United States District Court, M.D. Alabama, Northern Division
RECOMMENDATION OF THE MAGISTRATE JUDGE
CHARLES S. COODY UNITED STATES MAGISTRATE JUDGE.
U.S.C. § 1983 action is before the court on a complaint
filed by John Barrett Bicknell, an indigent inmate, on August
20, 2018. In the instant complaint, Bicknell alleges
that a deputy used excessive force against him on October 15,
2013 during his arrest for various criminal
offenses. Bicknell seeks monetary damages and an
investigation of his claim. Doc. 1 at 8.
thorough review of the complaint, the court concludes that
this case is due to be summarily dismissed pursuant to the
provisions of 28 U.S.C. §
challenges the constitutionality of force used against him on
October 15, 2013. This claim is barred by the statute of
limitations applicable to a federal civil action filed by an
inmate under 42 U.S.C. § 1983.
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.
complaint relates to a use of force which occurred on October
15, 2013. By its express terms, the tolling provision of
Ala. Code § 6-2-8(a) affords no relief to
Bicknell from application of the time bar. The statute of
limitations applicable to Bicknell's use of force claim
therefore began to run on October 16, 2013. The limitations
period ran uninterrupted until its expiration on October 16,
2015. Bicknell filed the instant complaint on August 20,
2018. The filing of this civil action occurred well after
expiration of the applicable period of limitations.
the statute of limitations is usually a matter which is
raised as an affirmative defense. The court notes, however,
that when a plaintiff proceeds in forma pauperis in
a civil action it may sua sponte consider
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 (citing Franklin
v. State of Oregon, 563 F.Supp. 1310, 1330, 1332 (D.C.
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 the defendant or
defendants, the district 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,
Bicknell has no legal basis on which to proceed with respect
to the claim alleging use of excessive force on October 15,
2013. As previously determined, the statutory tolling
provision is unavailing. Consequently, the governing two-year
period of limitations expired on October 16, 2015, over two
years and ten months prior to Bicknell filing the instant
complaint. In light of the foregoing, the court concludes
that the excessive force claim which forms the basis for the
instant complaint is barred by the applicable statute of
limitations and therefore subject to dismissal as frivolous
in accordance with the ...