Witherspoon v. United States Government et al

Filing 10

ORDER Accepting and Adopting 9 Report and Recommendations; dismissing without prejudice 1 Complaint 42 USC 1983 or Bivens, filed by James Edward Witherspoon. Certificate of Appealability: No Ruling. The Clerk of Court is directed to CLOSE this case,and any pending motions are DENIED as moot. Signed by Judge Cecilia M. Altonaga on 10/14/2020. See attached document for full details. (wc)

Case 1:20-cv-22602-CMA Document 10 Entered on FLSD Docket 10/14/2020 Page 1 of 3

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 20-22602-CIV-ALTONAGA/Reid
JAMES EDWARD WITHERSPOON,
v.

Plaintiff,

UNITED STATES GOVERNMENT, et al.,
Defendants.

____

/
ORDER

On June 23, 2020, Plaintiff, James Edward Witherspoon, filed a pro se Complaint under
the Civil Rights Act, 42 U.S.C. [Section] 1983 [ECF No. 1]; and Memorandum in Law and Facts
in Support of the Complaint under the Civil Rights Act, 42 U.S.C. [Section] 1983 [ECF No. 5].
(See generally id.). Plaintiff filed the suit in forma pauperis. (See Mot. Proceed in Forma Pauperis
[ECF No. 3]; July 14, 2020 Order [ECF No. 7]).
According to 28 U.S.C. section 1915(e), courts are permitted to dismiss a suit filed in forma
pauperis “at any time if the court determines that . . . (B) the action or appeal (i) is frivolous or
malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief
against a defendant who is immune from such relief.” Id. § 1915(e)(2) (alteration added). On
September 22, 2020, Magistrate Judge Lisette M. Reid 1 issued a Report and Recommendation of
Magistrate Judge [ECF No. 9], recommending the Complaint be dismissed under the screening
provisions of section 1915(e) for failure to state a claim. (See generally Report).
When a magistrate judge’s “disposition” has been objected to, district courts must review

The Clerk referred the case to Judge Reid for a report and recommendation on dispositive matters under
Administrative Order 2019-2. (See [ECF No. 2]).

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CASE NO. 20-22602-CIV-ALTONAGA/Reid
the disposition de novo. Fed. R. Civ. P. 72(b)(3). When no party has timely objected, however,
“the court need only satisfy itself that there is no clear error on the face of the record in order to
accept the recommendation.” Fed. R. Civ. P. 72 advisory committee’s note to 1983 addition
(citation omitted). Although Rule 72 itself is silent on the standard of review, the Supreme Court
has acknowledged Congress’s intent was to only require a de novo review where objections have
been properly filed, not when neither party objects. See Thomas v. Arn, 474 U.S. 140, 150 (1985)
(“It does not appear that Congress intended to require district court review of a magistrate[]
[judge]’s factual or legal conclusions, under a de novo or any other standard, when neither party
objects to those findings.” (emphasis in original; alterations added)). The Supreme Court further
stated nothing in the legislative history “demonstrates an intent to require the district court to give
any more consideration to the magistrate’s report than the court considers appropriate.” Id. at 150.
Plaintiff has not filed an objection to the Report. The Court therefore reviews the Report
for clear error.
Plaintiff’s Complaint names the United States Government, the State Attorney’s Office,
State Attorney Katherine Fernandez-Rundle, and Assistant State Attorney Susan Dannelly as
Defendants. (See Compl. 1). Plaintiff alleges Defendants improperly rescinded 764 days of jail
credit awarded to him in 1994, paraphrasing his claim as a violation of double jeopardy. (See
generally Compl.; see also Mem. 5).

The Report outlines the facts contained in Plaintiff’s

Complaint. (See Report 2). The Report concludes (1) Plaintiff’s claim is not cognizable under
section 1983; (2) Plaintiff’s allegations are barred by the applicable statute of limitations; and (3)
Plaintiff’s Complaint fails even if construed as a 28 U.S.C. section 2254 habeas petition. (See id.
4–7). The Report then recommends the Complaint be dismissed. (See id.).
The Report provides an accurate summary of the facts and law. (See generally id.).

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CASE NO. 20-22602-CIV-ALTONAGA/Reid
Plaintiff’s claim seeks a speedier relief from his confinement, citing the rescinded jail time credit,
and thus is improperly attempting to advance a habeas claim in a section 1983 action. (See id. 4–
5). The Court can find no clear error in the Report’s conclusion that the expiration of the applicable
statute of limitations bars Plaintiff’s allegations. (See id. 5–6). Further, the Court agrees with the
Report’s finding that Plaintiff’s Complaint, if construed as a section 2254 petition, must be
dismissed for lack of subject matter jurisdiction. (See id. 6–7). In short, the Complaint does not
survive section 1915(e) screening.
The undersigned has reviewed the Report, record, and applicable law to assure herself that
no clear error appears on the face of the record. In the light of that review, the undersigned agrees
with Judge Reid’s analysis and recommendation.
For the foregoing reasons, it is
ORDERED AND ADJUDGED that the Report [ECF No. 9] is ACCEPTED AND
ADOPTED. Plaintiff’s Complaint under the Civil Rights Act, 42 U.S.C. [Section] 1983 [ECF
No. 1] is DISMISSED without prejudice. The Clerk of Court is directed to CLOSE this case,
and any pending motions are DENIED as moot.
DONE AND ORDERED in Miami, Florida, this 14th day of October, 2020.

__________________________________
CECILIA M. ALTONAGA
UNITED STATES DISTRICT JUDGE
cc:

James Edward Witherspoon, pro se;
Magistrate Judge Lisette M. Reid

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