United States District Court, M.D. Alabama, Eastern Division
REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE AND
F. MOORER UNITED STATES MAGISTRATE JUDGE
U.S.C. § 1983 action is pending before the court on a
complaint filed by Plaintiff on October 16,
2016. When he filed this action, Plaintiff was
incarcerated at the Hoover City Jail in Hoover, Alabama.
Plaintiff challenges matters which occurred at the Randolph
County Jail in Wedowee, Alabama in February 2014. Doc. 1 at
3. He complains Defendants failed to protect him from an
inmate assault. Id. at 3-6. Upon review of the
complaint, the court concludes that this case is subject to
dismissal under 28 U.S.C. §
references claims addressing actions taken against him which
occurred at the Randolph County Jail on an unspecified date
in February 2014. It is clear from the face of the complaint
that any claims for relief presented by Plaintiff arising
from actions which occurred, at the latest, on February 28,
2014, are barred by the two-year period of limitations
applicable to 42 U.S.C. § 1983 actions filed in this
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 plaintiff's] 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
McNair v. Allen, 515 F.3d 1168, 1173 (11th Cir.
allegations relative to Plaintiff's failure to protect
claim occurred sometime in February of 2014. The limitations
period begins to run when the cause of action accrues, and
this is a question of federal law. Rozar v. Mullis,
85 F.3d 556, 561 (11th Cir. 1996). Generally, a cause of
action accrues when the plaintiff knows or has reason to know
(1) that he was injured, and (2) who inflicted the injury.
Id. at 561-62. By its express terms, the tolling
provision of Ala. Code § 6-2-8(a) provides no
basis for relief to Plaintiff from application of the time
Thus, the statute of limitations began to run on the claims
arising from the challenged conduct, at the latest, on
February 28, 2014. The limitation period ran uninterrupted
until it expired on February 29, 2016. Plaintiff filed this
action on October 16, 2016. This filing occurred after the
limitation period expired, and review of these claims is,
therefore, barred by the two-year period of limitations.
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.”
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.
on the facts apparent from the face of the present complaint,
Plaintiff has no legal basis on which to proceed insofar as
he presents claims regarding actions which occurred, at the
latest, by February 28, 2014. In light of the foregoing, the
court concludes this complaint is barred by the applicable
statute of limitations and is, therefore, subject to
dismissal as frivolous under 28 U.S.C. §
it is the Recommendation of the Magistrate Judge that this
case be DISMISSED with prejudice prior to service of ...