Milford v. Opelika City Jail et al (INMATE2) (JC)

Filing 4

REPORT AND RECOMMENDATIONS that the 1 Inmate 1983 Complaint filed by Ashford Milford be dismissed prior to service of process pursuant to the provisions of 28 U.S.C. 1915(e)(2)(B)(i). Objections to R&R due by 8/1/2005. Copy furnished to Alabama Attorney General and Alabama Department of Corrections. Signed by Judge Susan Russ Walker on 7/18/2005. (dmn)

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Milford v. Opelika City Jail et al (INMATE2) (JC) Doc. 4 Case 3:05-cv-00639-MHT-SRW Document 4 Filed 07/18/2005 Page 1 of 5 IN THE UNITED STATES DISTRICT COURT FOR THE M IDDLE DISTRICT OF ALABAM A EAST ERN DIVISION _________________________________ ASHFORD M ILFORD Plaint iff, v. OPELIKA CITY JAIL., et al., Defendant s. _________________________________ * * * CIVIL ACTION NO. 3:05-CV-639-T WO * * RECO MMENDATIO N OF THE MAGIS TRATE JUDGE Plaint iff, Ashford M ilford, an inmate incarcerat ed at the Lee County Detention Center locat ed in Opelika, Alabama, filed this 42 U.S.C. 1983 on July 8, 2005. He complains that his const it ut ional rights were violated in June 2003 when he was detained in the Opelika City Jail. Sp ecifically , Plaintiff states that he was placed in a security cell by Officer H a r r i s . Plaintiff comp lains that Officer Harris then tried to kill him by pouring a half gallon of bleach in the cell. M ilford alleges that after being held in the security cell for hours he was subsequently transported t o the East Alabama M edical Center for medical treatment. Plaintiff seeks money damages. Upon review of the complaint, the court concludes that dismissal of this case with prejudice p rior to service of process is appropriate under 28 U.S.C. 1915(e)(2)(B).1 A prisoner who is allowed to proceed in forma pauperis in this court will have his com p l a i n t screen e d i n accordance with the provisions of 28 U.S.C. 1915(e)(2)(B). This screening procedure 1 Case 3:05-cv-00639-MHT-SRW Document 4 Filed 07/18/2005 Page 2 of 5 I. DISCUSSION It is clear that M ilford has filed his complaint outside the applicable statute of limitations. T he actions about which Plaintiff complains occurred in June 2003. While there is no express period of limitations in the Civil Rights Act, federal courts generally apply the most appropriate state st at ut e 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 (1984). Federal courts must look to state law to determine, first, what statute of limitations is applicable, and second, whether that limitations p eriod is tolled. Whitson v. Baker, 755 F.2d 1406. 1409 (11th Cir. 1985). . . . Alabama law [ ] provides that the applicable limitations p eriod 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). Dukes v. Smitherman, 32 F.3d 535, 537 (11th Cir. 1994). Alabama's general two year statute of limit at ions 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 limitations for 1983 act ions is the forum state's general or residual statute of limitations for personal injury actions); see also Lufkin v. McCallum, 956 F.2d 1104, 1105 (11th Cir. 1992). T he matter about which Plaintiff complains occurred in June 2003. That portion of the t olling provision which had previously applied to convicted prisoners was rescinded by the Alabama 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 cl a i m upon which relief may be granted, or seeks monetary damages from a defendant who is immune from s u c h relief. 28 U.S.C. 1915(e)(2)(B)(i)-(iii). 2 Case 3:05-cv-00639-MHT-SRW Document 4 Filed 07/18/2005 Page 3 of 5 legislat ure on M ay 17, 1996. See Ala. Code 6-2-8(a) (1975, as amended). Consequently, the ap p licable statute of limitations expired on the claim raised herein in June 2005. Plaintiff filed the inst ant complaint on July 8, 2005, after the applicable limitations period lapsed. Unquestionably, t he statute of limitations is usually a matter which may be raised as an affirmative defense. The court not e s , however, that in an action proceeding under 1983, it may consider, sua sponte, affirmat ive 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). "[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 limit at ions is an affirmative defense the existence of which warrants dismissal as frivolous. See Frank lin [v. State of Oregon], 563 F. Supp. [1310] at 1330, 1332 [D.C. Or. 1983]." Id. at n.2. In analy z ing 1983 cases, "the court is authorized t o t e s t the proceeding for frivolousness or maliciousness even before service of process or before the filing of the answer." Ali, 892 F.2d at 440. " It necessarily follows that in the absence of . . . defendants the . . . court must evaluate the merit of the claim sua sponte." Id. An early determination of the merits of an IFP proceeding provides a significant benefit to courts (because it will allow them to use their scarce resources effectively and efficiently), to state officials (becaus e it will free them from the burdens of frivolous and harassinglitigation), and to prisoners (because courts will have the time, energy and inclination to give meritorious claims the attention they need and deserve). `We must take advantage of every tool in our judicial workshop.' Spear s [v. McCotter], 766 F.2d [179, 182 (5th Cir. 1985)]. 3 Case 3:05-cv-00639-MHT-SRW Document 4 Filed 07/18/2005 Page 4 of 5 Green v. McKaskle, 788 F.2d 1116, 1120 (5th Cir. 1986). Under the facts apparent from the face of the present complaint, Plaintiff has no legal basis on which to proceed as this action was brought more than two years after the violations about which he complains accrued. The statutory tolling provision is unavailing. In light of the foregoing, the court concludes that Plaintiff's complaint is barred by the applicable statute of limitations, and it is, t herefore, subject to dismissal as frivolous pursuant to 28 U.S.C. 1915(e)(2)(B)(i). See Neitzke v. Williams, 490 U.S. 319 (1989). II. CONCLUSION Accordingly , it is the RECO M M E N D AT ION of the M agist rat e Judge that Plaintiff's comp laint be dismissed with prejudice prior to service of process pursuant to the provisions of 28 U.S.C. 1915(e)(2)(B)(i). It is further ORDERED that the parties are DIRECTED t o file any objections to the said Recommendat ion on or before August 1, 2005 Any objections filed must specifically identify the findings in the M agist rat e Judge's Recommendation objected to. Frivolous, conclusive or general o b j e c t i o n s w i ll not be considered by the District Court. The parties are advised that this Recommendat ion is not a final order of the court and, therefore, it is not appealable. Failure to file w r i t t en objections to the proposed findings and recommendations in the M agist rat e Judge's report shall bar the party from a de novo determination by the District Court of 4 Case 3:05-cv-00639-MHT-SRW Document 4 Filed 07/18/2005 Page 5 of 5 issues covered in the report and shall bar the party from attacking on appeal factual findings in the rep ort accepted or adopted by the District Court except upon grounds of plain error or manifest injust ice. 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 p rior to the close of business on September 30, 1981. DONE, this 18th day of July, 2005. /s/ Susan Russ Walker SUSAN RUSS WALKER UNIT ED STATES M AGIST RAT E JUDGE 5

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