United States District Court, Middle District of Alabama, Southern Division
RECOMMENDATION OF THE MAGISTRATE JUDGE
TERRY F. MOORER UNITED STATES MAGISTRATE JUDGE
This cause of action is before the court on a 42 U.S.C. § 1983 complaint filed by Todd Johnathan Whitehead [“Whitehead”], a state inmate, on January 9, 2014. In this complaint, Whitehead names Douglas Albert Valeska, the District Attorney for Houston County, Alabama, Kristen M. Shields, an assistant district attorney, and Investigator Rafferty, an officer with the Houston County Sheriff’s Department, as defendants. Whitehead attacks the validity of his arrest on August 16, 2010 for various sexual offenses committed against his sixteen-year-old stepdaughter. Doc. No. 1 at 5. Whitehead also challenges the constitutionality of a conviction imposed against him by the Circuit Court of Houston County, Alabama for one of these offenses.
Id. Whitehead seeks his immediate release from incarceration and monetary damages. Id. at 7.
Upon review of the complaint, the court concludes that this case is subject to summary dismissal in accordance with the directives of 28 U.S.C. § 1915(e)(2)(B)(i), (ii) and (iii).
A. The Improper Arrest Claim
Whitehead complains that on August 16, 2010 he “was arrested by the Houston County Sheriff Department on a bare bone affidavit and without probable cause.... The record is silent of any kind of affidavit by the alleged victim or [her] mother to support [the] arrest....” Doc. No.
1 at 5. It is clear from the complaint that Whitehead’s challenge to the constitutionality of his August 16, 2010 arrest is barred by the statute of limitations applicable to a federal civil action filed by an inmate under 42 U.S.C. § 1983.
All constitutional claims brought under § 1983 are tort
actions, subject to the statute of limitations governing personal injury
actions in the state where the § 1983 action has been brought.
Wilson v. Garcia, 471 U.S. 261, 275-76, 105 S.Ct. 1938, 1946-47, 85
L.Ed.2d 254 (1985). [The plaintiffs] claim was brought in Alabama where the
governing limitations period is two years. Ala. Code § 6-2-38; Jones v.
Preuit & Mauldin, 876 F.2d 1480, 1483 (11th Cir. 1989) (en
banc). Therefore, in order to have his claim heard, [the plaintiff is]
required to bring it within two years from the date the limitations period
began to run.
McNair v. Allen, 515 F.3d 1168, 1173 (11th Cir. 2008) (emphasis added).
The arrest about which Whitehead complains occurred on August 16, 2010. By its express terms, the tolling provision of Ala. Code § 6-2-8(a) provides no basis for relief to Whitehead from application of the time bar. Thus, the statute of limitations began to run on the claims related to the challenged arrest on August 17, 2010. The limitation period ran uninterrupted until it expired on August 17, 2012. As previously noted, Whitehead filed the instant complaint on January 9, 2014. This filing therefore occurred over a year and four months after expiration of the period of limitation.
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 section 1983, it may consider, sua sponte, affirmative defenses that are apparent from the face of the complaint. Clark v. Georgia Pardons and Parole Board, 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.  at 1330, 1332.” 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 ...