Sanderson v. Marion County Jail Officials et al
MEMORANDUM OPINION ADOPTING and ACCEPTING 12 MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION. Plaintiffs objections are OVERRULED. Signed by Judge Virginia Emerson Hopkins on 3/9/2016. (JLC)
2016 Mar-09 PM 12:49
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
DONALD RAY SANDERSON,
MARION COUNTY JAIL
OFFICIALS, et al.,
) Case No. 5:15-cv-00703-VEH-SGC
On February 10, 2016, the magistrate judge filed a report recommending this
action, filed pursuant to 42 U.S.C. § 1983, be dismissed under 28 U.S.C. §
1915A(b)(1) for failure to state a claim upon which relief may be granted. (Doc. 12).
Specifically, the magistrate judge concluded that the plaintiff’s claims, which are
based on an incident which occurred on June 22, 2007, are barred by the applicable
statute of limitations.
The plaintiff filed objections to the report and
recommendation on February 18, 2016. (Doc. 13).
In his objections, the plaintiff states he filed a lawsuit in this court in 2009
concerning the incident forming the basis of the instant matter. (Doc. 13 at 3). Court
records reveal that the plaintiff indeed filed a lawsuit on July 30, 2009, in which he
alleges similar facts.1 The district court dismissed the action without prejudice on
November 23, 2009, due to the plaintiff’s failure to pay an initial partial filing fee and
sign a Prisoner Consent Form. The plaintiff appealed the dismissal to the Eleventh
Circuit Court of Appeals. On November 8, 2010, the Eleventh Circuit affirmed the
district court’s dismissal of the plaintiff’s prior action.
The fact that the plaintiff filed a lawsuit in 2009 based on the same facts as the
present case does not excuse his failure to timely file the present action. The
plaintiff’s 2009 lawsuit was dismissed without prejudice and, therefore, the plaintiff
was free to file a second lawsuit concerning his claims. Although the plaintiff
appealed the dismissal of his 2009 case, which the appellate court affirmed in
November 2010, the plaintiff has not addressed why he waited until April 2015–over
four years later–to file the present lawsuit.
Having carefully reviewed and considered de novo all the materials in the court
file, including the report and recommendation and the objections thereto, the
plaintiff’s objections are OVERRULED, the magistrate judge’s report is
ADOPTED, and the recommendation is ACCEPTED. Accordingly, the complaint
is due to be dismissed pursuant to 28 U.S.C. § 1915A(b)(1) for failing to state a claim
upon which relief may be granted.
See Sanderson v. State of Alabama, Case No. 2:09-cv-01528-JHH-PWG.
A Final Judgment will be entered.
DONE and ORDERED this 9th day of March, 2016.
VIRGINIA EMERSON HOPKINS
United States District Judge
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