United States District Court, N.D. Alabama, Jasper Division
OWEN BOWDRE CHIEF UNITED STATES DISTRICT JUDGE
magistrate judge filed a report and recommendation on April
18, 2017, recommending that this action be dismissed without
prejudice for failing to state a claim upon which relief can
be granted, pursuant to 28 U.S.C. § 1915A(b). (Doc. 10).
The plaintiff was notified of his right to file objections
within fourteen days of the report and recommendation
(id.), and on April 28, 2017, the court received the
plaintiff's objections (doc. 12).
plaintiff first objects to the magistrate judge's failure
to address defendants “Wrecker Companies” and
“Wrecker Company Drivers.” (Doc. 12 at 1).
However, the plaintiff failed to name any specific company or
driver as defendants. Because fictitious party pleading does
not exist in federal court, these entities and individuals
were never proper defendants to this action. See e.g.,
Richardson v. Johnson, 598 F.3d 734, 738 (11th Cir.
2010) (citing New v. Sports & Recreation, Inc.,
114 F.3d 1092, 1094 n.1 (11th Cir. 1997))
(“fictitious-party pleading is not permitted in federal
court.”). Even if the plaintiff had properly named
identifiable wrecker companies or wrecker company drivers,
this action would be dismissed against them, as § 1983
does not provide for a cause of action against wholly private
individuals. See e.g., Focus on the Family v. Pinellas
Suncoast Transit Auth., 344 F.3d 1263, 1277 (11th Cir.
2003) (“[T]he under-color-of state-law element of
§ 1983 excludes from its reach merely private conduct,
no matter how discriminatory or wrongful.”). Bare bones
assertions that private individuals conspired with state
actors do not salvage a § 1983 claim against private
actors. Lawal v. Fowler, 196 F. App'x 765, 767
(11th Cir. 2006) (citing Phillips v. Mashburn, 746
F.2d 782, 785 (11th Cir. 1984)).
plaintiff next objects that the magistrate judge did not
address his demand for jury trial. (Doc. 12 at 1, 2, 7).
Because this action does not pass muster under 28 U.S.C.
§ 1915A, the fact that the plaintiff wants his claims
tried by a jury is of no consequence. The plaintiff is
mistaken in his belief that Rule 38, Fed. R. Civ. P.,
requires a court to hold a jury trial any time a demand for
one is made. That Rule simply states that a right to jury
trial exists. However, because the plaintiff is a prisoner,
before ever reaching the issue of how to adjudicate any
issues of fact, a court must consider the analysis required
under 28 U.S.C. § 1915A. See 28 U.S.C. §
1915A(b)(1) (requiring screening of a complaint “as
soon as practicable after docketing”); Smith v.
Hutchins, 426 F. App'x 785, 787-88 (11th Cir. 2011);
Thompson v. Hicks, 213 F. App'x 939, 942 (11th
Cir. 2007). In other words, before a case can go to a jury,
the plaintiff must state a valid legal claim for which a jury
could grant relief. The plaintiff's complaint fails to do
that here so he cannot have a jury trial.
the plaintiff's objection that the magistrate judge did
not consider his claims for general damages, special damages,
and replacement of his property (doc. 12 at 2), has no merit.
Because this action does not survive review under §
1915A, that is, the complaint does not state a legal claim
for relief, the type of relief the plaintiff wants should he
prevail on the merits of his action is a moot point.
plaintiff next complains that the magistrate judge failed to
properly apply disability law when considering whether the
Alabama Department of Corrections imposed a
“disability” on him in 2007 by failing to
transport him to the condemnation proceeding. (Doc. 12 at 1,
6). The plaintiff provides no basis in law for his novel
proposition that being incarcerated creates a
“disability” as that term is defined by the
Americans with Disabilities Act. The plaintiff's claim
that 42 U.S.C. § 12101(3) or (5) brings him within the
Act's protections lacks merit.
plaintiff also asserts that the magistrate judge misapplied
the statute of limitations. (Doc. 12 at 2-4). The Supreme
Court mandated that courts use the state's general or
residual statute of limitations for personal injury for
claims brought pursuant to 42 U.S.C. § 1983. Owens
v. Okure, 488 U.S. 235, 249-50 (1989). That decision
binds this court. The Eleventh Circuit Court of Appeals,
whose decisions also bind this court, stated that in §
1983 actions brought in Alabama courts must apply the two
year statute of limitations found in Ala. Code §
6-2-38(l). Jones v. Preuit & Mauldin,
876 F.2d 1480, 1483 (11th Cir. 1989). The plaintiff's
dissatisfaction with these controlling legal decisions does
not provide a basis for the court to ignore them.
plaintiff's insistence that the court should have applied
the statute of limitations found in § 6-2-8 instead of
§ 6-2-38(l) (doc. 12 at 3) has no basis in
law.Section 6-2-8 concerns the disabilities of
being below the age of majority or being mentally
incompetent. See Ala. Code § 6-2-8. The statute
mandates that an individual has three years from the removal
of the disability to commence an action, but in no event more
than 20 years from the time it accrued. Id. This
statute has no bearing on claims under 42 U.S.C. § 1983
and does not provide a 20 year statute of limitations for
prisoners to contest forfeiture actions. (See doc.
12 at 3 (claiming the plaintiff has until 2029 to file his
claims, under his interpretation of Ala. Code § 6-2-8)).
The case on which the plaintiff relies, Dukes v.
Smitherman, 32 F.3d 535 (11th Cir 1994), was based on a
tolling provision for convicted prisoners in Ala. Code §
6-2-8. That language was rescinded by the Alabama legislature
on May 17, 1996. See Ala. Code § 6-2-8(a)
(1975, as amended).
plaintiff's reliance on Ellis v. General Motors
Acceptance Corp., 160 F.3d 703 (11th Cir. 1998), does
not assist him. That case involved equitable tolling
specifically as it applied to Truth in Lending Act claims,
where consumers' causes of action are fraudulently
concealed from them. Id. at 708. Nor does Sain
v. City of Bend, 309 F.3d 1134 (9th Cir. 2002), assist
the plaintiff in any way. Setting aside the fact that Ninth
Circuit cases do not bind this court, that case stated only
that Rule 3, Fed. R. Civ. P., provides the rule for when an
action under § 1983 is commenced, and that Rule 6, Fed.
R. Civ. P., provides instructions for the computation of
time. Id. at 1138. In no way did either of these
cases create the proposition set forth by the plaintiff,
namely that Rule 3, Fed. R. Civ. P., provides a tolling rule for
borrowed state statutes of limitations in 42 U.S.C. §
plaintiff next states that the magistrate judge failed to
consider if the named defendants acted under color of state
law. (Doc. 12 at 2). Because all of the plaintiff's
claims are barred by the statute of limitations, the
magistrate judge had no reason to consider this issue.
plaintiff further claims that the magistrate judge improperly
found that Judge Robert M. Baker and Kristi A. Valls were
entitled to absolute judicial immunity and absolute
prosecutorial immunity, respectively. (Doc. 12 at 5).
However, the Supreme Court stated that judges and district
attorneys have absolute immunity. See e.g., Mireless v.
Waco, 502 U.S. 9, 11-12 (1991) (judicial immunity is an
immunity from suit); Buckley v. Fitzsimmons, 509
U.S. 259, 273 (1993), and Hart v. Hodges, 587 F.3d
1288, 1295 (11th Cir. 2009) (prosecutors are absolutely
immune from allegations stemming from their function as an
advocate). As Supreme Court and Eleventh Circuit cases bind
this court, the magistrate judge correctly found these two
defendants immune. (Doc. 10 at 12-13).
plaintiff objects to the application of the doctrines of res
judicata, collateral estoppel, and Rooker-Feldman as
bars to the current action. (Doc. 12 at 4). He states that
because his claims were found to be barred by the statute of
limitations previously, res judicata and collateral estoppel
should not bar the claims now, because the court did not
consider his claims under Ala. Code. § 6-2-8. However,
as previously noted, the plaintiff cannot benefit from Ala.
Code § 6-2-8 as he is neither an infant nor insane.
the Eleventh Circuit previously considered the
plaintiff's claim of entitlement to a hearing. In
Holt v. Valls, the court stated, “Holt
contends that the condemnation proceeding violated his due
process rights because he was denied the opportunity to
attend the hearing and therefore the court never addressed
the merits of whether his property was appropriately seized.
It is undisputed that Holt has previously litigated these due
process claims in at least one separate lawsuit filed in
state court . . . . ” 395 F. App'x at 605. Because
the plaintiff had the prior opportunity to litigate this
claim in state court, the Eleventh Circuit found the claims
before it were barred by the Rooker-Feldman
doctrine. Id. The plaintiff's continued attempts
to relitigate this claim are barred by res judicata,
collateral estoppel, and the Rooker-Feldman
doctrine. The plaintiff cannot pursue these claims anew each
time he comes up with a new legal theory.
plaintiff's assertion that his claims should not be
barred by the statute of limitations, res judicata, or
collateral estoppel against defendants Blakely, King, Royals,
and Morell because he has never received a final judgment on
the merits of his property interest claim (doc. 12 at 4)
fairs no ...