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Negron v. Barber

United States District Court, Middle District of Alabama, Northern Division

April 9, 2014

BRANDON S. NEGRON, #200 854, Plaintiff,
ANTHONY BARBER, et al., Defendants.



Plaintiff, a state inmate incarcerated at the Donaldson Correctional Facility in Bessemer, Alabama, filed this pro se 42 U.S.C. § 1983 action on January 9, 2014, against Correctional Officers Anthony Barber, Marcus Sanford, Louis Thomas, and Floyd Rabb.[1]He alleges that Defendants maliciously subjected him to excessive force on September 14, 2011, and then falsely charged him with disciplinary action for assaulting a correctional officer. The actions about which Plaintiff complains occurred while he was incarcerated at the Draper Correctional Facility in Elmore, Alabama. Plaintiff seeks damages and requests that Defendants be sanctioned for their actions.

Upon review of the complaint, the court concludes that dismissal of this case prior to service of process is appropriate under 28 U.S.C. § 1915(e)(2)(B).[2]


Plaintiff’s complaint is subject to dismissal as it is filed beyond the applicable statute of limitation. As the action about which Plaintiff complains occurred on September 14, 2011, it is clear from the face of the complaint that Plaintiff’s claims of excessive force and false disciplinary charges are barred by the statute of limitations.

While there is no express period of limitations in the Civil Rights Act, federal courts generally apply the most appropriate state statute of limitations to a claim filed under 42 U.S.C. § 1983. See Wilson v. Garcia, 471 U.S. 261 (1985); Burnett v. Grattan, 468 U.S. 42 (1984).

Federal courts must look to state law to determine, first, what statute of limitations is applicable, and second, whether that limitations period is tolled. Whitson v. Baker, 755 F.2d 1406. 1409 (11th Cir. 1985). . . . Alabama law [ ] provides that the applicable limitations period is the one in effect when the claim is filed, not when the cause of action arose. Tyson v . Johns Manville Sales Corp., 399 So.2d 263, 269-70 (Ala. 1981).

Dukes v. Smitherman, 32 F.3d 535, 537 (11th Cir. 1994). Alabama’s general two year statute of limitations for personal injury actions is the most applicable to the case at bar. Ala. Code § 6-2-38(l). See Owens v. Okure, 488 U.S. 235, 249-50 (1989) (the proper statute of limitations for § 1983 actions is the forum state’s general or residual statute of limitations for personal injury actions); see also Lufkin v. McCallum, 956 F.2d 1104, 1105 (11th Cir. 1992).

The actions about which Plaintiff complains occurred on or about September 14, 2011. That portion of the tolling provision which previously applied to convicted prisoners was rescinded by the Alabama legislature on May 17, 1996. See Ala. Code § 6-2-8(a) (1975, as amended).[3] Consequently, the statute of limitations expired on the claims asserted by Plaintiff on or about September 15, 2013. Plaintiff filed the instant complaint on January 9, 2014. This filing, regarding his claims, was after the applicable limitations period had lapsed.

Unquestionably, the statute of limitations is usually a matter which may be raised as an affirmative defense. The court notes, however, that in an action proceeding under § 1983, it may consider, sua sponte, affirmative defenses apparent from the face of the complaint. Clark v. Georgia Pardons and Parole Bd., 915 F.2d 636, 640 n.2 (11th Cir. 1990); see also Ali v. Higgs, 892 F.2d 438 (5th Cir. 1990). “[I]f the district court sees that an affirmative defense would defeat the action, a section 1915[(e)(2)(B)(i)] dismissal is allowed.” Clark, 915 F.2d at 640. “The expiration of the statute of limitations is an affirmative defense the existence of which warrants dismissal as frivolous. See Franklin [v. State of Oregon], 563 F.Supp. [1310] at 1330, 1332 [D.C. Or. 1983].” Id. at n.2. In analyzing § 1983 cases, “the court is authorized to test the proceeding for frivolousness or maliciousness even before service of process or before the filing of the answer.” Ali, 892 F.2d at 440. “It necessarily follows that in the absence of . . . defendants the . . . court must evaluate the merit of the claim sua sponte.” Id.

An early determination of the merits of an IFP proceeding provides a significant benefit to courts (because it will allow them to use their scarce resources effectively and efficiently), to state officials (because it will free them from the burdens of frivolous and harassing litigation), and to prisoners (because courts will have the time, energy and inclination to give meritorious claims the attention they need and deserve). ‘We must take advantage of every tool in our judicial workshop.’ Spears [v. McCotter], 766 F.2d [179, 182 (5th Cir. 1985)].

Green v. McKaskle, 788 F.2d 1116, 1120 (5th Cir. 1986).

Based on the facts apparent from the face of the present complaint, Plaintiff has no legal basis on which to proceed as this action, regarding the matters related to his allegations of excessive force and false disciplinary charges on or about September 14, 2011, is brought over two years after the violations about which he complains accrued. The court, therefore, concludes that Plaintiff’s complaint is barred by statute of limitations and, subject to dismissal as frivolous under 28 U.S.C. § 1915(e)(2)(B)(i). See Clark, 915 F.2d 636; see also Neitzke v. Williams, 490 U.S. 319 (1989).


Accordingly, it is the RECOMMENDATION of the Magistrate Judge that:

1. Plaintiff’s allegations of excessive force and a false disciplinary charge which occurred on or about September 14, 2011, be DISMISSED under 28 U.S.C. § 1915(e)(2)(B)(i) as these claims are not filed within the time prescribed by the applicable period of limitations;

2. This case be DISMISSED with prejudice prior to service of process under 28 U.S.C. § 1915(e)(2)(B)(i).

It is further ORDERED that the parties are DIRECTED to file any objections to the said Recommendation on or before April 23, 2014. Any objections filed must specifically identify the findings in the Magistrate Judge’s Recommendation to which the party is objecting. Frivolous, conclusive, or general objections will not be considered by the District Court. The parties are advised that this Recommendation is not a final order of the court and, therefore, it is not appealable.

Failure to file written objections to the proposed findings and recommendations in the Magistrate Judge’s report shall bar the party from a de novo determination by the District Court of issues covered in the report and shall bar the party from attacking on appeal factual findings in the report accepted or adopted by the District Court except upon grounds of plain error or manifest injustice. Nettles v. Wainwright, 677 F.2d 404 (5thCir. 1982); see Stein v. Reynolds Securities, Inc., 667 F.2d 33 (11th Cir. 1982); see also Bonner v. City of Prichard, 661 F.2d 1206 (11thCir. 1981) (en banc), adopting as binding precedent all of the decisions of the former Fifth Circuit handed down prior to the close of business on September 30, 1981.

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