Al-Khalifa v. Key Food Co-operative, Inc. Company et al

Filing 5

ORDER Dismissing Plaintiff's Complaint 3 , and Plaintiff's 4 Motion for Appointment of Counsel is DENIED AS MOOT. The Clerk is DIRECTED to close this action. Signed by Judge Richard W. Story on 8/1/2013. (cem)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
OLUWASHINA KAZEEM
AHMED-AL-KHALIFA,
a/k/a Mark Ayilla OluwashinaAhmed,
Plaintiff,
v.
KEY FOOD CO-OPERATIVE,
INC., ATLANTA POLICE
DEPARTMENT, and DISTRICT
ATTORNEY STATE OF
GEORGIA,
Defendants.

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CIVIL ACTION NO.
1:13-CV-01244-RWS

ORDER
This case comes before the Court for review of Plaintiff’s Complaint [3]
for frivolity and on Plaintiff’s Motion for Appointment of Counsel [4]. After
reviewing the record, the Court enters the following order.
Background
This case arises out of the circumstances of Plaintiff’s arrest, which
stemmed from an incident in a grocery store owned and operated by Defendant
Key Food Co-Operative, Inc. (“Key Food”). According to Atlanta Police

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Department (“APD”) records, Plaintiff was arrested on February 14, 1997, for
apparently attempting to buy goods with a stolen credit card and for causing
property damage to Key Food’s grocery store. (Compl., Dkt. [3] at 5 of 14.)
Plaintiff stated that he entered Key Food’s store on the aforementioned date,
attempted to purchase items with his credit card, and was told by the cashier
that he needed a driver’s license that matched his credit card for a purchase of
over $100.00. (Id.) Plaintiff states that he responded to the cashier by stating
his driver’s license was in his car, to which the cashier responded by telling
Plaintiff that he would have to leave his credit card in the store in order for his
purchase not to be voided. (Id.) Plaintiff states that he responded by telling the
cashier to void his purchase because he did not want to leave his credit card in
the store, and by stating that he would buy the groceries at a different store in
the shopping center. (Id.) Plaintiff goes on to state that, because it was raining,
he started to run from Key Food’s store to another but was subsequently
forcibly detained and taken back to Key Food’s store by employees of Key
Food. (Id.) Plaintiff argues that this amounted to false, or unlawful,
imprisonment by Key Food’s employees. (Id.) Plaintiff acknowledges that at
this point he kicked Key Food’s wall, causing property damage. (Id.)
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Plaintiff states that when officers of the APD arrived at the scene he was
arrested, and he alleges that the APD officers did not read him his Miranda
rights or advise him of his right to counsel. (Id.) Plaintiff further states that he
was found not guilty in the jury trial that was the culmination of this incident.
(Id. at 6 of 14.)
Plaintiff initiated the instant litigation by filing a complaint with the
United States District Court for the Northern District of Georgia in forma
pauperis on April 15, 2013. (Id. at 1 of 14.) Plaintiff appears to assert a claim
for false imprisonment against Defendant Key Food, a claim for violation of his
Fifth Amendment rights against Defendant APD, and a claim for malicious
prosecution against “District Attorney State of Georgia.” (See generally id.)
Plaintiff appears to be seeking only monetary damages in this action. (Id. at 13
of 14.) The Court now sets out the legal standard governing frivolity for
plaintiffs proceeding in forma pauperis before reviewing Plaintiff’s claims.
Discussion
I.

Legal Standard
Pursuant to 28 U.S.C. § 1915(e)(2)(B), “the court shall dismiss the case

at any time if the court determines that . . . the action or appeal (i) is frivolous or
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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.” A claim
is frivolous when it appears from the face of the complaint that the factual
allegations are “clearly baseless” or that the legal theories are “indisputably
meritless.” Neitzke v. Williams, 490 U.S. 319, 327 (1989); Carrol v. Gross,
984 F.2d 393, 393 (11th Cir. 1993).
Federal Rule of Civil Procedure 8(a)(2) requires that a pleading contain a
“short and plain statement of the claim showing that the pleader is entitled to
relief.” While this pleading standard does not require “detailed factual
allegations,” “labels and conclusions” or “formulaic recitation of the elements
of a cause of action will not do.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct.
1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007)). Because Plaintiff is proceeding pro se, his “pleadings are held to a less
stringent standard than pleadings drafted by attorneys and will, therefore, be
liberally construed.” Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th
Cir. 1998). “This leniency, however, does not require or allow courts to rewrite
an otherwise deficient pleading in order to sustain an action.” Thomas v.
Pentagon Fed. Credit Union, 393 F. App’x 635, 637 (11th Cir. 2010).
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II.

Analysis
After reviewing the record, the Court finds Plaintiff’s Complaint due to

be DISMISSED. The statute of limitations on Plaintiff’s claims has at this time
run. O.C.G.A. § 9-3-33, which sets forth the statute of limitations for causes of
action for personal injury, states “[a]ctions for injuries to the person shall be
brought within two years after the right of action accrues[.]” Plaintiff is
asserting claims against Defendants for actions that occurred nearly fifteen
years ago. Regardless of the merits of Plaintiff’s claims, they must be
dismissed for not having been brought within the time period set forth by
statute.
As to Plaintiff’s claim against Key Food, Plaintiff states the alleged false
imprisonment occurred during the incident that lead to his arrest on February
14, 1997. (Compl., Dkt. [3] at 5 of 14.) Plaintiff did not file the instant claim
against Key Food until April 15, 2013. Therefore, the statute of limitations on
Plaintiff’s false imprisonment cause of action has run, and Plaintiff cannot state
a claim against Defendants as a matter of law. Accordingly, Plaintiff’s claim
against Key Food is due to be DISMISSED.

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Plaintiff’s claim against the defendant styled “District Attorney State of
Georgia” is similarly deficient. In Georgia, claims of malicious prosecution are
pursued under O.C.G.A. § 51-7-40, which states, in full, “[a] criminal
prosecution which is carried on maliciously and without any probable cause and
which causes damage to the person prosecuted shall give him a cause of
action.” Based on the plain language of the statute, this is a cause of action for
injury to a person. Accordingly, claims brought under § 51-7-40 are governed
by § 9-3-33, which sets the statute of limitations at two years. Again, Plaintiff
waited fifteen years to bring the instant claim. Therefore, as the statute of
limitations had run almost thirteen years ago, Plaintiff cannot state a claim
against Defendant styled “District Attorney State of Georgia” as a matter of
law. Accordingly, Plaintiff’s claim is due to be DISMISSED.
To the extent Plaintiff is attempting to bring a private cause of action for
monetary damages against APD for failing to properly read Plaintiff his rights,
“failing to follow Miranda procedures triggers the prophylactic protection of the
exclusion of evidence, but does not violate any substantive Fifth Amendment
right such that a cause of action for money damages under § 1983 is created.”
Jones v. Cannon, 174 F.3d 1271, 1291 (11th Cir. 1999). Accordingly, Plaintiff
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has not stated a claim against APD upon which relief may be granted, and
Plaintiff’s claims against APD are due to be DISMISSED.
Conclusion
In accordance with the foregoing, Plaintiff’s Complaint [3] is
DISMISSED, and Plaintiff’s Motion for Appointment of Counsel [4] is
DENIED AS MOOT. The Clerk is DIRECTED to close this action.
SO ORDERED, this 1st

day of August, 2013.

_______________________________
RICHARD W. STORY
UNITED STATES DISTRICT JUDGE

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