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Pritchett v. Filmore

United States District Court, M.D. Alabama, Southern Division

January 31, 2019

MIKE PRITCHETT, #314388, Plaintiff,
v.
WILLIAM H. FILMORE, et al., Defendants.

          RECOMMENDATION OF THE MAGISTRATE JUDGE

          CHARLES S. COODY, UNITED STATES MAGISTRATE JUDGE

         I. INTRODUCTION

         This 42 U.S.C. §1983 action is pending before the court on a complaint filed by Mike Pritchett, an indigent state inmate currently serving a three year sentence for trafficking in marijuana imposed upon him on June 7, 2018 by the Circuit Court of Dale County, Alabama.[1] In his complaint, Pritchett challenges the constitutionality of a search of his home and property and his attendant arrest on July 14, 2015. Doc. 1 at 4. Pritchett also attacks the constitutionality of the criminal proceedings related to his 2018 trafficking conviction. Doc. 1 at 4.[2] Finally, Pritchett seeks relief under 18 U.S.C. §§ 241 and 242 for an alleged conspiracy among the defendants. Doc. 1 at 2-4. Pritchett names William H. Filmore, the judge who presided over his state criminal proceedings; Thomas Kirke Adams, the District Attorney for Dale County; Lee Franklin Knowles and David J. Harrison, his court-appointed attorneys; Anthony Phillips, Scotty Ballard and Mark Anderson, law enforcement officials involved in the investigation of his case; the City of Enterprise, Alabama as it oversees the Enterprise Police Department and Dale County, Alabama due to its employment of Judge Filmore and District Attorney Adams. Pritchett seeks a declaratory judgment and monetary damages for the alleged violations of his constitutional rights. Doc. 1 at 5.

         Upon a thorough review of the complaint, the undersigned concludes that this case is due to be dismissed prior to service of process in accordance with the provisions of 28 U.S.C. § 1915(e)(2)(B)(i), (ii) and (iii).[3]

         II. DISCUSSION

         A. Claim for Relief Under 18 U.S.C. §§ 241 and 242

         To the extent Pritchett seeks relief for alleged criminal actions purportedly committed by the defendants in violation of his constitutional rights as prohibited by 18 U.S.C. §§ 241 and 242, Doc. 1 at 2-4, he is entitled to no relief. “Title 18 U.S.C. § 241 is a statute that criminalizes conspiracies against a person's rights under the Constitution or laws of the United States. There is no private right of action under this criminal statute. Title 18 U.S.C. § 242 makes it a crime to willfully deprive persons under color of law of their rights under the Constitution or laws of the United States. The statute does not create a private cause of action.” Gipson v. Callahan, 18 F.Supp.2d 662, 668 (W.D.Tex 1997) (internal citations omitted); Rockefeller v. United States Court of Appeals Office for Tenth Circuit Judges, 248 F.Supp.2d 17, 23 (D.D.C 2003) (finding that the plaintiff is foreclosed “from asserting claims pursuant to 18 U.S.C. §§ 242 and 371 because, as criminal statutes, they do not convey a private right of action. . . . Therefore, the Court must dismiss the plaintiff's claims that have been brought pursuant to 18 U.S.C. §§ 242 and 371.”). In light of the foregoing, it is clear that Pritchett is precluded from obtaining relief under 18 U.S.C. §§ 241 and 242 “because, as criminal statutes, they do not convey a private right of action” nor do they authorize an individual to initiate criminal proceedings. Gipson, 18 F.Supp.2d at 668; Rockefeller, 248 F.Supp.2d at 23.

         B. Search and Arrest

          Pritchett challenges the constitutionality of a search and his resulting arrest which occurred on July 14, 2015. Specifically, Pritchett alleges law enforcement officials searched his property and arrested him without a warrant or probable cause. Doc. 1 at 4. Any claims related to the search and Pritchett's arrest on July 14, 2015 are 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 to run.

McNair v. Allen, 515 F.3d 1168, 1173 (11th Cir. 2008).

         The search and arrest about which Pritchett complains occurred on July 14, 2015. By its express terms, the tolling provision of Ala. Code § 6-2-8(a) affords no relief to Pritchett from application of the time bar.[4] The statute of limitations applicable to Pritchett's illegal search and arrest claims therefore began to run on July 15, 2015.[5] The limitations period ran uninterrupted until its expiration on July 17, 2017.[6] Pritchett filed the instant complaint on January 7, 2019. Thus, the filing of this civil action occurred well after expiration of the applicable period of limitations.

         Unquestionably, 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. Oregon 1983).

         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 the defendant or ...


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