United States District Court, S.D. Alabama, Southern Division
COREY L. DIAMOND, Plaintiff,
v.
FEDERAL BUREAU OF INVESTIGATION, Defendant.
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 ...