IN THE UNITED STATES DISTRICT COURT FOR THE 

SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

FREDDIE LEE BELL, :

Plaintiff, :

vs. : CIVIL ACTION 04-0581-CB-C

SHERIFF THOMAS PURVIS, et al., :

Defendants. :

REPORT AND RECOMMENDATION

Plaintiff, an Alabama prison inmate proceeding pro se and in forma pauperis, filed a

complaint under 42 U.S.C. § 1983. This action has been referred to the undersigned for

appropriate action pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.2(c)(4). It is

recommended that this action be dismissed with prejudice as frivolous, prior to service of

process, pursuant to 28 U.S.C. § 1915(e)(2)(B)(i). 

I. Nature of Proceedings.

Plaintiff filed a section 1983 complaint naming as Defendants Thomas Purvis,

identified by Plaintiff as Sheriff of the Mobile County Metro Jail, and D. Harris, identified

by Plaintiff as a Deputy Sheriff of the Mobile County Metro Jail (“Metro Jail”). (Doc. 1,

Complaint). In this vaguely pled action, Plaintiff claims that his constitutional rights under

the Fourth, Sixth, and Fourteenth Amendments were violated on January 20, 1983, while

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Initially in his Complaint, Plaintiff alleges that the date of the alleged violation was January 20,

1983. (Doc. 1 at 4). However, subsequently, Plaintiff appears to state that the violation occurred on

February 11, 1983. (Id. at Attachment 1). The inconsistency is not important, however, as the Court

has determined that either date would be beyond the time allowed by the statute of limitations for such

claims.

2Plaintiff fails to enlighten the Court as to why, at the time of the alleged violations, he was

incarcerated at Metro Jail. 

3The predecessor to this section is 28 U.S.C. § 1915(d). Even though Congress made many

substantive changes to § 1915(d) when it enacted 28 U.S.C. § 1915(b)(2)(B), the frivolity and the

failure to state a claim analysis contained in Neitzke v. Williams, 490 U.S. 319, 109 S. Ct. 1827, 104

L. Ed. 2d 338 (1989), was unaltered. See Bilal v. Driver, 251 F.3d 1346, 1349 (11th Cir.) , cert.

denied, 534 U.S. 1044, 122 S. Ct. 624, 151 L. Ed. 2d 545 (2001); Brown v. Bargery, 207 F.3d 863,

866 n.4 (6th Cir. 2000). However, dismissal under § 1915(e)(2)(B) is now mandatory. Bilal, 251

2

incarcerated at the Metro Jail.1 (Doc. 1). Plaintiff claims that he was escorted out of his

jail cell directly into a courtroom to be arraigned for a crime for which he was never

arrested, nor for which he had any “Miranda procedures done.”2 (Id. at Attachment 1). 

Plaintiff further alleges that Defendants used illegal evidence to obtain a warrant for his

arrest. (Id.). Plaintiff’s final allegation is that he was denied the right to a preliminary

hearing, including the right to counsel at the hearing. (Id.). For relief, Plaintiff seeks

monetary damages in the amount of ten million dollars for his “unwarranted pain and

suffering, personal humiliation, job loss, deprivation of [his] privileges, [and] mental

anguish.” (Id. at Attachment 2). Plaintiff also seeks an unspecified amount of punitive

damages. (Id.).

II. Standards of Review Under 28 U.S.C. § 1915(e)(2)(B).

Because Plaintiff is proceeding in forma pauperis, the Court is reviewing Plaintiff’s

complaint under 28 U.S.C. § 1915(e)(2)(B).3 Under § 1915(e)(2)(B)(i), a claim may be

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F.3d at 1348-49.

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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). 

III. Discussion.

Plaintiff claims that while incarcerated at Metro Jail, he was arraigned for a crime

for which he was never arrested, and further for which he did not receive Miranda rights. 

(Doc. 1). Plaintiff also claims that he was denied the right to a preliminary hearing. (Id.). 

These claims, though vaguely pled, appear to be directed to Plaintiff’s robbery conviction

for which he is presently incarcerated. (Doc. 1 at 7). Further, Plaintiff has indicated that

this conviction has not been reversed, expunged, invalidated, or called into question by a

federal court’s issuance of the writ of habeas corpus. (Id.). 

As Plaintiff is seeking compensatory and punitive damages, it appears that Plaintiff’s

claims in this action are precluded from review by the decision in Heck v. Humphrey, 512

U.S. 477, 114 S. Ct. 2364, 129 L. Ed. 2d 383 (1994). In Heck, a prisoner filed a § 1983

damages action against the prosecutors and investigator in his criminal case for their

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actions which resulted in his conviction. The Supreme Court analogized the plaintiff's

claim to a common-law cause of action for malicious prosecution, which has as a required

element that the accused prove the termination of the prior criminal proceeding in favor of

the accused. 512 U.S. at 484, 114 S. Ct. at 2371. The Supreme Court opined:

We think the hoary principle that civil tort actions are not

appropriate vehicles for challenging the validity of outstanding

criminal judgments applies to § 1983 damages actions that

necessarily require the plaintiff to prove the unlawfulness of

his conviction or confinement, just as it had always applied to

actions for malicious prosecution (footnote omitted). 

We hold that, in order to recover damages for allegedly

unconstitutional conviction or imprisonment, or for other harm

caused by actions whose unlawfulness would render a

conviction or sentence invalid, (footnote omitted), a § 1983

plaintiff must prove that the conviction or sentence has been

reversed on direct appeal, expunged by executive order,

declared invalid by a state tribunal authorized to make such

determination, or called into question by a federal court's

issuance of a writ of habeas corpus, 28 U.S.C. § 2254. A claim

for damages bearing that relationship to a conviction or

sentence that has not been so invalidated is not cognizable

under § 1983. Thus, when a state prisoner seeks damages in a §

1983 suit, the district court must consider whether a judgment

in favor of the plaintiff would necessarily imply the invalidity

of his conviction or sentence; if it would, the complaint must

be dismissed unless the plaintiff can demonstrate that the

conviction or sentence has already been invalidated. But if the

district court determines that the plaintiff's action, even if

successful, will not demonstrate the invalidity of any

outstanding criminal judgment against the plaintiff, the action

should be allowed to proceed (footnote omitted), in the

absence of some other bar to the suit (footnote omitted).

Id. at 486-87, 114 S. Ct. at 2372-73. 

This decision thus requires a plaintiff in a § 1983 action who is attempting "to

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recover damages for allegedly unconstitutional conviction or imprisonment, or for other

harm caused by actions whose unlawfulness would render a conviction or sentence invalid,"

to make a showing that his conviction, sentence, or other criminal judgment was reversed,

expunged, declared invalid by an appropriate state tribunal, or called into question in a

federal court's issuance of a writ of habeas corpus. Id. at 486-87, 114 S. Ct. at 2372. If a

plaintiff fails to make this showing, then no cause of action under § 1983 exists. Id. at 489,

114 S. Ct. 2373. If, in a § 1983 action, a plaintiff contends that a favorable ruling on his

claims would not invalidate his conviction, sentence, confinement, or other criminal

judgment, the burden is on the plaintiff to prove this contention in order for his claims to

proceed. Id. at 487, 114 S. Ct. at 2374. 

In the present action, Plaintiff has not shown that his conviction or sentence has

been reversed, expunged, declared invalid by an appropriate state tribunal, or called into

question by a federal court's issuance of a writ of habeas corpus. Accordingly, any damages

claims that would invalidate Plaintiff’s convictions or sentences if the Court were to rule

favorably upon them would be precluded by the Heck decision because Plaintiff has failed

to establish that his convictions or sentences have been invalidated in a manner prescribed

by Heck, supra. As a result, Plaintiff’s damages claims should be dismissed as frivolous. 

However, even if Plaintiff were to show that these claims are beyond the scope of

Heck because they would not invalidate his conviction or sentence if the Court were to rule

favorably upon them, these claims would nonetheless be barred by the two-year statute of

limitations for § 1983 actions brought in Alabama. As noted previously, Plaintiff claims

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that his constitutional rights were violated in January or February 1983, when he was

escorted from his jail cell into a courtroom and arraigned for a crime for which he claims

he was never arrested, nor ever received his Miranda rights. (Doc. 1 at Attachment 1). 

Plaintiff further claims that Defendants used illegal evidence to obtain a warrant for his

arrest, and that he was denied the right to a preliminary hearing, including the right to

counsel at that hearing. (Id.). The Court finds that while Plaintiff knew about his civil

rights claim against Defendants in January or February 1983, when Plaintiff alleges the

violation occurred, he waited until September 7, 2004, to file this § 1983 action. (Doc. 1).

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(l). 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, Plaintiff knew of the facts supporting his claim in January or

February 1983, when the unconstitutional treatment allegedly occurred. Notwithstanding,

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4Although somewhat unclear, Plaintiff states that he seeks “[t]o invoke further jurisdiction for

the courts under section 2201 and 2202 declaratory judgment and injunctive relief.” (Doc. 1 at

Attachment 2). To the extent that Plaintiff has asserted claims for declaratory or injunctive relief

challenging his convictions or sentences and seeking his release, such claims would not be recognized

under § 1983. Abella v. Rubino, 63 F.3d 1063, 1066 (11th Cir. 1995). These claims are only

recognized in habeas corpus and must be brought in a habeas corpus action under 28 U.S.C. § 2254. 

Id. Therefore, any claims for injunctive and declaratory relief would be subject to being dismissed as

frivolous. See Id. (affirming the dismissal of claims for injunctive and declaratory relief).

7

Plaintiff filed the present action on or about September 7, 2004, significantly more than

two years from when his claim accrued against Defendants. Moreover, Plaintiff’s pleadings

do not show a reason why the two-year statute of limitations should not be applied to bar

his claims. Akins v. United States, 204 F.3d 1086, 1089 (11th Cir. 2000) (“‘Equitable

tolling is appropriate when a movant untimely files because of extraordinary circumstances

that are both beyond his control and unavoidable even with diligence.’”) (quoting Sandvik v.

United States, 177 F.3d 1269, 1271 (11th Cir. 1999)), cert. denied, 531 U.S. 971, 121 S.

Ct. 410, 148 L. Ed. 2d 316 (2000); Justice v. United States, 6 F.3d 1474, 1479-80 (11th

Cir. 1993) (citing Irwin v. Department of Veterans’ Affairs, 498 U.S. 89, 96, 111 S. Ct.

453, 45-58, 112 L. Ed. 2d 435 (1990)) (equitable tolling is an extraordinary remedy which

is to be used sparingly and does not extend to garden variety claims of excusable neglect). 

Therefore, any claims that are beyond the purview of Heck would be barred by the two-year

statute of limitations and are subject to dismissal as frivolous.4

IV. Conclusion.

Based upon the foregoing reasons, it is recommended that this action be dismissed

with prejudice as frivolous, prior to service of process, pursuant to 28 U.S.C. §

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1915(e)(2)(B)(i).

The attached sheet contains important information regarding objections to the

Report and Recommendation. Should Plaintiff wish to make objections to this Report and

Recommendation, this is Plaintiff’s opportunity to show the Court why his claims are not

barred by the decision in Heck v. Humphrey, supra, and/or are not barred by the two-year

statute of limitations for §1983 claims. Hughes v. Lott, 350 F.3d 1157, 1163 (11th Cir.

2003). 

DONE this 27th day of April, 2005.

 

 s/WILLIAM E. CASSADY 

 UNITED STATES MAGISTRATE JUDGE

MAGISTRATE JUDGE’ S EXPLANATION OF PROCEDURAL RIGHTS

AND RESPONSIBILITIES FOLLOWING RECOMMENDATION

AND FINDINGS CONCERNING NEED FOR TRANSCRIPT

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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 Recommendation” 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.

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