United States District Court, M.D. Alabama, Northern Division
JOHN H. MINOR, Plaintiff,
JUDGE JOHN H. JACKSON, III, et. al, Defendants.
REPORT AND RECOMMENDATION
Russ Walker, United States Magistrate Judge
who is proceeding pro se, filed this action on
November 17, 2016, bringing claims pursuant to 42 U.S.C.
§ 1983 and the Americans with Disability Act
(“ADA”). (Doc. 1 at pp. 7 and 15). In his
complaint, Plaintiff alleges that the defendants' failure
to return his prescription medications to him upon his
release from jail caused him to be involved in an automobile
accident in which he suffered property damage and personal
injury. (Doc. 1 at pp. 4 and 5). He seeks money damages for
these alleged injuries. (Doc.1 at p. 4). He names as
Defendants Judge John H. Jackson, the City of Clanton Police
Department, the Chief of Police and his jailer. (Doc. 1 at
pp. 4 and 6). He further alleges that the acts underlying his
claims occurred “July 2013 through Nov. 2013 on till
Jan. 2014.” (Doc. 1 at p. 16)
1, 2018, this Court entered an Order granting Plaintiff's
application to proceed in forma pauperis. (Doc. 9).
In forma pauperis proceedings are governed by 28
U.S.C. § 1915, which requires this court to conduct a
preliminary review of the complaint to ensure the action is
not “frivolous or malicious, ” “fails to
state a claim on which relief can be granted, ” or
“seeks monetary relief against a defendant who is
immune from such relief.” See 28 U.S.C. §
1915(e)(2)(B). Accordingly, the Court now conducts such a
review pursuant to 28 U.S.C. § 1915.
Plaintiff proceeds pro se, the court will liberally
construe the allegations of his complaint. See Alba v.
Montford, 517 F.3d 1249, 1252 (11th Cir. 2008).
Additionally, “[a] pro se plaintiff
‘must be given at least one chance to amend
the complaint before the district court dismisses the action
with prejudice' at least where a more carefully drafted
complaint might state a claim.” See Carter v. HSBC
Mortg. Serv., 622 Fed. App'x 783, 786 (11th Cir.
2015) (emphasis in original) (citing Bank v. Pitt,
928 F.2d 1008, 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)). Where it is futile for
a plaintiff to file an amended complaint because “a
more carefully drafted complaint could not state a claim,
” there is no need to allow plaintiff to amend.
Id. For the reasons set forth in this
Recommendation, the Court concludes it would be futile in
this instance for Plaintiff to be given an opportunity to
§ 1983 claims
brings claims pursuant to 42 U.S.C. § 1983, alleging
that the defendants violated his Fifth and Fourteenth
Amendment rights when they failed to return his prescription
medications to him upon his release from jail. He maintains
that this failure caused him to be involved in a car accident
in which he suffered property damage and personal injury.
(Doc. 1 at pp. 4, 5, 15). The acts underlying his claims
occurred “July 2013 through Nov. 2013 on till Jan.
2014.” (Doc. 1 at p. 16). It is clear from the
complaint that Plaintiff challenges the constitutionality of
actions which, as he specifically acknowledges, took place at
the earliest in July 2013, and at the latest in January 2014.
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. 1983, 1946-47, 85L.Ed.2d 254 (1985)
[The plaintiff's] claims 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.
2008). Because Plaintiff filed his complaint on November 17,
2016, the Court concludes that his § 1983 claims - all
of which, by his own admission, occurred prior to November
17, 2014 - are barred by the two-year statute of limitations
applicable to a federal civil action brought under 42 U.S.C.
§ 1983. (Doc. 1 at p. 16).
requests tolling of the statute of limitations “on
grounds accident was Oct 2013 but it was May 2014 had surgery
on neck. My mentle [sic] stability was gone. Could not walk
or use hands.” (Doc. 1-1 p.2). However, even if the
court adopts the Plaintiff's alleged May, 2014 date for
tolling, Plaintiff's claims still clearly fall outside
the two-year bar. McNair, 515 F.3d at 1173.
Moreover, Plaintiff does not allege that he meets the
19-year-old or the insanity requirements under the tolling
provision. Ala. Code § 6-2-8(a). Accordingly,
the Court concludes that the tolling provision does not
suspend the two-year statute of limitations applicable to
Plaintiff's constitutional claims.
also brings a claim under the Americans with Disabilities Act
(“ADA”), specifically invoking that act and
saying, “[u]nder ADA I request accommodation to file
this properly.” (Doc. 1 at p. 16). Rather than alleging
that Defendants have failed to accommodate his disability in
some way, Plaintiff appears to ask the Court for relief
pursuant to the ADA in filing this civil action. This
allegation fails on its face.
for purposes of this §1915 review, the Court will assume
that Plaintiff has stated an ADA claim. The statute of
limitations for an ADA claim is two years. Horsley v.
Univ. of Ala. 564 Fed. App'x. 1006, 1007
(11th Cir. 2014) (citing Ala Code §
6-2-38(1)). This period begins to run when “plaintiff
knew or should have known that … [he] suffered
injury.” Id. (citing Chappell v.
Rich,340 F.3d 1279, 1283 (11th Cir. 2003)). The
allegations on “the face of the complaint”
control. La Grasta v. First Union Secs., Inc., 358
F.3d 840, 845 (11th Cir. 2004). Plaintiff states
in his complaint that the facts underlying his claims
occurred in “July 2013 through Nov. 2013 on till Jan.
2014.” (Doc. 1 at p. 16). Thus, Plaintiff's ADA
claim is barred by the two-year statute of limitations.
Horsley, 564 Fed. App'x at 1008. Further,
Plaintiff fails to allege any facts which might permit
equitable tolling. Id. at 1009 (“[E]quitable
tolling typically requires some affirmative misconduct, such
as fraud, misinformation, or ...