Blackmon v. Hale et al

Filing 19

MEMORANDUM OPINION that the Magistrate Judge's report is hereby ADOPTED, and his recommendation is ACCEPTED. This action is due to be dismissed for failing to state a claim upon which relief can be granted. An appropriate Final Judgment will be entered. Signed by Judge C Lynwood Smith, Jr on 9/28/2018. (AHI)

FILED
2018 Sep-28 AM 11:18
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
GEORGE BLACKMON, JR.,
Plaintiff,
vs.
JOHNATHAN ROSS,
Defendant.

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Case No. 2:17-cv-02194-CLS-HNJ

MEMORANDUM OPINION
The Magistrate Judge filed a report on August 23, 2018, recommending that
this action be dismissed pursuant to 28 U.S.C. § 1915A(b)(1) for failing to state a
claim upon which relief can be granted. See doc. no. 16. The Magistrate Judge found
that plaintiff’s claims against defendant, Jonathan Ross, for actions occurring
between April 20 and April 22, 2013, are barred by the applicable statute of
limitations. Id. at 6-8. Plaintiff has filed objections to the report and recommendation.
See doc. no. 16.
Plaintiff claims in his objections that he did not know defendant Ross’s name
until January 9, 2018, and that he moved to amend his complaint to name Ross as a
defendant on February 14, 2018. See doc. no. 18, at 1.1 This court observes,
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It should be noted that plaintiff did not file a motion to amend his complaint on or about
February 14, 2018. Instead, he submitted a letter to the Clerk of Court on January 31, 2018, alleging
that prison officials had forced him to mail his CPAP machine home when they transferred him from

however, that plaintiff named Ross as one of many defendants in his original
complaint, filed on December 27, 2017. See doc. no. 1, at 3.
In addition, plaintiff’s state criminal records show that defendant Ross
submitted a sworn affidavit in the Jefferson County District Court, in support of
plaintiff’s arrest for murder on April 22, 2013. See doc. no. 3, at 1 (Aff./Warrant,
Alabama v. Blackmon, No. 01-CC-2013-002948.00).2 Moreover, defendant Ross
testified as a witness during plaintiff’s criminal trial in February 2015. See doc. no.
107, at 395-400 (Transcript, Alabama v. Blackmon, No. 01-CC-2013-002948.00); see
also doc. no. 108 (same), at 401-404. On direct examination, Ross stated that he had
interviewed plaintiff on April 20, 2013, and plaintiff did not then state that he was in
any kind of medical distress, or that he had any particular health problems “that made
him more vulnerable to contact with other people.” Doc. no. 107, at 396 & 399
the Jefferson County Jail to Kilby Correctional Facility. See doc. no. 5, at 2. Plaintiff did not
mention defendant Ross in that letter. Id. at 1-2. On February 14, 2018, the Magistrate Judge
directed the Clerk to remove plaintiff’s original letter from this action, and use the letter as a
complaint to open a new case against the Alabama Department of Corrections and Kilby
Correctional Facility with a new case number and assignment. See doc. no. 12. Thereafter, the court
transferred the case to the United States District Court for the Middle District of Alabama. See
Order, Blackmon v. Alabama Department of Corrections, No. 2:18-cv-00249-CLS-HNJ (N.D. Ala.
Mar. 8, 2018), ECF at 6.
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The court may take judicial notice of plaintiff’s state court criminal records. See Grider v.
Cook, 522 F. App’x 544, 545 n.2 (11th Cir. 2013) (“the district court was permitted to take judicial
notice of Grider’s state court criminal proceedings”); see also Keith v. DeKalb County, Ga., 749 F.3d
1034, 1041 n.18 (11th Cir. 2014) (taking judicial notice of DeKalb County Superior Court Online
Judicial System pursuant to Fed. R. Evid. 201). Plaintiff’s criminal proceedings may be found at
www.alacourt.com. See Alabama v. Blackmon, 01-CC-2013-002948.00.

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(Transcript, Alabama v. Blackmon, No. 01-CC-2013-002948.00). Nevertheless, Ross
stated on cross examination that plaintiff may have requested medical attention when
booked into the jail. See doc. no. 108, at 403 (Transcript, Alabama v. Blackmon, No.
01-CC-2013-002948.00).
Based upon the foregoing, this court concludes that plaintiff either knew, or
reasonably could have discovered, Ross’s identity on the date of his trial in February
2015. By that date, Ross’s identity was apparent, or should have been apparent, to
a person with a reasonably prudent regard for his rights. See Calhoun v. Alabama
Alcoholic Beverage Control Board, 705 F.2d 422, 425 (11th Cir. 1983). Even so,
plaintiff did not file the present action until December 27, 2017: a date that still falls
outside of the two-year statute of limitations. Accordingly, plaintiff’s Fourth and
Fourteenth Amendment claims against defendant Ross are barred by the statute of
limitations, and are due to be dismissed.
Having carefully reviewed and considered de novo all the materials in the court
file, including the Magistrate Judge’s report and recommendation, and the objections
thereto, the Magistrate Judge’s report is hereby ADOPTED, and his recommendation
is ACCEPTED. This action is due to be dismissed in accordance with 28 U.S.C. §
1915A(b)(1) for failing to state a claim upon which relief can be granted. An
appropriate Final Judgment will be entered.
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DONE this 28th day of September, 2018.

______________________________
United States District Judge

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