United States District Court, S.D. Georgia, Augusta Division
JOSEPH TIGER D. PRINCE, Plaintiff,
ELIZABETH ROBERTS; V. BROWN; OFFICER KNIGHT; OFFICER STROUP; and JACQULYN CHAMPION, Defendants.
careful, de novo review of the file, the Court
concurs with the Magistrate Judge's Report and
Recommendation, to which objections have been filed. (Doc.
no. 20.) The Magistrate Judge recommended dismissing
Defendants Champion, Brown, and Roberts from this case
because Plaintiffs claims against them are time-barred.
(See doc. no. 17, pp. 4-5.) As the Magistrate Judge
explained, a two-year statute of limitations applies to the
claims against these three Defendants based on the November
4, 2013 accident about which Plaintiff complains. 
does not contest the date of the accident, but he instead
objects that his injuries flowing from the 2013 accident
constitute a "continuing wrong, " about which he
did not become aware until an MRI test in April of 2015.
(Doc. no. 20, p. 5 & Ex. C.) Plaintiff then argues the
statute of limitations should be further tolled because he
filed an administrative grievance on April 23, 2015, the
appeal of which was not resolved until August 18, 2015, when
it was forwarded to the Criminal Investigation review.
(Id. & Ex. B.)
an injury is not discernible by the exercise of ordinary care
- either because hidden or slow-developing - the statute of
limitations is tolled, " but courts apply the continuing
tort doctrine "only in very narrow circumstances."
Rivell v. Private Health Care Svs. Inc., 887
F.Supp.2d 1277, 1286 (S.D. Ga. 2012). Plaintiff does not
allege he was unaware of the allegedly faulty storage racks
or about any injury allegedly caused by these three
Defendants until 2015. Rather, he claims he discovered an
additional injury in 2015. This is not a case for
tolling based on a continuing wrong that was only first
discovered in 2015 because Plaintiff knew he had claims as of
November 4, 2013, when the storage racks fell on him. See id;
Smith v. Tandy Corp.. 738 F.Supp. 521, 523 (S.D. Ga.
1990) (Alaimo, J.) ("It is undisputed that plaintiff was
fully aware of the tortious acts allegedly committed by
defendant, and she certainly could have filed her suit within
the two-year limitations period.") Likewise, Plaintiff
has provided documentation showing he was not assigned to the
kitchen, and thus not exposed to the punches allegedly
administered by Defendant Brown, since 2014. (Doc. no. 20,
Ex. B, p. 3.) Therefore, any such claims resulting from those
alleged punches by Defendant Brown are time-barred.
Plaintiff has not shown he is entitled to an extension of the
statute of limitations based on a continuing wrong, his
subsequent argument about tolling based on his attempts at
exhausting his administrative remedies starting in 2015 also
fails. But even if the Court were to consider the issue of
tolling based on exhausting the grievance procedure, the
argument fails. State law also governs statutory tolling
rules in § 1983 cases. Wallace v. Kato, 549
U.S. 384, 394 (2007). The limitations period for certain
disabled individuals is tolled in Georgia, but prisoners are
excluded from the persons entitled to statutory tolling.
Seibert v. Comm'r. Ga. Dep't of Corr.. No.
15-10501, 2017 WL 710437, at *2 (11th Cir. 2017) (citing
O.C.G.A. § 9-3-90; Giles v. Garwood. 853 F.2d
876, 877-78 (11th Cir. 1988)). If "an inequitable event
prevented a plaintiffs timely action, " equitable
tolling may be available, but the plaintiff bears the burden
of establishing such tolling is warranted. Booth v.
Carnival Corp.. 522 F.3d 1148, 1150 (11th Cir. 2008).
Eleventh Circuit has refused to set a per se rule
that the requirement found in 42 U.S.C. § 1997e(a) to
exhaust available prison administrative remedies prior to
filing a federal lawsuit operates to toll the statute of
limitations. Leal v. Ga. Dep't of Corr.. 254
F.3d 1276, 1280 (11th Cir. 2001). Because Plaintiff is a
prisoner, Georgia's statutory tolling does not apply, and
he has not otherwise alleged an inequitable event entitles
him to equitable tolling. See Seibert, 2017 WL
710437 at *2. Indeed, Plaintiff knew about the claims which
he attempts to raise against these three Defendants when he
filed lawsuits against them on July 12, 2016, cases which the
undersigned dismissed without prejudice on August 24, 2016,
because Plaintiff had accumulated three strikes under 28
U.S.C. § 1915(g) and failed to disclose that filing
history to the Court. See Prince v. Champion. CV
116-110, CV 116-111 (S.D. Ga. Aug. 24, 2016). Plaintiff
concedes these cases involved the same facts as the instant
case. (Doc. no. 10, p. 3.) Plaintiff did not refile this case
until over one year later. His claims against Defendants
Champion, Brown, and Roberts are barred by the two-year
statute of limitations.
with his objections, Plaintiff also filed a motion to amend
his second amended complaint. (Doc. no. 21.) Under Rule
15(a)(1)(A), a party may amend his pleading once as a matter
of course within twenty-one days after service. The docket
reflects that prior to transfer to the Southern District of
Georgia, Plaintiff was twice ordered to amend his complaint.
(Doc. nos. 2, 6.) However, there is no proof in the record
any complaint has been served on the only two individuals who
remain in this case, Defendants Knight and Stroup, let alone
that a responsive pleading has been filed. The Court need not
decide whether Plaintiff is attempting to amend as a matter
of right or must ask the Court's permission, as he has
done here with his current motion, because the Court can deny
an amendment as futile if it seeks to add claims that are
without merit or cannot form the basis for cognizable relief.
See Coventry First. LLC v. McCarty. 605 F.3d 865,
870 (11th Cir. 2010) (ruling that futility includes proposed
amendments that fail as a matter of law). As described below,
the proposed amendment is futile, and therefore the Court
DENIES the motion to amend. (Doc. no. 21.)
the amendment is by no means a "short and plain
statement of the claim" as required by Federal Rule of
Civil Procedure 8(a). To the contrary, it consists of eleven,
single-spaced handwritten pages describing events spanning
from 2013 to the present and improperly "incorporating
by reference" nine attached exhibits, one of which is a
newspaper article from the Atlanta-Journal Constitution.
Second, Plaintiff attempts to re-state claims against
Defendants Champion, Brown, and Roberts, which as discussed
in detail above, are time-barred. The portion of the proposed
amendment devoted to his interactions with Defendants Knight
and Stroup on August 8, 2017, at Augusta State Medical Prison
does not change the claims already pending against them in
the Second Amended Complaint. Third, Plaintiff has not
identified any of the named Defendants as the persons
responsible for the medical treatment about which he
complains in the proposed amendment, and therefore those
claims are not viable. See Douglas v. Yates, 535
F.3d 1316, 1321-22 (11th Cir. 2008) (explaining complaint
must associate a named defendant with an alleged wrong).
Accordingly, the the motion to amend is futile.
the Court OVERRULES all objections,
ADOPTS the Report and Recommendation of the
Magistrate Judge as its opinion, DISMISSES
Defendants Champion, Brown, and Roberts from this case, and
DENIES the motion to amend, (doc. no. 21).
 Under Local Rule 72, Magistrate
Judges are authorized to perform the duties prescribed by 28
U.S.C. § 636(a) and (b)(1), including submitting
proposed findings of fact and recommendations for the
disposition of a variety of filings, including, among other
things, dismissal for failure to state a claim and motions
for injunctive relief. Loc. R. 72.1, 72.2, 72.3. As the
Magistrate Judge recommended dismissal of claims and
Plaintiff has been given an opportunity to object, the
objection to the Magistrate Judge screening the second
amended complaint, (doc. no. 20, p. 2), is without
Plaintiff provided copies of
certified mail receipts as an attachment to his
"Mini-Omnibus Motion, " which he claims
accomplished service on Defendants Knight and Stroup. (Doc.
no. 23, p. 5 & Ex. 3.) As the Magistrate Judge explained
in his January 18, 2018 Order, Plaintiff may request
Defendants waive personal service, but if they choose not to
return a waiver, "Plaintiff is still responsible for
properly effecting personal service. Fed.R.Civ.P. 4(c) &
(e)." (Doc. no. 19, p. 3.) Under Rule 4(d), if a
defendant fails, without good cause, to sign and return a
waiver, the expense for personal service ...