Thomas v. Daniel et al

Filing 6

ORDER OF DISMISSAL WITHOUT PREJUDICE, with directions to the Clerk. Signed by Judge Marcia Morales Howard on 6/29/2015. (BL)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION

DEVANDAL BERNARD THOMAS,
Plaintiff,
v.

Case No. 3:15-cv-618-J-34JRK

WILLIAMS E. DANIEL, et al.,
Defendants.
ORDER OF DISMISSAL WITHOUT PREJUDICE
Plaintiff Devandal Bernard Thomas, an inmate of the Florida
penal system, initiated this action on May 19, 2015, by filing a
pro se Complaint (Doc. 1) under 42 U.S.C. § 1983. In the Complaint,
Thomas asserts that the Defendants assaulted him on January 27,
2008, failed to intervene to stop the staff abuse and thereafter
failed to provide proper medical care for Thomas's injuries. As
relief, Thomas requests monetary damages and medical treatment.
The Prison Litigation Reform Act requires the Court to dismiss
this case at any time if the Court determines that the action is
frivolous, malicious, 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).
Additionally, the Court must read Plaintiff's pro se allegations in
a liberal fashion. Haines v. Kerner, 404 U.S. 519 (1972).

A claim is frivolous if it is without arguable merit either in
law or fact." Bilal v. Driver, 251 F.3d 1346, 1349 (11th Cir. 2001)
(citing Battle v. Central State Hospital, 898 F.2d 126, 129 (11th
Cir. 1990)). A complaint filed in forma pauperis which fails to
state a claim under Fed.R.Civ.P. 12(b)(6) is not automatically
frivolous. Neitzke v. Williams, 490 U.S. 319, 328 (1989). Section
1915(e)(2)(B)(i) dismissals should only be ordered when the legal
theories are "indisputably meritless," id. at 327, or when the
claims rely on factual allegations which are "clearly baseless."
Denton v. Hernandez, 504 U.S. 25, 32 (1992). "Frivolous claims
include claims 'describing fantastic or delusional scenarios,
claims with which federal district judges are all too familiar.'"
Bilal, 251 F.3d at 1349 (quoting Neitzke, 490 U.S. at 328).
Additionally, a claim may be dismissed as frivolous when it appears
that a plaintiff has little or no chance of success. Bilal v.
Driver, 251 F.3d at 1349.
To state a claim under 42 U.S.C. § 1983, a plaintiff must
allege that (1) the defendant deprived him of a right secured under
the

United

States

Constitution

or

federal

law

and

(2)

such

deprivation occurred under color of state law. Bingham v. Thomas,
654 F.3d 1171, 1175 (11th Cir. 2011) (per curiam) (citation
omitted); Richardson v. Johnson, 598 F.3d 734, 737 (11th Cir. 2010)
(per curiam) (citations omitted). Moreover, the Eleventh Circuit
"'requires proof of an affirmative causal connection between the

2

official's

acts

or

omissions

and

the

alleged

constitutional

deprivation' in § 1983 cases." Rodriguez v. Sec'y, Dep't of Corr.,
508 F.3d 611, 625 (11th Cir. 2007) (quoting Zatler v. Wainwright,
802 F.2d 397, 401 (11th Cir. 1986)). More than conclusory and vague
allegations are required to state a cause of action under 42 U.S.C.
§ 1983. See L.S.T., Inc., v. Crow, 49 F.3d 679, 684 (11th Cir.
1995) (per curiam); Fullman v. Graddick, 739 F.2d 553, 556-57 (11th
Cir.

1984).

"Moreover,

'conclusory

allegations,

unwarranted

deductions of facts, or legal conclusions masquerading as facts
will not prevent dismissal.'" Rehberger v. Henry Cnty, Ga., 577 F.
App'x 937, 938 (11th Cir. 2014) (per curiam) (citation omitted).
In the absence of a federal constitutional deprivation or violation
of a federal right, Plaintiff cannot sustain a cause of action
against the Defendants under 42 U.S.C. § 1983.
The Court is convinced, upon review of the Complaint, that it
is frivolous as it appears that the Plaintiff has little or no
chance of success on a claim of federal constitutional deprivation
since

the

action

is

barred

by

the

statute

of

limitations.

Plaintiff's assertions pertain to an alleged January 27, 2008
assault at Union Correctional Institution. Although 42 U.S.C. §
1983 does not have a statute of limitations provision, the courts
look to the limitation periods prescribed by the state in which the
litigation arose. In all § 1983 actions, the state limitations
statute governing personal injury claims should be applied. See

3

Wilson

v.

Garcia,

471

U.S.

261,

276-79

(1985);

Mullinax

v.

McElhenney, 817 F.2d 711, 716 n.2 (11th Cir. 1987). Thus, under
Wilson, the proper limitations period for all § 1983 actions in
Florida is the four-year limitations period set forth in Florida
Statutes section 95.11(3). In sum, the appropriate limitations
period for Plaintiff's federal constitutional claims is four years:
The applicable statute of limitations in
a § 1983 lawsuit is the four-year Florida
state statute of limitations for personal
injuries. See Wilson v. Garcia, 471 U.S. 261,
276, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985)
(stating that state statutes of limitations
for personal injuries govern § 1983); Baker v.
Gulf & Wester Industries, Inc., 850 F.2d 1480,
1482 (11th Cir. 1988) (stating that Fla. Stat.
Ann. § 95.11(3) provides for a four-year
limitations period for personal injuries).
Omar ex. re. Cannon v. Lindsey, 334 F.3d 1246, 1251 (11th Cir.
2003) (per curiam); Henyard v. Sec'y, Dep't of Corr., 543 F.3d 644,
647 (11th Cir. 2008).
As stated above, Plaintiff's Complaint concerns events that
allegedly occurred on January 27, 2008. Plaintiff's action is
barred by the statute of limitations and is due to be dismissed as
frivolous.1 See Clark v. State of Ga. Pardons & Paroles Bd., 915

1

In 2011, Mr. James V. Cook, an attorney who reviewed
Thomas's allegations, ultimately declined to represent him.
Nevertheless, Mr. Cook encouraged Thomas to speak to other
attorneys since "the statute of limitations is so close . . . ."
Motion for Appointment of Counsel (Doc. 2), Exhibit A, Letter,
dated October 23, 2011, from James V. Cook to Devandal Thomas ("I
recommend you seek legal counsel quickly so the case is not barred
by statute of limitations or claims notice problems.").
4

F.2d 636, 640 n.2 (11th Cir. 1990) ("The expiration of the statute
of limitations is an affirmative defense the existence of which
warrants a dismissal as frivolous.").
In consideration of the foregoing and upon review of the
Complaint, the Court is convinced that it is frivolous as it
appears that the Plaintiff has little or no chance of success on a
claim of federal constitutional deprivation since the action is
barred by the statute of limitations. Therefore, this case will be
dismissed as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B).
Accordingly, it is now
ORDERED AND ADJUDGED:
1.

This case is DISMISSED without prejudice as frivolous.

2.

The Clerk of the Court shall enter judgment dismissing

this case without prejudice, terminating any pending motions and
closing the case.
DONE AND ORDERED at Jacksonville, Florida, this 29th day of
June, 2015.

sc 6/25
c:
Devandal Bernard Thomas, #182913

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