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1. The law is well settled that a pro se inmate’s complaint is deemed 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). Although the

Clerk stamped the complaint "filed" on August 3, 2006, it is clear that Cowan presented the complaint to

prison officials for mailing prior to this date. In light of the foregoing, the court considers July 31, 2006 as

the date of filing. 

IN THE DISTRICT COURT OF THE UNITED STATES

FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

JAMES COWAN, #243426, )

)

 Plaintiff, )

)

v. ) CASE NO. 2:06-CV-684-MHT

) [WO]

)

S. E. WILSON, et al., )

)

 Defendants. )

RECOMMENDATION OF THE MAGISTRATE JUDGE

This cause of action is before the court on a 42 U.S.C. § 1983 complaint filed by

James Cowan [“Cowan”], an indigent state inmate, on July 31, 2006.1 In this complaint,

Cowan complains that Corporal S. E. Wilson, an officer with the Montgomery Police

Department, violated his constitutional rights when on May 26, 2003 Wilson provided “the

keys to [plaintiff’s] home and car to [his] in-laws without . . . permission.” Plaintiff’s

Complaint at 2. Cowan further complains that Nonie M. Robinson, his in-law, thereafter

removed items from his home and obtained control over his automobile. 

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2. A prisoner who is allowed to proceed in forma pauperis in this court will have his complaint

screened in accordance with the provisions of 28 U.S.C. § 1915(e)(2)(B). This screening procedure requires

the court to dismiss a prisoner’s civil action prior to service of process if it determines that the complaint is

frivolous, malicious, fails to state a claim upon which relief may be granted, or seeks monetary damages from

a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B)(i)-(iii).

2

Upon review of the complaint, the court concludes that dismissal of this case prior

to service of process is appropriate under 28 U.S.C. § 1915(e)(2)(B)(i).2

 DISCUSSION

A. Dismissal of Claims Against Nonie M. Robinson

Cowan names Nonie M. Robinson, his in-law, as a defendant in this cause of action.

An essential element of a 42 U.S.C. § 1983 action is that the alleged constitutional

deprivation was committed by a person acting under color of state law whose conduct is

reasonably attributable to the State. American Manufacturers Mutual Ins. Co. v. Sullivan,

526 U.S. 40, 119 S.Ct. 977, 985, 143 L.Ed.2d 130 (1999); Parratt v. Taylor, 451 U.S. 527

(1981); Willis v. University Health Services, Inc., 993 F.2d 837, 840 (11th Cir. 1993). To

state a viable claim for relief under § 1983, a plaintiff must assert that he was “deprived of

a right secured by the Constitution or laws of the United States, and that the alleged

deprivation was committed under color of state law. Like the state-action requirement of

the Fourteenth Amendment, the under-color-of-state-law element of § 1983 excludes from

its reach ‘“merely private conduct, no matter how discriminatory or wrongful,”’ Blum v.

Yaretsky, 457 U.S. 991, 1002, 102 S.Ct. 2777, 73 L.Ed.2d 534 (1982) (quoting Shelley v.

Kraemer, 334 U.S. 1, 13, 68 S.Ct. 836, 92 L.Ed. 1161 (1948)).” American Manufacturers,

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526 U.S. at 49-50, 119 S.Ct. at 985. Consequently, the Eleventh Circuit has repeatedly

insisted “that state action requires both an alleged constitutional deprivation ‘caused by the

exercise of some right or privilege created by the State or by a rule of conduct imposed by

the State or by a person for whom the State is responsible,’ and that ‘the party charged with

the deprivation must be a person who may fairly be said to be a state actor.’ Lugar v.

Edmondson Oil Co., 457 U.S. 922, 937, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982); see Flagg

Bros., Inc. v. Brooks, 436 U.S. 149, 156, 98 S.Ct. 1729, 56 L.Ed.2d 185 (1978).” Id.

It is clear from the complaint that Ms. Robinson is not a state actor. Since the

actions of Ms. Robinson were not committed by a person acting under color of state law,

Cowan’s claims against this defendant are due to be dismissed as frivolous in accordance

with the provisions of 28 U.S.C. § 1915(e)(2)(B)(i).

B. Claims Barred by the Statute of Limitations

 Cowan maintains that on May 26, 2003 defendant Wilson provided his in-laws with

keys to his home and automobile without his permission. The face of the complaint

establishes that Cowan’s claim with respect to the actions of defendant Wilson is barred

by the statute of limitations. 

Federal courts must look to state law to determine, first, what statute of

limitations is applicable, and second, whether that limitations period is tolled.

Whitson v. Baker, 755 F.2d 1406, 1409 (11th Cir. 1985). Selection of a

limitations period for § 1983 actions changed several times [between 1985

and 1989]. Alabama law, however, provides that the applicable limitations

period is the one in effect when the claim is filed, not when the cause of

action arose. Tyson v. Johns Manville Sales Corp., 399 So.2d 263, 269-70

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(Ala. 1981). It is undisputed that § 1983 claims were subject to a two year

limitations period at that time. See Jones v. Preuit & Mauldin, 876 F.2d

1480, 1483-84 (11th Cir. 1989) (Jones II).

Dukes v. Smitherman, 32 F.3d at 537. At the time Cowan filed the instant complaint, the

applicable statute of limitations for actions brought under 42 U.S.C. § 1983 was two years.

Owens v. Okure, 488 U.S. 235, 249-250 (1989)(the proper statute of limitations for § 1983

actions is the forum state's general or residual statute of limitations for personal injury

actions); see also Lufkin v. McCallum, 956 F.2d 1104, 1105 (11th Cir. 1992). In Alabama,

the general statute of limitations for personal injury actions is two years. Ala. Code § 6-2-

38(l). 

The alleged unconstitutional actions of defendant Wilson occurred on May 26, 2003.

On May 17, 1996, the Alabama legislature rescinded that portion of the tolling provision

which previously applied to convicted prisoners. See Ala. Code § 6-2-8(a) (1975, as

amended). The tolling provision of Ala. Code § 6-2-8(a) is therefore unavailing.

Consequently, the applicable statute of limitations expired on the claim arising from

defendant Wilson’s issuance of Cowan’s keys to his in-laws on May 26, 2005. Cowan filed

the instant complaint on July 31, 2006. This filing is after the applicable limitations period

had lapsed. 

Unquestionably, the statute of limitations is usually a matter which may be raised

as an affirmative defense. The court notes, however, that in an action proceeding under

section 1983, it may consider, sua sponte, affirmative defenses that are apparent from the

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face of the complaint. Clark v. Georgia Pardons and Parole Board, 915 F.2d 636, 640 n.2

(11th Cir. 1990); see also Ali v. Higgs, 892 F.2d 438 (5th Cir. 1990). “[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. See

Franklin [v. State of Oregon], 563 F.Supp. [1310] at 1330, 1332.” Id. at n.2. 

In analyzing § 1983 cases, “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, 892 F.2d at 440. “It necessarily follows that in the absence of . . . defendants

the . . . court must evaluate the merit of the claim sua sponte.” Id.

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).

Based on the facts apparent from the face of the present complaint, Cowan has no

legal basis on which to proceed against defendant Wilson because the complaint is

untimely. As previously determined, the statutory tolling provision provides no basis for

relief. In light of the foregoing, the court concludes that Cowan’s challenge to the action

of defendant Wilson is barred by the applicable statute of limitations and such challenge

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3. Although Neitzke interpreted 28 U.S.C. § 1915(d), the predecessor to § 1915(e)(2), the analysis

contained therein remains applicable to the directives of the present statute.

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is therefore subject to dismissal as frivolous in accordance with the directives of 28 U.S.C.

§ 1915(e)(2)(B)(i). See Clark v. Georgia Pardons and Parole Board, 915 F.2d 636 (11th

Cir. 1990); see also Neitzke v. Williams, 490 U.S. 319 (1989).3

CONCLUSION

Accordingly, it is the RECOMMENDATION of the Magistrate Judge that:

1. The claim presented against Nonie M. Robinson be dismissed with prejudice in

accordance with the directives of 28 U.S.C.§ 1915(e)(2)(B)(i).

2. The claim against defendant Wilson be dismissed with prejudice pursuant to the

provisions of 28 U.S.C. § 1915(e)(2)(B)(i) as Cowan failed to file the complaint within the

time prescribed by the applicable period of limitations. 

3. This case be dismissed with prejudice prior to service of process under 28 U.S.C.

§ 1915(e)(2)(B)(i).

It is further 

ORDERED that on or before August 27, 2006 the parties may file objections to the

Recommendation. Any objections filed must specifically identify the findings in the

Magistrate Judge’s Recommendation to which the party is objecting. Frivolous, conclusive

or general objections will not be considered by the District Court. The parties are advised

that this Recommendation is not a final order of the court and, therefore, it is not

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appealable.

Failure to file written objections to the proposed findings and advisements in the

Magistrate Judge’s Recommendation shall bar the party from a de novo determination by

the District Court of issues covered in the Recommendation and shall bar the party from

attacking on appeal factual findings in the Recommendation accepted or adopted by the

District Court except upon grounds of plain error or manifest injustice. Nettles v.

Wainwright, 677 F.2d 404 (5th Cir. 1982). See Stein v. Reynolds Securities, Inc., 667 F.2d

33 (11th Cir. 1982). See also Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981,

en banc), adopting as binding precedent all of the decisions of the former Fifth Circuit 

handed down prior to the close of business on September 30, 1981.

DONE, this 14th day of August, 2006.

/s/ Susan Russ Walker 

SUSAN RUSS WALKER

UNITED STATES MAGISTRATE JUDGE

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