Cintron v. Upright et al

Filing 7

ORDER OF DISMISSAL dismissing case with prejudice. The Clerk shall enter judgment dismissing the case with prejudice and close the case. Signed by Judge John E. Steele on 1/18/2007. (RKM)

Cintron v. Upright et al

Doc. 7

Case 2:07-cv-00007-UA-DNF

Document 7

Filed 01/18/2007

Page 1 of 3

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA FORT MYERS DIVISION LUIS ALBERTO CINTRON, Plaintiff, vs. TED UPRIGHT, PETER GREENBERG, BUTCH PERIPHNET, DALE MEEK, DON HUNTER, JOHN DOE, and CITY OF IMMOKALEE POLICE DEPARTMENT, Defendants. ___________________________________ ORDER OF DISMISSAL This matter comes before the Court upon initial review of the file. Plaintiff, while an inmate incarcerated in Henry Case No. 2:07-cv-7-FtM-99DNF

Correctional Institution, proceeding pro se filed a civil rights complaint "Complaint" form Doc. pursuant #1) on to 42 U.S.C. 29, § 20061 1983 with (hereinafter the Court.

December

Plaintiff claims violations of the Eighth Amendment arising out of his September 1, 2002 arrest in which he claims he was subjected to cruel and unusual punishment and an excessive and unreasonable use of force by the above-named defendants. Complaint, p. 20. Because Plaintiff seeks to proceed in this action in forma pauperis (Doc. #2), the Prison Litigation Reform Act requires the Court to determine whether this action is frivolous, malicious,

The Complaint (Doc. #1) was filed in this Court on January 3, 2007; however, giving Plaintiff the benefit of the mailbox rule, this Court finds that the Complaint was filed on the date Plaintiff handed it to prison authorities for mailing to this Court (December 29, 2006). See Houston v. Lack, 487 U.S. 266, 276 (1988).

1

Dockets.Justia.com

Case 2:07-cv-00007-UA-DNF

Document 7

Filed 01/18/2007

Page 2 of 3

fails to state a claim upon which relief can be granted, or seeks monetary relief against a defendant who is immune from such relief. See 28 U.S.C. § 1915(e)(2)(B)(I)-(iii). In essence, § 1915(e)(2)

is a screening process, to be applied sua sponte and at any time during the proceedings. See 28 U.S.C. § 1915(e)(2). The

application of an affirmative defense such as absolute immunity, res judicata, collateral estoppel, and the expiration of the statute of limitations are examples of frivolity that warrant a sua sponte dismissal by the court. Clark v. State v. Georgia Pardons Here, it is clear

& Parole Bd., 915 F. 2d 636 (11th Cir. 1990).

from the face of the Complaint, that Plaintiff's claim is barred by the applicable statute of limitations. The Eleventh Circuit Court of Appeals has concluded that "a plaintiff must commence a § 1983 claim arising in Florida within four years of the allegedly unconstitutional or otherwise illegal act." Chappell v. Rich, 340 F.3d 1279, 1283 (11th Cir. 2003);

Burton v. City of Belle Glade, 178 F.3d 1175, 1188 (11th Cir. 1999). The expiration of the applicable statue of limitations is

an affirmative defense which warrants the dismissal of a complaint as frivolous. 641 n.2. Clark v. Georgia Pardons & Parole Bd., 915 F.2d at

When the defense is obvious from the face of a complaint

or a court's records, it is not necessary to await the defendant's responsive pleading to raise the defense. sua sponte properly dismiss the Id. Rather, a court may under these

complaint

-2-

Case 2:07-cv-00007-UA-DNF

Document 7

Filed 01/18/2007

Page 3 of 3

circumstances.

See Miller v. Woodham, 2006 WL 955748 at *1 (Slip

Copy, 11th Cir. (Fla.) April 12, 2006). Here based upon the face of the Complaint, it is apparent that the Plaintiff did not commence this § 1983 claim within four years of the acts he contends are illegal and unconstitutional. Plaintiff alleges that he was deprived of his constitutional rights on September 1, 2002. Thus, Plaintiff was required to file an He did not institute the Thus, Plaintiff's

action no later than September 1, 2006.

above-captioned action until December 29, 2006.

Complaint on its face is time-barred under the applicable statute of limitations and is frivolous, and consequently must be

dismissed. Accordingly, it is now ORDERED: 1. 2. This case is DISMISSED WITH PREJUDICE. The Clerk of the Court shall: 1) enter judgment

dismissing this case with prejudice; 2) terminate any motions; and, 3) close this file. DONE AND ORDERED in Fort Myers, Florida, on this of January, 2007. 18th day

SA: hmk
Copies: All Parties of Record

-3-