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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

ARTHUR D. DeCESARE,

Plaintiff,

vs. Case No. 4:10cv244-SPM/WCS

STATE OF FLORIDA 

DEPARTMENT OF MANAGEMENT 

SERVICES, DIVISION OF RETIREMENT,

Defendants.

 /

REPORT AND RECOMMENDATION

Plaintiff, proceeding pro se, initiated this case on June 9, 2010, by filing a

complaint. Doc. 1. Plaintiff indicates on the complaint that it is a "criminal complaint"

and that it is brought by the United States of America. Id. An individual cannot initiate

criminal proceedings in a federal court. Nevertheless, Plaintiff asserts that the

Defendant violated his civil rights and, thus, the complaint is construed as a civil rights

complaint brought pursuant to 42 U.S.C. § 1983.

Plaintiff alleges that he has been seeking his State of Florida disability retirement

for sixteen years. Doc. 1. Plaintiff complains that others who "are unemployable due to
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in the line of duty disability have received their Disability retirement." Id. Plaintiff

believes he has been discriminated against because he has not been awarded disability

retirement.

Plaintiff was told as of October 19, 1999, that he could "apply for in-line-of-duty

disability retirement," which did not require ten years of service. Doc. 1, p. 4. Plaintiff

appealed the denial by the State Retirement Director of Plaintiff's "application for total

and permanent disability and in line of duty retirement benefits." Id., at 5. The State

Retirement Commission held a hearing on Plaintiff's appeal on August 19, 2002, and,

on September 8, 2002, ruled that in part Plaintiff could not receive disability benefits

because he did not "have ten years of credible service." Id., at 5-6. It also determined

that Plaintiff did not qualify for disability benefits because he did not have total and

permanent disability and "could perform another line of work." Id., at 6. The order

advised Plaintiff that he could appeal to the District Court of Appeal. Id., at 8. None of

the attachments show that Plaintiff filed an appeal.

Therefore, Plaintiff's federal claims, if any, are time barred. A federal § 1983

claim is governed by the forum state's residual personal injury statute of limitations. 

Burton v. City of Belle Glade, 178 F.3d 1175, 1188 (11th Cir. 1999), citing Owens v.

Okure, 488 U.S. 235, 249-50, 109 S.Ct. 573, 102 L.Ed.2d 594 (1989); Wilson v. Garcia,

471 U.S. 261, 276, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985). In Florida, "a plaintiff must

commence a § 1983 claim . . . within four years of the allegedly unconstitutional or

otherwise illegal act." Burton, 178 F.3d at 1188, citing Baker v. Gulf & Western Indus.,

Inc., 850 F.2d 1480, 1483 (11th Cir.1988). Plaintiff's claims are barred by the statute of

Case No. 4:10cv244-SPM/WCS
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limitations and must be dismissed. Plaintiff was denied relief by the State over eight

years ago. Plaintiff's claims are barred.

Furthermore, even if Plaintiff's claims were not barred by the statute of

limitations, Plaintiff provides no allegations of fact to show a violation of the Equal

Protection Clause. Plaintiff does not allege sufficient facts to show that he was

discriminated against because of his race, gender, age, or any other constitutionally

protected status. This court has no jurisdiction over state law claims.

In light of the foregoing, it is respectfully RECOMMENDED that Plaintiff's

complaint, doc. 1, be DISMISSED because it is barred by the statute of limitations and

for failure to state a claim upon which relief may be granted.

IN CHAMBERS at Tallahassee, Florida, on August 13, 2010.

s/ William C. Sherrill, Jr. 

WILLIAM C. SHERRILL, JR.

UNITED STATES MAGISTRATE JUDGE

 

NOTICE TO THE PARTIES

A party may file specific, written objections to the proposed findings and

recommendations within 14 days after being served with a copy of this report and

recommendation. A party may respond to another party's objections within 14

days after being served with a copy thereof. Failure to file specific objections

limits the scope of review of proposed factual findings and recommendations.

Case No. 4:10cv244-SPM/WCS