The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
EASTERN DIVISION
WARREN LEWIS HAMPTON, )
)
Plaintiff, )
)
v. ) CASE NO. 3:21-CV-71-WHA-CSC
) [WO]
TUSKEGEE AL. SHERIFF )
DEPARTMENT, et al., )
)
Defendants. )
RECOMMENDATION OF THE MAGISTRATE JUDGE
Plaintiff, Warren Hampton [“Hampton”], an inmate incarcerated at the Lee County
Detention Center in Opelika, Alabama, files this 42 U.S.C. § 1983 action against the Tuskegee
Sheriff’s Department and Sheriff Andre Brunson. He seeks to challenge a use of force incident
which occurred on September 26, 2018. According to the Complaint, a Macon County sheriff’s
deputy shot Hampton in the back of the head while he was running. Hampton states he was not
armed and did not constitute a threat to the deputy sheriff. Upon review, the Court concludes that
dismissal of this case prior to service of process is appropriate under 28 U.S.C. § 1915(e)(2)(B).1
1 The Court granted Plaintiff’s request for leave to proceed in forma pauperis. Doc. 5. A prisoner who is
allowed to proceed in forma pauperis in this court will have his complaint screened in accordance with
the provisions of 28 U.S.C. § 1915(e)(2)(B). This screening procedure requires the court to dismiss a
prisoner’s civil action prior to service of process if it determines that the complaint is frivolous, malicious,
fails to state a claim upon which relief may be granted, or seeks monetary damages from a defendant who
is immune from such relief. 28 U.S.C. § 1915(e)(2)(B)(i)-(iii).
I. DISCUSSION
A. Standard of Review Under 28 U.S.C. § 1915(e)(2)(B)
Because Hampton is proceeding in forma pauperis, the Court reviews his Complaint under
28 U.S.C. § 1915(e)(2)(B).2 Under § 1915(e)(2)(B), a court must dismiss a complaint proceeding
in forma pauperis if it determines that an action is frivolous, malicious, fails to state a claim upon
which relief may be granted, or seeks monetary relief against a defendant immune from such relief.
A claim is frivolous when it “has little or no chance of success,” that is, when it appears “from the
face of the complaint that the factual allegations are clearly baseless or that the legal theories are
indisputably meritless.” Carroll v. Gross, 984 F.2d 392, 393 (11th Cir. 1993). A claim is frivolous
if it “lacks an arguable basis in law or fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989). A
claim is frivolous as a matter of law where, among other things, the defendants are immune from
suit, id. at 327, the claim seeks to enforce a right that clearly does not exist, id., or an affirmative
defense would defeat the claim such as the statute of limitations, Clark v. Georgia Pardons &
Paroles Bd., 915 F.2d 636, 640 n.2 (11th Cir. 1990). Courts are accorded “not only the authority
to dismiss [as frivolous] a claim based on 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.” Neitzke, 490 U.S. at 327.
A complaint may be dismissed under 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a
claim upon which relief may be granted “only if it is clear that no relief could be granted under
any set of facts that could be proved consistent with the allegations.” Hishon v. King & Spalding,
2 The predecessor to this section is 28 U.S.C. § 1915(d). Even though Congress made many substantive
changes to § 1915(d) when it enacted 28 U.S.C. § 1915(b)(2)(B), the frivolity and the failure to state a
claim analysis contained in Neitzke v. Williams, 490 U.S. 319 (1989), was unaltered. Bilal v. Driver, 251
F.3d 1346, 1349 (11th Cir. 2001); Brown v. Bargery, 207 F.3d 863, 866 n.4 (6th Cir. 2000). However,
dismissal under § 1915(e)(2)(B) is now mandatory. Bilal, 251 F.3d at 1348-49.
467 U.S. 69, 73 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). A review on this
ground is governed by the same standards as dismissals for failure to state a claim under Rule
12(b)(6) of the Federal Rules of Civil Procedure. See Jones v. Bock, 549 U.S. 199, 215 (2007). To
state a claim upon which relief may be granted, “a complaint must contain 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) (internal quotation marks omitted). To state a claim to relief that is plausible, the
plaintiff must plead factual content that “allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Id. The allegations should present a “‘plain
statement’ possess[ing] enough heft to ‘show that the pleader is entitled to relief.’” Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 557 (2007). “Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. When a
successful affirmative defense, such as a statute of limitations, appears on the face of a complaint,
dismissal for failure to state a claim is also warranted. Jones, 549 U.S. at 215.
Pro se pleadings “are held to a less stringent standard than pleadings drafted by attorneys”
and are liberally construed. Boxer X v. Harris, 437 F.3d 1107, 1110 (11th Cir. 2006). However,
they “must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at
555. And a court does not have “license . . . to rewrite an otherwise deficient pleading [by a pro se
litigant] in order to sustain an action.” GJR Investments v. County of Escambia, Fla., 132 F.3d
1359, 1369 (11th Cir. 1998), overruled on other grounds by Iqbal, 556 U.S. 662 (2009). While,
the court treats factual allegations as true, it does not treat as true conclusory assertions or a
recitation of a cause of action’s elements. Iqbal, 566 U.S. at 681. Finally, a pro se litigant “is
subject to the relevant law and rules of court including the Federal Rules of Civil Procedure.”
Moon v. Newsome, 863 F.2d 835, 837 (11th Cir. 1989).
B. Claims Barred by the Statute of Limitations
Hampton seeks to challenge the conduct of an unnamed deputy sheriff for an incident
which occurred on September 26, 2018. Hampton’s Complaint is barred by the statute of
limitations applicable to actions filed by an inmate under 42 U.S.C. § 1983.
All constitutional claims brought under § 1983 are tort actions, subject to the statute
of limitations governing personal injury actions in the state where the § 1983 action
has been brought. Wilson v. Garcia, 471 U.S. 261, 275-76, 105 S.Ct. 1938, 1946-
47, 85 L.Ed.2d 254 (1985). [Plaintiff’s] claim was brought in Alabama where the
governing limitations period is two years. Ala. Code § 6-2-38; Jones v. Preuit &
Mauldin, 876 F.2d 1480, 1483 (11th Cir. 1989) (en banc). Therefore, in order to
have his claim heard, [Plaintiff is] required to bring it within two years from the
date the limitations period began to run.
McNair v. Allen, 515 F.3d 1168, 1173 (11th Cir. 2008).
The action about which Hampton complains occurred on September 26, 2018. By its
express terms, the tolling provision of Alabama Code § 6-2-8(a) provides no basis for relief to
Hampton from application of the time bar.3 Thus, the statute of limitations began to run on the
claims arising from the challenged conduct on September 26, 2018. The limitations period for this
event ran uninterrupted until it expired on September 26, 2020. Hampton filed the Complaint on
January 11, 2021, after expiration of the applicable limitation periods. 4
The statute of limitations is usually raised as an affirmative defense. In an action
proceeding in forma pauperis under section 1983, the Court may consider affirmative defenses
3 This section allows tolling of the limitations period for an individual who “is, at the time the right
accrues ... insane....” Alabama Code § 6-2-8(a). The Complaint demonstrates Hampton was not legally
insane at the time of the challenged events so as to warrant tolling under Alabama Code § 6-2-8(a).
4 The Court considers January 11, 2021, to be the filing date of the Complaint. Although the Clerk
stamped the Complaint “filed” on January 26, 2021, Plaintiff signed his Complaint on January 11, 2021,
and a pro se inmate’s complaint is deemed by law to have been filed the date it is delivered to prison
officials for mailing. Houston v. Lack, 487 U.S. 266, 271-272 (1988); Adams v. United States, 173 F.3d
1339, 1340-41 (11th Cir. 1999); Garvey v. Vaughn, 993 F.2d 776, 780 (11th Cir.1993).
apparent from the face of the complaint. Clark v. Georgia Pardons and Parole Board, 915 F.2d
636, 640 n.2 (11th Cir. 1990); Ali v. Higgs, 892 F.2d 438 (5th Cir. 1990). “[I]f the district court
sees that an affirmative defense would defeat the action, a section 1915[(e)(2)(B)(i)] dismissal is
allowed.” Clark, 915 F.2d at 640. “The expiration of the statute of limitations is an affirmative
defense the existence of which warrants dismissal as frivolous.” Id. at 640 n.2 (citing Franklin v.
State of Oregon, 563 F. Supp. 1310, 1330-1332 (D.C. Oregon 1983)).
In analyzing § 1983 cases, “the court is authorized to test the proceeding for frivolousness
or maliciousness even before service of process or before the filing of the answer.” Ali, 892 F.2d
at 440. “It necessarily follows that in the absence of the defendant or defendants, the district court
must evaluate the merit of the claim sua sponte.” Id.
An early determination of the merits of an IFP proceeding provides a significant
benefit to courts (because it will allow them to use their scarce resources effectively
and efficiently), to state officials (because it will free them from the burdens of
frivolous and harassing litigation), and to prisoners (because courts will have the
time, energy and inclination to give meritorious claims the attention they need and
deserve). “We must take advantage of every tool in our judicial workshop.” Spears
[v. McCotter], 766 F.2d [179, 182 (5th Cir. 1985)].
Green v. McKaskle, 788 F.2d 1116, 1120 (5th Cir. 1986).
Based on the facts apparent from the face of the Complaint, Hampton has no legal basis on
which to proceed regarding his claim because he filed this action over two years after the
challenged conduct occurred. As noted, the statutory tolling provision is unavailing. Consequently,
the two-year period of limitations applicable to Hampton’s claim expired prior to his filing this
action. In light of the foregoing, the Court concludes Hampton’s excessive force claim is barred
by the statute of limitations. Hampton’s Complaint is, therefore, subject to dismissal as frivolous
under 28 U.S.C. § 1915(e)(2)(B)(i). See Clark, 915 F.2d 636; Neitzke v. Williams, 490 U.S. 319,
327 (1989).
C. Sheriff Brunson
Even if Hampton could demonstrate his claims are not time-barred, the Court finds he has
alleged no facts against Defendant Brunson regarding the matters about which he complains nor
do his allegations reflect any involvement by Defendant Brunson. In a § 1983 action supervisory
officers “are not liable . . . for the unconstitutional acts of their subordinates [or fellow officers]
on the basis of respondeat superior or vicarious liability.” Cottone v. Jenne, 326 F.3d 1352, 1360
(11th Cir. 2003) (internal quotes and citation omitted). “[A] plaintiff must plead that each
Government-official defendant, through the official’s own individual actions, has violated the
Constitution.” Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). Thus, “[t]he standard by which a
supervisor is held liable in [his] individual capacity for the actions of a subordinate is extremely
rigorous.” Cottone, 326 F.3d at 1360–61 (internal quotation marks and citation omitted). Because
Hampton fails to make even a conclusory allegation that Defendant Brunson was aware of or was
personally involved in the alleged violation of his constitutional rights, the Complaint against this
defendant is due to be summarily dismissed based on Plaintiff’s failure to state a claim. 28 U.S.C.
§ 1915(e)(2(B)(ii).
D. The Tuskegee Sheriff’s Department
In order to allege a viable § 1983 claim, a plaintiff must name as a defendant an entity that
is subject to being sued. Dean v. Barber, 951 F.2d 1210, 1214 (11th Cir. 1992). The capacity of a
party to be sued is “determined by the law of the state in which the district court is held.” Id. Both
federal and state law are well settled that a county sheriff’s department is not a legal entity subject
to suit or liability. Id.; White v. Birchfield, 582 So.2d 1085, 1087 (Ala. 1991). Based on the
foregoing, the Court concludes that the Tuskegee Sheriff’s Department is not a legal entity subject
to suit. Thus, Hampton’s Complaint against this defendant is due to be dismissed. 28 U.S.C. §
1915(e)(2)(B)(i).
II. CONCLUSION
Accordingly, it is the RECOMMENDATION of the Magistrate Judge that Plaintiff’s
Complaint be DISMISSED with prejudice prior to service of process under 28 U.S.C. §
1915(e)(2)(B)(i) & (ii).
Plaintiff may file an objection to the Recommendation on or before March 19, 2021.
Any objection filed must specifically identify the factual findings and legal conclusions in the
Magistrate Judge’s Recommendation to which Plaintiff objects. Frivolous, conclusive or general
objections will not be considered by the District Court. This Recommendation is not a final order
and, therefore, it is not appealable.
Failure to file a written objection to the proposed findings and recommendations in the
Magistrate Judge’s report shall bar a party from a de novo determination by the District Court of
factual findings and legal issues covered in the report and shall “waive the right to challenge on
appeal the district court’s order based on unobjected-to factual and legal conclusions” except upon
grounds of plain error if necessary in the interests of justice. 11TH Cir. R. 3-1; see Resolution Trust
Co. v. Hallmark Builders, Inc., 996 F.2d 1144, 1149 (11th Cir. 1993); Henley v. Johnson, 885
F.2d 790, 794 (11th Cir. 1989).
Done, this 5th day of March 2021.
/s/ Charles S. Coody
CHARLES S. COODY
UNITED STATES MAGISTRATE JUDGE