Stinson v. Loar

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 21-cv-14044-BLOOM

DAVID C. STINSON,

Plaintiff,

v.

SHERIFF DERRY LOAR, et al.,

Respondent.

/

ORDER

THIS CAUSE is before the Court on Plaintiff David C. Stinson’s Complaint pursuant to

42 U.S.C. § 1983, ECF No. [1], and his Application to Proceed in District Court without Prepaying

Fees or Costs (“Application”), ECF No. [3]. For reasons set forth below, the Application to

Proceed in District Court without Prepaying Fees or Costs is granted, and the Complaint is

dismissed without prejudice.

I. DISCUSSION

a. Application to proceed In Forma Pauperis

Civil complaints filed by prisoners seeking in forma pauperis status under 28 U.S.C. § 1915

are subject to the provisions of the Prison Litigation Reform Act (“PLRA”). In order to promote

the speedy, just and efficient administration of civil rights complaints subject to the PLRA, the

court has established forms to be used by prisoners for filing civil rights actions.

The court-approved forms consist of (1) a cover sheet, (2) a complaint, (3) an application to

proceed in forma pauperis, and (4) an authorization form. The authorization form, when completed

by the plaintiff, directs the agency holding the plaintiff in custody to forward to the clerk of court

a certified copy of the plaintiff's institutional trust fund account and to disburse from the plaintiff's

account the full statutory filing fee in amounts specified by 28 U.S.C. § 1915(b). Properly

completing and filing the authorization form satisfies the plaintiff's obligation under 28 U.S.C. §

1915(a)(2) to submit a certified copy of the plaintiff's trust fund account with the complaint.

Although the Application is technically deficient because the Petitioner’s inmate account

statement is not certified by the corrections officer having control over such account, it is apparent

he seeks pauper status.

Plaintiff must make an initial payment of “20 percent of the greater of — (A) the average

monthly deposits to the prisoner’s account; or (B) the average monthly balance in the prisoner’s

account for the 6-month period immediately preceding the filing of the complaint or notice of

appeal.” 28 U.S.C. § 1915(b)(1). In addition to the initial filing fee, Plaintiff must “make monthly

payments of 20 percent of the preceding month’s income credited to the prisoner’s account.” 28

U.S.C. § 1915(b)(2). This filing fee will be collected even if the Court dismisses the case because

it is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks money

damages against a defendant who is immune from such relief. See 28 U.S.C. § 1915(e)(2).

Plaintiff is incarcerated at the Okaloosa Correctional Institution and submitted his inmate

account statement from August 25, 2020 through January 14, 2021. Based on the documents

Plaintiff submitted, the average balance in his account during the six-month preceding the filing

of this action was $0.00, and the average deposit was $0.00.

Plaintiff is entitled to proceed in forma pauperis. Plaintiff has filed documentation to

establish that he cannot pay even the partial filing fee. “In no event shall a prisoner be prohibited

from bringing a civil action or appealing a civil or criminal judgment for the reason that the

prisoner has no assets and no means by which to pay the initial filing fee.” 28 U.S.C. § 1915(b)(4).

b. Plaintiff’s Complaint

In the Complaint, Plaintiff names as Defendants: Indian River County Sheriff’s Officers,

Deputy Bud Spencer, Deputy Chris Rodriguez, and Sheriff Dery Loar; Assistant State Attorney,

Chris Jacobs; and Plaintiff’s appointed trial counsel, David Lamos. ECF No. [1] at 2-3. Plaintiff

alleges that his rights under the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments of the

United States Constitution and Articles One, Nine, and Sixteen under the Florida Constitution were

violated on February 6, 2003 and February 4 and 5, 2005. Id. at 3. Plaintiff alleges only that “the

detective committed perjured [sic] and fraud on the courts of racial and social economic

discrimination.” Id.

II.. STANDARD OF REVIEW

The Prison Litigation Reform Act (“PLRA”), as partially codified at 18 U.S.C.

§ 1915(e)(2)(B)(i)-(iii), requires courts to screen prisoner complaints and dismiss as frivolous

claims that are “based on an indisputably meritless legal theory” or “whose factual contentions are

clearly baseless.” Denton v. Hernandez, 504 U.S. 25, 32-33 (1992); see also Pullen v. Sec’y, Dep’t

of Corr., No. 19-11797-C, 2019 WL 5784952, at *1 (11th Cir. Sept. 4, 2019) (“[A]n action is

frivolous if it is without arguable merit either in law or fact.” (quoting Napier v. Preslicka, 314

F.3d 528, 531 (11th Cir. 2002))).

Under section 1915(e)(2)(B)(ii), a complaint may be dismissed if the court determines that

the complaint fails to state a claim on which relief may be granted. See Wright v. Miranda, 740 F.

App’x 692, 694 (11th Cir. 2018). The standard for determining whether a complaint states a claim

upon which relief can be granted is the same whether under section 1915(e)(2)(B) or Fed. R. Civ.

P. 12(b)(6). See Pullen, No. 19-11797-C, 2019 WL 5784952, at *1 (citing Mitchell v. Farcass, 112

F.3d 1483, 1490 (11th Cir. 1997)).

Pursuant to Fed. R. Civ. P. 8, a complaint must contain “a short and plain statement of the

claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). There is no required

technical form, but “each allegation must be simple, concise, and direct.” Fed. R. Civ. P. 8(d)(1).

The statement must “give the defendant fair notice of what the . . . claim is and the grounds upon

which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quotation marks omitted).

Thus, “a complaint must allege sufficient facts to state a claim that is plausible on its face.”

Pullen, No. 19-11797-C, 2019 WL 5784952, at *1 (citing Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009)). The “factual allegations must be enough to raise a right to relief above the speculative

level.” Bell Atl. Corp., 550 U.S. at 555 (citations omitted). Plaintiff is obligated to allege “more

than mere labels and legal conclusions, and a formulaic recitation of the elements of a cause of

action will not do.” Quality Auto Painting Ctr. of Roselle, Inc. v. State Farm Indemnity Co., 917

F.3d 1249, 1262 (11th Cir. 2019) (quoting Bell Atl. Corp., 550 U.S. at 555).

However, a district court is not required to “rewrite an otherwise deficient pleading in order

to sustain an action.” Rodriguez, 794 F. App’x at 603 (quotation marks omitted) (citation omitted)

(quoting Campbell v. Air Jamaica Ltd., 760 F.3d 1165, 1169 (11th Cir. 2014)). Moreover, a district

court “should not abandon its neutral role and begin creating arguments for a party, even an

unrepresented one.” Sims v. Hastings, 375 F. Supp. 2d 715, 718 (N.D. Ill. 2005) (citing Anderson

v. Hardman, 241 F.3d 544, 545 (7th Cir. 2001)). When read liberally, a pro se pleading “should

be interpreted ‘to raise the strongest arguments that [it] suggest[s].’” Graham v. Henderson, 89

F.3d 75, 79 (2d Cir. 1996) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)).

III. DISCUSSION

“Pro se pleadings are held to a less stringent standard than pleadings drafted by attorneys

and will, therefore, be liberally construed.” See Rodriguez v. Scott, 775 F. App’x 599, 602 (11th

Cir. 2019) (quoting Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998)). Thus,

the allegations in the complaint must be accepted as true and construed in the light most favorable

to the pro se plaintiff. See Hill v. White, 321 F.3d 1334, 1335 (11th Cir. 2003). However, a pro se

filer “still must comply with the Federal Rules of Civil Procedure.” Rodriguez, 775 F. App’x at

602 (citing Fed. R. Civ. P. 8(a)(2) and Moon v. Newsome, 863 F.2d 835, 837 (11th Cir. 1989)).

Plaintiff’s sole allegation supporting that section 1983 claim, that “the detective”

committed perjury and fraud, is vague and conclusory. ECF No. [1] at 3. To survive screening,

Plaintiff must allege a nonconclusory claim showing he is entitled to relief. See Lambert v. United

States, 98 F. App’x 835, 839 (11th Cir. 2006) (inmate’s conclusory allegations were insufficient

to establish a medical malpractice claim). “Rule 8 . . . demands more than an unadorned, the-

defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 677. Plaintiff’s three-sentence

complaint fails to allege any facts. Plaintiff does not identify who the detective is, when and where

he committed fraud and perjury, or how that fraud and perjury amounted to a deprivation of a

constitutional right. Construed liberally, Plaintiff fails to state sufficient facts upon which relief

can be granted.

Moreover, to the extent that Plaintiff challenges events that occurred February 6, 2003 and

February 4 and 5, 2005, this action is subject to dismissal based on the expiration of the statute of

limitations. Plaintiff filed this action on January 20, 2021. ECF No. [1] at 5.1

Statute of limitations exist “to prevent the litigation of stale claims—claims as to which

defense may be hampered because of passage of time, lost evidence, faded memories, or

disappearing witnesses[.]” Justice v. United States, 6 F.3d 1474, 1482 (11th Cir. 1993). Where the

“allegations [of the Complaint], on their face, show that an affirmative defense bars recovery on

the claim,” dismissal is appropriate under Rule 12(b)(6). Cotton v. Jenne, 326 F.3d 1352, 1357

(11th Cir. 2003).

1 “Under the prison mailbox rule, a pro se prisoner’s court filing is deemed filed on the date it is delivered

to prison authorities for mailing.” Williams v. McNeil, 557 F.3d 1287, 1290 n.2 (11th Cir. 2009). See also

Fed. R. App. 4(c)(1). Unless there is evidence to the contrary, like prison logs or other records, a prisoner’s

motion is deemed delivered to prison authorities on the day he signed it. See Washington v. United States,

243 F.3d 1299, 1301 (11th Cir. 2001).

While section 1983 does not explicitly state the statute of limitations period for presenting

actions under the statute, courts have determined that the statute of limitations period for section

1983 claims is the same as the statute of limitations for personal injury claims in the state in which

the events occurred. See Owens v. Okure, 488 U.S. 235, 240-41 (1989). In that regard, the Eleventh

Circuit Court of Appeals has “held that the four-year statute of limitations under Fla. Stat.

§ 95.11(3) applies to § 1983 claims arising in Florida.” Ellison v. Lester, 275 F. App’x 900, 901-

02 (11th Cir. 2008) (citing Chappell v. Rich, 340 F.3d 1279, 1283 (11th Cir. 2003)).

Here, the claim accrued more than four years prior to institution of the instant lawsuit. “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 that would avoid a statute of

limitations bar.” See Hughes v. Lott, 350 F.3d 1157, 1163 (11th Cir. 2003) (quotation marks

omitted) (citation omitted).

Although state law determines the limitation, federal law determines when the limitations

beings. See Wallace v. Kato, 549 U.S. 384, 388 (2007) (“[T]he accrual date of a § 1983 cause of

action is a question of federal law that is not resolved by reference to state law.”). As explained in

Sneed v. Pan Am Hosp., 370 F. App’x 47, 49 (11th Cir. 2010), the limitation period begins when

a person should know that they have an injury. For a section 1983 action, the statute begins to run

from the date “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 v. Georgia Bd. of Pardons and

Paroles, 335 F.3d 1259, 1261 (11th Cir. 2003) (quotation marks omitted). By Plaintiff’s own

admission, the incidents complained of accrued either February 6, 2003 or February 4 and 5, 2005.

ECF No. [1] at 3.

Nevertheless, under federal law, circumstances may equitably toll a limitations period. See

Bost v. Fed’l Express Corp., 372 F.3d 1233, 1242 (11th Cir. 2004). “Equitable tolling is

appropriate when a [plaintiff] untimely files because of extraordinary circumstances that are both

beyond his control and unavoidable even with diligence.” Arce v. Garcia, 434 F.3d 1252, 1261

(11th Cir. 2006) (quotation marks omitted).

Similarly, Florida law allows for equitable tolling of a statute of limitations when the

plaintiff has been misled or lulled into inaction, has in some extraordinary way been prevented

from asserting his rights, or has timely asserted his rights mistakenly in the wrong forum. See

Williams v. Albertson’s, Inc., 879 So.2d 657, 659 (Fla. 2004). Due diligence, though necessary, is

not sufficient to prevail on the issue of equitable tolling. Justice, 6 F.3d at 1479. The plaintiff,

however, bears the burden of showing that equitable tolling is warranted. See Bost, 372 F.3d at

1242. Plaintiff must show extraordinary circumstances that were beyond his control. See Moore v.

Chamberlain, 559 F. App’x 969 (11th Cir. 2014) (quotation marks omitted) (citations omitted).

Plaintiff has not alleged that he is entitled to equitable tolling. He has not pointed to any

evidence of extraordinary circumstances out of his control that prevented him from filing the

instant complaint within four years of the latest date he alleged injury occurred, February 5, 2005.

The allegations, even construed most favorably to the Plaintiff, do not warrant equitable tolling.

Because the limitations period likely began in 2005 and this action was not filed within four years,

it is not timely filed.

IV. CONCLUSION

Plaintiff’s allegations fail to state a viable section 1983 claim against the named Defendants

warranting dismissal of the entire Complaint.

Accordingly, it is ORDERED AND ADJUDGED as follows:

1. Plaintiff’s Application to Proceed in District Court without Prepaying Fees or

Costs, ECF No. [3], is GRANTED to the extent that the plaintiff need not prepay

even a partial filing fee in this case or cost for service of process.

Case No. 21-cv-14044-BLOOM

2. Plaintiff owes the United States a debt of $350.00 which must be paid to the Clerk

of the Court as funds become available.

3. The jail/prison having custody of the Plaintiff must make payments from the

prisoner’s account to the Clerk of this Court each time the amount in the account

exceeds $10.00 until the full filing fee of $350.00 is paid.

4. Plaintiff's Complaint pursuant to 42 U.S.C. § 1983 is DISMISSED without

prejudice for failure to state a claim upon which relief can be granted under 28

U.S.C. § 1915(e)(2)(B) Gi).

5. The Clerk is directed to CLOSE this case.

DONE AND ORDERED in Chambers at Miami, Florida, on February 5, 2021.

BETH BLOOM

UNITED STATES DISTRICT JUDGE

Copies to:

Counsel of Record

David C. Stinson, Pro Se

#570726

Okaloosa Correctional Institution

Inmate Mail/Parcels

3189 Colonel Greg Malloy Road

Crestview, FL 32539

Warden,

Okaloosa Correctional Institution

Inmate Mail/Parcels

3189 Colonel Greg Malloy Road

Crestview, FL 32539

Financial Department,

United States District Court, Southern District of Florida