Opinion
Civil Action 99-0648-BH-L
February 22, 2001
REPORT AND RECOMMENDATION
This action is before the Court on plaintiff's Motion to Amend Complaint (Doc. 19). This matter has been referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.2(c)(4). It is recommended that the motion be denied for the reasons set forth herein.
I. Motion to Amend Complaint .
In his motion (Doc. 19), plaintiff requests that Assistant District Attorney Mike Davis be added as a defendant. Plaintiff alleges that Davis breached the plea agreement with plaintiff which required that plaintiff testify against Lynn Neal Hopkins in exchange for receiving a 15-year sentence instead of a 20-year sentence. Plaintiff asserts that Davis conspired with Defendant Tillman to place plaintiff's life in danger. Plaintiff contends:
Instead of fulfilling the promise made, Defendant Mike Davis and Defendant Jack Tillman, allowed the elements of the Plaintiff's agreement to be exposed to the general population of the County Jail, rendering knowledge that the Plaintiff was an informant for the State, thereby refusing to protect his person, even after two assaults had occurred against the Plaintiff for his testimony for the State.
The Hazardous conditions which resulted in permanent injury of the Plaintiff, was created by the Defendant . . . .II. Discussion .
The Court is reviewing the motion to amend the complaint under 28 U.S.C. § 1915(e)(2)(B) and Rule 15 of the Federal Rules of Civil Procedure. The Court is extending the screening provisions of § 1915(e)(2)(B) to review amendments to the complaint filed before a responsive pleading is served. Under § 1915(e)(2)(B)(i), a claim may be dismissed as "frivolous where it lacks an arguable basis in law or fact." Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 1831-32, 104 L.Ed.2d 338 (1989). A claim is frivolous as a matter of law where, inter alia, the defendants are immune from suit, id. at 327, 109 S.Ct. at 1833, the claim seeks to enforce a right which clearly does not exist, id., or there is an affirmative defense that 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). Judges 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, 109 S.Ct. at 1833. Moreover, 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, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232, 81 L.Ed.2d 59 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957)).
Plaintiff's pleading of his claims against Davis is vague and conclusory. Plaintiff alleges that Davis "conspired" with Tillman and that Davis and Tillman "allowed" the agreement to be "exposed" to the general inmate population. Plaintiff provided no facts to lead to the conclusion that there was a conspiracy or as to how information got into the inmate population. Claims that are vague and conclusory are due to be dismissed because they do not provide fair notice to a defendant of the claim against him and fail to state a claim upon which relief can be granted. Fullman v. Graddick, 739 F.2d 553, 556-57 (11th Cir. 1984) (ruling that vague and conclusory claims are due to be dismissed).
Furthermore, in order to state a conspiracy claim under 42 U.S.C. § 1983, "a plaintiff 'must show that the parties 'reached an understanding' to deny the plaintiff his or her rights [and] prove an actionable wrong to support the conspiracy.'" Bailey v. Board of County Comm'rs of Alachua County, Fla., 956 F.2d 1112, 1122 (11th Cir.) (quoting Bendiburg v. Dempsey, 909 F.2d 463, 468 (11th Cir.), cert. denied, 500 U.S. 932, 111 S.Ct. 2053, 114 L.Ed.2d 459 (1991)), cert. denied, 506 U.S. 832, 113 S.Ct. 98, 121 L.Ed.2d 58 (1992). "[T]he linchpin for conspiracy is agreement, which presupposes communication." Id. The mere stringing together of events of a process without a showing of contacts demonstrating that an understanding was reached is not sufficient to establish a conspiracy. Harvey v. Harvey, 949 F.2d 1127, 1133 (11th Cir. 1992) (ruling that stringing together the discreet steps in the commitment process without alleging contacts that would prove an understanding was reached did not state a conspiracy claim). In the present action, plaintiff's allegations fail to demonstrate that an understanding was reached. Moreover, vague and conclusory conspiracy allegations are subject to dismissal. Fullman, 739 F.2d at 556-57. Accordingly, plaintiff's claims against Davis are due to be dismissed for failure to state a claim upon which relief can be granted.
Additionally, plaintiff has failed to demand judgment from Davis, as required by Fed.R.Civ.P. 8(a)(3). Therefore, for this reason, plaintiff's amendment also fails to state a claim upon which relief can be granted. Goldsmith v. City of Atmore, 996 F.2d 1155, 1161 (11th Cir. 1993); Brancaccio v. Reno, 964 F. Supp. 1, 2 n. 4 (D.D.C.), aff'd, 1997 WL 634544 (D.C. Cir. 1997); Player v. Phoenix, No. 92 Civ. 401 (CSH), 1992 WL 350780, at *1 (S.D.N.Y. Nov. 13, 1992) (unpublished); Dupree v. Lubbock County Jail, 805 F. Supp. 20, 21 (N.D. Tex. 1992).
In the alternative, plaintiff's Motion to Amend Complaint (Doc. 19) was filed on May 8, 2000, which is beyond two years from when he was assaulted on January 28, 1998 (Doc. 13). The statute of limitations for a § 1983 action in Alabama is two years. Lufkin v. McCallum, 956 F.2d 1104, 1106, 1108 (11th Cir.), cert. denied, 506 U.S. 917, 113 S.Ct. 326, 121 L.Ed.2d 246 (1992); Ala. Code § 6-2-38(1). The statute of limitations
"'does not begin to run until 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.'" Calhoun v. Alabama Alcoholic Beverage Control Board, 705 F.2d 422, 425 (11th Cir. 1983) (quoting Reeb v. Economic Opportunity Atlanta, Inc., 516 F.2d 924, 930 (5th Cir. 1975)). Thus Section 1983 actions do not accrue until the plaintiff knows or has reason to know that he has been injured. Calhoun, 705 F.2d at 424; Rubin, 621 F.2d at 116; Lavellee, 611 F.2d at 1131. Nor will a section 1983 action accrue until the plaintiff is aware or should have been aware who has inflicted the injury. Lavellee, 611 F.2d at 1131 (quoting United States v. Kubrick, 444 U.S. 111, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979)).Mullinax v. McElhenney, 817 F.2d 711, 716 (11th Cir. 1987).
In the present action, it is apparent that Plaintiff knew of any claim that he had related to his assault at the time of the assault, or possibly shortly thereafter. Plaintiff does not contend otherwise. Nonetheless, plaintiff waited to file his motion to amend on May 8, 2000, well in excess of two years from when his claims accrued against Davis. Knowing of no other reason that would preclude the application of the two-year statute of limitations, the Court concludes that plaintiff's claims against Davis are barred by the two-year statute of limitations and are due to be dismissed without prejudice as frivolous as a matter of law. Lufkin, 956 F.2d at 1108.
If plaintiff were to argue that his amendment should relate back to the filing of the original complaint on July 14, 1999 (Doc. 1), this argument would be without merit. Rule 15(c) of the Federal Rules of Civil Procedure states:
An amendment of a pleading relates back to the date of the original pleading when. . . . (3) the amendment changes the party or the naming of the party against whom a claim is asserted . . ., [and] the party to be brought in by amendment (A) has received such notice of the institution of the action that the party will not be prejudiced in maintaining a defense on the merits, and (B) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party.
Plaintiff's allegations do not reflect that Davis knew about plaintiff instituting this action. Nor can the Court discern any reason why Davis, an assistant district attorney, would have knowledge about this action concerning an assault at the jail. The sheriff, not the district attorney, "has the legal custody and charge of the jail in his county and all prisoners committed thereto . . . ." Ala. Code § 14-6-2 (1995). Moreover, there appears to be no mistake in the identity of Davis because he was the assistant district attorney that negotiated the plea agreement with plaintiff.
The purpose of Rule 15(c) is to permit amended complaints to relate back to original filings for statute of limitations purposes when the amended complaint is correcting a mistake about the identity of the defendant. See Worthington v. Wilson, 8 F.3d 1253. 1256 (7th Cir. 1993). . . . "[The Rule] permits an amendment to relate back only were there has been an error made concerning the identity of the proper party and where that party is chargeable with knowledge of the mistake, but it does not permit relation back where . . . there is a lack of knowledge of the proper party." Worthington, 8 F.3d at 1256 (emphasis added).
"A potential defendant who has not been named in a lawsuit by the time the statute limitations has run is entitled to repose — unless it is or should be apparent to that person that he is the beneficiary of a mere slip of the pen, as it were." Rendall-Speranza v. Nassin, 107 F.3d 913, 918 (D.C. Cir. 1997).Powers v. Graff, 148 F.3d 1223, 1226-27 (11th Cir. 1998) (affirming the denial of the fourth amendment because plaintiffs knew of the control individuals and their involvement at the time of filing, but only sought to name them as defendants when the corporation became insolvent which was after the statute of limitations had expired). Accordingly, plaintiff's amendment does not relate back to the complaint's filing. Therefore, plaintiff's motion is due to be denied.
III. Conclusion .
Based upon the foregoing reasons, it is recommended that plaintiff's Motion to Amend Complaint (Doc. 19) be denied.
The attached sheet contains important information regarding objections to this Report and Recommendation.
MAGISTRATE JUDGE'S EXPLANATION OF PROCEDURAL RIGHTS AND RESPONSIBILITIES FOLLOWING RECOMMENDATION AND FINDINGS CONCERNING NEED FOR TRANSCRIPT
1. Objection . Any party who objects to this recommendation or anything in it must, within ten days of the date of service of this document, file specific written objections with the clerk of court. Failure to do so will bar a de novo determination by the district judge of anything in the recommendation and will bar an attack, on appeal, of the factual findings of the magistrate judge. See 28 U.S.C. § 636(b)(1)(C); Lewis v. Smith, 855 F.2d 736, 738 (11th Cir. 1988); Nettles v. Wainwright, 677 F.2d 404 (5th Cir. Unit B, 1982) ( en banc). The procedure for challenging the findings and recommendations of the magistrate judge is set out in more detail in SD ALA LR 72.4 (June 1, 1997), which provides that:
A party may object to a recommendation entered by a magistrate judge in a dispositive matter, that is, a matter excepted by 28 U.S.C. § 636(b)(1)(A), by filing a "Statement of Objection to Magistrate Judge's Recommendations within ten days after being served with a copy of the recommendation, unless a different time is established by order. The statement of objection shall specify those portions of the recommendation to which objection is made and the basis for the objection. The objecting party shall submit to the district judge, at the time of filing the objection, a brief setting forth the party's arguments that the magistrate judge's recommendation should be reviewed de novo and a different disposition made. It is insufficient to submit only a copy of the original brief submitted to the magistrate judge, although a copy of the original brief may be submitted or referred to and incorporated into the brief in support of the objection. Failure to submit a brief in support of the objection may be deemed an abandonment of the objection.
A magistrate judge's recommendation cannot be appealed to a Court of Appeals; only the district judge's order or judgment can be appealed.
2. Transcript (applicable where proceedings tape recorded) . Pursuant to 28 U.S.C. § 1915 and Fed.R.Civ.P. 72(b), the magistrate judge finds that the tapes and original records in this action are adequate for purposes of review. Any party planning to object to this recommendation, but unable to pay the fee for a transcript, is advised that a judicial determination that transcription is necessary is required before the United States will pay the cost of the transcript.