Jackson v. Freeman et al

Filing 4

MEMORANDUM OPINION Signed by Judge William M Acker, Jr on 9/16/13. (SAC )

FILED
2013 Sep-16 PM 04:30
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
PATRICIA JACKSON, as
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Administrator of the Estate
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of DANNY RAY BROWN, deceased, }
}
Plaintiff,
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}
v.
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}
JOSHUA FREEMAN, et al.,
}
}
Defendants.
}

CIVIL ACTION NO.
13-AR-1660-S

MEMORANDUM OPINION
Plaintiff, Patricia Jackson, as administrator of the estate of
Danny

Ray

Brown,

deceased,

filed

purportedly pro se on September 6, 2013.
the apple.

the

above-styled

action

This is her third bite at

Her first virtually identical complaint was filed on

August 10, 2009, CV-09-IPJ-1590-S.
prejudice on February 8, 2010.

It was dismissed without

Her second virtually identical

complaint was filed on August 6, 2013, CV-13-RDP-1454-S.

It was

dismissed without prejudice on August 12, 2013. Although these two
dismissals were without prejudice, and therefore are not res
judicata, the rationales for the two previous dismissals do not
depend upon insurmountable defects such as those defects that this
court sees in the instant case.

The instant action is devoid of

colorable merit and is due to be dismissed with prejudice for the
following reasons.
First and foremost, the case is barred by the statute of
limitations.

It appears from the face of the complaint that

plaintiff’s
plaintiff

decedent
was

died

appointed

prior
the

to

September

personal

17,

2007,

when

representative

and

administrator of the estate of her brother, the deceased, who died
on August 8, 2007.

There is no basis alleged, or that could be

alleged, to avoid the bar of the statute of limitations.

Whether

plaintiff is proceeding under Alabama’s Wrongful Death Statute, or
under 42 U.S.C. § 1983, the applicable statute of limitations has
run long ago.

No wonder plaintiff has been unable to get a lawyer

to take her case.
Second, and just as important, is the fact that plaintiff has
not alleged any basis for invoking the jurisdiction of this court.
If by referring to “1983 Civil Rights Act”, plaintiff means to
invoke 42 U.S.C. § 1983, her factual allegations are woefully
inadequate for describing a constitutional tort, and her claims of
negligence and/or wantonness by defendants are not cognizable in a
federal court.
Third, and last, a personal representative cannot proceed pro
se.

Because this court will not draft a lawyer to pursue a case

devoid of colorable merit, plaintiff is without standing.
Under the circumstances, plaintiff’s application for the right
to proceed in forma pauperis and her request for the court to
appoint her an attorney are due to be and will be denied by
separate order dismissing the action with prejudice.

DONE this 16th day of September, 2013.

_____________________________
WILLIAM M. ACKER, JR.
UNITED STATES DISTRICT JUDGE