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)

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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]). 1 Case 1:20-cv-22602-CMA Document 10 Entered on FLSD Docket 10/14/2020 Page 2 of 3 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.). 2 Case 1:20-cv-22602-CMA Document 10 Entered on FLSD Docket 10/14/2020 Page 3 of 3 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 3

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