Pullins v. Tarver
Filing
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REPORT AND RECOMMENDATIONS of the Magistrate Judge that the Court DISMISS without prejudice this action as time barred by the applicable statue of limitations re 10 Amended Complaint filed by James Pullins. It is further RECOMMNEDED that the Court DIRECT the Clerk to CLOSE this case and enter the appropriate judgment of dismissal and DENY Plaintiff leave to appeal in forma pauperis. The Court ORDERS any party seeking to object to this Report and Recommendation to file specific written objectio ns within fourteen (14) days of the date on which this Report and Recommendation is entered. (Objections to R&R due by 1/3/2018). ORDER directing service of the REPORT AND RECOMMENDATION of the Magistrate Judge. Signed by Magistrate Judge R. Stan Baker on 12/20/2017. (ca)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
STATESBORO DIVISION
JAMES PULLINS,
Plaintiff,
CIVIL ACTION NO.: 6:17-cv-132
v.
CONSWAYLA TARVER,
Defendant.
ORDER and MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Plaintiff, who is currently housed at Hays State Prison in Trion, Georgia, filed this cause
of action pursuant to 42 U.S.C. § 1983, contesting certain conditions of his confinement.
(Doc. 1.) After his case was transferred to this District, (doc. 3), and in response to this Court’s
Order directing him to amend using the appropriate Section 1983 complaint form, (doc. 9),
Plaintiff submitted the Amended Complaint presently before the Court, (doc. 10). For the
reasons set forth below, the Court DISMISSES AS MOOT Plaintiff’s Motion to Appoint
Counsel and DENIES his Motion to Proceed in Forma Pauperis. (Docs. 11, 13) Additionally, I
RECOMMEND that the Court DISMISS WITHOUT PREJUDICE this action as time barred
by the applicable statute of limitations. 1 I further RECOMMEND that the Court DIRECT the
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A “district court can only dismiss an action on its own motion as long as the procedure employed is fair.
. . . To employ fair procedure, a district court must generally provide the plaintiff with notice of its intent
to dismiss or an opportunity to respond.” Tazoe v. Airbus S.A.S., 631 F.3d 1321, 1336 (11th Cir. 2011)
(citations and internal quotations marks omitted). A Magistrate Judge’s Report and Recommendation
(“R&R”) provides such notice and opportunity to respond. See Shivers v. Int’l Bhd. of Elec. Workers
Local Union 349, 262 F. App’x 121, 125, 127 (11th Cir. 2008) (indicating that a party has notice of a
district court’s intent to sua sponte grant summary judgment where a magistrate judge issues a report
recommending the sua sponte granting of summary judgment); Anderson v. Dunbar Armored, Inc., 678
F. Supp. 2d 1280, 1296 (N.D. Ga. 2009) (noting that R&R served as notice that claims would be sua
Clerk of Court to CLOSE this case and enter the appropriate judgment of dismissal, and DENY
Plaintiff leave to appeal in forma pauperis.
BACKGROUND
Plaintiff originally filed this action seeking leave to proceed in forma pauperis.
(Doc. 13.) Plaintiff’s Amended Complaint, like his original Complaint, centers on alleged use of
excessive force by Defendant, a correctional officer at Georgia State Prison in Reidsville,
Georgia. (Docs. 1, 10.) In his Amended Complaint, Plaintiff states that on July 8, 2014, at
approximately 12:30 p.m., Defendant stabbed him in the face with a pen as he was leaving the
Reidsville prison chow hall. (Doc. 10, pp. 4–5.) Plaintiff avers the alleged use of excessive
force left him with a puncture wound on the left side of his face that required medical attention.
(Id.) Plaintiff filed a grievance that was forwarded to the Georgia Department of Corrections’
(“GDC”) Internal Investigations Unit on July 22, 2014. (Id. at p. 7.) Plaintiff asserts he received
no further response from the GDC thereafter; thus he filed a second grievance on April 14, 2016,
inquiring as to the status of his first grievance. (Id. at pp. 7–8.) After filing his second
grievance, Plaintiff was informed that his first grievance had been partially granted.
(Id.)
Plaintiff seeks monetary damages as well as injunctive relief. (Id. at p. 5.)
STANDARD OF REVIEW
Under 28 U.S.C. § 1915(a)(1), the Court may authorize the filing of a civil lawsuit
without the prepayment of fees if the plaintiff submits an affidavit that includes a statement of all
sponte dismissed). This Report and Recommendation constitutes fair notice to Plaintiff that his suit is
barred and due to be dismissed. As indicated below, Plaintiff will have the opportunity to present his
objections to this finding, and the District Court will review de novo properly submitted objections.
See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72; see also Glover v. Williams, No. 1:12-CV-3562-TWTJFK, 2012 WL 5930633, at *1 (N.D. Ga. Oct. 18, 2012) (explaining that magistrate judge’s report and
recommendation constituted adequate notice and petitioner’s opportunity to file objections provided a
reasonable opportunity to respond).
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of his assets and shows an inability to pay the filing fee and also includes a statement of the
nature of the action which shows that he is entitled to redress. Even if the plaintiff proves
indigence, the Court must dismiss the action if it is frivolous or malicious, or fails to state a claim
upon which relief may be granted. 28 U.S.C. §§ 1915(e)(2)(B)(i)–(ii). Additionally, pursuant to
28 U.S.C. § 1915A, the Court must review a complaint in which a prisoner seeks redress from a
governmental entity. Upon such screening, the Court must dismiss a complaint, or any portion
thereof, that is frivolous or malicious, or fails to state a claim upon which relief may be granted
or which seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. §
1915A(b).
When reviewing a Complaint on an application to proceed in forma pauperis, the Court is
guided by the instructions for pleading contained in the Federal Rules of Civil Procedure. See
Fed. R. Civ. P. 8 (“A pleading that states a claim for relief must contain [among other things] . . .
a short and plain statement of the claim showing that the pleader is entitled to relief.”); Fed. R.
Civ. P. 10 (requiring that claims be set forth in numbered paragraphs, each limited to a single set
of circumstances). Further, a claim is frivolous under Section 1915(e)(2)(B)(i) “if it is ‘without
arguable merit either in law or fact.’” Napier v. Preslicka, 314 F.3d 528, 531 (11th Cir. 2002)
(quoting Bilal v. Driver, 251 F.3d 1346, 1349 (11th Cir. 2001)).
Whether a complaint fails to state a claim under Section 1915(e)(2)(B)(ii) is governed by
the same standard applicable to motions to dismiss under Federal Rule of Civil Procedure
12(b)(6). Thompson v. Rundle, 393 F. App’x 675, 678 (11th Cir. 2010). Under that standard,
this Court must determine whether the complaint contains “sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A plaintiff must assert
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“more than labels and conclusions, and a formulaic recitation of the elements of a cause of action
will not” suffice. Twombly, 550 U.S. at 555. Section 1915 also “accords judges not only the
authority to dismiss a claim based on an indisputably meritless legal theory, but also the unusual
power to pierce the veil of the complaint’s factual allegations and dismiss those claims whose
factual contentions are clearly baseless.” Bilal, 251 F.3d at 1349 (quoting Neitzke v. Williams,
490 U.S. 319, 327 (1989)).
In its analysis, the Court will abide by the long-standing principle that the pleadings of
unrepresented parties are held to a less stringent standard than those drafted by attorneys and,
therefore, must be liberally construed. Haines v. Kerner, 404 U.S. 519, 520 (1972); Boxer X v.
Harris, 437 F.3d 1107, 1110 (11th Cir. 2006) (“Pro se pleadings are held to a less stringent
standard than pleadings drafted by attorneys . . . .”) (quoting Hughes v. Lott, 350 F.3d 1157,
1160 (11th Cir. 2003)). However, Plaintiff’s unrepresented status will not excuse mistakes
regarding procedural rules. McNeil v. United States, 508 U.S. 106, 113 (1993) (“We have never
suggested that procedural rules in ordinary civil litigation should be interpreted so as to excuse
mistakes by those who proceed without counsel.”).
DISCUSSION
I.
Dismissal Pursuant to the Statue of Limitations
Plaintiff raises an Eighth Amendment constitutional claim for Defendant’s alleged use of
excessive force, but his claim is barred by the applicable statute of limitations. Constitutional
claims brought pursuant to Section 1983 “are tort actions, subject to the statute of limitations
governing personal injury actions in the state where the § 1983 action has been brought.” Powell
v. Thomas, 643 F.3d 1300, 1303 (11th Cir. 2011). Georgia has a two-year statute of limitations
for personal injury actions. O.C.G.A. § 9-3-33. Although state law determines the applicable
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statute of limitations, “[f]ederal law determines when the statute of limitations begins to run.”
Lovett v. Ray, 327 F.3d 1181, 1182 (11th Cir. 2003).
As a general rule, “the statute of
limitations does not begin to run until the facts which would support a cause of action are
apparent or should be apparent to a person with a reasonably prudent regard for his rights.” Id.
“To dismiss a prisoner’s complaint as time-barred prior to service, it must appear beyond a doubt
from the complaint itself that the prisoner can prove no set of facts which would avoid a statute
of limitations bar.’” Moore v. Chamberlain, 559 F. App’x 969, 970 (11th Cir. 2014) (citing
Hughes v. Lott, 350 F.3d 1157, 1163 (11th Cir. 2003)).
Plaintiff describes events occurring no later than July 2014.
Plaintiff’s Amended
Complaint makes clear, in three separate sections, that the operative date in this case is July 8,
2014, when Defendant allegedly attacked him with a pen. 2 (Doc. 10, pp. 4, 5.) However,
Plaintiff does not allege that he was unaware of the facts surrounding his claims at that time, nor
does he allege any facts to suggest he discovered this information at a later date. Therefore, the
statute of limitations began to run in July 2014, the latest date Plaintiff claims the subject event
occurred. Because Plaintiff did not file his original Complaint in this case until September 28,
2017, which is more than three years after the event in question, Plaintiff’s Complaint and
Amended Complaint are untimely filed pursuant to the applicable two-year statute of limitations
period.
Given the specific date and one-off nature of the alleged unlawful use of force,
Plaintiff’s Amended Complaint makes clear that his action is time barred.
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Moreover, Plaintiff’s original Complaint alleges the same date, July 8, 2014, as the day on which
Defendant attacked him with a pen. (Doc. 1, p. 3.) Indeed, in its Order directing him to amend his
Complaint using the proper form, the Court forewarned Plaintiff that the event giving rise to his claim
appeared to be outside the applicable statute of limitations window. (Doc. 9, p. 4.)
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However, Plaintiff timey filed his first grievance, which could serve to toll the statute of
limitations period. “As a general matter, equitable tolling pauses the running of, or ‘tolls,’ a
statute of limitations when a litigant has pursued his rights diligently but some extraordinary
circumstance prevents him from bringing a timely action.” Lozano v. Montoya Alvarez, ___
U.S. ___, 134 S. Ct. 1224, 1231–32 (Mar. 5, 2014).
The Prison Litigation Reform Act
(“PLRA”) requires an inmate to exhaust all available administrative remedies before filing suit.
42 U.S.C. § 1997e(a). In Leal v. Georgia Department of Corrections, the Eleventh Circuit Court
of Appeals “decline[d] to decide in the first instance the legal issue of whether the mandatory
exhaustion requirement of 42 U.S.C. § 1997e(a) and the actual exhaustion of remedies by a
prisoner will operate to toll the statute of limitations.” 254 F.3d 1276, 1280 (11th Cir. 2001); see
also Walker v. United States, 196 F. App’x 774, 777 (11th Cir. 2006) (stating in a Bivens case
that the court has “declined to decide whether the statute of limitations is tolled in a § 1983 case
while a petitioner is pursuing administrative remedies”). While I recognize that Eleventh Circuit
precedent has not addressed this issue directly, I conclude that the applicable statute of
limitations was tolled while Plaintiff pursued his administrative remedies. Other Courts of
Appeals agree. Nickolich v. Rowe, 299 F. App’x 725, 725-26 (9th Cir. 2008) (finding that,
given California’s two-year statute of limitations, a state prisoner’s Section 1983 deliberate
indifference claim was not barred by the statute of limitations, where the inmate commenced his
prison grievance process immediately after his claim accrued and filed a complaint within two
years of completing the mandatory grievance process); Johnson v. Rivera, 272 F.3d 519, 522
(7th Cir. 2001) (holding that a federal court relying on the Illinois statute of limitations in a
Section 1983 case must toll the limitations period while a prisoner completes the administrative
grievance process); Brown v. Morgan, 209 F.3d 595, 596 (6th Cir. 2000) (concluding that tolling
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is appropriate while prisoner completes mandatory exhaustion requirements); Harris v.
Hegmann, 198 F.3d 153, 157–59 (5th Cir. 1999) (same). 3
Nevertheless, there is nothing before this Court which indicates the exhaustion of
Plaintiff’s administrative remedies took nearly fifteen months’ time to complete to render this
cause of action timely filed. As noted above, the statute of limitations in this case began to run
on July 8, 2014, the date of the alleged pen attack. Plaintiff filed a grievance concerning the
allegations in his Amended Complaint that same month, which was later forwarded to the GDC’s
Internal Investigations Unit on July 22, 2014.
Plaintiff filed his original Complaint on
September 28, 2017, meaning that, in order for this case to be deemed timely filed under
equitable tolling, the exhaustion of his administrative remedies must have taken from July 2014,
when he filed his grievance, until September 28, 2015, a period of approximately fifteen months.
However, the GDC’s grievance process from initial filing through final appeal takes at most 157
days, far short of the fifteen months needed to render Plaintiff’s case timely. 4 See Shaw v.
Toole, No. 6:14-CV-48, 2015 WL 4529817, at *5 (S.D. Ga. July 27, 2015), report and
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See also Quilling v. Humphries, No. 4:10cv404-WS, 2010 WL 4783031, at *1 (N.D. Fla. Nov. 17,
2010) (referring a case back to the magistrate judge because it could not be determined that the statute of
limitations necessarily barred the plaintiff’s claims); and Baldwin v. Benjamin, No. 5:09-CV-372(CAR),
2010 WL 1654937 (M.D. Ga. Apr. 23, 2010) (recognizing that the Eleventh Circuit has not adopted a rule
regarding the effect of exhaustion on tolling, but noting that the exhaustion requirement may operate to
toll the statute of limitations).
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That Plaintiff filed a second grievance on April 14, 2016, is of no moment. Under the GDC’s Standard
Operating Procedure, Plaintiff was required to file an appeal no more than seven (7) days from the date of
the Warden’s response to the grievance. Shaw, 2015 WL 4529817 at *5. Plaintiff indicates that he did
not file an appeal after his initial grievance was forwarded to the Internal Investigations Unit on July 22,
2014, and instead waited nearly twenty months to file a subsequent grievance about the lack of further
response from the GDC to his initial grievance. (Doc. 1, pp. 7–8.) Because the PLRA requires Plaintiff
to file an appeal to properly exhaust, he may not avail himself of equitable tolling where he failed to
follow the requisite grievance procedure and filed an untimely second grievance appealing the lack of
relief granted from the initial grievance. See Bryant v. Rich, 530 F.3d 1368, 1378 (11th Cir. 2008)
(“[P]risoners must properly take each step within the administrative process.”) (internal quotes and
citation omitted); Shaw, 2015 WL 4529817 at *5 (noting that grievances must be filed no later than 10
days from the date giving rise to the grievance).
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recommendation adopted, 2015 WL 5025478 (S.D. Ga. Aug. 24, 2015) (citing to and discussing
the GDC’s Standard Operating Procedure IIB05–0001, which sets forth the required grievance
procedure that was effective at the time Plaintiff’s Complaint arose).
Thus, the Court should DISMISS Plaintiff’s case as precluded by the applicable statute
of limitations.
II.
Leave to Appeal in Forma Pauperis
The Court should also deny Plaintiff leave to appeal in forma pauperis. 5
Though
Plaintiff has, of course, not yet filed a notice of appeal, it would be appropriate to address these
issues in the Court’s order of dismissal. Fed. R. App. P. 24(a)(3) (trial court may certify that
appeal is not take in good faith “before or after the notice of appeal is filed”).
An appeal cannot be taken in forma pauperis if the trial court certifies that the appeal is
not taken in good faith. 28 U.S.C. § 1915(a)(3); Fed. R. App. P. 24(a)(3). Good faith in this
context must be judged by an objective standard. Busch v. Cty. of Volusia, 189 F.R.D. 687, 691
(M.D. Fla. 1999). A party does not proceed in good faith when he seeks to advance a frivolous
claim or argument. See Coppedge v. United States, 369 U.S. 438, 445 (1962). A claim or
argument is frivolous when it appears the factual allegations are clearly baseless or the legal
theories are indisputably meritless. Neitzke v. Williams, 490 U.S. 319, 327 (1989); Carroll v.
Gross, 984 F.2d 392, 393 (11th Cir. 1993). An in forma pauperis action is frivolous and, thus,
not brought in good faith, if it is “without arguable merit either in law or fact.” Napier v.
Preslicka, 314 F.3d 528, 531 (11th Cir. 2002); see also Brown v. United States, Nos. 407CV085,
403CR001, 2009 WL 307872, at *1–2 (S.D. Ga. Feb. 9, 2009).
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A certificate of appealablity is not required in this non-habeas action.
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Based on the above analysis of Plaintiff’s action, there are no non-frivolous issues to
raise on appeal, and an appeal would not be taken in good faith. Thus, the Court should deny
him in forma pauperis status on appeal.
CONCLUSION
For the foregoing reasons, the Court DISMISSES AS MOOT Plaintiff’s Motion to
Appoint Counsel and DENIES Plaintiff’s Motion to Proceed in Forma Pauperis. (Docs. 11, 13.)
Additionally, I RECOMMEND that the Court DISMISS WITHOUT PREJUDICE this action
as time barred by the applicable statute of limitations. I further RECOMMEND that the Court
DIRECT the Clerk of Court to CLOSE this case and enter the appropriate judgment of
dismissal and DENY Plaintiff leave to appeal in forma pauperis.
The Court ORDERS any party seeking to object to this Report and Recommendation to
file specific written objections within fourteen (14) days of the date on which this Report and
Recommendation is entered. Any objections asserting that the Magistrate Judge failed to address
any contention raised in the Complaint must also be included. Failure to do so will bar any later
challenge or review of the factual findings or legal conclusions of the Magistrate Judge. See 28
U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140 (1985). A copy of the objections must be
served upon all other parties to the action. The filing of objections is not a proper vehicle
through which to make new allegations or present additional evidence.
Upon receipt of Objections meeting the specificity requirement set out above, a United
States District Judge will make a de novo determination of those portions of the report, proposed
findings, or recommendation to which objection is made and may accept, reject, or modify in
whole or in part, the findings or recommendations made by the Magistrate Judge. Objections not
meeting the specificity requirement set out above will not be considered by a District Judge. A
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party may not appeal a Magistrate Judge’s report and recommendation directly to the United
States Court of Appeals for the Eleventh Circuit. Appeals may be made only from a final
judgment entered by or at the direction of a District Judge. The Court DIRECTS the Clerk of
Court to serve a copy of this Report and Recommendation upon the Plaintiff.
SO ORDERED and REPORTED and RECOMMENDED, this 20th day of December,
2017.
R. STAN BAKER
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA
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