 (1984). Thus, Plaintiff's claims against the A la b a m a Board of Pardons and Paroles are "based on an indisputably meritless legal theory," a n d are, therefore, subject to dismissal as frivolous under 28 U.S.C. § 1915(e)(2)(B). See N eitz k e v. Williams, 490 U.S. 319, 327 (1989). II. CONCLUSION A c c o rd in g ly, it is the RECOMMENDATION of the Magistrate Judge that: 5

1 . Plaintiff's claims for monetary damages against Defendants Wynn, McGill, and W e a th e rly be DISMISSED with prejudice prior to service of process under 28 U.S.C. § 1 9 1 5 ( e ) ( 2 ) ( B ) ( ii i) ; 2 . Plaintiff's claims arising from actions which occurred prior to January 5, 2007 be D IS M IS S E D with prejudice prior to service of process pursuant to 28 U.S.C. § 1 9 1 5 ( e ) ( 2 ) ( B ) ( i) ; 3. Plaintiff claims against the Alabama Board of Pardons and Paroles be

D IS M IS S E D with prejudice prior to service of process under 28 U.S.C. § 1915(e)(2)(B)(i); 4 . The Alabama Board of Pardons and Paroles be DISMISSED as a party to this c a u se of action; and 5 . Plaintiff's challenge to Defendants' decision to deny him parole and his request

for injunctive relief, construed as a request for a new parole consideration hearing, be referred back to the undersigned for additional proceedings
It is further ORDERED that the parties shall file any objections to the said Recommendation on o r before March 10, 2009. Any objections filed must specifically identify the findings in the M a g is tra te Judge's Recommendation to which a party objects. Frivolous, conclusive or g e n e ra l objections will not be considered by the District Court. The parties are advised that th is Recommendation is not a final order of the court and, therefore, it is not appealable. F ailu re to file written objections to the proposed findings and advisements in the 6

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 is tric 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 (5 th Cir. 1982). See Stein v. Reynolds Securities, Inc., 667 F.2d 3 3 (11 th Cir. 1982). See also Bonner v. City of Prichard, 661 F.2d 1206 (11 th Cir. 1981) (en b a n c ), adopting as binding precedent all of the decisions of the former Fifth Circuit handed d o w n prior to the close of business on September 30, 1981. Done this 24 th day of February 2009.

/s/ Wallace Capel, Jr. WALLACE CAPEL, JR. UNITED STATES MAGISTRATE JUDGE

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