Marsh v. Ivey (INMATE 2)

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

NICKY L. MARSH, AIS 278213, )

)

Plaintiff, )

)

v. ) CASE NO. 2:23-CV-94-EMC-KFP

)

KAY IVEY, GOVERNOR OF )

ALABAMA, et al., )

)

Defendants. )

RECOMMENDATION OF THE MAGISTRATE JUDGE

I. INTRODUCTION

Plaintiff Nicky Marsh, an inmate proceeding pro se and in forma pauperis, is

confined at the Staton Correctional Facility, in Elmore, Alabama. He filed a hand-written

Amended Complaint, docketed under 42 U.S.C. § 1983, naming the following as

defendants: Governor Kay Ivey; Cam Ward, director of the Alabama Board of Pardons

and Paroles; John Hamm, Commissioner of the Alabama Department of Corrections;

Gabrella Simmons, board manager; and Leigh Gwathney and Darryle Littleton, board

members. Doc. 12.1 After review and consideration of the Amended Complaint, the

undersigned RECOMMENDS that this case be DISMISSED, as set forth below.

1 Despite the directive in the Order (Doc. 10) of June 23, 2023, directing Plaintiff to file an amended

complaint on a form used by inmates to file § 1983 actions, Plaintiff submitted another hand-written

pleading. See Docs. 1, 12.

II. STANDARD OF REVIEW

Because Plaintiff was granted leave to proceed in forma pauperis (Doc. 5), his

Amended Complaint is subject to screening under 28 U.S.C. § 1915(e)(2)(B), which

requires a court to dismiss the complaint or any portion of it if it is frivolous or malicious,

fails to state a claim upon which relief may be granted, or seeks monetary relief against a

defendant immune from such relief. 28 U.S.C. § 1915(e)(2)(B), 28 U.S.C. § 1915A(b). To

state a claim on 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. In

applying § 1915, “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 v.

Higgs, 892 F.2d 438, 440 (5th Cir. 1990).

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). See also 28 U.S.C. § 1915A(a)

(stating court shall review civil action by prisoner against governmental entity or officer or

employee before docketing, if feasible, or as soon as practicable after docketing).

III. FACTUAL BACKGROUND

Plaintiff entered a guilty plea to first degree rape in the Elmore County Circuit Court

on February 29, 2012. Doc. 12 at 5. The trial court sentenced him to a 25-year term of

imprisonment. Id. Plaintiff claims his guilty plea was done “with the understanding, from

his counsel[] and the Elmore Circuit Court Judge, that he would be eligible for parole

consideration at some point [during] his prison term.” Id. However, he claims that after he

was processed into state custody a former Alabama governor signed an unconstitutional

law that caused him to be “resentenced to a mandatory 25 years, overriding the legal

sentence” imposed on him by the trial judge. Id. at 2. Plaintiff maintains Governor Ivey

continues to enforce and uphold a discriminatory and unconstitutional law banning sex

offenders from ever being considered for parole. Id. at 5–6.

IV. DISCUSSION

A. The Statute of Limitations

Although the statute of limitations is usually raised as an affirmative defense, in

an action proceeding in forma pauperis under § 1983, the Court may consider affirmative

defenses apparent from the face of the complaint. Clark v. State of Ga. Pardons & Paroles

Bd., 915 F.2d 636, 640 n.2 (11th Cir. 1990); Ali, 892 F.2d 438. “[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

(citation omitted); Smith v. Shorestein, 217 F. App’x 877, 880 (11th Cir. 2007) (same).

“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.” McNair v. Allen, 515 F.3d 1168, 1173 (11th Cir. 2008) (citation

omitted). The governing limitations period in Alabama is two years. Id. (citing Ala. Code

§ 6-2-38; Jones v. Preuit & Mauldin, 876 F.2d 1480, 1483 (11th Cir. 1989)). Generally,

the limitations period 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 & Paroles, 335 F.3d 1259, 1261 (11th

Cir. 2003) (citing Rozar v. Mullis, 85 F.3d 556, 561-62 (11th Cir. 1996)).

By Plaintiff’s own admission, the events with which he takes issue occurred in 2012

after he was convicted and processed into the state prison system. Plaintiff does not allege

that he was unaware of the facts surrounding his claims at that time, nor does he allege any

facts to suggest that he discovered this information at a later date.2 However, Plaintiff did

not file this action until February 10, 2023,3 was approximately nine years after the

limitations period expired. Thus, it is clear from the face of the Amended Complaint that

this case is time-barred and due to be dismissed. See Baldwin Cnty. Welcome Ctr. v. Brown,

2 Any argument that enforcement of the challenged law is ongoing amounts to an allegation of continuing

harm—not a continuing violation—which does not extend the limitation period. See Lovett v Ray, 327 F.3d

1181, 1183 (11th Cir. 2003) (holding that continuing violation doctrine did not apply to parole board’s

decision to change plaintiff’s parole reconsideration date because decision was one-time act with continuing

consequences and, therefore, limitations period was not extended); see also McGroarty v. Swearingen, 977

F.3d 1302, 1308–09 (11th Cir. 2020) (noting that Eleventh Circuit has refused to apply continuing violation

doctrine to plaintiffs who could have filed within statute of limitations period).

3 The Court considers February 10, 2023, to be the filing date of this case. Although the Clerk stamped the

original complaint “filed” on February 13, 2023, Plaintiff signed his complaint on February 10, 2023, 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).

466 U.S. 147, 152 (1984) (stating that the “[p]rocedural requirements established by

Congress for gaining access to the federal courts are not to be disregarded by courts out of

a vague sympathy for particular litigants”).

B. The Habeas Claim

Plaintiff alleges he entered a guilty plea to first degree rape with an understanding

from his trial attorney and the trial court that he would serve a parole-eligible term of

imprisonment. To the extent Plaintiffs challenges the validity of his guilty plea, allowing

him to proceed would necessarily impugn his conviction and run afoul of the Heck

“favorable termination” rule. See Heck v. Humphrey, 512 U.S. 477 (1994). See also

Edwards v. Balisok, 520 U.S. 641, 646 (1997); Preiser v. Rodriguez, 411 U.S. 475, 500

(1973).

In Heck, the Supreme Court held that claims challenging the legality of a conviction

or sentence are not cognizable in a § 1983 action “unless and until the conviction or

sentence is reversed, expunged, invalidated, or impugned by the grant of a writ of habeas

corpus.” Id. 512 U.S. at 489. The relevant inquiry is “whether a judgment in favor of the

plaintiff would necessarily imply the invalidity of his conviction or sentence[.]” Id. at 487;

Edwards, 520 U.S. at 648 (holding that inmate’s claims for declaratory judgment,

injunctive relief, or monetary damages that “necessarily imply the invalidity of the

punishment imposed, [are] not cognizable under § 1983”). “It is irrelevant that [the

plaintiff] disclaims any intention of challenging his conviction [or sentence]; if he makes

allegations that are inconsistent with the [action] having been valid, Heck kicks in and bars

his civil suit.” Okoro v. Callaghan, 324 F.3d 488, 490 (7th Cir. 2003) (citations omitted).

Under the circumstances of this case, Heck and its progeny bar Plaintiff’s assertion

of any § 1983 claim that would effectively constitute a collateral attack on the validity of

his underlying conviction. Heck, 512 U.S. at 489; Abella v. Rubino, 63 F.3d 1063, 1066

n.4 (11th Cir. 1995). Consequently, the claims provide no basis for relief at this time and

are subject to summary dismissal under 28 U.S.C § 1915(e)(2)(B)(ii).4

V. CONCLUSION

Accordingly, for the reasons set forth above, the undersigned RECOMMENDS that:

1. Plaintiff’s Amended Complaint be DISMISSED with prejudice under 28

U.S.C. § 1915(e)(2)(B)(i) as time barred.

2. Plaintiff’s claims, to the extent they challenge the fundamental legality of his

conviction, be DISMISSED without prejudice under 28 U.S.C. § 1915(e)(2)(B)(ii) as such

claims provide no basis for relief at this time.

3. This case be DISMISSED prior to service of process under 28 U.S.C. §

1915(e)(2)(B)(i–ii).

Further, it is ORDERED that by August 30, 2023, the parties may file written

objections to this Recommendation. The parties must specifically identify the factual

findings and legal conclusions in the Recommendation to which objection is made.

4 Any federal habeas petition Plaintiff files is subject to the statutory procedural limitations imposed upon

those petitions. See 28 U.S.C. § 2254(b)(1)(A) (“An application for a writ of habeas corpus on behalf of a

person in custody pursuant to the judgment of a State court shall not be granted unless it appears that the

applicant has exhausted the remedies available in the courts of the State[.]”); 28 U.S.C. § 2244(d)(1) (“A

1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody

pursuant to the judgment of a State court.”); 28 U.S.C. § 2244(b)(3)(A) (“Before a second or successive [§

2254 petition] is filed in the district court, the applicant shall move in the appropriate court of appeals for

an order authorizing the district court to consider the application.”).

Frivolous, conclusive, or general objections will not be considered by the Court. The

parties are advised that this Recommendation is not a final order and, therefore, is not

appealable.

Failure to file written objections to the Magistrate Judge’s findings and

recommendations in accordance with 28 U.S.C. § 636(b)(1) will bar a party from a de novo

determination by the District Court of legal and factual issues covered in the

Recommendation and waive the right of the party to challenge on appeal the District

Court’s order based on unobjected-to factual and legal conclusions accepted or adopted by

the District Court except on grounds of plain error or manifest injustice. 11TH CIR. R. 3-1.

Done this 16th day of August, 2023.

/s/ Kelly Fitzgerald Pate

KELLY FITZGERALD PATE

UNITED STATES MAGISTRATE JUDGE