United States District Court, S.D. Alabama, Southern Division
COREY L. DIAMOND, Plaintiff,
v.
CITY OF MOBILE, ALABAMA, 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 claim against the City of Mobile, Alabama
(hereinafter “the City”) is
time-barred.[1]
PLAINTIFF'S
ALLEGATIONS
On
October 28, 2019, the Plaintiff, proceeding pro se,
filed a form complaint for violation of civil rights against
the City wherein he seeks significant damages for events that
allegedly occurred at the Mobile courthouse. (Doc. 1 at pp.
4-5). Although Plaintiff does not clearly state the basis for
his legal claim, he has filed his complaint on a form used
for filing claims based on violations of civil rights under
42 U.S.C. § 1983; therefore, the Court is analyzing this
complaint under that statute. Plaintiff alleges that Judge
Herman Thomas tried to paddle him and told him to pull his
pants down, but he said no. (Id.). He further
alleges that, two weeks later, he got caught by the Mobile
Sheriff's Department with a drug. (Id.). His
additional allegations and claims against the City are
unclear; however, what is clear is that, although Plaintiff
claims that he does not know the date of the events giving
rise to his claim, the events had to have occurred more than
two years prior to the filing of his complaint. This Court
can take judicial notice of the fact that former Mobile
County Circuit Court Judge Herman Thomas resigned his
position amid allegations similar to those advanced by
Plaintiff in October of 2007. See, e.g., Alabama: Judge
Resigns in Midst of Inquiry, N.Y. Times, Oct. 3, 2007,
at A21.
DISCUSSION
Upon
liberally construing Diamond's sparse complaint, as must
be done, [2] the Court finds, based in large part on
Plaintiff filing his complaint on a form used for asserting
violations of civil rights, that Plaintiff is attempting to
bring a claim against the City pursuant to 42 U.S.C. §
1983. Section 1983 provides, in relevant part, as follows:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or
the District of Columbia, subjects, or causes to be
subjected, any citizen of the United States or other person
within the jurisdiction thereof to the deprivation of any
rights, privileges, or immunities secured by the Constitution
and laws, shall be liable to the party injured in an action
at law, suit in equity, or other proper proceeding for
redress . . . .
Id. It is well established that the statute of
limitations that applies to § 1983 actions filed in
federal court in Alabama is two years. See McNair v.
Allen, 515 F.3d 1168, 1173 (11th Cir. 2008); Burt v.
Martin, 193 Fed.Appx. 829, 830 (11th Cir. 2006);
Byrd v. City of Daphne, No. CA
11-0468-CG-C, 2012 WL 1036058, at *4 (S.D. Ala. Mar. 9,
2012). In his complaint, Plaintiff complains of events that
had to have occurred prior to or in or about 2007,
approximately twelve years prior to the filing of his
complaint; therefore, any claim asserted under § 1983 is
time-barred. The Court further notes that, even if
Plaintiff's complaint is based on a different cause of
action, for example, assault, the action would be barred by
the statute of limitations based on the fact that his claim
arises out of actions that had to have occurred at least
twelve years ago. Accordingly, Plaintiff's claim is long
time-barred, and therefore, fails to state a claim upon which
relief can be granted.[3]
In
light of the foregoing, the Court finds that Plaintiff's
complaint in this action is insufficient to survive the
review required under 28 U.S.C. § 1915(e)(2)(B) and
recommends that it be dismissed with prejudice prior to
service of process.
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), because Plaintiff's Complaint is
barred by the applicable statute of limitations.
NOTICE
OF RIGHT TO FILE OBJECTIONS
A copy
of this report and recommendation shall be served on all
parties in the manner provided by law. Any party who objects
to this recommendation or anything in it must, within
fourteen (14) days of the date of service of this document,
file specific written objections with the Clerk of this
Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P.
72(b); S.D. Ala. GenLR 72(c)(1) & (2). The parties should
note that under Eleventh Circuit Rule 3-1, “[a] party
failing to object to a magistrate judge's findings or
recommendations contained in a report and recommendation in
accordance with the provisions of 28 U.S.C. § 636(b)(1)
waives the right to challenge on appeal the district
court's order based on unobjected-to factual and legal
conclusions if the party was informed of the time period for
objecting and the consequences on appeal for failing to
object. In the absence of a proper objection, however, the
court may review on appeal for plain error, if necessary in
the interests of justice.” 11th Cir. R. 3-1. In order
to be specific, an objection must identify the specific
finding or recommendation to which ...