United States District Court, N.D. Florida, Panama City Division
REPORT AND RECOMMENDATION
ELIZABETH M. TIMOTHY CHIEF UNITED STATES MAGISTRATE JUDGE.
initiated this action on May 10, 2017, by filing a civil
rights complaint under 42 U.S.C. § 1983 (ECF No. 1).
This cause is now before the court on Plaintiff's third
amended complaint (ECF No. 21). Plaintiff was granted leave
to proceed in forma pauperis (ECF No. 12).
Plaintiff is proceeding in forma pauperis, the court may
dismiss this case if satisfied that the action “(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). The language in this subsection
“tracks the language of Federal Rule of Civil Procedure
12(b)(6), ” and thus dismissals for failure to state a
claim are governed by the same standard as Rule 12(b)(6).
Mitchell v. Farcass, 112 F.3d 1483, 1490 (11th Cir.
1997). The allegations of the complaint are taken as true and
are construed in the light most favorable to Plaintiff.
Davis v. Monroe County Bd. of Educ., 120 F.3d 1390,
1393 (11th Cir. 1997). To survive § 1915(e)(2)(B)(ii),
“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, 129 S.Ct. 1937, 1949 (2009) (quotation and
citation omitted). A claim is plausible on its face where
“the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Id.
(citation omitted). Plausibility means “more than a
sheer possibility that a defendant has acted
unlawfully.” Id. “Where a complaint
pleads facts that are merely consistent with a
defendant's liability, it stops short of the line between
possibility and plausibility of entitlement to relief.”
Id. (quotation and citation omitted). Finally, in
civil rights cases, more than “mere conclusory notice
pleading” is required, and a complaint is subject to
dismissal “as insufficient where the allegations it
contains are vague and conclusory.” Gonzalez v.
Reno, 325 F.3d 1228, 1235 (11th Cir. 2003) (quotation
and citation omitted). Upon review of the complaint, it
appears that Plaintiff's claims are barred by the statute
of limitations. Dismissal of this action is therefore
complaint concerns events that occurred from May 2012 to
March 2013, while he was an inmate of the Graceville
Correctional Facility (“GCF”) (ECF No. 21 at
19-27). Plaintiff alleges that, upon his arrival at GCF in
May 2012, he was given inadequate medical care for a
pre-existing condition (id. at 19). Plaintiff
alleges Defendant “Unidentified Nurse” withheld a
medical pass that would have excused him from work due to his
lower back condition and sciatica (id. at 19).
Plaintiff also claims the medical pass would have prevented
the incident of excessive force involved in the instant case
(discussed, infra) (id.). Although
Plaintiff filed a grievance regarding the denial of his
medical pass, Defendant Gillis, an assistant warden at GCF,
“failed to respond to his grievance for two
months” or otherwise rectify the problem (id.
at 21). A medical pass was delivered to Plaintiff while in
confinement on June 10, 2012, with an issue date of May 18,
2012, three days prior to the incident of excessive force
(id. at 20). Plaintiff claims this medical pass was
then confiscated by Defendant Sergeant Grinder on the orders
of Defendant Gillis in March 2013 (id.).
also asserts that on May 21, 2012, he reported to work but
was unable to work due to a medical condition; he claimed a
“medical emergency” to GCF staff; and he chose to
go to confinement instead of work (id. at 19).
Plaintiff alleges that Defendant Russell, a lieutenant at
GCF, then assaulted him by emptying a can of chemical spray
into his eyes without giving him a chance to comply with
orders to be cuffed for transport to confinement
(id.). Plaintiff claims that after the use of
chemical agents, he was not given adequate time to
“decontaminate, ” which resulted in his eyes
swelling (id. at 28). Months later, a Report of
Investigation by the Office of the Inspector General found
Defendant Russell “guilty of excessive force”
(id. at 19). The report was issued in September 2012
(id. at 11). Plaintiff was released from prison on
July 29, 2013.
asserts an Eighth Amendment claim against Defendants Gillis,
Grinder, and the “Unidentified Nurse” for
withholding his medical passes and an Eighth Amendment claim
of excessive force against Defendant Russell (id. at
21). Plaintiff seeks compensatory damages for physical injury
and mental and emotional suffering resulting from the
Defendants' actions (id. at 28).
Plaintiff was previously advised (ECF No. 13; see
also ECF No. 17 at 2), his claims are subject to
dismissal because of the passing of the four-year statute of
limitations. “Claims brought pursuant to 42 U.S.C.
§ 1983 are subject to the statute of limitations period
governing personal injury actions in the state where the
action is brought.” Wellons v. Comm'r, Ga.
Dep't of Corr., 754 F.3d 1260, 1263 (11th Cir. 2014)
(citation omitted); see Owens v. Okure, 488 U.S.
235, 249-50 (1989) (“We accordingly hold that where
state law provides multiple statutes of limitations for
personal injury actions, courts considering § 1983
claims should borrow the general or residual statute for
personal injury actions”). In Florida, “[t]he
applicable statute of limitations in a § 1983 lawsuit is
the four-year Florida state statute of limitations for
personal injuries.” Omar v. Lindsey, 334 F.3d
1246, 1251 (11th Cir. 2003) (per curiam) (citations omitted);
see also Van Poyck v. McCollum, 646 F.3d 865, 867
(11th Cir. 2011); Ellison v. Lester, 275 Fed.Appx.
900, 901 (11th Cir. 2008).
the length of the statute of limitations is resolved by
reference to state law, the accrual date of a § 1983
action is governed by federal law. Wallace v. Kato,
549 U.S. 384, 388, 127 S.Ct. 1091, 1095, 166 L.Ed.2d 973
(2007). Under federal law, the limitations period begins to
run on the date that the plaintiff knows or has reason to
know “(1) that [he] ha[s] suffered the injury that
forms the basis of [his] complaint and (2) who has inflicted
the injury.” Chappell v. Rich, 340 F.3d 1279,
1283 (11th Cir. 2003); Brown v. Ga. Bd. of Pardons &
Paroles, 335 F.3d 1259, 1261 (11th Cir. 2003) (holding
that 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”).
noted above, Plaintiff commenced this § 1983 action on
May 10, 2017 (ECF No. 1). However, the last date by which any
affirmative action was taken against Plaintiff regarding his
medical situation, and therefore the latest date he could
claim to have reasonably gained knowledge of the factual
basis for his medical claim, was March 2013, the date his
medical pass was taken from him (ECF No. 21 at 19-27). Thus,
Plaintiff had until March 2017 to file a lawsuit regarding
his medical claims, making his May 2017 filing of this
lawsuit late by at least one month.
the facts which would support a cause of action for his
excessive force claim were apparent, or should have been
apparent to a person with a reasonably prudent regard for his
rights, on May 21, 2012, the day on which the excessive force
allegedly occurred. Even if Plaintiff could claim he was
unaware of the facts that would support a cause of action
until September 2012, when he received the report from the
Office of the Inspector General finding Defendant Russell
guilty of excessive force, the statute of limitations would
have expired in September 2016, several months before
Plaintiff filed this lawsuit in May of 2017.
all of Plaintiff's claims are barred by the statute of
limitations. In so concluding, it is worth noting
Plaintiff's acknowledgment that the instant lawsuit is
essentially a duplicate of a lawsuit he previously filed with
this court, Fitzgerald v. Corrections Corp. of America,
et al., No. 5:13cv261/MW/EMT, which was dismissed
without prejudice on August 20, 2015 (ECF No. 13 at 4-5). In
the Report and Recommendation issued in Plaintiff's
previous case, it was specifically noted that there was still
time under the statute of limitations for Plaintiff to refile
his lawsuit; thus, Plaintiff was alerted to the fact that his
claims would eventually become subject to the statute of
limitations (see ECF No. 75 at 13 n.5 in No.
it respectfully RECOMMENDED:
the complaint be DISMISSED with prejudice
pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to