United States District Court, S.D. Georgia, Augusta Division
MAGISTRATE JUDGE'S REPORT AND
K. EPPS LTNIRED STATES MAGISTRATE JUDGE.
an inmate at the United States Penitentiary in Atwater,
California, commenced the above-captioned case pursuant to 42
U.S.C. § 1983, regarding events alleged to have occurred
at Lincoln County Law Enforcement Center in Lincolnton,
Georgia. He is proceeding pro se and in forma pauperis
(“IFP”). Because he is proceeding IFP,
Plaintiff's complaint must be screened to protect
potential defendants. Phillips v. Mashburn, 746 F.2d 782, 785
(11th Cir. 1984); Al-Amin v. Donald, 165 Fed.Appx. 733, 736
(11th Cir. 2006) (per curiam).
SCREENING OF THE COMPLAINT
names the following Defendants: (1) Lincoln County Law
Enforcement Center (“LEC”) and (2) Aries Hunter,
LEC Officer. (Doc. no. 1, pp. 1-2.) Taking all of
Plaintiff's allegations as true, as the Court must for
purposes of the present screening, the facts are as follows.
September 19, 2015, Officer Hunter came into Plaintiff's
cell, intentionally touched his penis multiple times, and
used her body to press against Plaintiff while trying to
remove Plaintiff's underwear. (Id. at 4-5.)
Plaintiff reported the incident to jail officials, but
nothing was done to protect Plaintiff from Officer
Hunter's “ongoing discrimination and
retaliation.” (Id. at 4.) Plaintiff seeks $3,
000, 000 in damages. (Id. at 5.) Plaintiff did not
date his complaint or IFP motion, but his inmate account
statement filed along with the complaint and IFP motion was
printed October 16, 2018. (Doc. no. 3, p. 1.) The Clerk of
Court received and filed Plaintiff's complaint on
November 5, 2018. (See doc. no. 1.)
Legal Standard for Screening
complaint or any portion thereof may be dismissed if it is
frivolous, malicious, or fails to state a claim upon which
relief may be granted, or if it seeks monetary relief from a
defendant who is immune to such relief. See 28 U.S.C.
§§ 1915(e)(2)(B) and 1915A(b). A claim is frivolous
if it “lacks an arguable basis either in law or in
fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989).
“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 Fed.Appx.
49, 51 (11th Cir. 2010) (per curiam) (citing Mitchell v.
Farcass, 112 F.3d 1483, 1490 (11th Cir. 1997)).
avoid dismissal for failure to state a claim upon which
relief can be granted, the allegations in the complaint must
“state a claim to relief that is plausible on its
face.” 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.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009). That is, “[f]actual allegations
must be enough to raise a right to relief above the
speculative level.” Twombly, 550 U.S. at 555. While
Rule 8(a) of the Federal Rules of Civil Procedure does not
require detailed factual allegations, “it demands more
than an unadorned, the-defendant-unlawfully-harmed-me
accusation.” Iqbal, 556 U.S. at 678. A complaint is
insufficient if it “offers ‘labels and
conclusions' or ‘a formulaic recitation of the
elements of a cause of action, '” or if it
“tenders ‘naked assertions' devoid of
‘further factual enhancement.'” Id.
(quoting Twombly, 550 U.S. at 555, 557). In short, the
complaint must provide a “‘plain statement'
possess[ing] enough heft to ‘sho[w] that the pleader is
entitled to relief.'” Twombly, 550 U.S. at 557
(quoting Fed.R.Civ.P. 8(a)(2)).
the Court affords a liberal construction to a pro se
litigant's pleadings, holding them to a more lenient
standard than those drafted by an attorney. Erickson v.
Pardus, 551 U.S. 89, 94 (2007); Haines v. Kerner, 404 U.S.
519, 520 (1972). However, this liberal construction does not
mean that the Court has a duty to re-write the complaint.
Snow v. DirecTV, Inc., 450 F.3d 1314, 1320 (11th Cir. 2006).
Plaintiff's Claims Are Time Barred
claims are subject to dismissal under the statute of
limitations applicable in Georgia. State law controls the
length of the statute of limitations period in § 1983
actions. Lawson v. Glover, 957 F.2d 801, 803 (11th Cir.
1987); Abreu-Velez v. Board of Regents of Univ. Sys. of Ga.,
248 Fed.Appx. 116, 117 (11th Cir. 2007) (per curiam). In
Georgia, such claims for injuries to the person must be
brought within two years of their accrual. Williams v. City
of Atlanta, 794 F.2d 624, 626 (11th Cir. 1986); Richards v.
Cobb County, Ga., 487 Fed.Appx. 556, 557 (11th Cir. 2012)
(per curiam); O.C.G.A. § 9-3-33. Although state law
determines the applicable statute of limitations period for
claims under § 1983, federal law determines the date of
accrual. See Brown v. Georgia. Bd. of Pardons & Paroles,
335 F.3d 1259, 1261 (11th Cir. 2003); Rozar v. Mullis, 85
F.3d 556, 561 (11th Cir. 1996). Under § 1983, a claim
accrues when “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.” Brown, 335
F.3d at 1261 (quoting Rozar, 85 F.3d at 561-62).
Plaintiff knew or should have known of the injuries alleged
in his complaint, as well as who injured him, when the events
described in his complaint occurred, September 19, 2015.
Plaintiff did not date his complaint received and filed by
the Clerk of Court on November 5, 2018. However, giving
Plaintiff every benefit of the doubt, the earliest date
appearing on any paperwork associated with his initial
filings is October 16, 2018, over three years after the
alleged events occurred. (Doc. no. 3, p. 1.) To the extent
Plaintiff may be suggesting some sort of on-going
constitutional violation at LEC post-dating September 19,
2015, the Court's criminal docket shows that as of June
21, 2016, Plaintiff was incarcerated at Edgefield Federal
Correctional Institution. United States v. Mobley, CR
115-063, doc. No. 97 (S.D. Ga. June 23, 2016). Therefore, even
if the ...