Jenkins v. Ferrero

Filing 6

REPORT AND RECOMMENDATIONS dismissing 1 Complaint filed by Randy Lenard Jenkins. Objections to R&R due by 9/29/2017. Signed by Magistrate Judge G. R. Smith on 9/15/17. (jlm)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
RANDY LENARD JENKINS,
Plaintiff,
v.
BENJAMIN FERRERO,
Defendant.

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CV416-219

ORDER
Proceeding pro se and in forma pauperis, Randy Lenard Jenkins
brings this 42 U.S.C. § 1983 action against Chatham Metropolitan Police
Department Investigator Benjamin Ferrero. The Court now screens his
Complaint under 28 U.S.C. § 1915A.1

1

Congress enacted the Prison Litigation Reform Act of 1995 (PLRA), Pub. L. No.
104-134, 110 Stat. 1321-71, to establish procedures to govern civil complaints filed in
federal court by prisoners and other detainees. Among the PLRA’s procedures is the
requirement for this Court to conduct an early screening in all civil cases of any
complaint in which a prisoner seeks redress from a government entity or official. See
28 U.S.C. § 1915A. The purpose of the early screening is to “identify cognizable
claims” in the prisoner’s complaint and to dismiss any claims that: (1) are frivolous;
(2) are malicious; (3) fail to state a claim upon which relief can be granted; or (4) seek
monetary relief from a defendant immune from such relief. Id. Therefore, the Court
examines plaintiff’s Complaint to determine whether he has stated a claim for relief
under 42 U.S.C. § 1983.

Jenkins 2 was arrested for shoplifting, obstruction, and disorderly
conduct in July 2014. Doc. 1 at 6. Because defendant noted that Jenkins
had “attempted to shoplift” on his police reports, plaintiff believes that
he was arrested without probable cause. Id. (arguing that “attempted [ ]
shoplift[ing] . . . is not a crime in the State of Georgia.”). 3

He was

arrested on July 19, 2014, and a preliminary hearing was set for August
4, 2014.

Id.

Jenkins contends that he is falsely imprisoned, his

“preliminary hearing was waived without [his] consent or knowledge,”
and the delay before being timely presented to a “judicial officer” violates
the law.

Id. at 2 & 6.

He seeks release from confinement and

compensation “for everyday [he] spent in jail illegally.” Id. at 7.
Liberally construed, plaintiff’s Complaint alleges an initial claim
for false arrest or false imprisonment, a tort which affords a remedy for
detention without legal process. See Wallace v. Kato, 549 U.S. 384, 389
(2007) (a false arrest claim based on a warrantless arrest is “a species” of

2

Because the Court applies Fed. R. Civ. P. 12(b)(6) standards in screening a
complaint pursuant to § 1915A, Leal v. Ga. Dep’t of Corr., 254 F.3d 1276, 1278-79
(11th Cir. 2001), allegations in the complaint are taken as true and construed in the
light most favorable to the plaintiff, Bumpus v. Watts, 448 F. App’x 3, 4 n.1 (11th Cir.
2011). Conclusory allegations, however, fail. Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (discussing a Rule 12(b)(6) dismissal).
3

It is. See O.C.G.A. §§ 16-4-1 & 16-8-14; Stillwell v. State, 161 Ga. App. 230 (1982).
2

a false imprisonment claim). That claim accrued at his arrest -- July 19,
2014 -- and the statute of limitations began to run “when [his] alleged
false imprisonment end[ed].” Id. In a case of continuing detention (as
here), “false imprisonment ends once the victim becomes held pursuant
to [legal] process -- when, for example, he is bound over by a magistrate
or arraigned on charges.” Id. at 389-90.
Once an arrestee’s unlawful detention becomes a product of legal
process, his continued custody may indeed still be unlawful, but any
damages suffered after that point must be recovered under the “entirely
distinct” tort of malicious prosecution, “which remedies detention
accompanied not by the absence of legal process, but by wrongful
institution of legal process.” Id. at 390. As a result of this distinction
between malicious prosecution and false imprisonment, the statute of
limitations on his false imprisonment claim would have begun to run
from the date that legal process was initiated against him. Id. It appears
that Jenkins was “bound over for trial” sometime on or before August 4,
2014, when his preliminary hearing was set.

Doc. 1 at 5 (someone

“waived” the preliminary hearing without his consent, such that it was
not held); see Hines v. Oklahoma, 2007 WL 3046458 at *3 (W.D. Okla.

3

Oct. 17, 2007) (the statute of limitations began to run at the latest on the
date plaintiff waived his preliminary hearing and was bound over for
trial). He did not signature-file this action until August 6, 2016 -- more
than two years later. Id. at 6; see O.C.G.A. § 9-3-33 (two-year statute of
limitations for personal injury actions). Thus, Jenkins’ claim for false
imprisonment is time-barred.
Jenkins’ other complaints, that his preliminary hearing was not
scheduled speedily enough and then waived without his consent, are also
dead ends. As it appears that he was arrested without a warrant (an
arrest for attempted shoplifting would most likely be made on the scene
and without a warrant being drawn up, see doc. 1 at 6), he was “entitled
to a prompt judicial determination of probable cause as a prerequisite to
any extended restraint of [his] liberty.”

Brown v. Eastern Judicial

Circuit of Savannah, 2012 WL 426224 at * 1 (Feb. 9, 2012) (citing Cty. of
Riverside v. McLaughlin, 500 U.S. 44, 53 (1991) (“persons arrested
without a warrant must promptly be brought before a neutral magistrate
for a judicial determination of probable cause.”)). 4

4

Georgia law states that a warrantless arrestee who is not brought before an
appropriate judicial officer within 48 hours “shall be released,” O.C.G.A. § 17-4-62,
although that right is satisfied when a warrant is obtained within 48 hours of arrest
4

But Jenkins does not contend he was deprived of the right to a
prompt probable cause hearing. He contends instead that his scheduled
preliminary hearing was waived, without his “consent or knowledge,” by
counsel. Doc. 1 at 2 & 6. “In other words, it is his attorney’s own
ineffectiveness that [he] challenges, not some flawed judicial process or
practice or some police officer’s failure to bring him before a judge for a
prompt determination of probable cause.” Brown, 2012 WL 426624 at
* 1. But § 1983 does not afford Jenkins a remedy against his public
defender on such a claim, for a defense attorney -- even one appointed by
the state -- does not act under “color of state law” within the meaning of
that statute. Polk v. Dodson, 454 U.S. 314, 317-19 (1981); id. at 325 (“a
public defender does not act under color of state law when performing a
lawyer’s traditional functions as counsel to a defendant in a criminal
proceeding.”).
Regardless, it is clear that Jenkins has failed to state a claim for
false arrest/false imprisonment or for the deprivation of his right to a

even if the arrestee is not taken before the magistrate who issues the warrant.
Capestany v. State, 289 Ga. App. 47, 48-49 (2007). Also, even where the statute is
violated, the right to release expires once a warrant or indictment is obtained. Id. at
50-51. An arrestee who is denied a prompt probable cause determination suffers a
personal injury and is entitled to civil damages. Id. at 52 n. 10.
5

preliminary hearing against defendant Ferrero.

Though a pro se

prisoner normally should be given an opportunity to amend his
complaint at least once, see, e.g., Johnson v. Boyd, 568 F. App’x 719, 724
(11th Cir. 2014); Duff v. Steub, 378 F. App’x 868, 872 (11th Cir. 2010), “a
district court need not allow amendment if the amended complaint would
still be subject to dismissal.” Jenkins v. Walker, 620 F. App’x 709, 711
(11th Cir. 2015). Plaintiff’s § 1983 claims are dead on arrival and do not
appear amendable.5
Accordingly, Randy Lenard Jenkins’ § 1983 Complaint should be
DISMISSED without prejudice. Meanwhile, it is time for Jenkins to
pay his filing fee. His PLRA paperwork reflects $0 in current balance
and $0 in recent deposits. Doc. 4. He therefore owes no initial partial
filing fee. See 28 U.S.C. § 1915(b) (1) (requiring an initial fee assessment
“when funds exist,” under a specific 20 percent formula).

Plaintiff’s

custodian (or designee) shall therefore set aside and remit 20 percent of
all future deposits to his account, then forward those funds to the Clerk
5

Despite the lack of any apparent basis for viable amendment, Jenkins’ opportunity
to object to this Report and Recommendation within 14 days of service, see infra,
affords him an opportunity to resuscitate his case. He may also submit an Amended
Complaint during that period, if he believes it would cure the legal defects discussed
above. See Willis v. Darden, 2012 WL 170163 at * 2 n.3 (S.D. Ga. Jan. 19, 2012)
(citing Smith v. Stanley, 2011 WL 1114503 at * 1 (W.D. Mich. Jan. 19, 2011)).
6

each time the set aside amount reaches $10.00, until the balance of the
Court’s $350.00 filing fee has been paid in full.
Also, the Clerk is DIRECTED to send this Report and
Recommendation (R&R) to plaintiff’s account custodian immediately. In
the event he is transferred to another institution, his present custodian
shall forward a copy of this R&R and all financial information concerning
payment of the filing fee and costs in this case to plaintiff's new
custodian.

The balance due from plaintiff shall be collected by the

custodian at his next institution in accordance with the terms of the
payment directive portion of this R&R.
This R&R is submitted to the district judge assigned to this action,
pursuant to 28 U.S.C. § 636(b)(1)(B) and this Court’s Local Rule 72.3.
Within 14 days of service, any party may file written objections to this
R&R with the Court and serve a copy on all parties. The document
should be captioned “Objections to Magistrate Judge’s Report and
Recommendations.” Any request for additional time to file objections
should be filed with the Clerk for consideration by the assigned district
judge.

7

After the objections period has ended, the Clerk shall submit this
R&R together with any objections to the assigned district judge. The
district

judge

will

review

the magistrate

judge’s

findings

and

recommendations pursuant to 28 U.S.C. § 636(b)(1)(C). The parties are
advised that failure to timely file objections will result in the waiver of
rights on appeal. 11th Cir. R. 3-1; see Symonett v. V.A. Leasing Corp.,
648 F. App’x 787, 790 (11th Cir. 2016); Mitchell v. United States, 612 F.
App’x 542, 545 (11th Cir. 2015).
SO REPORTED AND RECOMMENDED, this 15th
September, 2017.

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day of