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)

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

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