MALONE VS HOUSTON COUNTY SHERIFF'S DEPARTMENT, et al

Filing 16

ORDER GRANTING 7 Motion to Dismiss for Failure to State a Claim; GRANTING 9 Motion to Dismiss for Failure to State a Claim; and GRANTING 10 Motion to Dismiss Complaint. This case is dismissed without prejudice. Ordered by US DISTRICT JUDGE MARC THOMAS TREADWELL on 6/14/2017. (tlh)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
BOBBY MALONE,
Plaintiff,
v.
WARNER ROBINS POLICE
DEPARTMENT, et al.,
Defendants.

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CIVIL ACTION NO. 5:17-CV-178 (MTT)

ORDER
On May 8, 2017, Plaintiff Bobby Malone filed a complaint seeking monetary relief
and asserting claims “pursuant to 42 U.S.C. SS 1983 and 1988 and the First, Fourth,
Fifth, Eighth, and Fourteenth Amendments to the Constitution of the United States,” and
asserting “theft, fraud, conspiracy, negligence, and gross negligence under the laws of
the State of Georgia.” Doc. 1 at 3, 7.
Malone is suing regarding a $150,000 deposit allegedly made “[o]n the morning
of May 13, 1976” into the bank account of B.L.M. Construction Co., which he owned, at
First National Bank of Houston County, N.A., predecessor in interest to Bank South,
Nations Bank, and, thereby, Defendant Synovus – CB&T Bank (the “Bank”). Id. at 4.
According to Malone, the amount was not credited to his account. Id. Malone allegedly
filed complaints with federal officials, but ceased when the Bank threatened to call
several business loans. Id. at 5. Accordingly, Malone waited to take further action until
he had closed all his other accounts with the Bank. Id. Apparently this was
accomplished by July 24, 1990, when he “presented a check in the amount of
$150,000.00 on the B.L.M. Construction Co.[] account.” Id. He was informed that “the
account had been closed,” and he accordingly “went to the Warner Robins Police
Department and filed an incident report with the Chief of Police concerning alleged theft

of funds.” Id. The police did not investigate the report. Id. On July 12, 1994, Malone
tried this again, and was informed on July 15, 1994 that there was no such account at
the Bank. Id. Malone filed another incident report, this time with the Houston County
Sherriff’s Department, with the same result. Id. at 5.
On March 22, 1995, Malone “obtained legal service of a local attorney to
investigate the legality of Bank South . . . action or lack of action concerning the theft of
funds, fraud, and conspiracy involving the Warner Robins Police Department and the
Houston County Sheriff’s Department.” Id. And on August 24, 1995, Malone “caused a
written verified Notice of Claim to be filed with and served upon the proper defendants
pursuant to the statute in such cases made and provided,” and “more than 30 days
have elapsed since the service of such Notice of Claim, and adjustment or payment
thereof has been neglected or refused.” Id. at 7.
There, on August 24, 1995, with Malone’s Notice of Claim, this strange tale ends.
At least until this May—nearly twenty-two years later—when Malone filed this case.
The Defendants have, unsurprisingly, moved to dismiss on the ground that
Malone’s claims are barred by the statute of limitations. Docs. 7, 9, 10. In addition, the
Court ordered Malone to show cause why his complaint should not be dismissed
because of the statute of limitations. Doc. 8 at 2. Malone responded: “My bank account
. . . [and] Civil Rights [do] not have a statute of limitations.” Doc. 12 at 2; see also Docs.
13; 14; 15. This statement is incorrect. See Wallace v. Kato, 549 U.S. 384, 387 (2007)
(“Section 1983 provides a federal cause of action, but in several respects relevant here
federal law looks to the law of the State in which the cause of action arose. This is so for
the length of the statute of limitations: It is that which the State provides for personalinjury torts.”); Johnson v. Ry. Exp. Agency, Inc., 421 U.S. 454, 462 (1975) (explaining
that where “there is no specifically stated or otherwise relevant federal statute of
limitations for a [civil rights] action . . . , the controlling period would ordinarily be the
most appropriate one provided by state law”). “[T]he proper limitations period for all
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section 1983 claims in Georgia is the two year period set forth in O.C.G.A. § 9-3-33 for
personal injuries.” Williams v. City of Atl., 794 F.2d 624, 626 (11th Cir. 1986). Malone’s
state law claims are subject to either a two or four year statute of limitations. O.C.G.A.
§§ 9-3-32 (two year statute of limitations on personal injury claims); 9-3-33 (four year
statute of limitations on actions regarding personal property).
Malone’s claims are accordingly barred by the statute of limitations. The
Defendants’ motions (Docs. 7, 9, 10) and GRANTED, and this case is DISMISSED
without prejudice.1
SO ORDERED, this 14th day of June, 2017.
S/ Marc T. Treadwell
MARC T. TREADWELL, JUDGE
UNITED STATES DISTRICT COURT

1

“A statute of limitations bar is an affirmative defense, and plaintiffs are not required to negate an
affirmative defense in their complaint. . . . [A] Rule 12(b)(6) dismissal on statute of limitations grounds is
appropriate only if it is apparent from the face of the complaint that the claim is time-barred.” La Grasta v.
First Union Sec., Inc., 358 F.3d 840, 845 (11th Cir. 2004) (quotation marks, original alterations, and
citations omitted); see also Douglas v. Yates, 535 F.3d 1316, 1321 (11th Cir. 2008)

The Court acknowledges possible tension between Eleventh Circuit authority addressing when a
complaint can be dismissed on the basis of an affirmative defense and Iqbal and Twombly. See, e.g.,
Sarris v. Underwood (In re Underwood), 2013 WL 4874341, *3 (Bankr. N.D. Ala.); compare Tello v. Dean
Witter Reynolds, 410 F.3d 1275, 1288 n.13 (11th Cir. 2005), abrogated on other grounds by Merck & Co.,
Inc. v. Reynolds, 559 U.S. 633 (2010), as recognized by Walter v. Avellino, 565 F. App’x 464 (11th Cir.
2014), with Twombly, 550 U.S. 544. Tello states: “[a]t the motion-to-dismiss stage, a complaint may be
dismissed on the basis of a statute-of-limitations defense only if it appears beyond a doubt that [the
plaintiff] can prove no set of facts that toll the statute.” 410 F.3d at 1288 n.13 (quotation marks and
citation omitted) (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). However, in Twombly, the
Supreme Court concluded that a complaint must “state a claim to relief that is plausible on its face,”
refining Conley’s “prove no set of facts” standard. 550 U.S. at 570. Subsequently, in two unreported
decisions, the Eleventh Circuit quoted Tello for the proposition that a complaint is barred by the statute of
limitations only if it appears beyond a doubt that the plaintiff “can prove no set of facts” negating its
application. Lindley v. City of Birmingham, 515 F. App’x 813, 815 (11th Cir. 2013); Sec’y of Labor v.
Labbe, 319 F. App’x 761, 764 (11th Cir. 2008). To the extent there is any tension between Eleventh
Circuit authority and Iqbal and Twombly, it is not relevant here. Malone’s complaint raises decades-old
claims. The Court gave Malone an opportunity to show cause why his complaint should not be
dismissed, but his sole response was that no statute of limitations is applicable, which is patently wrong.

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