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Bossio v. Graham

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

June 10, 2019

HECTOR MANUEL BOSSIO, Plaintiff,
v.
ATTORNEY: GREGORY WILLIAM GRAHAM, et al., Defendants.

          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 ...

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