Mikell v. Georgia Bureau of Investigatiions and Agents et al

Filing 7

REPORT AND RECOMMENDATIONS Dismissing With Prejudice 1 Complaint filed by Bob Aaron Mikell. Objections to R&R due by 2/21/2017. The Clerk is DIRECTED to send this Report and Recommendation (R&R) to plaintiff's account custodian immediately. Signed by Magistrate Judge G. R. Smith on 2/6/17. (jlm)

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF GEORGIA STATESBORO DIVISION BOB AARON MIKELL, Plaintiff, v. CV616-111 JAMES L. WINSKEY, et al ., Defendants. REPORT AND RECOMMENDATION Inmate plaintiff Bob Aaron Mikell’s 42 U.S.C. 1983 lawsuit against law enforcement and government entities involved in his 1995 search, arrest and prosecution, 1 is time-barred 2 and thus, must be DISMISSED WITH PREJUDICE . 1 The Court screens this case pursuant to 28 U.S.C. § 1915(e)(2)(B), which requires dismissal of IFP complaints that are frivolous, malicious, or fail to state a claim. See also 28 U.S.C. § 1915A (courts must identify “cognizable claims” filed by prisoners and dismiss claims which are frivolous, malicious, fail to state a claim for relief, or seek monetary relief from a defendant immune from such relief). 2 Claims under § 1983 are barred if not filed within two years after the cause of action accrues. Mullinax v. McElhenney , 817 F.2d 711, 715-16 n. 2 (11th Cir. 1987); Williams v. City of Atlanta , 794 F.2d 624, 626 (11th Cir. 1986) (“[T]he proper limitations period for all section 1983 claims in Georgia is the two-year period set forth in O.C.G.A. § 9-3-33 for personal injuries.”). Accrual occurs “when the plaintiff has ‘a complete and present cause of action,’ Bay Area Laundry and Dry Cleaning Pension Trust Fund v. Ferbar Corp. of Cal., 522 U.S. 192, 201, 118 S.Ct. 542, 139 Given the sheer frivolity of Mikell’s Complaint, a re-pleading option is not warranted. Dysart v. BankTrust , 516 F. App’x 861, 865 (11th Cir. 2013) (“[D]istrict court did not err in denying Dysart's request to amend her complaint because an amendment would have been futile.”); Langlois v. Traveler's Ins. Co. , 401 F. App’x 425, 426-27 (11th Cir. 2010); Simmons v. Edmondson , 225 F. App'x 787, 788-89 (11th Cir. 2007) (district court did not err in dismissing complaint with prejudice without first giving plaintiff leave to amend because no amendment could have overcome the defendants' immunity). This case should also be recorded as a “strike” under 28 U.S.C. § 1915(g). Meanwhile, it is time for Mikell to pay his filing fee. His furnished PLRA paperwork reflects a $618.27 average monthly balance over the six month period prior to the date of his Prison Account Statement. Doc. 6. He therefore owes a $103.05 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) L.Ed.2d 553 (1997) (quoting Rawlings v. Ray , 312 U.S. 96, 98, 61 S.Ct. 473, 85 L.Ed. 605 (1941)), that is, when ‘the plaintiff can file suit and obtain relief,’ Bay Area Laundry , supra, at 201.” Wallace v. Kato , 549 U.S. 384, 388 (2007). The face of Mikell’s Complaint roots his claims in the latter half of the 1990s. Doc. 1. He filed this case in 2016. Doc. 1 at 5 (signature date). His claim is, therefore, time-barred by many years. Nor is there any hint of any facts to support some sort of equitable tolling. 2 shall set aside 20 percent of all future deposits to his account, then forward those funds to the Clerk 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, as this payment directive is nondispositive within the meaning of Fed. R. Civ. P. 72(a), so no Rule 72(b) adoption is required. In the event plaintiff is transferred to another institution, his present custodian shall forward a copy of this Order and all financial information concerning payment of the filing fee and costs in this case to plaintiff's new custodian. The balance due from the 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. Finally, 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 91 Recommendations.” Any request for additional time to file objections should be filed with the Clerk for consideration by the assigned district judge. 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. U.S. , 612 F. App’x 542, 545 (11th Cir. 2015). SO REPORTED AND RECOMMENDED , this 7th day of February, 2017. UNITED STATES MAGISTRATE ILJDGE SOUThER}'T DISTRICT OF GEORGIA 4

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