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 IN T H E U N IT E D STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

FREDERICK HUNTER,

Plaintiff,

vs. Case No. 3:10cv328/LC/CJK

ESCAMBIA COUNTY JAIL, et al.,

Defendants.

REPORT AND RECOMMENDATION

Plaintiff, proceeding pro se and in forma pauperis, has filed an amended civil

rights complaint under 42 U.S.C. § 1983. (Doc. 15). Upon review of the amended

complaint, the Court concludes that this case should be dismissed for failure to state

a claim.

BACKGROUND AND PROCEDURAL HISTORY

Plaintiff is an inmate of the FranklinCounty Jail in Greenfield, Massachusetts. 

(Doc. 22). Plaintiff was an inmate of the Vermont penal system confined at Northern

State Correctional Facility in Newport, Vermont at the time he filed his original and

amended complaints. (Docs. 1, 15). Plaintiff’s amended complaint names five

defendants: Escambia County, Florida; Escambia County Jail; Escambia County Jail

Medical Staff; the Pensacola Police Department; and the City of Pensacola. (Doc. 15,

p. 2). Plaintiff alleges that on January 16, 2005, officers of the Pensacola Police

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Department pulled plaintiff over, dragged him out of his car, tased him over eight

times, and transported him to the Escambia County Jail. (Id., p. 5). At the Jail

plaintiff was placed in a restraint chair. (Id.). Plaintiff claims he was “unlawfully

imprisoned and restrained” because: (1) the arm and leg restraints were pulled so

tightly that the blood circulation to plaintiff’s arms and legs was cut off, (2) plaintiff

wasforced to go to the bathroom in his clothes, (3) plaintiff was not provided medical

care for his taser wounds, (4) plaintiff was not provided medication for his high blood

pressure and bleeding ulcer, and (5) plaintiff was denied the opportunity to call his

family or an attorney. (Id.). Plaintiff was removed from the restraint chair the

following day. Plaintiff was charged with resisting an officer with violence, and was

acquitted of the charge on September 23, 2005. (Id., pp. 5-6). Plaintiff was awarded

a settlement of $25,000 from the City of Pensacola. (Id., p. 6). Plaintiff asserts that

he was recently subjected to a similar use of force and similar charges by the

Shelburne Police Department in Shelburne, Vermont. (Id.). Based on these

allegations, plaintiff asserts the following four claims: (1) the defendants violated

plaintiff’s Fourth Amendment rights by unreasonably searching and seizing him, (2)

the defendants violated plaintiff’s Fifth Amendment rights by “twice putting

[plaintiff] in jeopardy of life or limb,” (3) the defendants violated plaintiff’s Eighth

Amendment rights by subjecting him to cruel and unusual punishment in the

Escambia County Jail, and (4) the defendants deprived plaintiff of his liberty without

due process of law. (Id., p. 7). As relief, plaintiff seeks $1 million in compensatory

damages and $10 million in punitive damages. (Id.). 

DISCUSSION

Because plaintiff is proceeding in forma pauperis, the Court may dismiss the

case if satisfied that the action is “(i) frivolous or malicious; (ii) fails to state a claim

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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 Court must read

plaintiff’s pro se allegations in a liberal fashion. Haines v. Kerner, 404 U.S. 519, 92

S. Ct. 594, 30 L. Ed. 2d 652 (1972). Dismissals for failure to state a claim are

governed by the same standard as Federal Rule of Civil Procedure 12(b)(6). Mitchell

v. Farcass, 112 F.3d 1483, 1485 (11 Cir. 1997). The Court accepts all factual

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allegations in the complaint as true and evaluates all reasonable inferences derived

from those facts in the light most favorable to the plaintiff. Hunnings v. Texaco, Inc.,

29 F.3d 1480, 1483 (11 Cir. 1994). The complaint may be dismissed if the facts as th

pleaded do not state a claim to relief that is plausible on its face. See Bell Atl. Corp.

v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 1968-69, 1974, 167 L. Ed. 2d 929 (2007)

(retiring the negatively-glossed “no set offacts” language previously used to describe

the motion to dismiss standard and determining that because plaintiffs had “not

nudged their claims across the line from conceivable to plausible, their complaint

must be dismissed” for failure to state a claim). The complaint is also subject to

dismissal under Rule 12(b)(6) if the allegations – on their face – show that an

affirmative defense bars recovery on plaintiff’s claims. Marsh v. Butler Cnty., Ala.,

268 F.3d 1014, 1022 (11 Cir. 2001); see also Jones v. Bock, 549 U.S. 199, 215, 127

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S. Ct. 910, 920-21, 166 L. Ed. 2d 798 (2007) (reiterating that principle and providing,

as an example, that if a complaint’s allegations show that relief is barred by the

applicable statute of limitations, the complaint is subject to dismissal for failure to

state a claim). 

“To dismiss a prisoner’s complaint as time-barred prior to service, it must

‘appear beyond a doubt from the complaint itself that [the prisoner] can prove no set

of facts which would avoid a statute of limitations bar.’” Hughes v. Lott, 350 F.3d

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1157, 1163 (11 Cir. 2003) (quoting Leal v. Ga. Dep’t of Corr., 254 F.3d 1276, 1280 th

(11 Cir. 2001). A § 1983 action is governed by the forum state’s general personal th

injury statute of limitations. Wallace v. Kato, 549 U.S. 384, 387, 127 S. Ct. 1091,

1094, 166 L. Ed. 2d 973 (2007) (citing Owens v. Okure, 488 U.S. 235, 249-50, 109

S. Ct. 573, 102 L. Ed. 2d 594 (1989)). In Florida, there is a four-year personal injury

statute of limitations. See Chappell v. Rich, 340 F.3d 1279, 1283 (11 Cir. 2003); th

Rozar v. Mullis, 85 F.3d 556, 561 (11 Cir. 1996); see Fla. Stat. § 95.11(3). Although

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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.

at 388, 127 S. Ct. at 1095. Under federal law, the limitations period begins to run

when the plaintiff knows or has reason to know “(1) that they have suffered the injury

that forms the basis of their complaint and (2) who has inflicted the injury.” 

Chappell, 340 F.3d at 1283; Brown v. Ga. Bd. of Pardons & Paroles, 335 F.3d 1259,

1261 (11 Cir. 2003) (holding that the limitations period begins to run “from the date th

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”). 

It is apparent from the face of plaintiff’s amended complaint that the

defendants’ alleged false imprisonment, excessive force and lack of medical care

occurred in 2005, and that plaintiff was aware at that time of his injuries and who

inflicted them. Thus, plaintiff’s claims accrued, at the latest, in 2005. Plaintiff did not

file his original complaint in this case until August 24, 2010. (Doc. 1, p. 6). Plaintiff

can prove no set of facts which would avoid a statute of limitations bar, as one of

plaintiff’s supporting allegations is that he previously initiated, and recovered a

settlement on, claims against the police department based on the same facts. The fact

that plaintiff was recently subjected to a similar use of force and similar charges by

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law enforcement officials in Vermont does not alter this Court’s conclusion, or

support a viable double jeopardy claim against the Florida defendants (since plaintiff

admits not only that the charges arose from separate episodes and involved separate

offenses, but that the allegedly successive prosecution was initiated by Vermont

officials, not the defendants). 

CONCLUSION

It appears beyond doubt that plaintiff’s constitutional claims of false

imprisonment, excessive force and inadequate medical care are time-barred, and that

plaintiff’s double jeopardy claimagainst the defendants lacks an arguable basis in the

law. 

Accordingly, it is respectfully RECOMMENDED:

1. That this cause be DISMISSED WITH PREJUDICE under 28 U.S.C. §

1915(e)(2)(B)(ii), for plaintiff’s failure to state a claim upon which relief may be

granted.

2. That the clerk be directed to close the file.

At Pensacola, Florida this 19th day of December, 2011.

/s/Charles J. Kahn, Jr.

CHARLES J. KAHN, JR.

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

Any objections to these proposed findings and recommendations must be filed within

fourteen (14) days after being served a copy hereof. Any different deadline that may

appear on the electronic docket is for the court's internal use only, and does not

control. A copy of any objections shall be served upon any other parties. Failure to

object may limit the scope of appellate review of factual findings. See 28 U.S.C. §

636; United States v. Roberts, 858 F.2d 698, 701 (11 Cir. 1988). th

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