United States District Court, N.D. Alabama, Southern Division
MADELINE HUGHES HAIKALA UNITED STATES DISTRICT JUDGE.
magistrate judge filed a report on November 9, 2016,
recommending that this action be dismissed without prejudice
pursuant to 28 U.S.C. § 1915A(b)(1) for failing to state
a claim upon which relief can be granted. (Doc. 8). After
receiving an extension of time, the plaintiff, Mr. Cass,
filed objections to the report and recommendation on December
16, 2016. (Doc. 11). Mr. Cass's claims and his objections
relate to his contention that inaccuracies in the October 24,
2007, sentencing transcript in his criminal prosecution
violated his rights. Mr. Cass alleges no specific injuries from
the perceived inaccuracies. (Doc. 1-1, pp. 7, 9).
district court may accept, reject, or modify, in whole or
part, the findings or recommendations made by the magistrate
judge. 28 U.S.C. 636(b)(1)(C). A district court reviews legal
conclusions in a report de novo. Garvey v. Vaughn,
993 F.2d 776, 779 n. 9 (11th Cir. 1993); see also LoConte
v. Dugger, 847 F.2d 745, 749 (11th Cir. 1988);
Macort v. Prem, Inc., 208 Fed.Appx. 781, 784 (11th
Cir. 2006). When a party objects to a report in which a
magistrate judge recommends dismissal of the action, a
district court must make a de novo determination of those
portions of the report or specified proposed findings or
recommendations to which objection is made. 28 U.S.C.
Cass first objects to the finding that his claims are barred
by the applicable statute of limitations. (Doc. 11, p. 1).
Mr. Cass argues that a motion he filed in his criminal case
on November 9, 2009, seeking to inspect the trial transcripts
from his criminal trial, suffices as a complaint for purposes
of the statute of limitations. (Id.). The cases Mr.
Cass cites -- Jackson v. State of Miss., 644 F.2d
1142 (5th Cir. Unit A 1981), and Schaefer v. Stack,
641 F.2d 227 (5th Cir. 1981) -- do not provide support for
this proposition. Rather, in Jackson, the court
construed a letter sent within the requisite limitation
period as a complaint and allowed the plaintiff to then file
an amended complaint. Jackson, 644 F.2d at 1144. In
Schaefer, after the district court determined the
plaintiff's claims were barred by the Florida statute of
limitations applicable to 42 U.S.C. § 1983 claims, the
plaintiff appealed. Schaefer, 641 F.2d at 228. The
appellate court considered the plaintiff's arguments
regarding the timeliness of his claims and then affirmed the
district court's finding. Id. Neither of these
cases suggests that the motion that Mr. Cass filed in his
federal criminal case in 2009 is an adequate substitute for a
civil complaint relating to alleged conduct in 2007 and 2008
or, at a minimum, that the 2009 criminal motion tolls the
statute of limitations for the FTCA breach of fiduciary duty
claims or the Bivens claim for alleged
constitutional violations that Mr. Cass pleaded in his civil
complaint in April 2016.
Cass also argues that some of the conduct that forms the
basis of his breach of duty theories against Ms. Fuller and
Mr. Musso occurred more recently. (Doc. 11, pp. 1-2). To the
extent that Mr. Cass alleges conduct in the two years
preceding the filing of his April 2016 complaint that would
form the basis for a breach of fiduciary duty claim against
either defendant (see Doc. 1-1, ¶¶ 28-34),
Mr. Cass's breach of fiduciary claim is not barred by the
statute of limitations; however, the balance of his claims
magistrate judge concluded that even if Mr. Cass's breach
of fiduciary duty claims were not time-barred, the Court
still should dismiss those claims because Mr. Cass failed to
state a claim upon which relief could be granted. (Doc. 8,
pp. 10-12). Mr. Cass objects to this finding and argues that
his breach of fiduciary duty allegations against Ms. Fuller
and Mr. Musso, construed liberally in the context of this
pro se action, are adequate. (Doc. 11, pp. 2-3).
liberal construction due pro se plaintiffs does not
require a court to allow claims which are contrary to
established legal precedent to proceed. Mr. Cass contends
that between April 2104 and April 2016, Ms. Fuller and Mr.
Musso owed him certain duties and violated those duties when
the defendants “failed in their duty to answer and
stayed silent to the allegations” in a complaint that
Mr. Cass filed in June 2014 and “defendants Musso and
Fuller failed to provide the name and telephone numbers of
their bonding companies” to Mr. Cass. (Doc. 1-1,
¶¶ 28-34; see also Doc. 1-1, ¶ 26).
The existence of a duty is a question of law for a court to
resolve. As the magistrate judge explained, Mr. Cass has not
alleged facts that give rise to a duty that either Ms. Fuller
or Mr. Musso might owe him. Neither Ms. Fuller nor Mr. Musso
had an obligation to respond to the complaint that Mr. Cass
filed in June 2014 because that complaint was not directed to
either defendant, and neither Ms. Fuller nor Mr. Musso had an
obligation to respond to Mr. Cass's request for bonding
company information. As the magistrate judge stated, absent a
relationship that gives rise to a duty, a plaintiff may not
pursue a claim for breach of duty. Therefore, the Court
overrules this objection.
plaintiff's next objection states: “The Magistrate
judge fails to address the plaintiff's claim for
injunctive relief and such failure to rule on the merits of
this claim violates due process and a fair screening
procedure.” (Doc. 11, p. 3). Because Mr. Cass presented
no viable claim, the magistrate judge had no obligation to
discuss the types of relief available to Mr. Cass.
Additionally, Mr. Cass's claims provide no basis to
enjoin the defendants. Because there is no risk that Ms.
Fuller or Mr. Musso will violate Mr. Cass's rights in the
future, injunctive relief is inappropriate. See,
e.g., Siegel v. LePore, 234 F.3d 1163, 1176
(11th Cir. 2000) (to warrant injunctive relief, the party
must demonstrate a substantial likelihood of irreparable
injury, which is “neither remote nor speculative, but
actual and imminent”); Badillo v. Thorpe, 158
Fed.Appx. 208, 211 (11th Cir. 2005) (“Because
[plaintiff] does not allege that he faces an immediate threat
that [defendants] will again violate his rights, we discern
no error in the district court's denial of injunctive
relief.”). Because the failure to address the
plaintiff's claim for injunctive relief was not
erroneous, the Court overrules this objection.
Mr. Cass asserts he should have been allowed an opportunity
to amend his complaint. (Doc. 11, p. 3). “When it
appears that a pro se plaintiff's complaint, if
more carefully drafted, might state a claim, the district
court should give the pro se plaintiff an
opportunity to amend his complaint instead of dismissing
it.” Watkins v. Hudson, 560 Fed.Appx. 908, 911
(11th Cir. 2014) (citing Bank v. Pitt, 928 F.2d
1108, 1112 (11th Cir. 1991), overruled in part by Wagner
v. Daewoo Heavy Indus. Am. Corp., 314 F.3d 541, 542
(11th Cir. 2002) (en banc)). But a district court has no
obligation to give a pro se prisoner an opportunity
to amend his complaint when an amendment would be futile.
Simmons v. Edmondson, 225 Fed.Appx. 787, 788-89
(11th Cir. 2007) (citing Medberry v. Butler, 185
F.3d 1189, 1193 (11th Cir. 1999)). “Leave to amend a
complaint is futile when the complaint as amended would still
be properly dismissed or be immediately subject to summary
judgment for the defendant.” Cockrell v.
Sparks, 510 F.3d 1307, 1310 (11th Cir. 2007). Because
Mr. Cass's claims are barred by the relevant statutes of
limitation, fail to state claims upon which relief may be
granted, and seek relief not available in this action, an
amendment to the complaint would be futile.
Cass cites other circuits' procedures for determining
whether pro se complaints are frivolous. (Doc. 11,
p. 3). This Court is bound by the Eleventh Circuit's
rules for reviewing pro se prisoner complaints
pursuant to 28 U.S.C. §§ 1915A and
1915(e). The Eleventh Circuit requires that a
plaintiff demonstrate that conduct taken under color of law
violated the plaintiff's rights, privileges, or
immunities under the Constitution or laws of the United
States. See e.g., Griffin v. City of Opa-Locka, 261
F.3d 1295, 1303 (11th Cir. 2001). The complaint must
demonstrate that the facts as pled state a claim that is
“plausible on its face.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). Specifically,
[u]nder § 1915A, the district court must review a
prisoner's [civil] complaint “before docketing, if
feasible, or, in any event, as soon as practicable after
docketing.” 28 U.S.C. § 1915A(a). The district
court must “identify cognizable claims, ”
id. § 1915A(b), and dismiss any portion of the
complaint that  is “frivolous, malicious, or fails to
state a claim upon which relief can be granted.”
Id. § 1915A(b)(1). A prisoner ordinarily must
be given an opportunity to amend his complaint. Brown v.
Johnson, 387 F.3d 1344, 1349 (11th Cir. 2004)
(“Nothing in the language of the [Prison Litigation
Reform Act (“PLRA”)] repeals Rule 15(a).”).
However, if the amendment would be futile, the district court
may deny leave to amend. Bryant v. Dupree, 252 F.3d
1161, 1163 (11th Cir. 2001).
Dollar v. Coweta County Sheriff Office, 446
Fed.Appx. 248, 250-51 (11th Cir. 2011). Because an amendment
to Mr. Cass's complaint would be futile, the Court
overrules this objection.
carefully reviewed and considered de novo the
materials in the court file, including the report and
recommendation and Mr. Cass's objections to the report,
the Court accepts the magistrate judge's ...