United States District Court, S.D. Georgia, Statesboro Division
ORDER AND MAGISTRATE JUDGE'S REPORT AND
STAN BAKER, UNITED STATES MAGISTRATE JUDGE.
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. 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
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.)
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).
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.
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)).
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
Dismissal Pursuant to the Statue of Limitations
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
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
(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.
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