Anderson v. Cochran et al (INMATE 2)

Filing 14

ORDER AND RECOMMENDATION OF THE MAGISTRATE JUDGE: It is ORDERED that Plaintiff's amendment to the amended complaint, to the extent the pleading may be considered to contain a motion to amend to name as additional defendants Sandra Cochran, Eddi e Cook, William Wynne, Phil Bryant, and Robert Longshore, the motion (Doc. No. 13 ) is GRANTED. Accordingly, it is the RECOMMENDATION of the Magistrate Judge that: 1. Plaintiffs amended complaint and amendment thereto (Doc. Nos. 9 , 13 ) be DISMI SSED with prejudice under 28 U.S.C. § 1915(e)(2)(B)(i) as barred by the statute of limitations; 2. This case be DISMISSED prior to service of process under 28 U.S.C. § 1915(e)(2)(B)(i). Objections to R&R due by 9/25/2015. Signed by Honorable Judge Charles S. Coody on 9/11/2015. (dmn, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
TERRY WAYNE ANDERSON, #185 546, )
)
Plaintiff,
)
)
v.
)
)
ALABAMA BOARD OF PARDONS
)
AND PAROLES, et al.,
)
)
Defendants.
)

CIVIL ACTION NO. 2:15-CV-241-MHT
[WO]

ORDER AND RECOMMENDATION OF THE MAGISTRATE JUDGE
Plaintiff, an inmate incarcerated at the Holman Correctional Facility in Atmore, Alabama,
filed this 42 U.S.C. § 1983 complaint on April 9, 2015.1 On May 18, 2015, the court directed
Plaintiff to file an amended complaint. Doc. No. 8. Plaintiff filed an amended complaint on June
4, 2015, against the Alabama Board of Pardons and Paroles. Doc. No. 9. Upon review of the
amended complaint, the court entered a Recommendation it be dismissed under 28 U.S.C. §
1915€(2)(B)(i) as barred by the statute of limitations applicable to § 1983 complaints. Plaintiff
filed an objection to the Recommendation and the court entered an order July 21, 2015,
withdrawing the Recommendation. See Doc. Nos. 11, 12. The court then ordered Plaintiff to file
an amendment to his amended complaint which stated the date of the initial decision, and any
subsequent decisions, when he was considered for and denied parole by the Alabama Board of
Pardons and Paroles [“the Board”] using the new 2002-2003 guidelines regarding parole set-offs.

1
 Although the Clerk stamped the present complaint “filed” on April 13, 2015, Plaintiff signed his
complaint on April 9, 2015. The law is well settled that 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). In light of the foregoing and for purposes of the proceedings herein, the court considers April
9, 2015, as the date of filing.

Doc. No. 12. Plaintiff filed the amendment to his amended complaint on August 5, 2015. Doc.
No. 13. This matter is now pending on Plaintiff’s amended complaint and amendment thereto.
Upon review, the court concludes this action is due to be dismissed prior to service of process
under 28 U.S.C. § 1915(e)(2)(B).2
I. BACKGROUND
A jury convicted Plaintiff of murder in 1994 and he received a life sentence for this
conviction. During post-conviction proceedings, Plaintiff was resentenced to 22 years
imprisonment. Since his incarceration Plaintiff has been considered for parole several times.
Plaintiff indicates that he was first considered for parole on September 15, 2003. The Board
denied parole and set off Plaintiff’s next parole consideration date for five years. Plaintiff was
next considered for parole on October 17, 2007. The Board denied parole and again reset
Plaintiff’s next parole consideration date for five years. The Board reviewed Plaintiff for parole
on February 27, 2013, and denied him parole with a re-set for further parole consideration
“during the month of none.” See Doc. Nos. 9, 13.
Plaintiff argues that when he was convicted in 1994, the Board was only given authority
to set off parole consideration hearings for three years. Under new parole guidelines instituted in
2002-2003 regarding parole set offs, however, Plaintiff maintains that Defendants, in setting his
parole consideration dates since 2003, have applied administrative rules which altered the
frequency of his parole consideration dates from every three years to every five years. Plaintiff
maintains at his most recent parole consideration held February 27, 2013, the Board permanently

2
 A prisoner who is allowed to proceed in forma pauperis in this court will have her 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).

denied him eligibility to be reviewed for parole again.3 He complains that Defendants’
retroactive application of parole statutes which changed the frequency of parole consideration
dates to more than every three years violates his rights under the Ex Post Facto Clause. Plaintiff
requests that Defendant be directed to immediately set a parole eligibility hearing date in
accordance with the parole statutes and administrative rules which existed when he committed
his offense in 1994. Doc. Nos. 9, 13.
II. DISCUSSION
Plaintiff’s claims are barred by the statute of limitations applicable to actions filed by an
inmate under 42 U.S.C. § 1983.
Federal courts must look to state law to determine, first, what statute of
limitations is applicable, and second, whether that limitations period is tolled.
Whitson v. Baker, 755 F.2d 1406, 1409 (11th Cir. 1985). Selection of a
limitations period for § 1983 actions changed several times [between 1985 and
1989]. Alabama law, however, provides that the applicable limitations period is
the one in effect when the claim is filed, not when the cause 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 (11th Cir. 1989)
(Jones II).

Dukes v. Smitherman, 32 F.3d 535, 537 (11th Cir. 1994). When Plaintiff filed the instant
complaint, the statute of limitations for actions brought under 42 U.S.C. § 1983 was two years.
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 actions);

3
 According to records maintained by the Alabama Department of Corrections, Plaintiff has presently
served over twenty-one years on the twenty-two year sentence imposed on him by the Circuit Court for
Jefferson County, Alabama, for his murder conviction. Because Plaintiff’s most recent parole
consideration hearing was held February 27, 2013, it is clear that the setting of a subsequent five-year
parole consideration date would be beyond Plaintiff’s end-of-sentence date. Available at
http://www.doc.state.al.us/InmateHistory.aspx.

see also Lufkin v. McCallum, 956 F.2d 1104, 1105 (11th Cir. 1992). In Alabama, the general
statute of limitations for personal injury actions is two years. Ala. Code § 6-2-38(l).
Although the state statute of limitations applies, the time of accrual is a federal question.
See Cox v. Stanton, 529 F.2d 47, 49-50 (4th Cir. 1975). The running of the statute of
limitations begins when Plaintiff knows or has reason to know of her injury. Id.
Here, Plaintiff should have known of his injury on or about September 15, 2003, when
the Board denied him parole and set off his next parole consideration date for five years under
the new 2002-2003 parole guidelines. “As of that time [Plaintiff] knew, or should have known,
all of the facts necessary to pursue a cause of action. . . .” Lovett v. Ray, 327 F.3d 1181, 1182
(11th Cir. 2003). The Board’s September 2003 decision to deny Plaintiff parole and set off his
next parole consideration date for five years “was a one-time act with continued consequences,
and the limitations period was not extended.” Id. “Each time [Plaintiff’s] parole reconsideration
hearing is set, it does not amount to a distinct and separate injury.” Brown v Georgia Board of
Pardons and Paroles, 335 F.3d 1259, 1261 (11th Cir. 2003). It was the initial decision by the
Board in applying the new 2002-2003 parole guidelines to Plaintiff following his September
2003 parole consideration hearing which triggered the running of the limitation period. Id. “The
successive denials of parole [and/or successive set offs for future parole consideration] do not
involve separate factual predicates and therefore do not warrant separate statute-of-limitations
calculations.” Id. at 1262. Plaintiff’s claims are, therefore, barred as each subsequent parole
review and/or five-year parole consideration set off following his September 2003 parole
consideration hearing is not a continuing violation.

Because Plaintiff failed to file the instant

complaint until over two years after Defendants initially applied the 2002-2003 parole set off
guidelines to him and notified him in September of 2003 that his next parole consideration was

set off for five years in accordance with the “new 2002-03 parole guidelines,” the statute of
limitations now bars consideration of his claims. Plaintiff’s claims are, therefore, subject to
dismissal as frivolous under the directives of 28 U.S.C. § 1915(e)(2)(B)(i). See Clark v. Georgia
Pardons and Parole Board, 915 F.2d 636, 640 n.2 (11th Cir. 1990) (in an action proceeding
under § 1983, the court may consider, sua sponte, affirmative defenses apparent from the face of
the complaint); see also Neitzke, 490 U.S. 319.
II. CONCLUSION
Accordingly, it is
ORDERED that Plaintiff’s amendment to the amended complaint, to the extent the
pleading may be considered to contain a motion to amend to name as additional defendants
Sandra Cochran, Eddie Cook, William Wynne, Phil Bryant, and Robert Longshore, the motion
(Doc. No. 13) is GRANTED.
Accordingly, it is the RECOMMENDATION of the Magistrate Judge that:
1.

Plaintiff’s amended complaint and amendment thereto (Doc. Nos. 9, 13) be

DISMISSED with prejudice under 28 U.S.C. § 1915(e)(2)(B)(i) as barred by the statute of
limitations;
2. This case be DISMISSED prior to service of process under 28 U.S.C. §
1915(e)(2)(B)(i).
It is further
ORDERED that on or before September 25, 2015, Plaintiff may file an objection to the
Recommendation. Any objection filed must specifically identify the findings in the Magistrate
Judge's Recommendation to which a party objects. Frivolous, conclusive or general objections

will not be considered by the District Court. The parties are advised this Recommendation is not
a final order and, therefore, it is not appealable.
Failure to file a written objection to the proposed findings and recommendations in the
Magistrate Judge's report shall bar the party from a de novo determination by the District Court
of issues covered in the report and shall bar the party from attacking on appeal factual findings in
the report accepted or adopted by the District Court except upon grounds of plain error or
manifest injustice. Nettles v. Wainwright, 677 F.2d 404 (5th Cir. 1982). See Stein v. Reynolds
Securities, Inc., 667 F.2d 33 (11th Cir. 1982). See also Bonner v. City of Prichard, 661 F.2d
1206 (11th Cir. 1981) (en banc), adopting as binding precedent all of the decisions of the former
Fifth Circuit handed down prior to the close of business on September 30, 1981.
Done this the 11th day of September, 2015.

/s/Charles S. Coody
CHARLES S. COODY
UNITED STATES MAGISTRATE JUDGE