United States District Court, N.D. Alabama, Southern Division
November 17, 2014
BRIAN KEITH GATES, Plaintiff,
JUDGE JOHN E. AMARI, Defendant
Brian Keith Gates, Plaintiff, Pro se, Clio, AL.
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
STACI G. CORNELIUS, UNITED STATES MAGISTRATE JUDGE.
Plaintiff, Brian Keith Gates, has filed a pro se complaint pursuant to 42 U.S.C. § 1983, alleging that rights, privileges, or immunities afforded him under the Constitution or laws of the United States have been abridged. The plaintiff is currently incarcerated at the Easterling Correctional Facility in Clio, Alabama. The complaint names as defendant Jefferson County District Judge John E. Amari and seeks monetary and injunctive relief. In accordance with the usual practices of this court and 28 U.S.C. § 636(b)(1), the complaint was referred to the undersigned magistrate judge for a preliminary report and recommendation. See McCarthy v. Bronson, 500 U.S. 136, 111 S.Ct. 1737, 114 L.Ed.2d 194 (1991).
I. Standard of Review
The Prison Litigation Reform Act of 1995, Pub. L. No. 104-134, § 804, 110 Stat. 1321, and 28 U.S.C. § 1915A, requires this court to screen complaints filed by prisoners against officers or employees of governmental entities and to dismiss the complaint or any portion of the complaint that it finds frivolous, malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief from a defendant who is immune from such relief. Where practicable, the court may sua sponte dismiss a prisoner's complaint prior to service. See 28 U.S.C. § 1915A(a).
A dismissal pursuant to § 1915A (b)(1) for failure to state a claim is governed by the same standards as dismissals for failure to state a claim under Fed.R.Civ.P. 12(b)(6). See Jones v. Bock, 549 U.S. 199, 215, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007). To survive dismissal for failure to state a claim, " a complaint must contain 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, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (internal quotation omitted). A plaintiff must assert " more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not" suffice. Bell A. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Nonetheless, because " [p]ro se pleadings are held to a less stringent standard than pleadings drafted by attorneys[, ]" they are liberally construed. Boxer X v. Harris, 437 F.3d 1107, 1110 (11th Cir. 2006).
II. Factual Allegations
On April 9, 2008, the plaintiff hired attorney John E. Amari to represent him in criminal proceedings. (Doc. 1 at 5). The plaintiff hired Amari to obtain a sentence for him because the plaintiff's previous attorney failed to get the criminal case against the plaintiff dismissed or request that the court sentence the plaintiff. (Id.). The plaintiff paid defendant Amari $1, 750 on April 9, 2008, to " get a plea bargain and to get [the plaintiff] sentenced." (Id.)
The plaintiff was sentenced on August 4, 2008. (Doc. 1 at 5). The plaintiff complains he received " a bad sentence of 20 years split 5 years" for a first time felony offense, with no prior criminal history. (Id.). The plaintiff alleges he is mentally ill and was taking " mind altering drugs" when defendant Amari coerced him into accepting the plea agreement. (Id.) Amari repeatedly told the plaintiff that it was a " good sentence, " so the plaintiff signed the plea agreement. (Id.)
On the same day, defendant Amari told the plaintiff that he knew several senators and congressmen. (Id.). Amari stated that, if the plaintiff paid him $1, 000, he would talk to his " congressman [sic] friends" and have the plaintiff sent to Bullock Correctional Facility for his last two years in prison. (Id.). The plaintiff paid Amari $1, 000. (Doc. 1 at 5).
The plaintiff subsequently called and wrote defendant Amari to notify him that he did not agree with his sentence and requested that Amari file an appeal within the 42 day time period. (Doc. 1 at 5). However, defendant Amari refused to file an appeal, stating that the plaintiff had a " good sentence." (Id.).
The plaintiff alleges that on September 2, 2008, defendant Amari " deceived [him] again" by requesting another $414 to assist the plaintiff in getting transferred to Bullock Correctional Facility. (Id.). The plaintiff was never transferred to Bullock. (Id.). Defendant Amari withdrew sums from the plaintiff's Shelby County Jail account for $1, 750, $1, 000, and $414 in 2008. (Doc. 1 at 5-6).
The plaintiff alleges that defendant Amari owes him $1, 414 for " unrendered" legal services and that Amari is still the plaintiff's attorney " until he either pays back the money or does anymore [sic] services for [the plaintiff]." (Doc. 1 at 5). The plaintiff states that he has called defendant Amari over 100 times in the last five years but Amari refuses to take his calls. (Doc. 1 at 6).
In October 2010, the plaintiff was charged with violating his probation. (Id.). The plaintiff requested that defendant Amari represent him, but Amari refused, stating that it was a conflict of interest. (Id.). The plaintiff was appointed an attorney and found guilty of violating his probation. (Id.). The court revoked the plaintiff's probation and sentenced him to 15 years in prison. (Id.).
For relief, the plaintiff requests that defendant Amari repay him $1, 414, plus $2, 000 for coercing him into accepting the plea agreement and then declining to file an appeal. (Doc. 1 at 6). The plaintiff also seeks damages for defendant Amari's refusal to represent him during the probation revocation proceedings. (Id.). In the alternative, the plaintiff requests an order requiring defendant Amari to represent him on appeal of his probation revocation. (Doc. 1 at 6).
As explained below, the complaint is due to be dismissed both as time-barred and for failing to state a claim upon which relief can be granted.
A. Statute of Limitations.
The plaintiff complains that defendant Amari coerced him into a plea agreement which resulted in a 20 year split 5 year sentence on August 4, 2008. (Doc. 1 at 5). When the plaintiff requested that Amari appeal the sentence, Amari refused. (Id.). The plaintiff further claims that he paid defendant Amari $1, 000 and $414 in August and September 2008, respectively, to assist him in obtaining a transfer to Bullock Correctional Facility for the last two years of his sentence, but the plaintiff was never transferred to Bullock between October 2008 and October 2010. (Id.).
The United States Supreme Court has held that the proper statute of limitations for a § 1983 action is the forum state's general or residual statute of limitations for personal injury. See Owens v. Okure, 488 U.S. 235, 236, 249-50, 109 S.Ct. 573, 102 L.Ed.2d 594 (1989). The residual statute of limitations for personal injury in Alabama is two (2) years. Ala. Code § 6-2-38(l) (1975). In the context of a § 1915A screening, pre-answer dismissal is appropriate where it " appear[s] beyond a doubt from the complaint itself that the prisoner can prove no set of facts which would avoid a statute of limitations bar." Hughes v. Lott, 350 F.3d 1157, 1163 (11th Cir. 2003) (punctuation omitted).
The Eleventh Circuit has stated that " '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.'" Calhoun v. Alabama Alcoholic Beverage Control Bd., 705 F.2d 422, 425 (11th Cir. 1983) (quoting Reeb v. Econ. Opportunity Atlanta, Inc., 516 F.2d 924, 930 (5th Cir. 1975)). Therefore, a § 1983 action does not accrue until the plaintiff knows or has reason to know that he or she has been injured. See Calhoun, 705 F.2d at 424. Moreover, a § 1983 action will not accrue until the plaintiff is aware or should have been aware who has inflicted the injury. See Mullinax v. McElhenney, 817 F.2d 711, 716 (11th Cir. 1987).
The plaintiff's complaints that defendant Amari coerced him into signing a plea agreement and failed to file an appeal on his behalf occurred in or around August and September 2008. About the same time, the plaintiff gave Amari $1, 414 to obtain a transfer to Bullock Correctional Facility for the last two years of his sentence. The plaintiff was not transferred to Bullock between October 2008 and 2010. The actions of which the plaintiff complains occurred between August and October of 2008. During this time, the plaintiff was both aware that he had been injured and that defendant Amari had allegedly inflicted the injury. The plaintiff did not file the present action until January 2, 2014, over five years later. (Doc. 1 at 1). The complaint does not indicate any facts by which the plaintiff could overcome the statute of limitations. Based on the foregoing, the plaintiff's claims against defendant Amari, which are based on events that took place between August and October 2008, are barred by the statute of limitations, and are due to be dismissed.
B. Section 1983 Claims against Private Person.
Even if the plaintiff's claims against defendant Amari were timely, they are due to be dismissed because a § 1983 action does not lie against a private person in his individual capacity. Section 1983 provides a remedy for deprivations of federally protected rights only if the alleged deprivations are the result of state action. See District of Columbia v. Carter, 409 U.S. 418, 423, 93 S.Ct. 602, 34 L.Ed.2d 613 (1973). In enacting § 1983, Congress provided a remedy to parties deprived of constitutional rights, privileges, and immunities by an official's abuse of his or her discretionary powers. See Hafer v. Melo, 502 U.S. 21, 27, 112 S.Ct. 358, 116 L.Ed.2d 301 (1991). One of the two essential elements in any § 1983 action is that the conduct complained of was committed by a person acting under color of state law. See Blanton v. Griel Mem'l Psychiatric Hosp., 758 F.2d 1540, 1542 (11th Cir. 1985). " The traditional definition of acting under color of state law requires that the defendants in a § 1983 action have exercised power 'possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.'" West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988) (quoting United States v. Classic, 313 U.S. 299, 326, 61 S.Ct. 1031, 85 L.Ed. 1368 (1941)).
Nevertheless, a private defendant can be held liable in a § 1983 action if he or she acts in concert with state officials in depriving a plaintiff of constitutional rights. See Lugar v. Edmondson Oil Co., 457 U.S. 922, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1987); Dennis v. Sparks, 449 U.S. 24, 101 S.Ct. 183, 66 L.Ed.2d 185 (1980). Therefore, a private attorney representing a defendant in a criminal case does not act " under color of state law" and cannot be liable in an action brought under § 1983 unless a plaintiff pleads specific facts showing a conspiracy between the attorney and a public official, fairly casting the imprimatur of the state on the attorney's acts. See Wahl v. McIver, 773 F.2d 1169, 1173 (11th Cir. 1985).
In the present case, the plaintiff makes no allegation that defendant Amari conspired with any state actor to deprive him of his constitutional rights. Based on the foregoing, the plaintiff's claims against defendant Amari are due to be dismissed for failing to state a claim upon which relief may be granted. To the extent the plaintiff may be asserting a supplemental state law claim against defendant Amari for legal malpractice, such claim is subject to dismissal pursuant to 28 U.S.C. § 1367(c)(3) once his § 1983 claims against defendant Amari have been dismissed, as recommended herein.
RECOMMENDATION AND NOTICE OF RIGHT TO OBJECT
Accordingly, for the reasons stated above, the magistrate judge RECOMMENDS the complaint be DISMISSED as time barred and for failing to state a claim upon which relief may be granted pursuant to 28 U.S.C. § 1915A(b)(1).
Any party who objects to this report and recommendation must, within fourteen (14) days of the date on which it is entered, file specific written objections with the clerk of this court. Any objections to the failure of the magistrate judge to address any facts or legal arguments also must be included. Failure to do so will bar any later challenge or review of the magistrate judge's factual findings or legal conclusions. See 28 U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435(1985), reh'g denied, 474 U.S. 1111, 106 S.Ct. 899, 88 L.Ed.2d 933 (1986); Nettles v. Wainwright, 677 F.2d 404 (5th Cir. 1982) ( en banc ).
To challenge the magistrate judge's factual findings or legal conclusions, a party must file with the clerk of the court written objections specifically identifying the factual findings or legal conclusions to which objection is made and the specific basis for objection. The filing of objections is not a proper vehicle through which to make new allegations or present additional evidence. Furthermore, it is not necessary for a party to repeat legal arguments in objections. A copy of the objections must be served on all other parties to the action.
On receipt of objections meeting the foregoing specificity requirement, a district judge shall make a de novo determination of those portions of the report and recommendation to which objection is made and may accept, reject, or modify in whole or in part, the magistrate judge's factual findings or legal conclusions. The district judge, however, need conduct a hearing only in his or her discretion or if required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The district judge may also receive further evidence, recall witnesses, or recommit the matter to the magistrate judge with instructions. Objections not meeting the foregoing specificity requirement will not be considered by a district judge.
A 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 clerk is DIRECTED to serve a copy of this report and recommendation upon the plaintiff.