Diamond v. Federal Bureau of Investigation

          REPORT AND RECOMMENDATION

          P. BRADLEY MURRAY UNITED STATES MAGISTRATE JUDGE

         This action is before the Court on Plaintiff's pro se complaint (Doc. 1) and motion to proceed without prepayment of fees and costs (Doc. 2). This matter has been referred to the undersigned for pretrial disposition pursuant to 28 U.S.C. § 636(b)(1)(B) and General Local Rule 72(a)(2)(S). Because Diamond has requested leave to proceed without prepayment of costs and fees (Doc. 2), this Court has the obligation to undertake a review of his complaint pursuant to the provisions of 28 U.S.C. § 1915(e). That statute instructs courts to dismiss any action when it is determined that an in forma pauperis applicant's suit is “frivolous or malicious, ” “fails to state a claim on which relief may be granted, ” or “seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). Upon consideration of the pleadings, it is recommended that this action be DISMISSED WITH PREJUDICE, prior to service of process, because Plaintiff's Bivens claim against the FBI is time-barred and otherwise frivolous.^[1]

         BRIEF BACKGROUND

         On November 6, 2019, the pro se Plaintiff filed a form complaint for a civil case wherein he seeks damages against the FBI for that agency's alleged entrapment of him in 2001 or 2002. (See Doc. 1, at 4).

I [was] charge[d] with conspir[ing] to buy and sale (sic) cocaine[.] [T]hey dropped it down to theft of government property and that was entrapment[.] An agent gave me some money to buy [] drug[s] and I spent the money on items NOT drug[s.]

(Id.)^[2] Diamond does not identify the basis for federal court jurisdiction; that is, he does specifically check-mark the box for federal question jurisdiction or diversity jurisdiction. (See Doc. 1, at 3.) Thereafter, however, he does identify the basis for federal-question jurisdiction as “Entrapment” (id.) and then goes on to fill out the diversity jurisdiction “section, ” identifying himself as a citizen of Alabama and the FBI as a citizen of “Mobile, AL” (id.).^[3]

         DISCUSSION

         Upon liberally construing Plaintiff's complaint, as must be done, ^[4] and because Diamond seeks damages for purportedly being entrapped by the FBI in 2001 or 2002, the undersigned finds that Plaintiff is seeking to proceed under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971).

         Bivens, of course, “'provides a cause of action for constitutional violations against federal officials[.]'” Barber v. Federal Bureau of Investigation, 2016 WL 4083244, *3 (M.D. Fla. July 5, 2016) (citation omitted), report and recommendation adopted, 2016 WL 4041048 (M.D. Fla. July 27, 2016). And while it is clear that a plaintiff cannot proceed against the FBI under Bivens, compare, e.g., Horne v. Social Security Admin., 359 Fed.Appx. 138, 143 (11th Cir. Jan. 4, 2010) (“[A] plaintiff may not bring a Bivens action against a federal agency or a federal officer acting in his official capacity.”) with Nordell v. Montgomery Alabama Police Dep't, 2008 WL 622043, *7 (M.D. Ala. Mar. 4, 2008) (“Congress has not authorized in explicit language that the FBI can be sued in its own name.”), and, therefore, his complaint against the FBI should be dismissed with prejudice as frivolous on this basis alone, it is also clear that the instant action is barred by the applicable statute of limitations.^[5]

         “Bivens actions are subject to the same statute of limitations that governs actions brought under 42 U.S.C. § 1983.” Nicholson v. Harris, 2019 WL 2754734, *3 (N.D. Ala. May 8, 2019) (citing Kelly v. Serna, 87 F.3d 1235, 1238 (11th Cir. 1996)), report and recommendation adopted, 2019 WL 2744567 (N.D. Ala. July 1, 2019). And since § 1983 actions are governed by the relevant state's personal injury limitations period, id. (citation omitted), “[s]tate law determines the statute of limitations for Bivens actions[.]” Norman, supra, at *2 (citations omitted). “In Alabama, the two-year limitations period in Ala. Code § 6-2-38(l) applies to § 1983 and Bivens actions.” Nicholson, supra, citing Jones v. Preuit & Mauldin, 876 F.2d 1480, 1483 (11th Cir. 1989). “[A] Bivens cause of action accrues-and the statute of limitations begins to run-when a plaintiff knows or has reason to know (1) of his injury and (2) who has inflicted it.” Rice v. Sixteen Unknown Federal Agents, 658 Fed.Appx. 959, 962 (11th Cir. Aug. 30, 2016) (citations omitted).

         Although the underlying facts of Diamond's prosecution on criminal charges in this Court back in 2001 (not in 2002), as reflected in footnote 2 above, show Plaintiff was not entrapped by an agent (or agents) working for the FBI, ^[6] even taking Diamond's allegations in his complaint at face value, it is clear that Plaintiff was aware by the time of his indictment on February 22, 2001, or certainly when he entered a counseled guilty plea on March 19, 2001, of the facts upon which an entrapment argument/claim could be based. Indeed, in his complaint, Plaintiff complains of acts which occurred in either 2001 or 2002 (Doc. 1, at 4), but which the records of Diamond's past criminal case demonstrate occurred in 2001. This action was filed on November 6, 2019, well over two years (specifically, over 18 years) after the occurrence of the alleged unconstitutional actions forming the basis of his claim;^[7] therefore, Diamond's Bivens claim should be dismissed with prejudice under 28 U.S.C. § 1915(e)(2)(B)(i).

         CONCLUSION

         Based upon the foregoing, it is RECOMMENDED that this action be DISMISSED WITH PREJUDICE, prior to service of process, in accordance with 28 U.S.C. § 1915(e)(2)(B)(i), as barred by the applicable statute of limitations and because Plaintiff cannot bring a Bivens action against the FBI.

         NOTICE OF RIGHT ...