United States District Court, N.D. Alabama, Southern Division
CHRISTOPHER D. COLBERT, Plaintiff,
JIM LOWERY, et al., Defendants.
VIRGINIA EMERSON HOPKINS, UNITED STATES DISTRICT JUDGE.
magistrate judge filed a report on October 31, 2017,
recommending 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)(1). (Doc. 6). Plaintiff
filed objections on December 6, 2017. (Doc. 10).
magistrate judge concluded that Plaintiff's claims of
excessive force by defendants Pigg, Snow, and Parker on
February 24, 2003, are barred by the two-year statute of
limitations because he did not file his complaint until
January 21, 2017. (Doc. 6 at 5-7). In his objections, Plaintiff
alleges for the first time that he submitted a civil rights
complaint form to this district court on or before August 29,
2003, in which he alleged the defendants used excessive force
against him when they shot him. (Doc. 10 at 1-2, 7-8).
Plaintiff reasons that either the Jefferson County Jail
deputy on duty failed to mail his complaint or the court
“did not accept” his complaint once it arrived at
the courthouse. (Id. at 2). Plaintiff argues that
since he completed the complaint on or before August 29,
2003, his claims are not barred by the statute of
limitations. (Id. at 4). Plaintiff also argues he is
entitled to equitable tolling. (Id. at 5, 7).
the prisoner mailbox rule, a pro se prisoner's
filing is considered to be filed on the date the prisoner
delivers the filing to prison authorities for mailing.
See Houston v. Lack, 487 U.S. 266, 275-76 (1988).
The Eleventh Circuit extended the prisoner mailbox rule to
the filing date of a complaint by a pro se prisoner
under 42 U.S.C. § 1983 and the Federal Tort Claims
Act. Garvey v. Vaughn, 993 F.2d 776, 783 (11th Cir.
Allen v. Culliver, 471 F.3d 1196 (11th Cir. 2006),
the Eleventh Circuit found the district court erred in its
assumption that a pro se prisoner delivered a timely
notice of appeal to the prison's system for legal mail
when it did not examine whether the prisoner exercised
diligence in following up with court officials.
Allen, 471 F.3d at 1198. The Eleventh Circuit
remanded the case to the district court with instructions to
make a finding of fact whether the prisoner delivered the
notice of appeal to prison authorities and when. Id.
In determining whether the prisoner delivered his filing to
prison authorities, the Court explained that the district
court “may take into account any and all relevant
circumstances, including any lack of diligence on the part of
[the prisoner] in following up in a manner that would be
expected of a reasonable person in his circumstances.”
Id. The Eleventh Circuit has further explained:
A district court cannot negate the prison mailbox rule by
finding a prisoner did not show diligence in following up on
his filing if the prisoner actually gave the filing
to prison authorities when it was dated. However, in
deciding whether a filing was in fact ever delivered to
prison authorities, a court can consider whether the prisoner
exercised the diligence “expected of a reasonable
person in his circumstances” in following up on a
Jeffries v. U.S., 748 F.3d 1310, 1315 (11th Cir.
2014) (citing Allen v. Culliver, 471 F.3d 1196, 1198
(11th Cir. 2006)) (emphasis in original).
court finds no basis for Plaintiff's claim that he mailed
his original complaint on or before August 29, 2003. A
reasonable person would have taken steps to ensure a court
received his complaint before thirteen (13) years passed.
Plaintiff fails to demonstrate that he took any steps
whatsoever to determine the status of his complaint during
this time. See Edwards v. Apple Computer, Inc., 645
Fed. App'x 849, 851 (11th Cir. 2016) (finding a pro
se prisoner took no steps to ensure his claim was
docketed before 33 months passed). Additionally, Plaintiff is
not entitled to equitable tolling, which requires a plaintiff
to demonstrate that “he acted with reasonable
diligence” and that “some extraordinary
circumstance stood in his way and prevented timely
filing.” San Martin v. McNeil, 633 F.3d 1257,
1269 (11th Cir. 2011) (citation and quotations omitted).
court further finds Plaintiff's claim that he filed a
complaint on or before August 29, 2003, directly conflicts
with his sworn complaint. The form complaint, completed by
the plaintiff on January 21, 2017, required Plaintiff to
submit information concerning previous lawsuits.
Specifically, Plaintiff was asked whether he filed other
lawsuits in state or federal court dealing with the same
facts involved in this action. (Doc. 1 at 10). Plaintiff
responded yes. (Id.). The form complaint further
stated that, if Plaintiff responded yes, he must set forth:
(1) the parties to the previous lawsuit; (2) the court where
the lawsuit was filed; (3) the docket or index number; (4)
the judge assigned to the case; (5) the approximate date the
lawsuit was filed; (6) whether the case is still pending; and
(7) the result of the case, if any. (Id.). Plaintiff
was informed that if there was more than one lawsuit, he
should describe the additional lawsuits on another page.
listed only his criminal cases and related Rule 32
proceedings filed in Jefferson County Circuit Court as
previous lawsuits he has filed dealing with the same facts
involved in this action. (Doc. 1 at 10). Plaintiff did not
list a civil case against the named defendants, filed on or
before August 29, 2003, in this court or any other federal
court. Accordingly, the court finds that
Plaintiff's complaint was filed after the two-year
statute of limitations and his excessive force claims are
Plaintiff does not address the magistrate judge's
conclusion that Heck v. Humphrey, 512 U.S. 477,
486-87 (1994), bars his claims that he is actually innocent
of attempted murder and was wrongfully convicted after the
defendants planted evidence at the crime scene, testified
falsely during his criminal trial, and intimidated potential
witnesses as a successful outcome in the present action would
necessarily imply the invalidity of his convictions.
Plaintiff also fails to address the magistrate judge's
finding that his request for release must be brought in a
petition for habeas corpus, rather than under 42 U.S.C.
§ 1983. Preiser v. Rodriguez, 411 U.S. 475, 500
(1973). Based on the foregoing, Plaintiff's complaint is
due to be dismissed for failing to state a claim upon which
relief can be granted.
has also moved to amend his complaint against the defendants.
(Doc. 9). It is well settled that motions to amend are
addressed to the sound discretion of the trial judge.
See, e.g., Gramegna v. Johnson, 846 F.2d 675, 678
(11th Cir. 1988); Espey v. Wainwright, 734 F.2d 748,
750 (11th Cir. 1984). While that discretion is tempered by
the proviso of Fed.R.Civ.P. 15(a)(2) that “[t]he court
should freely give leave when justice so requires, ” it
is clear that “a motion to amend may be denied on
numerous grounds, such as undue delay, undue prejudice to the
defendants, and futility of the amendment.”
Carruthers v. BSA Adver., Inc., 357 F.3d 1213, 1218
(11th Cir. 2004) (citation and quotation marks omitted).
courts may consider such factors as the amount of time and
opportunities the movant has had to seek leave to amend,
whether the proposed amendment is such that [it] could have
been added shortly after the complaint was filed, whether
allowance of the proposed amendment would . . . [require]
additional discovery, whether the movant has attempted to
justify any delay, and whether the impetus behind the ...