United States District Court, S.D. Georgia, Savannah Division
pro se and in forma pauperis, Randy Lenard
Jenkins brings this 42 U.S.C. § 1983 action against
Chatham Metropolitan Police Department Investigator Benjamin
Ferrero. The Court now screens his Complaint under 28 U.S.C.
Jenkins was arrested for
shoplifting, obstruction, and disorderly conduct in July
2014. Doc. 1 at 6. Because defendant noted that Jenkins had
“attempted to shoplift” on his police reports,
plaintiff believes that he was arrested without probable
cause. Id. (arguing that “attempted [ ]
shoplift[ing] . . . is not a crime in the State of
Georgia.”). He was arrested on July 19, 2014, and a
preliminary hearing was set for August 4, 2014. Id.
Jenkins contends that he is falsely imprisoned, his
“preliminary hearing was waived without [his] consent
or knowledge, ” and the delay before being timely
presented to a “judicial officer” violates the
law. Id. at 2 & 6. He seeks release from
confinement and compensation “for everyday [he] spent
in jail illegally.” Id. at 7.
construed, plaintiff's Complaint alleges an initial claim
for false arrest or false imprisonment, a tort which affords
a remedy for detention without legal process. See Wallace
v. Kato, 549 U.S. 384, 389 (2007) (a false arrest claim
based on a warrantless arrest is “a species” of a
false imprisonment claim). That claim accrued at his arrest
-- July 19, 2014 -- and the statute of limitations began to
run “when [his] alleged false imprisonment
end[ed].” Id. In a case of continuing
detention (as here), “false imprisonment ends once the
victim becomes held pursuant to [legal] process -- when, for
example, he is bound over by a magistrate or arraigned on
charges.” Id. at 389-90.
arrestee's unlawful detention becomes a product of legal
process, his continued custody may indeed still be unlawful,
but any damages suffered after that point must be recovered
under the “entirely distinct” tort of malicious
prosecution, “which remedies detention accompanied not
by the absence of legal process, but by wrongful
institution of legal process.” Id. at
390. As a result of this distinction between malicious
prosecution and false imprisonment, the statute of
limitations on his false imprisonment claim would have begun
to run from the date that legal process was initiated against
him. Id. It appears that Jenkins was “bound
over for trial” sometime on or before August 4, 2014,
when his preliminary hearing was set. Doc. 1 at 5 (someone
“waived” the preliminary hearing without his
consent, such that it was not held); see Hines v.
Oklahoma, 2007 WL 3046458 at *3 (W.D. Okla. Oct. 17,
2007) (the statute of limitations began to run at the latest
on the date plaintiff waived his preliminary hearing and was
bound over for trial). He did not signature-file this action
until August 6, 2016 -- more than two years later.
Id. at 6; see O.C.G.A. § 9-3-33
(two-year statute of limitations for personal injury
actions). Thus, Jenkins' claim for false imprisonment is
other complaints, that his preliminary hearing was not
scheduled speedily enough and then waived without his
consent, are also dead ends. As it appears that he was
arrested without a warrant (an arrest for attempted
shoplifting would most likely be made on the scene and
without a warrant being drawn up, see doc. 1 at 6),
he was “entitled to a prompt judicial determination of
probable cause as a prerequisite to any extended restraint of
[his] liberty.” Brown v. Eastern Judicial Circuit
of Savannah, 2012 WL 426224 at * 1 (Feb. 9, 2012)
(citing Cty. of Riverside v. McLaughlin, 500 U.S.
44, 53 (1991) (“persons arrested without a warrant must
promptly be brought before a neutral magistrate for a
judicial determination of probable
Jenkins does not contend he was deprived of the
right to a prompt probable cause hearing. He
contends instead that his scheduled preliminary hearing was
waived, without his “consent or knowledge, ” by
counsel. Doc. 1 at 2 & 6. “In other words, it is
his attorney's own ineffectiveness that [he] challenges,
not some flawed judicial process or practice or some police
officer's failure to bring him before a judge for a
prompt determination of probable cause.”
Brown, 2012 WL 426624 at * 1. But § 1983 does
not afford Jenkins a remedy against his public defender on
such a claim, for a defense attorney -- even one appointed by
the state -- does not act under “color of state
law” within the meaning of that statute. Polk v.
Dodson, 454 U.S. 314, 317-19 (1981); id. at 325
(“a public defender does not act under color of state
law when performing a lawyer's traditional functions as
counsel to a defendant in a criminal proceeding.”).
it is clear that Jenkins has failed to state a claim for
false arrest/false imprisonment or for the deprivation of his
right to a preliminary hearing against defendant Ferrero.
Though a pro se prisoner normally should be given an
opportunity to amend his complaint at least once, see,
e.g., Johnson v. Boyd, 568 F. App'x 719, 724 (11th
Cir. 2014); Duff v. Steub, 378 F. App'x 868, 872
(11th Cir. 2010), “a district court need not allow
amendment if the amended complaint would still be subject to
dismissal.” Jenkins v. Walker, 620 F.
App'x 709, 711 (11th Cir. 2015). Plaintiff's §
1983 claims are dead on arrival and do not appear
Randy Lenard Jenkins' § 1983 Complaint should be
DISMISSED without prejudice. Meanwhile, it
is time for Jenkins to pay his filing fee. His PLRA paperwork
reflects $0 in current balance and $0 in recent deposits.
Doc. 4. He therefore owes no initial partial filing fee.
See 28 U.S.C. § 1915(b) (1) (requiring an
initial fee assessment “when funds exist, ” under
a specific 20 percent formula). Plaintiff's custodian (or
designee) shall therefore set aside and remit 20 percent of
all future deposits to his account, then forward those funds
to the Clerk each time the set aside amount reaches $10.00,
until the balance of the Court's $350.00 filing fee has
been paid in full.
the Clerk is DIRECTED to send this Report
and Recommendation (R&R) to plaintiff's account
custodian immediately. In the event he is transferred to
another institution, his present custodian shall forward a
copy of this R&R and all financial information concerning
payment of the filing fee and costs in this case to
plaintiff's new custodian. The balance due from plaintiff
shall be collected by the custodian at his next institution
in accordance with the terms of the payment directive portion
of this R&R.
R&R is submitted to the district judge assigned to this
action, pursuant to 28 U.S.C. § 636(b)(1)(B) and this
Court's Local Rule 72.3. Within 14 days of service, any
party may file written objections to this R&R with the
Court and serve a copy on all parties. The document should be
captioned “Objections to Magistrate Judge's Report
and Recommendations.” Any request for additional time
to file objections should be filed with the Clerk for
consideration by the assigned district judge.
the objections period has ended, the Clerk shall submit this
R&R together with any objections to the assigned district
judge. The district judge will review the magistrate
judge's findings and recommendations pursuant to 28
U.S.C. § 636(b)(1)(C). The parties are advised that
failure to timely file objections will result in the waiver
of rights on appeal. 11th Cir. R. 3-1; see Symonett v.
V.A. Leasing Corp., 648 F. App'x 787, 790 (11th Cir.
2016); Mitchell v. United States, 612 F. App'x
542, 545 (11th Cir. 2015).
REPORTED AND RECOMMENDED.