Taylor v. Hartzog (MAG+)

Filing 5

ORDER granting 2 MOTION for Leave to Proceed in forma pauperis; REPORT AND RECOMMENDATION of the Magistrate Judge that this case be DISMISSED pursuant to 28 USC 1915(d) and (e)(2)(i); further RECOMMENDATION of the Magistrate Judge that costs be taxed against the plf; Objections to R&R due by 4/8/2009. Signed by Honorable Charles S. Coody on 3/26/2009. (wcl, )

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IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION R IC K Y LEE TAYLOR, ) ) P l a in tif f , ) ) v. ) ) J E A N HARTZOG, ) ) D e f e n d a n t. ) ____________________________________ R IC K Y LEE TAYLOR, ) ) P l a in tif f , ) ) v. ) ) C A L L IE HEATH, ) ) D e f e n d a n t. ) ____________________________________ R IC K Y LEE TAYLOR, ) ) P l a in tif f , ) ) v. ) ) G E O R G E PARHAM, ) ) D e f e n d a n t. ) ____________________________________ C IV IL ACTION NO. 2:09cv194-MHT (LEAD CASE) C IV IL ACTION NO. 2:09cv195-MHT C IV IL ACTION NO. 2:09cv196-MHT R IC K Y LEE TAYLOR, ) ) P l a in tif f , ) ) v. ) ) J O H N A COTTON, ) ) D e f e n d a n t. ) ____________________________________ R IC K Y LEE TAYLOR, P l a in tif f , v. M A R S H A L L WILLIAMS, JR., D e f e n d a n t. ) ) ) ) ) ) ) ) ) C IV IL ACTION NO. 2:09cv197-MHT C IV IL ACTION NO. 2:09cv198-MHT O R D E R AND RECOMMENDATION OF THE MAGISTRATE JUDGE U p o n consideration of the plaintiff's motion for leave to proceed in forma pauperis, it is O R D E R E D that the motion be and is hereby GRANTED.1 In this 42 U.S.C. 1983 action, the pro se inmate complains that the defendants failed to provide him with adequate medical care in violation of the Fourteenth Amendment to the The court has previously consolidated Taylor v. Heath, Civil Act. No. 2:09cv195-MHT, Taylor v. Parham, Civil Act. No. 2:09cv196-MHT, Taylor v. Cotton, 2:09cv197-MHT, and Taylor v. Williams, 2:09cv198-MHT. Consequently, the motions to proceed in forma pauperis pending in those cases (docs. # 2) be and are hereby GRANTED in these cases also. 1 2 U n ite d States Constitution.2 Specifically, the plaintiff contends that, from August 30, 2003 u n til October 15, 2003, the defendants violated his constitutional rights by failing to treat him f o r injuries he suffered when he fell from a top bunk while incarcerated at the Barbour C o u n ty Jail. The plaintiff names as defendants Jean Hartzog, Callie Heath, George Parham a n d Marshall Williams, Jr. all employees of the Barbour County Jail. Upon review of the c o m p l a i n t, the court concludes that dismissal of this case is proper under 28 U.S.C. 1 9 1 5 (e )( 2 )( B ). The plaintiff alleges the following facts as the basis of his complaint. On August 30, 2 0 0 3 , he fell from the top bunk in his cell. His back struck the bottom bunk. He alleges that h e was left lying on the cold concrete floor over three hours after which he was transported to the hospital by ambulance. After he had been treated at the hospital, he was returned to th e Barbour County jail where he contends the defendants failed to treat him from that date u n til October 15, 2003. As a result, he is now paralyzed and suffers from hip and neck in ju rie s as well as damaged eyesight and a torn heart value. The plaintiff filed his complaints o n March 9, 2009, seeking damages. T h e law is clear that, in section 1983 actions, Alabama's two-year personal injury s ta tu te of limitations is applicable. See Owens v. Okure, 488 U.S. 235 (1989); see also Jones v . Preuit and Mauldin, 876 F.2d 1480 (11 th Cir. 1989); Dukes v. Smitherman, 32 F.3d 535 Although the plaintiff purports to pursue his claims under the Fourth Amendment, because he challenges his treatment while a pre-trial detainee, the appropriate analysis is under the Fourteenth Amendment. See Danley v. Allen, 540 F.3d 1298, 1310 (11th Cir. 2008). 2 3 (1 1 th Cir. 1994). The plaintiff is proceeding in forma pauperis pursuant to 28 U.S.C. 1915. U n d er 28 U.S.C. 1915(e)(2) and 1915A(b)(1), the court shall dismiss a case if the court d e te rm in e s that an action is frivolous or fails to state a claim upon which relief may be g ra n te d . In this circuit, claims barred by the statute of limitations may be dismissed under 1915. Clarke v. State of Ga. Pardons & Paroles Bd., 915 F.2d 636 (11 th Cir. 1990). This is a paradigm of a case that should be dismissed without prejudice pursuant to 28 U.S.C. 1 9 1 5 (e )(2 )(B )(i). The plaintiff's claims are barred by the statute of limitations. 3 This lawsuit w a s filed on March 9, 2009. The plaintiff alleges that the deprivation of his constitutional rig h ts occurred on August 30, 2003 and continued until October 15, 2003. The plaintiff's c la im s arose more than two years before the date he filed this complaint, and thus, his claims a r e barred by the statute of limitations.4 C O N C L U SIO N Accordingly, it is the RECOMMENDATION of the Magistrate Judge that this case b e DISMISSED pursuant to 28 U.S.C. 1915(d) and (e)(2)(i). It is further the R E C O M M E N D A T IO N of the Magistrate Judge that costs be taxed against the plaintiff. 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 1983, it may consider, sua sponte, affirmative defenses that are apparent from the face of the complaint. Clark v. State of Ga. Pardons & Parole Bd., 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 is an affirmative defense the existence of which warrants dismissal as frivolous." Id. at 640 n. 2. Moreover, the plaintiff is precluded from pursuing his claims in this litigation by the doctrine of estoppel. The plaintiff previously unsuccessfully litigated these claims against defendant Marshall Williams, Jr.. See Taylor v. Williams, Civ. Act. No. 2:05cv325-VPM (M.D. Ala. Aug. 3, 2006). 4 3 4 F in a lly, it is ORDERED that the parties shall file any objections to the said Recommendation on o r before April 8, 2009. Any objections filed must specifically identify the findings in the M a g is tra te Judge's Recommendation to which the 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 a ilu re to file written objections to the proposed findings and recommendations in the M a g is tra te Judge's report shall bar the party from a de novo determination by the District C o u rt of issues covered in the report and shall bar the party from attacking on appeal factual f in d in g s in the report accepted or adopted by the District Court except upon grounds of plain e rr o r or manifest injustice. Nettles v. Wainwright, 677 F.2d 404 (5 th Cir. 1982). See Stein v . Reynolds Securities, Inc., 667 F.2d 33 (11 th Cir. 1982). See also Bonner v. City of P r ic h a r d , 661 F.2d 1206 (11 th Cir. 1981, en banc), adopting as binding precedent all of the d e c is io n s of the former Fifth Circuit handed down prior to the close of business on S e p te m b e r 30, 1981. D o n e this 26 th day of March, 2009. /s/Charles S. Coody CHARLES S. COODY U N IT E D STATES MAGISTRATE JUDGE 5

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