“[I]f the district court sees that an affirmative defense would defeat the action, a section 1915 dismissal is allowed.”
How later courts described this case
- “[I]f the district court sees that an affirmative defense would defeat the action, a section 1915 dismissal is allowed.”
Written by the judges who cited it.
The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
SOUTHERN DIVISION
TERNECIA D. WILSON, )
)
Plaintiff, )
)
v. ) Case No. 1:22-cv-261-ECM-CWB
)
DONALD VALENZA and )
JEFF CARLISLE, )
)
Defendants. )
REPORT AND RECOMMENDATION
Plaintiff Ternecia D. Wilson, who is proceeding pro se, filed this action on May 3, 2022
against defendants Donald Valenza and Jeff Carlisle. (Doc. 1). Plaintiff simultaneously filed a
motion to proceed in forma pauperis. (Doc. 2). On May 5, 2022, the court granted Plaintiff
in forma pauperis status and ordered that service of process be deferred pending preliminary
review of the Complaint pursuant to 28 U.S.C. § 1915(e). (Doc. 4).1
The Complaint alleges that Plaintiff was “physically and mentally abused by authority,”
subjected to “excessive use of force,” and “racially profiled.” (Doc. 1 at p. 1). Attached as an
exhibit to the Complaint is a handwritten letter further detailing the circumstances giving rise to
Plaintiff’s claims. (Doc. 1-1). Both the body of the Complaint and the attached exhibit specifically
list the date of the alleged misconduct as December 26, 2013. (Doc. 1 at ¶ 4; Doc. 1-1 at p. 1).
The court therefore concludes that Plaintiff’s claims are time-barred.
1 Section 1915(e) provides in pertinent part: “[T]he court shall dismiss the case at any time if the
court determines that . . . the action or appeal– (i) is frivolous or malicious, (ii) fails to state a claim
on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune
from such relief.” 28 U.S.C. § 1915(e)(2)(B).
It is well settled that Plaintff’s claims are subject to a two-year limitations period for being
asserted in this court:
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). [The 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, [the 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). From the face of the Complaint, it is clear
that the limitations period began to run on or about December 26, 2013. (Docs. 1 & 1-1). It is
equally clear that this action was not filed until almost eight-and-a-half years later—far beyond
the two-year period for doing so. (Doc. 1).
A statute of limitations argument generally is first pled as an affirmative defense.
When a plaintiff proceeds in forma pauperis, however, the court may sua sponte consider any
such affirmative defense that is apparent from the face of the complaint itself. See, e.g., Clark v.
Georgia Pardons and Parole Board, 915 F. 2d 636, 640 n.2 (11th Cir. 1990) (“[I]f the district
court sees that an affirmative defense would defeat the action, a section 1915 dismissal is
allowed.”); see also Ali v. Higgs, 892 F.2d 438 (5th Cir. 1990). For the reasons set out above,
Plaintiff’s claims are untimely and thus due to be dismissed as frivilous under § 1915(e)(2)(B)(i).
See Clark, 915 F.2d 636 n. 2 (“The expiration of the statute of limitations is an affirmative defense
the existence of which warrants dismissal as frivolous.”); see also Neitzke v. Williams, 490 U.S.
319, 327 (1989).
Accordingly, it is the RECOMMENDATION of the Magistrate Judge that this action be
DISMISSED with prejudice prior to service of process.
It is further ORDERED that, by October 19, 2022, the parties may file written objections
to this Recommendation. An objecting party must identify the specific portion of the factual
findings or legal conclusions to which the objection is made and must describe in detail the basis
for the objection. Frivolous, conclusive, or general objections will not be considered.
Failure to file a written objection to this Recommendation shall bar a party from a de novo
determination by the District Court of any factual findings or legal conclusions contained herein
and shall waive the right of the party to challenge on appeal any subsequent order that is based on
factual findings and legal conclusions accepted or adopted by the District Court, except upon
grounds of plain error or manifest injustice. 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 the 5th day of October 2022.
LA
Lignan
CHAD W. BRYAN
UNITED STATES MAGISTRATE JUDGE