United States District Court, M.D. Alabama, Southern Division
RECOMMENDATION OF THE MAGISTRATE JUDGE
WALLACE CAPEL, JR. CHIEF UNITED STATES MAGISTRATE JUDGE
U.S.C. § 1983 action is pending before the court on a
complaint filed by Gene Chandler Elliott, Jr., an indigent
state inmate currently serving a fifteen year sentence for
trafficking in methamphetamine imposed upon him on July 6,
2009 by the Circuit Court of Houston County,
Alabama. In this complaint, Elliott challenges the
constitutionality of a search that occurred on November 6,
2018 at “the old fire station” in Madrid, Alabama
and other actions that transpired on November 12, 2008, which
culminated in his arrests for receiving stolen property and
trafficking in methamphetamine on November 17, 2008 and
November 18, 2008. Doc. 1 at 2-3. Elliott also presents
claims attacking the constitutionality of the criminal
proceedings related to his 2009 convictions. Doc. 1 at
4.Specifically, Elliott alleges that the
trial judge improperly denied his motion to suppress the
evidence obtained during the challenged search. Doc. 1 at 4
(“[P]lease help the plaintiff with the suppression
hearing ruled on by Judge Brad Mendheim who ignored state and
federal laws in order to cover up the illegal prosecution of
names Douglas A. Valeska, the District Attorney for Houston
County at the time of his convictions, Nereida Bundy, an
assistant district attorney, Andy Hughes, the Sheriff of
Houston County during the time relevant to the complaint, and
Donovan Arias, Jackie Smith and Bill Rafferty, officers with
the Houston County Sheriff's Department, as defendants.
He seeks a declaratory judgment and injunctive relief for the
alleged violations of his constitutional rights. Doc. 1 at 4.
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) and (ii).
Search and Arrests
challenges the constitutionality of a search and his
resulting arrests, the last such event occurring on November
18, 2008. Any claims related to the search and Elliott's
arrests are barred by the statute of limitations applicable
to a federal civil action filed by an inmate under 42 U.S.C.
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.
last of the actions about which Elliott complains regarding
the search and arrests occurred on November 18, 2008. By its
express terms, the tolling provision of Ala. Code
§ 6-2-8(a) affords no relief to Elliott from application
of the time bar. The statute of limitations applicable to
Elliott's illegal search and arrest claims therefore
began to run, at the latest, on November 19,
2008. The limitations period ran uninterrupted
until its expiration on November 19, 2010. Elliott filed the
instant complaint on April 2, 2019. Thus, the filing of this
civil action occurred several years after expiration of the
applicable two-year 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. Ga. Pardons and Parole Bd., 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. Or.
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 ...