Morris v. Nummy et al (INMATE 2)

Filing 3

REPORT AND RECOMMENDATIONS of the Magistrate Judge that the complaint be DISMISSED with prejudice prior to service pursuant to the provisions of 28U.S.C. § 1915(A)(b)(1) as the complaint is not filed within the time prescribed by the applicable period of limitations. Objections to R&R due by 12/21/2009. Signed by Honorable Terry F. Moorer on 12/7/2009. (cb, )

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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 ____________________________ G E O R G E HOEY MORRIS, #11672-002 P l a in tif f , v. A L A N NUMMEY, et al., D e f e n d a n ts . _____________________________ * * * * * 2:09-CV-1086-ID (WO) R E C O M M E N D A T I O N OF THE MAGISTRATE JUDGE I . INTRODUCTION P la in tif f filed this 42 U.S.C. 1983 action on November 25, 2009.1 He complains th a t his constitutional rights were violated by an unreasonable and warrantless search of his h o m e in February or March 2005 which resulted in his subsequent unlawful arrest on " tru m p e d up charges" and brief detentions in the Eclectic City Jail and the Elmore County Ja il. Named as defendants to this suit are Gordon Ledbetter, Chief of Police for the Eclectic Although the present complaint was stamped "filed" in this court on November 30, 2009, the complaint was signed by Plaintiff on November 25, 2009. 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 [Morris] signed it . . ." Washington v. United States, 243 F.3d 1299, 1301 (11th Cir. 2001). In light of the foregoing, the court considers November 25, 2009 as the date of filing. 1 P o lic e Department and Alan Nummy, Mayor of the Town of Eclectic.2 Plaintiff seeks m o n e ta r y damages and injunctive relief for the alleged violations of his constitutional rights. U n d e r the Prison Litigation Reform Act of 1996, Pub.L.No. 104-134, 804, 110 Stat. 1 3 2 1 , and 28 U.S.C. 151A, this court is required to screen complaints filed by prisoners a g a in st a governmental entity or officers or employees of governmental entities and to d ism iss the complaint or any portion of the complaint that it finds frivolous, malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant w h o is immune from such relief.3 II. DISCUSSION A c c o rd in g to the complaint, the events about which Plaintiff complains occurred late o n e evening in either February or March 2005 and continued into the early morning hours o f the next day. At approximately 10:00 p.m. on the night in question, police officers with t h e Eclectic Police Department ["EPD"] knocked on Plaintiff's door seeking information a b o u t a missing juvenile female. Plaintiff had no information for the officers and declined to let them "come inside and look around." About fifteen minutes later, Defendant Ledbetter 2 These designations were correct at the time the incidents about which Plaintiff complains occurred. 3 The screening procedures which have been established for prisoner civil actions by 1915A apply whether Plaintiff has paid the entire filing fee or is proceeding in forma pauperis. Martin v. Scott, 156 F.3d 578-80 (5th Cir. 1998). In this case, Plaintiff has paid the full civil filing fee of $350.00. Notwithstanding the full payment of the filing fee, however, this court must dismiss the case if it finds that the action is frivolous or 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(A). 2 a r r i v e d at Plaintiff's home, advised him to stand back from the door at which time EPD o f f ice rs conducted a warrantless search of Plaintiff's home looking for the missing girl. P la in t if f contends that law enforcement officials searched his home for several hours. P la in tif f was subsequently charged with possession of paraphernalia, handcuffed, and tra n sp o rte d to the Electic City Jail. Shortly thereafter law enforcement officials transported P la in tif f to the Elmore County Jail where he was booked on charges of possession of m a riju a n a and paraphernalia. Plaintiff posted bail in the morning and returned to his home w h ic h he found in "shambles." (Doc. Nos. 1, 2.) The actions about which Plaintiff complains occurred within a two day period in F e b ru a ry or March of 2005. It is, therefore, clear from the face of the complaint that P la in tif f 's unreasonable and warrantless search, unlawful arrest, and illegal detention claims a re barred by the statute of limitations. While there is no express period of limitations in the Civil Rights Act, federal courts g e n e ra lly apply the most appropriate state statute of limitations to a claim filed under 42 U .S .C . 1983. See Wilson v. Garcia, 471 U.S. 261 (1985); Burnett v. Grattan, 468 U.S. 42 (19 8 4 ). F e d e ra l 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 (11th Cir. 1985). . . . Alabama law [ ] provides that the a p p lica b le limitations period is the one in effect when the claim is filed, not when the cause of action arose. Tyson v . Johns M a n v ille Sales Corp., 399 So.2d 263, 269-70 (Ala.1981). 3 D u k e s v. Smitherman, 32 F.3d 535, 537 (11 th Cir. 1994). Alabama's general two year statute o f limitations for personal injury actions is the most applicable to the case at bar. Ala. Code 6-2-38(l). See Owens v. Okure, 488 U.S. 235, 249-250 (1989) (the proper statute of lim ita tio n s for 1983 actions is the forum state's general or residual statute of limitations for p e rso n a l injury actions); see also Lufkin v. McCallum, 956 F.2d 1104, 1105 (11th Cir. 1992). T h e actions about which Plaintiff complains occurred within an approximately twelve to twenty-four hour period in February or March 2005. That portion of the tolling provision w h ich previously applied to convicted prisoners was rescinded by the Alabama legislature o n May 17, 1996. See Ala. Code 6-2-8(a) (1975, as amended). 4 Under the facts of this c a se , the tolling provision of Ala. Code 6-2-8(a) is, therefore, unavailing. Consequently, th e applicable statute of limitations expired on Plaintiff's February or March 2005 illegal s e a rc h , unlawful arrest, and illegal imprisonment claims in February or March of 2007. Plaintiff filed the instant complaint on November 25, 2009. This filing, with respect to the c la im s presented in the instant complaint, is more than two (2) years after the applicable lim ita tio n s period lapsed. 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 1983, The 1996 amendment, effective May 17, 1996, removed imprisonment as a disability entitled to protection under the tolling provision. In its pre-amendment form, the statute provided that "[i]f anyone entitled to commence any of the actions enumerated in this chapter . . . is . . . imprisoned on a criminal charge for any term less than life, he shall have three years, or the period allowed by law for the commencement of such action if it be less than three years, after the termination of such disability to commence an action . . ." Ala. Code 6-2-8(a)(1975). 4 4 it may consider, sua sponte, affirmative defenses that are apparent from the face of the c o m p la in t. Clark v. Georgia Pardons and Parole Board, 915 F.2d 636, 640 n.2 (11 t h Cir. 1 9 9 0 ); see also Ali v. Higgs, 892 F.2d 438 (5 th Cir. 1990). "[I]f the district court sees that an a f f irm a tiv e defense would defeat the action, a section 1915[(A)(b)(1)] dismissal is allowed." C la r k , 915 F.2d at 640. "The expiration of the statute of limitations is an affirmative defense th e existence of which warrants dismissal as frivolous. See Franklin [v. State of Oregon], 5 6 3 F. Supp. [1310] at 1330, 1332 [D.C. Or. 1983]." Id. at n.2. In analyzing 1983 cases, "the court is authorized to test the proceeding for frivolousness or maliciousness even before s e rv ic e of process or before the filing of the answer." Ali, 892 F.2d at 440. "It necessarily f o llo w s that in the absence of . . . defendants the . . . court must evaluate the merit of the c la im sua sponte." Id. B a s e 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 this action, with respect to those claims related to the a lleg e d unconstitutional search, arrest, and imprisonment in February or March 2005, is b ro u g h t more than two years after the violations about which he complains accrued. The s ta tu to ry tolling provision is unavailing. In light of the foregoing, the court concludes that Plaintiff's challenges to the 2005 unconstitutional search, arrest, and imprisonment are barred b y the applicable statute of limitations and these claims are, therefore, subject to dismissal a s frivolous in accordance with the directives of 28 U.S.C. 1915(A)(b)(1). See Clark, 915 F .2 d 636. 5 I I I . CONCLUSION A c c o rd in g ly, it is the RECOMMENDATION of the Magistrate Judge that the c o m p la in t be DISMISSED with prejudice prior to service pursuant to the provisions of 28 U .S .C . 1915(A)(b)(1) as the complaint is not filed within the time prescribed by the a p p lic a b l e period of limitations. It is further ORDERED that the parties shall file any objections to the said Recommendation on o r before December 21, 2009. Any objections filed must specifically identify the findings in the Magistrate Judge's Recommendation to which a party objects. Frivolous, conclusive o r general objections will not be considered by the District Court. The parties are advised th a t this 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 advisements in the 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 (5th Cir. 1982). See Stein v. Reynolds Securities, Inc., 667 F.2d 3 3 (11th Cir. 1982). See also Bonner v. City of Prichard, 661 F.2d 1206 (11th 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. 6 D o n e , this 7 th day of December 2009. /s /T e r r y F. Moorer TERRY F. MOORER U N IT E D STATES MAGISTRATE JUDGE 7

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