United States District Court, S.D. Georgia, Savannah Division
FRANK D. MONSEGUE, SR., Plaintiff,
JUDGE WILLIAM T. MOORE, et al ., Defendants.
ORDER AND REPORT AND RECOMMENDATION
Christopher L. Ray United States Magistrate
Judge Southern District of Georgia
pro se and in forma pauperis, Frank
Monsegue, Sr., brings this Bivens
action against the judges, prosecutors, and law
enforcement officers involved in his federal criminal
prosecution. CV418- 239, docs. 1 & 6. The Court
granted plaintiff's request to pursue his case in
forma pauperis (IFP), doc. 5, and he returned the
necessary forms. Docs. 8 & 9. The Court now screens the
Complaint pursuant to 28 U.S.C. § 1915A, which requires
the immediate dismissal of any pro se complaint that
fails to state at least one actionable claim against a
governmental entity or official.
background is necessary to illuminate Monsegue's history
with this Court. Monsegue pled guilty to wire fraud
conspiracy, theft of government property, and aggravated
identity theft for his role in a tax refund fraud conspiracy.
See CR414-019, docs. 3 (indictment), 29 (superseding
indictment), 109 (minute entry), 110 (judgment for 87
months' imprisonment). He initially chose to plead not
guilty, id., docs. 119 & 120, but changed his
mind (for the first time) midway through voir dire
of the jurors for his trial. Id., doc. 121 at 17
(counsel gave a note to the Court indicating that movant
“now wishes to change his plea.”). He then
vacillated again because he was “not prepared” to
be taken immediately into custody, see id., doc. 125
at 6-7 (“Your Honor, we do not have an agreement. The
defendant has changed his mind.”), but after counsel
conferred again on the proposed plea agreement, Monsegue
(again) elected to enter a last-minute plea of guilt while
the empaneled jury waited in the wings. Id., doc. 75
(Rule 11 hearing) at 4.
yet again, Monsegue unsuccessfully attempted to withdraw his
guilty plea. E.g., CR414-019, doc. 77. He then
missed his sentencing hearing (apparently due to
counsel's failure to notify him of the upcoming date),
and promptly fled to New York when a bench warrant was issued
for his arrest. See id., doc. 122 at 7-10, 19-20. He
was captured and returned to this District for sentencing.
Docket Entry dated May 12, 2015 (reflecting arrest); see
also id., doc. 96 (arrest warrant returned executed);
id., docs. 109 & 110 (sentencing minutes and
judgment). He did not appeal, see id., doc. 111
(signed post-conviction certification declining to appeal
conviction), but moved instead to vacate his sentence under
28 U.S.C. § 2255. Id., doc. 116. That motion
was denied on the merits, id., docs. 136, 142 &
143, and the Eleventh Circuit denied his motion for a
certificate of appealability, id., docs. 153 &
154. He is currently serving a sentence of 87 months, with
credit already applied for time served, and repaying $432,
583.86 in restitution to the Internal Revenue Service, to be
paid jointly and severally with his codefendant.
Id., doc. 122 at 24.
in his pursuit of collateral relief, Monsegue is back with
several theories as to how his civil rights have been
violated. CV418-239, docs. 1 & 6. He seeks $15 million
from each actor that he believes responsible for his
incarceration. Doc. 6. But he sues defendants immune from
suit long after the statute of limitations has closed, to
undermine a valid, standing conviction.
statute of limitations for § 1983 claims “is that
which the State provides for personal-injury torts.”
Wallace v. Kato, 549 U.S. 384, 387 (2007) (cite
omitted). Under Georgia law, the statute of limitations for
such claims is two years. O.C.G.A. § 9-3-33; see
Williams v. City of Atlanta, 794 F.2d 624, 626 (11th
Cir. 1986). Generally, the statute of limitations for §
1983 claims begins to run when facts supporting the cause of
action are or should be reasonably apparent to the claimant.
Brown v. Ga. Bd. of Pardons & Paroles, 335 F.3d
1259, 1261 (11th Cir. 2003) (per curiam).
construed, Monsegue waves at excessive force and denial of
medical care claims. When Deputy Marshal Thomas captured him
in New York, Monsegue alleges that his brother was
unnecessarily “handcuff[ed] with his hands behind his
back.” Doc. 6 at 15. Monsegue himself “was then
t[h]rown on the bed and elbowed in the right side of [his]
head” and not subsequently provided with medical care.
Id. As a threshold matter, constitutional rights
violations cannot be vicariously asserted. See Tileston
v. Ullman, 318 U.S. 44, 46 (1943). Even if his
brother's rights were violated, therefore, Monsegue's
claim for damages for those violations would still be subject
pretermitting any analysis of whether Monsegue's
allegations of denial of medical care or excessive force rise
to the level of constitutional magnitude, compare
doc. 6 at 15 (admitting that after being subjected to an
allegedly excessively forceful arrest, he sustained no
injuries and “no medical aid was needed”),
with 42 U.S.C. § 1997e(e) (“No Federal
civil action may be brought by a prisoner . . . without a
prior showing of physical injury.”); see also
Rodriguez v. Farrell, 280 F.3d 1341, 1351 (11th Cir.
2002) (“the right to make an arrest or investigatory
stop necessarily carries with it the right to use some degree
of physical coercion or threat thereof to effect it.”);
id. (noting the arresting officer Farrell
permissibly “grabbed plaintiff's arm, twisted it
around [his] back, jerking it up high to the shoulder and
then handcuffed [him] as [he] fell to his knees screaming
that Farrell was hurting him, ” which is a
“handcuffing technique” that is “a
relatively common and ordinarily accepted non-excessive way
to detain an arrestee”), any claim arising from his
arrest clearly falls outside the two-year statute of
limitations. Excessive force claims accrue when the alleged
use of excessive force occurred. See Baker v. City of
Hollywood, 391 Fed.Appx. 819, 821 (11th Cir. 2010).
Monsegue's pre-sentencing seizure in New York occurred in
May 2015, more than three years before he filed his
Bivens complaint. Doc. 6 at 15. Any claim arising
from those events is time-barred.
also levies a claim for false arrest or false imprisonment, a
tort which affords a remedy for detention without legal
process. See Kato, 549 U.S. at 389 (a false
arrest claim based on a warrantless arrest is “a
species” of a false imprisonment claim). As damages for
a false arrest claim “cover the time of detention up
until issuance of process or arraignment, but not more,
” Heck v. Humphrey, 512 U.S. 477, 484 (1994),
a claim for false arrest accrues upon detention. In a case of
continuing detention (as here), however, “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. Here, any action accrued at Monsegue's
felony arraignment held March 20, 2014. See United States
v. Monsegue, CR414-019, doc. 41. Any claim now asserted,
more than four years later, is clearly time-barred as well.
of the timeliness of his claims, Monsegue has sued a panoply
of individuals and entities not subject to § 1983
liability. Judges are entitled to absolute judicial immunity
from damages for those acts taken while they are acting in
their judicial capacity unless they acted in the “clear
absence of all jurisdiction.” Stump v.
Sparkman, 435 U.S. 349, 356-57 (1978); Sibley v.
Lando, 437 F.3d 1067, 1070 (11th Cir. 2005); Simmons
v. Conger, 86 F.3d 1080, 1084-85 (11th Cir. 1996). This
immunity applies even when the judge's acts are in error,
malicious, or were in excess of his or her jurisdiction,
see Stump, 435 U.S. at 356; Harris v.
Deveaux, 780 F.2d 911, 914 (11th Cir. 1986), and extends
to all claims, whether for damages or for injunctive relief,
Bolin, 225 F.3d at 1239-42. The only remedy for a
judge's errors is appeal, and plaintiff declined to
appeal his guilty plea (see CR414-019, doc. 111).
Pierson v. Ray, 386 U.S. 547, 553-54 (1967) (a
judge's “errors may be corrected on appeal, but he
should not have to fear that unsatisfied litigants may hound
him with litigation charging malice or corruption. Imposing
such a burden on judges would contribute not to principled
and fearless ...