United States District Court, M.D. Alabama, Eastern Division
RECOMMENDATION OF THE MAGISTRATE JUDGE
CHARLES S. COODY, UNITED STATES MAGISTRATE JUDGE.
Plaintiff,
an inmate incarcerated at the Montgomery City Jail in
Montgomery, Alabama, brings this 42 U.S.C. § 1983 action
alleging that rights, privileges, or immunities afforded him
under the Constitution or laws of the United States have been
abridged by the conduct and actions of Defendants regarding
his state court criminal proceedings before the Circuit Court
for Russell County, Alabama, and his federal criminal and
civil proceedings before this court. Plaintiff names as
defendants Gregory Graham, Esq., Phenix City Chief of Police
Ray Smith, Phenix City Mayor Eddie Lowe, and the City of
Phenix. Plaintiff requests cessation or dismissal of the
criminal proceedings against him, damages for
“undue” incarceration, costs, and fees. Plaintiff
also requests trial by jury.[1]
Upon
review, the court concludes this case is due to be summarily
dismissed prior to service of process under 28 U.S.C. §
1915(e)(2)(B).[2]
I.
DISCUSSION
A.
The Statute of Limitations
Law
enforcement officials with the Phenix City Police Department
arrested Plaintiff on January 7, 2016. On October 15, 2016,
Plaintiff filed a federal civil rights action against the
officers involved with his arrest. See Bossio v.
Bishop, Civil Action No. 3:16-cv-839-ECM (M.D. Ala.).
Approximately two weeks later Defendant Graham was appointed
to defend Plaintiff against state criminal charges arising
from his January 2016 arrest. Plaintiff states Defendant
Graham works for the Graham Legal Firm which represents the
City of Phenix. Plaintiff, therefore, maintains Defendant
Graham, as his appointed counsel, operated under a conflict
of interest which undermined Plaintiff's efforts to
vindicate his rights through filing the above-noted federal
civil action and impeded his ability to present a defense in
his federal criminal case on federal criminal charges filed
against him arising from the January 2016 arrest. See
United States v. Bossio, Criminal Action 3:17-cr-119-WKW
(M.D. Ala.). And after Defendant Graham was appointed as his
state criminal defense attorney, Plaintiff claims attorneys
with the Graham Law Firm edited, destroyed, or deleted all
exculpatory evidence in his favor and incriminating to
employees of Phenix City. As a result, Plaintiff was
disadvantaged in his efforts to defend himself against the
federal and state criminal charges lodged against him. He
claims that “[b]ut for the listed part[ies']
actions, [he] would be able to show the impeaching and
exculpatory evidence they [] destroyed.” Doc. 1 at 2-3.
To the
extent Plaintiff challenges matters associated with his state
criminal proceedings or his federal civil or criminal
proceedings which occurred on or before April 12, 2017, these
claims are barred by the statute of limitations applicable to
a federal civil action filed by an inmate under 42 U.S.C.
§ 1983.
Federal courts must look to state law to determine, first,
what statute of limitations is applicable, and second,
whether that limitations period is tolled. Whitson v.
Baker, 755 F.2d 1406, 1409 (11th Cir. 1985). Selection
of a limitations period for § 1983 actions changed
several times [between 1985 and 1989]. Alabama law, however,
provides that the applicable limitations period is the one in
effect when the claim is filed, not when the cause of action
arose. Tyson v. Johns Manville Sales Corp., 399
So.2d 263, 269-70 (Ala. 1981). It is undisputed that §
1983 claims were subject to a two year limitations period at
that time. See Jones v. Preuit & Mauldin, 876
F.2d 1480, 1483-84 (11th Cir. 1989) (Jones II).
Dukes v. Smitherman, 32 F.3d 535, 537 (11th Cir.
1994). When Plaintiff filed suit, the statute of limitations
for actions brought under 42 U.S.C. § 1983 was two
years. Owens v. Okure, 488 U.S. 235, 249-250 (1989)
(the proper statute of limitations for § 1983 actions is
the forum state's general or residual statute of
limitations for personal injury actions); see also Lufkin
v. McCallum, 956 F.2d 1104, 1105 (11th Cir. 1992). In
Alabama, the general statute of limitations for personal
injury actions is two years. Ala. Code §
6-2-38(1).
Although
the state statute of limitations applies, the time of accrual
is a federal question. See Cox v. Stanton, 529 F.2d
47, 49-50 (4th Cir. 1975). Generally, a cause of action
accrues when the plaintiff knows or has reason to know (1)
that he was injured, and (2) who inflicted the injury.
Rozar v. Mullis, 85 F.3d 556, 561-62 (11th Cir.
1996). By its express terms, the tolling provision of
Ala. Code § 6-2-8(a) provides no basis for
relief to Plaintiff from application of the time
bar.[3]
The
statute of limitations is usually raised as an affirmative
defense. In a § 1983 action filed by a plaintiff
proceeding in forma pauperis, the court may sua
sponte consider affirmative defenses apparent from the
face of the complaint. Clark v. Georgia Pardons and
Parole Board, 915 F.2d 636, 640 n.2 (11th Cir. 1990);
Ali v. Higgs, 892 F.2d 438, 440 (5th Cir. 1990)
(“[I]n an action proceeding under section 1915(d) [-the
in forma pauperis statute now codified as §
1915(e)(2)(B)(i)-], [a court] may consider, sua
sponte, affirmative defenses that are apparent from the
record even where they have not been addressed or raised in
the district court. In so doing, [the court is] following
consistently the special treatment given to section 1915(d)
suits.”). Consequently, with respect to a complaint
filed in forma pauperis, “if the district
court sees that an affirmative defense would defeat the
action, a section 1915(d) 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 640 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 . . . defendants
the . . . 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 ...