Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Pullins v. Tarver

United States District Court, S.D. Georgia, Statesboro Division

December 20, 2017

JAMES PULLINS, Plaintiff,
v.
CONSWAYLA TARVER, Defendant.

          ORDER AND MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          R. STAN BAKER, UNITED STATES MAGISTRATE JUDGE.

         Plaintiff, who is currently housed at Hays State Prison in Trion, Georgia, filed this cause of action pursuant to 42 U.S.C. § 1983, contesting certain conditions of his confinement. (Doc. 1.) After his case was transferred to this District, (doc. 3), and in response to this Court's Order directing him to amend using the appropriate Section 1983 complaint form, (doc. 9), Plaintiff submitted the Amended Complaint presently before the Court, (doc. 10). For the reasons set forth below, the Court DISMISSES AS MOOT Plaintiff's Motion to Appoint Counsel and DENIES his Motion to Proceed in Forma Pauperis. (Docs. 11, 13) Additionally, I RECOMMEND that the Court DISMISS WITHOUT PREJUDICE this action as time barred by the applicable statute of limitations.[1] I further RECOMMEND that the Court DIRECT the Clerk of Court to CLOSE this case and enter the appropriate judgment of dismissal, and DENY Plaintiff leave to appeal in forma pauperis.

         BACKGROUND

         Plaintiff originally filed this action seeking leave to proceed in forma pauperis. (Doc. 13.) Plaintiff's Amended Complaint, like his original Complaint, centers on alleged use of excessive force by Defendant, a correctional officer at Georgia State Prison in Reidsville, Georgia. (Docs. 1, 10.) In his Amended Complaint, Plaintiff states that on July 8, 2014, at approximately 12:30 p.m., Defendant stabbed him in the face with a pen as he was leaving the Reidsville prison chow hall. (Doc. 10, pp. 4-5.) Plaintiff avers the alleged use of excessive force left him with a puncture wound on the left side of his face that required medical attention. (Id.) Plaintiff filed a grievance that was forwarded to the Georgia Department of Corrections' (“GDC”) Internal Investigations Unit on July 22, 2014. (Id. at p. 7.) Plaintiff asserts he received no further response from the GDC thereafter; thus he filed a second grievance on April 14, 2016, inquiring as to the status of his first grievance. (Id. at pp. 7-8.) After filing his second grievance, Plaintiff was informed that his first grievance had been partially granted. (Id.) Plaintiff seeks monetary damages as well as injunctive relief. (Id. at p. 5.)

         STANDARD OF REVIEW

         Under 28 U.S.C. § 1915(a)(1), the Court may authorize the filing of a civil lawsuit without the prepayment of fees if the plaintiff submits an affidavit that includes a statement of all of his assets and shows an inability to pay the filing fee and also includes a statement of the nature of the action which shows that he is entitled to redress. Even if the plaintiff proves indigence, the Court must dismiss the action if it is frivolous or malicious, or fails to state a claim upon which relief may be granted. 28 U.S.C. §§ 1915(e)(2)(B)(i)-(ii). Additionally, pursuant to 28 U.S.C. § 1915A, the Court must review a complaint in which a prisoner seeks redress from a governmental entity. Upon such screening, the Court must dismiss a complaint, or any portion thereof, that is frivolous or malicious, or fails to state a claim upon which relief may be granted or which seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b).

         When reviewing a Complaint on an application to proceed in forma pauperis, the Court is guided by the instructions for pleading contained in the Federal Rules of Civil Procedure. See Fed. R. Civ. P. 8 (“A pleading that states a claim for relief must contain [among other things] . . . a short and plain statement of the claim showing that the pleader is entitled to relief.”); Fed.R.Civ.P. 10 (requiring that claims be set forth in numbered paragraphs, each limited to a single set of circumstances). Further, a claim is frivolous under Section 1915(e)(2)(B)(i) “if it is ‘without arguable merit either in law or fact.'” Napier v. Preslicka, 314 F.3d 528, 531 (11th Cir. 2002) (quoting Bilal v. Driver, 251 F.3d 1346, 1349 (11th Cir. 2001)).

         Whether a complaint fails to state a claim under Section 1915(e)(2)(B)(ii) is governed by the same standard applicable to motions to dismiss under Federal Rule of Civil Procedure 12(b)(6). Thompson v. Rundle, 393 F. App'x 675, 678 (11th Cir. 2010). Under that standard, this Court must determine whether the complaint contains “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 plaintiff must assert “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not” suffice. Twombly, 550 U.S. at 555. Section 1915 also “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.” Bilal, 251 F.3d at 1349 (quoting Neitzke v. Williams, 490 U.S. 319, 327 (1989)).

         In its analysis, the Court will abide by the long-standing principle that the pleadings of unrepresented parties are held to a less stringent standard than those drafted by attorneys and, therefore, must be liberally construed. Haines v. Kerner, 404 U.S. 519, 520 (1972); Boxer X v. Harris, 437 F.3d 1107, 1110 (11th Cir. 2006) (“Pro se pleadings are held to a less stringent standard than pleadings drafted by attorneys . . . .”) (quoting Hughes v. Lott, 350 F.3d 1157, 1160 (11th Cir. 2003)). However, Plaintiff's unrepresented status will not excuse mistakes regarding procedural rules. McNeil v. United States, 508 U.S. 106, 113 (1993) (“We have never suggested that procedural rules in ordinary civil litigation should be interpreted so as to excuse mistakes by those who proceed without counsel.”).

         DISCUSSION

         I. Dismissal Pursuant to the Statue of Limitations

         Plaintiff raises an Eighth Amendment constitutional claim for Defendant's alleged use of excessive force, but his claim is barred by the applicable statute of limitations. Constitutional claims brought pursuant to Section 1983 “are tort actions, subject to the statute of limitations governing personal injury actions in the state where the § 1983 action has been brought.” Powell v. Thomas, 643 F.3d 1300, 1303 (11th Cir. 2011). Georgia has a two-year statute of limitations for personal injury actions. O.C.G.A. § 9-3-33. Although state law determines the applicable statute of limitations, “[f]ederal law determines when the statute of limitations begins to run.” Lovett v. Ray, 327 F.3d 1181, 1182 (11th Cir. 2003). As a general rule, “the statute of limitations does not begin to run until the facts which would support a cause of action are apparent or should be apparent to a person with a reasonably prudent regard for his rights.” Id. “To dismiss a prisoner's complaint as time-barred prior to service, it must appear beyond a doubt from the complaint itself that the prisoner can prove no set of facts which would avoid a statute of limitations bar.'” Moore v. Chamberlain, 559 F. App'x 969, 970 (11th Cir. 2014) (citing Hughes v. Lott, 350 F.3d 1157, 1163 (11th Cir. 2003)).

         Plaintiff describes events occurring no later than July 2014. Plaintiff's Amended Complaint makes clear, in three separate sections, that the operative date in this case is July 8, 2014, when Defendant allegedly attacked him with a pen.[2] (Doc. 10, pp. 4, 5.) However, Plaintiff does not allege that he was unaware of the facts surrounding his claims at that time, nor does he allege any facts to suggest he discovered this information at a later date. Therefore, the statute of limitations began to run in July 2014, the latest date Plaintiff claims the subject event occurred. Because Plaintiff did not file his original Complaint in this case until September 28, 2017, which is more than three years after the event in question, Plaintiff's Complaint and Amended Complaint are untimely filed pursuant to the applicable two-year statute of limitations period. Given the specific date and one-off nature of the alleged unlawful use of force, Plaintiff's Amended Complaint makes clear that his action is time barred.

         However, Plaintiff timey filed his first grievance, which could serve to toll the statute of limitations period. “As a general matter, equitable tolling pauses the running of, or ‘tolls, ' a statute of limitations when a litigant has pursued his rights diligently but some extraordinary circumstance prevents him from bringing a timely action.” Lozano v. Montoya Alvarez, ___ U.S. ___, 134 S.Ct. 1224, 1231-32 (Mar. 5, 2014). The Prison Litigation Reform Act (“PLRA”) requires an inmate to exhaust all available administrative remedies before filing suit. 42 U.S.C. § 1997e(a). In Leal v. Georgia Department of Corrections, the Eleventh Circuit Court of Appeals “decline[d] to decide in the first instance the legal issue of whether the mandatory exhaustion requirement of 42 U.S.C. § 1997e(a) and the actual exhaustion of remedies by a prisoner will operate to toll the statute of limitations.” 254 F.3d 1276, 1280 (11th Cir. 2001); see also Walker v. United States, 196 F. App'x 774, 777 (11th Cir. 2006) (stating in a Bivens case that the court has “declined to decide whether the statute of limitations is tolled in a § 1983 case while a petitioner is pursuing administrative remedies”). While I recognize that Eleventh Circuit precedent has not addressed this issue directly, I conclude that the applicable statute of limitations was tolled while Plaintiff pursued his administrative remedies. Other Courts of Appeals agree. Nickolich v. Rowe, 299 F. App'x 725, 725-26 (9th Cir. 2008) (finding that, given California's two-year statute of limitations, a state prisoner's Section 1983 deliberate indifference claim was not barred by the statute of limitations, where the inmate commenced his prison grievance process immediately after his claim accrued and filed a complaint within two years of completing the mandatory ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.