Barker v. Montgomery Police Department et al (INMATE 1)

Filing 6

OPINION. Signed by Honorable Judge Myron H. Thompson on 8/31/17. (djy, )

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION
EDVIN BARKER,

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Plaintiff,
v.
MONTGOMERY POLICE
DEPARTMENT, et al.,
Defendants.

CIVIL ACTION NO.
2:17cv527-MHT
(WO)

OPINION
Pursuant to 42 U.S.C. § 1983, plaintiff filed this
lawsuit complaining of being shot by the police in 2002
and challenging his arrest and incarceration in 2009.
He

was

incarcerated

complaint.

at

the

time

of

filing

the

This lawsuit is now before the court on the

recommendation of the United States Magistrate Judge
that plaintiff’s case be dismissed as frivolous due to
the passage of the statute of limitations.

There are

no

After

objections

to

the

recommendation.

an

independent and de novo review of the record, the court

concludes

that

the

magistrate

judge’s

recommendation

should be adopted.*
An appropriate judgment will be entered.
DONE, this the 31st day of August, 2017.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE

*
The court takes issue with one minor point in
the recommendation, which was stated too broadly. The
recommendation states that “in an action proceeding
under section 1983, [the court] may consider, sua
sponte, affirmative defenses that are apparent from the
face of the complaint. Clark v. Georgia Pardons and
Parole Board, 915 F.2d 636, 640 n.2 (11th Cir. 1990);
see also Ali v. Higgs, 892 F.2d 438 (5th Cir. 1990).”
Recommendation (doc. no. 4) at 4. This court does not
read these cases to authorize sua sponte consideration
of affirmative defenses in all section 1983 cases, but
only in those in which the plaintiff proceeds in forma
pauperis pursuant to 28 U.S.C. § 1915. See Ali, 892
F.2d at 440 (“However, we conclude that in an action
proceeding under section 1915(d), we may consider, sua
sponte, affirmative defenses that are apparent from the
record even where they have not been addressed or
raised in the district court. In so doing, we are
following consistently the special treatment given to
section
1915(d)
suits.”;
see
also
28
U.S.C.
§ 1951(e)(2)(B)(i) (requiring courts to dismiss cases
brought in forma pauperis that are “frivolous or
malicious”).