Brestle v. Hastings et al

Filing 39

ORDER ADOPTING 35 Report and Recommendations of the Magistrate Judge as the opinion of the Court. The Court DISMISSES Plaintiff's Complaint and DENIES Plaintiff leave to appeal in forma pauperis. The Clerk is DIRECTED to enter the appropriate judgment of dismissal and to CLOSE this case. Signed by Chief Judge Lisa G. Wood on 2/3/2016. (ca)

3hi the Eniteb Otatto )itrttt Court
for the boutbern attrttt of Otorat'a
3&untuitk Otbisiton
GARY CHARLES BRESTLE,
Plaintiff,
V.

SUZANNE R. HASTINGS, et al.,
Defendants.

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CIVIL ACTION NO.: 2:15-cv-12

ORDER

After an independent and de novo review of the record, the
undersigned concurs with the Magistrate Judge's January 19, 2016

Report and Recommendation, dkt. no. 35, to which objections have
been filed. Accordingly, the Report and Recommendation of the
Magistrate Judge is hereby ADOPTED as the opinion of the Court
and Plaintiff's Objections, dkt nos. 36, 37, 38, are OVERRULED.'

' In his Objections, Plaintiff argues that the Court should excuse the
untimeliness of his claims under the continuing violation doctrine.
The continuing violation doctrine holds that a plaintiff's action is
not time-barred where some of the alleged violations occurred within
the statutory period, even though other violations did not, because
the early acts were part of a continuing wrong. Hipp v. Liberty Nat'l
Life Ins. Co., 252 F.3d 1208, 1221 (11th Cir.2001). However, the
Eleventh Circuit has "limited the application of the continuing
violation doctrine to situations in which a reasonably prudent
plaintiff would have been unable to determine that a violation had
occurred." Ctr. for Biological Diversity v. Hamilton, 453 F.3d 1331,
1335 (11th Cir.2006). "If an event or series of events should have
alerted a reasonable person to act to assert his or her rights at the
time of the violation, the victim cannot later rely on the continuing
AO 72A
(Rev. 8/82)

The Court DISMISSES Plaintiff's Complaint and DENIES Plaintiff
leave to appeal in forma pauperis. The Clerk of Court is
DIRECTED to enter the appropriate judgment of dismissal and to
CLOSE this case.

SO ORDERED, this

day of

, 2016.

LISA GQJBEY WOOD, CHIEF JUDGE
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA

violation doctrine." Hipp, 252 F3d at 1222. Here, Plaintiff was
alerted to act on his rights several years before filing this action.
Dkt. no- 25, p. 7. Indeed, Plaintiff signed a lawsuit against the
United States, making basically the same factual allegations that he
makes in this lawsuit, on December 29, 2011. Compl, Brestle v. United
States, No. 2:12-cv-11
(S.D. Ga. Jan, 19, 2012), ECF No. 1, p. 4.
Consequently, the continuing violation doctrine cannot excuse the
readily apparent untimeliness of Plaintiff's claims.
AO 72AII
(Rev. 882)

IF

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