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Petty v. Long

United States District Court, N.D. Georgia, Atlanta Division

April 25, 2017

DARREN PETTY, Plaintiff,
OFFICER LONG, JOHNATHAN ELMORE, Mayor, RANDY BEEBE, Commissioner, BRIAN FISHER, Commissioner, ADELA YELTON, Commissioner, CITY OF AVONDALE, Georgia, Defendants.



         This matter is before the Court on the required frivolity review, under 28 U.S.C. § 1915(e)(2)(B), of Plaintiff Darren Petty's (“Plaintiff”) Complaint [3].

         I. BACKGROUND

         On August 8, 2016, Plaintiff filed his Application for Leave to Proceed In Forma Pauperis (“IFP Application”) [1]. On August 12, 2016, Magistrate Judge Russell G. Vineyard granted Plaintiff's IFP Application and submitted Plaintiff's pro se Complaint [3] to this Court for a frivolity review. ([2]).

         Plaintiff's three-page Complaint alleges he was driving home on the night of August 23, 2013. Defendant Officer Long stopped him for “failure to maintain lane.” (Compl. at 1). Officer Long administered a sobriety test, concluded that Plaintiff was drunk, and arrested him for driving while intoxicated. Approximately one year later, a jury found Plaintiff not guilty of the offense charged. Plaintiff asserts that Officer Long admitted, at trial, that Plaintiff passed the sobriety test he took on the night of his arrest. Plaintiff states further that “police dash cam video” shows he did not commit a traffic violation. (Compl. at 1). Plaintiff asserts claims, under 42 U.S.C. § 1983, for false arrest, false imprisonment, and fraud. (Compl. at 1).


         A. Legal Standard

         A court must dismiss a complaint filed in forma pauperis if at any time the court determines the action is frivolous or malicious or that it fails to state a claim on which relief can be granted. 28 U.S.C. § 1915(e)(2)(B)(i)-(ii). “Failure to state a claim under § 1915(e)(2)(B)(ii) is governed by the same standard as dismissal for failure to state a claim under Fed.R.Civ.P. 12(b)(6).” Wilkerson v. H&S, Inc., 366 F. App'x 49, 51 (11th Cir. 2010) (citing Mitchell v. Farcass, 112 F.3d 1483, 1490 (11th Cir. 1997)). Under this standard, “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)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556).

         Review for frivolousness, on the other hand, “accords judges not only the authority to dismiss a claim based on an indisputably meritless legal theory, but also the unusual power to pierce the veil of the complaint's factual allegations and dismiss those claims whose factual contentions are clearly baseless.” Miller v. Donald, 541 F.3d 1091, 1100 (11th Cir. 2008) (quoting Neitzke v. Williams, 490 U.S. 319, 327 (1989)). A claim is frivolous when it “has little or no chance of success, ” that is, when it appears “from the face of the complaint that the factual allegations are ‘clearly baseless' or that the legal theories are ‘indisputably meritless.'” Carroll v. Gross, 984 F.2d 392, 393 (11th Cir. 1993) (quoting Neitzke, 490 U.S. at 327). “[I]f the district court sees that an affirmative defense would defeat the action, a [dismissal on the grounds of frivolity] is allowed.” Clark v. State of Ga. Pardons & Paroles Bd., 915 F.2d 636, 640 (11th Cir. 1990).

         Complaints filed pro se must be construed liberally and are “held to less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976) (internal quotation marks omitted)). Nevertheless, “a pro se complaint still must state a claim upon which the Court can grant relief.” Grigsby v. Thomas, 506 F.Supp.2d 26, 28 (D.D.C. 2007). “[A] district court does not have license to rewrite a deficient pleading.” Osahar v. U.S. Postal Serv., 297 F. App'x 863, 864 (11th Cir. 2008).

         B. Analysis

         “The statute of limitations for a section 1983 claim arising out of events occurring in Georgia is two years.” Hafez v. Madison, 348 F. App'x 465, 467 (11th Cir. 2009). The statute of limitations begins to run on false imprisonment and false arrest claims “at the time the claimant becomes detained pursuant to legal process.” Wallace v. Kato, 549 U.S. 384, 397 (2007); see Burgest v. McAfee, 264 F. App'x 850, 852 (11th Cir. 2008); Long v. Dietrich, No. 1:10-cv-02859, 2012 WL 4478802, at *6 (N.D. Ala. Sept. 20, 2012); Frazier v. Bibb Cty. Sheriff's Dep't, No. 506-cv-131, 2007 WL 951707, at *1 n.1 (M.D. Ga. Mar. 28, 2007).

         Construing Plaintiff's Complaint liberally, Plaintiff alleges that, on August 23, 2013, he was arrested, in Georgia, without a warrant. Georgia law provides:

In every case of an arrest without a warrant, the person arresting shall, without delay, convey the offender before the most convenient judicial officer authorized to receive an affidavit and issue a warrant. . . . [A]ny person who is not brought before such ...

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