Jerido v. Booth (INMATE 1)

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE

MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION

ANTONIO ORLANDER JERIDO, )

)

Plaintiff, )

) CIVIL ACTION NO.

v. ) 2:23cv409-MHT

) (WO)

LEE R. BOOTH, et al., )

)

Defendants. )

OPINION AND ORDER

Plaintiff, a state prisoner, filed this action in

state court against an insurance company that he

believed to be the surety for a group of state

prosecutors. He asserted claims related to the

prosecutors’ alleged misconduct in failing to take

action against a fellow prosecutor whom plaintiff

contends was not competent. The insurance company

removed the case to this court, asserting

subject-matter jurisdiction under 28 U.S.C. § 1332

(diversity of citizenship) and 28 U.S.C. § 1441

(removal). Plaintiff then filed a motion to amend the

complaint and drop the insurance company as a

defendant. The United States Magistrate Judge granted

the motion to amend. The amended complaint pleads only

state-law claims against multiple Alabama prosecutors.

This lawsuit is now before the court on the

recommendation of the United States Magistrate Judge

that the case be remanded to state court for lack of

subject-matter jurisdiction. There are no formal

objections to the recommendation. On the contrary,

plaintiff filed a response to the recommendation (Doc.

28) noting that he had no objection to remanding the

case. However, shortly after filing the notice of no

objection, plaintiff changed his mind and filed two

motions to amend his amended complaint (Doc. 29 and

Doc. 30) to add federal claims pursuant to 42 U.S.C.

§§ 1983, 1985, and 1986, thereby attempting to invoke

the federal-question jurisdiction of this court.1

After an independent and de novo review of the record,

1. Plaintiff further asks the court to strike his

response (Doc. 28) to the recommendation (Doc. 27), in

which he agreed with the magistrate judge that this

case should be remanded to the state court.

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the court concludes that the motions to amend should be

denied and the magistrate judge’s recommendation should

be adopted, for the following reasons.

Federal Rule of Civil Procedure 15(a) provides a

plaintiff with the right to amend his complaint “once

as a matter of course no later than ... 21 days after

serving it.” Fed. R. Civ. P. 15(a)(1)(A). After 21

days has passed, “a party may amend its pleading only

with the opposing party's written consent or the

court's leave.” Fed. R. Civ. P. 15(a)(2).

A “court should freely give leave [to amend] when

justice so requires.” Id. However,

"a district court may properly deny leave to amend the

complaint under Rule 15(a) when such amendment would be

futile.” Hall v. United Ins. Co. of Am., 367 F.3d

1255, 1262–63 (11th Cir. 2004) (citing Foman v. Davis,

371 U.S. 178, 182 (1962)). Amendment would be futile

when the proposed amended complaint would be subject to

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dismissal. See Hall, 367 F.3d at 1263; Burger King

Corp. v. Weaver, 169 F.3d 1310, 1320 (11th Cir. 1999).

In his motions to amend, plaintiff seeks to amend

the complaint to bring a race discrimination claim

under § 1983, a civil conspiracy claim under § 1985,

and a claim for negligent failure to prevent a

conspiracy under § 1986 against all the named

defendants.2 However, on the face of the proposed

amended complaint, it is evident that each of these

purported claims are time-barred by the statute of

limitations applicable to such actions.3 Therefore,

amendment would be futile.

“All constitutional claims brought under § 1983 are

tort actions, subject to the statute of limitations

2. He also moves to add a new defendant for these

claims. See Motion to Amend (Doc. 29).

3. The court further finds that plaintiff’s

proposed amended complaint does not plead any plausible

claims, and it does not appear that further amendment

would change that. However, because plaintiff’s claims

are barred by the applicable statute of limitations,

the court pretermits discussion of any further

deficiencies.

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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). “Conspiracy claims under section 1985 [also]

share the forum state’s statute of limitations for tort

claims.” Wainberg v. Mellichamp, 93 F.4th 1221, 1225

(11th Cir. 2024) (citing Rozar v. Mullis, 85 F.3d 556,

560–61 (11th Cir. 1996)). The governing limitations

period in Alabama is two years. See McNair, 515 F.3d

at 1173 (citing Ala. Code § 6-2-38; Jones v. Preuit &

Mauldin, 876 F.2d 1480, 1483 (11th Cir. 1989)).

Moreover, 42 U.S.C. § 1986 specifically provides that

“no action under the provisions of this section shall

be sustained which is not commenced within one year

after the cause of action has accrued.” As a result,

plaintiff must have brought his claims within either

one or two years from the date the limitations period

began to run, which is generally the date “the facts

which would support a cause of action are apparent or

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should be apparent to a person with a reasonably

prudent regard for his rights.” Brown v. Ga. Bd. of

Pardons & Paroles, 335 F.3d 1259, 1261 (11th Cir. 2003)

(citing Rozar, 85 F.3d at 561–62).

Plaintiff alleges that defendants’ purported

misconduct took place from 2009 to 2013, and he claims

to have discovered that misconduct on May 16, 2020.

See Amended Complaint (Doc. 10) at 1, 2; Motion to

Amend (Doc. 29) at 2–3, 5; see also State Court

Complaint (Doc. 1-2) at 2, 3. However, plaintiff did

not file this action until May 2023--three years after

the facts supporting his causes of action became

apparent to him. See State Court Complaint (Doc. 1-2)

at 6. Thus, plaintiff’s purported §§ 1983, 1985, and

1986 claims are time-barred, and his motions seeking to

assert such claims are futile. See Hall v. United Ins.

Co. of Am., 367 F.3d 1255, 1262–63 (11th Cir. 2004)

(“[A] district court may properly deny leave to amend

the complaint under Rule 15(a) when such amendment

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would be futile.”); see also Bowhall v. Dep’t of Def.,

No. 2:10-CV-607, 2010 WL 4806970, at *4 (M.D. Ala.

Sept. 22, 2010) (Moorer, M.J.) (noting that, because

the plaintiff’s claims were clearly barred by Alabama’s

two-year statute of limitations, they warranted

dismissal as frivolous and any amendment to the

pleading would be futile), report and recommendation

adopted, No. 2:10-CV-607-WKW, 2010 WL 4791649 (M.D.

Ala. Nov. 18, 2010).

***

Accordingly, it is the ORDER, JUDGMENT, and DECREE

of the court that:

(1) Plaintiffs’ motions to amend (Doc. 29 and Doc.

30) are denied as futile.

(2) The United States Magistrate Judge’s

recommendation (Doc. 27) is adopted.

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(3) Pursuant to 28 U.S.C. § 1447(c), this cause is

remanded to the Circuit Court of Montgomery County,

Alabama.

(4) All other pending motions are left for

resolution by the state court.

The clerk of the court is DIRECTED to take

appropriate steps to effect the remand.

This case is closed in this court.

DONE, this the 10th day of July, 2024.

/s/ Myron H. Thompson

UNITED STATES DISTRICT JUDGE

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