United States District Court, M.D. Alabama, Northern Division
RECOMMENDATION OF THE MAGISTRATE JUDGE
WALLACE CAPEL, JR. CHIEF UNITED STATES MAGISTRATE JUDGE
Dale William Gilley (“Gilley” or
“Plaintiff”), is an inmate incarcerated at the
Staton Correctional Facility in Elmore, Alabama. He brings
this pro se 42 U.S.C. Â§ 1983 action against the
Alabama Board of Pardons and Paroles and parole board members
Cliff Walker and Eddie Cook, Jr. Gilley alleges a violation
of his due process rights at his November 1, 2016, parole
hearing. Specifically, Gilley claims the defendant parole
board members based their decision to deny him parole because
of their personal feelings and bias regarding the offense on
which he is incarcerated. Plaintiff requests this matter be
set for trial and that he be granted a new parole hearing.
the court is a motion to dismiss filed by Defendants. Doc.
11. Defendants move to dismiss on the basis that the
complaint is barred by the statute of limitations. The court
granted Gilley an opportunity to respond to the motion to
dismiss (Doc. 13) and he has done so. Doc. 14. Upon review of
Defendants' motion to dismiss and Gilley's response,
the court concludes the motion is due to be granted.
motion to dismiss under Federal Rule of Civil Procedure
12(b)(6) tests the legal sufficiency of the complaint.
Gilmore v. Day, 125 F.Supp.2d 468, 471 (M.D. Ala.
2000). Thus, a complaint must contain “sufficient
factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.'”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). In considering a defendants motion to dismiss, the
“court must view the complaint in the light most
favorable to the plaintiff and accept all the plaintiff's
well-pleaded facts as true.” Am. United Life Ins.
v. Martinez, 480 F.3d 1043, 1057 (11th Cir. 2007)
under Federal Rule of Civil Procedure 12(b)(6) “on
statute of limitations grounds is appropriate only if it is
apparent from the face of the complaint that the claim is
time-barred.” La Grasta v. First Union Sec.,
Inc., 358 F.3d 840, 845 (11th Cir. 2004) (internal
quotations and citation omitted). Defendants' statute of
limitations argument, therefore, will be meritorious only if
it can be resolved on the face of the amended complaint.
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).
[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, [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.
initiated this action on December 21, 2018. He has been
incarcerated for twenty-three years following his conviction
for rape for which he received a life sentence. On November
1, 2016, Gilley had his third parole hearing. He alleges the
defendant parole board members failed to properly consider
him for parole because they decided before the hearing, he
was not a suitable candidate for parole despite the
educational and rehabilitative accomplishments he has
achieved during his incarceration. Doc. 1 at 2-6.
allegations make clear his complaint is barred by the statute
of limitations applicable to a federal civil action filed by
an inmate under 42 U.S.C. § 1983. Gilley's complaint
challenges Defendants' decision to deny him parole at his
November 1, 2016, parole review hearing. By its express
terms, the tolling provision of Ala. Code §
6-2-8(a) provides no basis for relief to Gilley from
application of the time bar. Thus, the statute of limitations
began to run on the claims challenging the validity of his
contested parole hearing on November 1, 2016. The limitations
period for this event ran uninterrupted until it expired in
November 1, 2018. Yet Gilley initiated this action on
December 21, 2018- after the expiration of the applicable
response to Defendants' motion to dismiss, Gilley asserts
reliance on his attorney's advice not to file anything
until she “got back to him” regarding his claim
that the defendant parole board members exhibited bias at his
parole hearing. Doc. 14 at 2. Gilley left the matter to the
attorney who he claims, “failed to act.” Doc. 14
at 3. He subsequently requested the attorney's firm
return copies of his parole documents, so he could file a
complaint. Doc. 14 at 3. Gilley claims he had to wait several
months before he received the requested documents but
promptly filed his complaint after receipt. Doc. 14 at 3.
extent Gilley's response contains a request to invoke
equitable tolling of the limitation period, case law directs
that a federal limitation period “may be equitably
tolled” when a litigant demonstrates “(1) that he
has been pursuing his rights diligently, and (2) that some
extraordinary circumstance stood in his way and prevented
timely filing.” Holland v. Florida, 560 U.S.
631, 649 (2010); Sandvik v. United States, 177 F.3d
1269, 1271 (11th Cir. 1999) (holding the limitation period
may be equitably tolled when a plaintiff “untimely
files because of extraordinary circumstances that are both
beyond his control and unavoidable with diligence”);
see also Steed v. Head, 219 F.3d 1298, 1300 (11th
Cir. 2000); and Knight v. Schofield, 292 F.3d 709,
711 (11th Cir. 2002). Equitable tolling applies only in truly
extraordinary circumstances. Jones v. United States,
304 F.3d 1035, 1039-40 (11th Cir. 2002); Drew v.
Dep't of Corr., 297 F.3d 1278, 1286 (11th Cir.
2002), overruled in part as stated by Sykosky v.
Crosby, 187 Fed.Appx. 953, 958 (11th Cir. 2006).
“The plaintiff bears the burden of showing that such
extraordinary circumstances exist. In determining whether a
plaintiff meets this burden, we must keep in mind that
[equitable] tolling is an extraordinary remedy which should
be extended only sparingly.” Arce v. Garcia,
434 F.3d 1254, 1261 (11th Cir. 2006) (quotation marks and
Gilley has alleged no extraordinary circumstances beyond his
control and unavoidable with the exercise of diligence which
warrant equitable tolling of the limitation period. The law
is settled that an inmate's lack of legal knowledge, his
failure to understand legal principles, and/or the inability
to recognize potential claims for relief at an earlier
juncture do not constitute extraordinary circumstances
sufficient to warrant equitable tolling of the limitation
period. United States v. Sosa, 364 F.3d 507, 512
(4th Cir. 2004) (holding pro se status and ignorance
of the law do not justify equitable tolling); Felder v.
Johnson, 204 F.3d 168, 171 (5th Cir. 1999) (holding
ignorance of the law and pro se status do not constitute
“rare and exceptional” circumstances justifying
equitable tolling); Turner v. Johnson, 177 F.3d 390,
392 (5th Cir. 1999) (holding unfamiliarity with the legal
process during the applicable filing period did not merit
equitable tolling); Wakefield v. R.R. Ret. Board,
131 F.3d 967, 969 (11th Cir. 1997) (holding ignorance of the
law “is not a factor that can warrant equitable
tolling.”). Further, Gilley's decision to take his
counsel's advice to delay filing suit and his decision to
delay filing until he received “proof” to support
his complaint fails to establish any impediment to his
ability to file a timely complaint. See Bost v. Fed.
Express Corp., 372 F.3d 1233, 1242 (11th Cir. 2004)
(quotation marks and citation omitted) (holding
“[e]quitable tolling is an extraordinary remedy which
should be extended only sparingly.”).
concedes knowledge of the challenged matter when the event
occurred. Thus, this court “cannot say that [Gilley]
has acted with the conscience, good faith, and reasonable
diligence necessary to call into action the powers of the
court. This conclusion is based on the longstanding, firmly
rooted principle that a court cannot grant equitable tolling
unless it is satisfied that the party seeking such relief has
acted with diligence.” Drew, 297 F.3d at 1290
n.5 (quotation marks omitted). Consequently, Gilley is not