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IN THE UNITED STATES DISTRICT COURT FOR THE 

SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

EMMA LIGHTSEY, #238811, :

Plaintiff, :

vs. : CIVIL ACTION 15-91-WS-M

JACK MEIGS, 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). After careful consideration, it is recommended that 

this action be dismissed with prejudice, prior to service of 

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

because the claims either fail to state a claim upon which 

relief can be granted or are frivolous.

I. Complaint. (Doc. 1). 

Plaintiff indicates in her Complaint that she was convicted 

of murder in 2004 and received a sentence of life imprisonment, 

and does not have a future sentence to serve with respect to 

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another conviction. (Doc. 1 at 3). The Court’s docket reflects 

that she previously challenged her murder conviction in two 

habeas petitions, which were denied. Lightsey v. King, CA No. 

2:07-0481-CG-C (S.D. Ala. Jan. 9, 2008), and Lightsey v. 

Albright, CA No. 2:12-0042-KD-M (S.D. Ala. May 10, 2012).

In the present action, Plaintiff appears to be challenging 

this conviction again even though she did not identify the

conviction in her allegations. That is, in CA No. 07-2:07-0481-

CG-C, the record shows that Plaintiff was convicted of murder on 

November 23, 2004 and sentenced to life imprisonment on December 

20, 2004 (Doc. 11 at 1), with agents Guthrie and Bailey being 

involved in criminal process (id. at 4, 7), and with Circuit 

Court Judge Jack Meigs (Doc. 6-2 at 4) trying the case. See 

generally Doc. 1 at 12-14 (habeas petition). These individuals 

are also named as Defendants in the present action. 

The present allegations identify as Defendants Jack Meigs, 

Perry County Judge; Donald McMillian, prosecutor; John Bailey 

and John Guthry, agents with the Alabama Bureau of 

Investigation; and Ann Armstrong, court reporter. (Doc. 1 at 6-

7). The allegations against each Defendant are brief, 

consisting of two pages. (Id.). Due to this brevity, the

allegations are being set out in their entirety.

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In Sept., 2002, John Bailey and John Guthry, 

agents for the Alabama Bureau of 

Investigation, removed, then failed to log 

in, exculpatory evidence from Plaintiff’s 

home.

Jack Meigs, Perry County judge, failed to 

recuse himself, allowed hearsay testimony, 

made unsolicited comments, about Lightsey’s 

testimony, to the jury. Increased 

Lightsey’s sentence after she made a 

statement at her sentencing hearing. 

Ordered, allowed, encouraged or ignored 

changes to trial transcripts.

Donald McMillian, Prosecutor, tainted the 

jury pool[.] 

Ann Armstrong, court reporter, deleted or 

allowed to be deleted; change or allowed to 

be changed portions of the trial and 

sentencing transcripts.

(Id. at 6-7).

For relief, Plaintiff requests her release or a re-trial; 

damages for her lost income since her arrest; $12 million for 

her twelve years of pain and suffering; reimbursement for her 

legal fees, court costs, and expenses; an order requiring 

Defendants to give Plaintiff a written apology for their 

wrongdoings; and any additional relief the Court deems just, 

proper, and equitable. (Id. at 7).

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

Because Plaintiff is proceeding in forma pauperis, the 

Court is reviewing the Complaint (Doc. 1) under 28 U.S.C. §

1915(e)(2)(B). Under § 1915(e)(2)(B)(i), a claim may be 

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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 (1989).1 A

claim is frivolous as a matter of law where, inter alia, the 

defendants are immune from suit, id. at 327, or the claim seeks 

to enforce a right that clearly does not exist. Id.

Moreover, a complaint may be dismissed under 28 U.S.C. § 

1915(e)(2)(B)(ii) for failure to state a claim upon which relief 

may be granted. Mitchell v. Farcass, 112 F.3d 1483, 1490 (11th 

Cir. 1997). To avoid dismissal for failure to state a claim 

upon which relief can be granted, the allegations must show 

plausibility. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 

557, 127 S.Ct. 1955, 1966, 167 L.Ed.2d 929 (2007). “A claim has 

facial plausibility when the plaintiff pleads factual content 

that allows the court to draw the reasonable inference that the 

defendant is liable for the misconduct alleged.” Ashcroft v. 

Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868

(2009). That is, “[f]actual allegations must be enough to raise 

a right to relief above the speculative level” and must be a

 1

 The frivolity and the failure-to-state-a-claim analysis 

contained in Neitzke was unaltered when Congress enacted 28 

U.S.C. § 1915(e)(2)(B) in 1996. Bilal v. Driver, 251 F.3d 1346, 

1349 (11th Cir.), cert. denied, 534 U.S. 1044 (2001). However, 

dismissal is now mandatory under § 1915(e)(2)(B). Id. at 1348-

49.

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“‘plain statement’ possess[ing] enough heft to ‘sho[w] that the 

pleader is entitled to relief.’” Twombly, 550 U.S. at 555, 557,

127 S.Ct. at 1965, 1966(second brackets in original). However, 

“[t]hreadbare recitals of the elements of a cause of action, 

supported by mere conclusory statements, do not suffice.” 

Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949. Furthermore, when a 

successful affirmative defense, such as a statute of 

limitations, appears on the face of a complaint, dismissal for 

failure to state a claim is also warranted. Jones v. Bock, 549 

U.S. 199, 215 (2007). 

When considering a pro se litigant’s allegations, a court 

gives them a liberal construction holding them to a more lenient 

standard than those of an attorney. Haines v. Kerner, 404 U.S. 

519, 520 (1972). However, a court does not have “license . . . 

to rewrite an otherwise deficient pleading [by a pro se

litigant] in order to sustain an action.” GJR Investments v. 

County of Escambia, Fla., 132 F.3d 1359, 1369 (11th Cir. 1998), 

overruled on other grounds by Iqbal, 129 S.Ct. 1937. 

Furthermore, a court treats as true factual allegations, but it 

does not treat as true conclusory assertions or a recitation of 

a cause of action’s elements. Iqbal, 556 U.S. at 681, 129 S.Ct. 

at 1951. And a pro se litigant “is subject to the relevant law 

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and rules of court including the Federal Rules of Civil 

Procedure.” Moon v. Newsome, 863 F.2d 835, 837 (11th Cir.), 

cert. denied, 493 U.S. 863 (1989).

III. Analysis.

A. Failure to State a Claim.

In reviewing Plaintiff’s claims, the Court finds an absence 

of specific facts in the description of her claims. As pled, 

Plaintiff’s claims appear vague and conclusory. See Fullman v. 

Graddick, 739 F.2d 553, 557 (11th Cir. 1984) (holding that vague 

and conclusory claims are subject to dismissal). In order to 

state a claim upon which relief can be granted under § 1983, a 

claim must be plausible, which is accomplished by pleading 

sufficient facts that allow the Court to conclude that a 

defendant is liable for the misconduct that violated Plaintiff’s 

constitutional rights. Iqbal, 556 U.S. at 678, 129 S.Ct. at 

1949; American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-

50, 119 S.Ct. 977, 985, 143 L.Ed.2d 130 (1999) (“To state a 

claim for relief in an action brought under § 1983, respondents 

must establish that they were 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.”). Section 

1983 does not address conduct that is private conduct or conduct 

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that does not violate the Constitution or federal law. Id.

(private conduct does not violate the Constitution); Daniels v. 

Williams, 474 U.S. 327, 336, 106 S.Ct. 662, 667, 88 L.Ed.2d 662 

(1986) (negligent conduct does not violate the Constitution). 

Here, Plaintiff’s allegations do not rise above the speculative 

level and do not have enough heft to show the pleader is 

entitled to relief. Twombly, 550 U.S. at 555, 557 (second 

brackets in original). For example, Defendants Bailey and 

Guthry are alleged to have “failed to log in, exculpatory 

evidence from Plaintiff’s home.” (Id. at 6). The evidence is 

not identified, and no explanation is provided why logging in is 

important or why the nature of the evidence is exculpatory. 

Thus, Plaintiff’s complaint lacks plausibility. Upon 

consideration of the complaint as a whole, it is due to be 

dismissed for failure to state a claim upon which relief can be 

granted.

B. Individual Defendants.

1. Defendant Circuit Court Judge Meigs.

Notwithstanding this pleading failure, the Court will 

examine the claims against each Defendant in order to provide an

alternate basis for the complaint’s dismissal. Turning first to 

Defendant Meigs, the allegations against Defendant Meigs arise 

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from Plaintiff’s criminal case that was before him at different 

stages in the criminal process, that is, pretrial, trial, 

sentencing, and post-trial.

In a § 1983 action, a judge is entitled to absolute 

judicial immunity from damages for those acts taken while he was 

acting in his judicial capacity unless he acted in the “clear 

absence of all jurisdiction.” Stump v. Sparkman, 435 U.S. 349, 

357, 362, 98 S.Ct. 1099, 1105, 1107, 55 L.Ed.2d 331 (1978) 

(internal quotation marks omitted); Simmons v. Conger, 86 F.3d 

1080, 1084-85 (11th Cir. 1996); Scott v. Hayes, 719 F.2d 1562, 

1563 (11th Cir. 1983). A judge is entitled to this immunity 

even though the act he undertook “was in error, was done 

maliciously, or was in excess of [his] authority.” Stump, 435 

U.S. at 356, 98 S.Ct at 1105. Absolute judicial immunity 

ensures “that a judicial officer, in exercising that authority 

vested in him, [is] free to act upon his own convictions, 

without apprehension of personal consequences to himself,” id.

at 355, 98 S.Ct. at 1104 (internal quotation marks omitted), 

which is a “principle of the highest importance to the proper 

administration of justice[.]” Id. (internal quotation marks 

omitted). 

Defendant Meigs is a judge for the Circuit Court of Perry

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County, Alabama.2 Plaintiff dealt with Defendant Meigs in his 

judicial capacity because entering rulings in Plaintiff’s 

criminal case, conducting a criminal trial, imposing sentence, 

and commencing the appeal process are acts typically performed 

by a judge. Moreover, an Alabama circuit court has “exclusive 

original jurisdiction of all felony prosecutions[.]” ALA. CODE § 

12-11-30(2). And, according to the Alabama Court of Criminal 

Appeals’ opinion filed in Lightsey v. King, CA No. 2:07-481-CG-C 

(S.D. Ala. Jan. 9, 2008) (Doc. 6-1), Plaintiff was convicted of 

murder in violation of Alabama Code § 13A-6-2, which is a

felony. ALA. CODE § 13A-6-2 (1975). Thus, it is clear that 

Defendant Meigs was acting within his jurisdiction and was 

dealing with Plaintiff in his judicial capacity. Defendant 

Meigs is therefore entitled to absolute judicial immunity from 

any damages claim because both prongs of the Stump test are 

satisfied, and he is due to have the damages claims against him 

dismissed as frivolous. Simmons, 86 F.3d at 1084-85.

2. Defendant Prosecutor McMillian.

Defendant McMillian, as the prosecutor, is alleged to have 

“tainted the jury pool.” (Doc. 1 at 7). No information is 

 

2 Finova Capital Corp. v. College City Drugs, Inc., 885 

So.2d 811 (Ala. Civ App. 2004).

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offered showing how this conclusion was reached. In other 

words, no facts were alleged in order to state a claim. 

However, a prosecutor is entitled to absolute prosecutorial 

immunity from damages in a § 1983 action for performing his 

function as an advocate for the government. Buckley v. 

Fitzsimmons, 509 U.S. 259, 272-73, 113 S.Ct. 2606, 2615, 125 

L.Ed.2d 209 (1993). He is protected with absolute immunity in 

order not to “impair the performance of a central actor in the 

judicial process.” Malley v. Briggs, 475 U.S. 335, 343, 106 

S.Ct. 1092, 1097, 89 L.Ed.2d 271 (1986). This immunity 

encompasses acts or omissions associated “with the judicial 

phase of the criminal process”, in particular, those taken in 

initiating a prosecution and in presenting the government’s 

case. Imbler v. Pachtman, 424 U.S. 409, 430-31, 96 S.Ct. 984, 

995, 47 L.Ed.2d 128 (1976); Wahl v. McIver, 773 F.2d 1169, 1173 

(11th Cir. 1985); Fullman, 739 F.2d at 558-59.

In the action at hand, Defendant McMillian’s actions took 

place during the judicial phase of the criminal process in that 

the jury pool is involved. Accordingly, Defendant McMillian is 

due to be granted absolute immunity from damages, and the 

damages claim against him is due to be dismissed with prejudice 

as frivolous. Imbler, 424 U.S. at 430-31, 96 S.Ct. at 995. 

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3. Defendant Court Reporter Armstrong.

Plaintiff claims that Defendant Armstrong “deleted or 

allowed to be deleted [and] changed or allowed to be changed

portions of the trial and sentencing transcript.” (Doc. 1). A 

court reporter, however, is entitled to absolute quasi-judicial 

immunity from damages when acting pursuant to a judge’s orders. 

Roland v. Phillips, 19 F.3d 552, 556 n.4 (11th Cir. 1994). In 

the present action, considering the allegation against Defendant 

Meigs that he ordered changes in the transcript and the 

vagueness of the allegations against Defendant Armstrong, 

Defendant Armstrong may be entitled to absolute quasi-immunity 

from damages if she acted pursuant to an order, which cannot be 

determined due to manner in which claims have been pled.

In the alternative, if Defendant Armstrong was not acting 

pursuant to Defendant Meigs’s order, the claim against her fails 

to state a claim upon which relief can be granted. The 

allegation against her is vague and conclusory. That is, no 

facts are alleged that would show that the claim against her is 

plausible and that the claim demonstrates a violation of

Plaintiff’s constitutional rights. Iqbal, 556 U.S. at 678, 129 

S.Ct. at 1949; Sullivan, 526 U.S. at 49-50, 119 S.Ct. at 985. 

For this reason, Defendant Armstrong is due to be dismissed 

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without prejudice for Plaintiff’s failure to state a claim 

against her. 

4. Defendants Agents Bailey and Guthry.

Defendants Bailey and Guthry are alleged to have “removed, 

then failed to log in[] exculpatory evidence from Plaintiff’s 

home.” (Id. at 6). This allegation does not identify the

evidence, and indicate why it was exculpatory and was a 

violation of Plaintiff’s constitutional rights. This claim

against Defendants Bailey and Guthry is vague and conclusory 

and, therefore, lacks plausibility. Iqbal, 556 U.S. at 678, 129 

S.Ct. at 1949; Sullivan, 526 U.S. at 49-50, 119 S.Ct. at 985. 

Accordingly, Plaintiff failed to state a claim upon which relief 

can be granted against Defendants Bailey and Guthry, and they 

are due to be dismissed without prejudice. See Fullman, supra.

C. Request for Release or Retrial.

In addition to a request for damages in this § 1983 action, 

Plaintiff requests to be released or to be retried. (Doc. 1 at

7). This type of injunctive relief is not available in a § 

1983. Rather, “habeas corpus is the exclusive remedy for a 

state prisoner who challenges the fact or duration of his 

confinement and seeks immediate or speedier release.” Abella v. 

Rubino, 63 F.3d 1063, 1066 (11th Cir. 1995) (quoting Preiser v. 

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Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973)). 

“[T]he essence of habeas corpus is an attack by a person in 

custody upon the legality of that custody, and that the 

traditional function of the writ is to secure release from 

illegal custody.” Preiser v. Rodriguez, 411 U.S. 475, 484, 93 

S.Ct. 1827, 1833, 36 L.Ed.2d 439 (1973). A habeas claim seeking 

release based on a challenge to the fact of confinement is 

simply not recognized under § 1983. Heck v. Humphrey, 512 U.S. 

477, 481, 114 S.Ct. 2364, 2369, 129 L.Ed.2d 383 (1994) (relying 

on Preiser, supra). Similarly, a request for retrial is a 

challenge to her conviction, which is not available in a § 1983 

action. Powell v. Weaver, 235 F.3d 1341, at *1 (5th Cir. 2000) 

(unpublished). Accordingly, Plaintiff’s request for release and 

for a retrial in this § 1983 action is frivolous as a matter of 

law and is due to be dismissed with prejudice.

D. Request for a Written Apology.

Plaintiff requested an order directing “Defendants to issue 

to Plaintiff a written statement of the their wrong doings along 

with an apology.” (Doc. 1 at 7). The Court, however, does not 

have the authority to issue this type of injunctive relief.

Walker v. Iske, No. 8:12-cv-1539-T-30AEP, 2012 WL 5341380, at *2 

(M.D. Fla. Oct. 29, 2012) (citing to Woodruff v. Ohman, 29 F. 

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App’x 337, 346 (6th Cir. 2002) (unpublished); Devonish v. 

Atlantic Cnty. Justice Facility, CA No. 10-1866 (JBS), 2010 WL 

3024858 (D.N.J. July 29, 2010) (unpublished)); Fiore v. Secular,

No. 8:09-cv-999-T-17EAJ, 2009 WL 1587119, at *3 (M.D. Fla. June 

5, 2009)(unpublished); Hall v. Alabama, No. 2:09-cv-342-MHT-WO,

2010 WL 582076, at *10 (M.D. Ala. Feb. 18, 2010) (unpublished).

3

 

Therefore, this request for injunctive relief is frivolous and 

is due to be dismissed. 

E. Application of Heck v. Humphrey.

Another alternate basis exists for the dismissal of the 

damages claims in this action, 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 an investigator in his criminal case for their actions that 

resulted in his conviction. The Supreme Court analogized the 

plaintiff’s claim to a common-law cause of action for malicious 

prosecution, which had as a required element that the accused 

prove the termination of the prior criminal proceeding for the 

accused. Id. at 484, 114 S.Ct. at 2371. The Heck Court opined:

 3 Plaintiff’s other requests for relief – Defendants 

ordered “to pay all of Plaintiff’s legal fees, court costs and 

expenses [and] any additional relief this court deems just 

proper and equitable” – are without legal merit in light of this 

Report and Recommendation. (Doc. 1 at 7).

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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. 

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The Heck bar prevents claims from proceeding “‘if a 

judgment in favor of the plaintiff would necessarily imply the 

invalidity of his conviction[,]’ . . . . [or if the plaintiff ] 

must negate ‘an element of the offense of which he has been 

convicted’ in order to prevail.” Hughes v. Lott, 350 F.3d 1157, 

1160 (11th Cir. 2003) (quoting Heck, 512 U.S. at 487 & n.6, 114 

S.Ct. at 2372 & n.6).

On the other hand, the decision in Heck does not 

necessarily bar a claim for an unlawful search. Heck, 512 U.S. 

at 487 n.7, 114 S.Ct. at 2372 n.7; Bell v. Hutsell, No. 7:09-cv152 (HL), 2011 WL 1230891, at *2 (M.D. Ga. Mar. 30, 2011) 

(citing Hughes, 350 F.3d at 1160-61). “Because an illegal ... 

arrest may be followed by a valid conviction, ... a successful § 

1983 action for Fourth Amendment search and seizure violations 

does not necessarily imply the invalidity of a conviction.” 

Hughes, 350 F.3d at 1160. But in order to recover compensatory 

damages on such a claim “the § 1983 plaintiff must prove not 

only that the search was unlawful, but that it caused him 

actual, compensable injury, . . . , which, we hold today, does 

not encompass the ‘injury’ of being convicted and imprisoned 

(until his conviction has been overturned).” Heck, 512 U.S. at 

487 n.7, 114 S.Ct. at 2373 n.7 (citation omitted).

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Thus, it appears from Plaintiff’s allegations that she is 

attempting to invalidate her murder conviction in this § 1983 

action. The Court can only make a general conclusion because 

Plaintiff’s allegations are vague and conclusory and lacking in 

specific facts. To the extent, that a damages claim would 

invalidate her conviction if the Court would rule favorably on 

it, the decision in Heck would bar that claim from proceeding as 

no showing has been made that Plaintiff’s murder conviction has 

been previously invalidated in a manner prescribed by Heck. 

Inasmuch as Plaintiff is still in prison apparently serving her 

sentence on her murder conviction, as there is no indication 

that she has another sentence to serve, and there is no evidence 

of a decision invalidating her conviction, the Court concludes 

that Plaintiff will not be able to show that her murder 

conviction has been invalidated. On the other hand, if a claim 

would not invalidate Plaintiff’s conviction, then such a claim 

may proceed absent another bar.4 See Id. at 487 & n.7, 114 S.Ct. 

 4

 As pled, the Court is unable to determine if plaintiff 

has a claim that if the Court were to rule favorably on it, her 

conviction would not be invalidated. For example, Plaintiff 

mentions that on September, 2002, Defendants Bailey and Guthry 

“removed, then failed to log in, exculpatory evidence from 

Plaintiff’s home.” (Doc. 1 at 6). The nature of this claim and 

its impact on Plaintiff’s conviction are not able to be 

determined because the lack of facts makes it vague and unable 

to impart notice to a Defendant or the Court. But if it could 

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at 2372-73 & n.7 (recognizing situations where a favorable 

ruling on a claim based on an unreasonable search and seizure 

may not invalidate an outstanding criminal conviction). 

Accordingly, Plaintiff’s damages claims that would invalidate 

her conviction if the Court were to rule favorably on them are 

due to be dismissed with prejudice as frivolous. Abella, 63 

F.3d at 1065 (dismissing with prejudice the claims that are 

barred by Heck). In light of this holding based on Heck barring 

the damages claims and the above holding finding the claims for 

injunctive relief to be frivolous, these holdings serve as an 

alternate basis for the dismissal of the entire action. 

IV. Conclusion.

 

be determined that this claim would not undermine Plaintiff’s 

conviction if the Court were to rule favorably on it, this claim 

would not be able to proceed because the two-year statute of 

limitations would bar it. That is, in Alabama a claim for 

relief under § 1983 must be filed within two years from when the 

claim arose. Lufkin v. McCallum, 956 F.2d 1104, 1106, 1108 (11th 

Cir.), cert. denied, 506 U.S. 917 (1992); ALA. CODE § 6-2-38(l). 

Inasmuch as this claim appears to have arisen in 2002, and the 

present complaint was filed on February 19, 2015, well beyond 

two years from 2002, this claim is barred by the statute of 

limitations and is subject to dismissal. Clark v. Georgia 

Pardons & Paroles Bd., 915 F.2d 636, 640 n.2 (11th Cir. 1990) 

(dismissed as frivolous); cf. Bock, 549 U.S. at 215, 127 S.Ct. 

at 920-21 (dismissed for failure to state a claim). 

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Based upon the foregoing reasons, it is recommended that 

this action be dismissed with prejudice, prior to service of 

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

because the claims either fail to state a claim upon which 

relief can be granted or are frivolous.

NOTICE OF RIGHT TO FILE OBJECTIONS 

A copy of this report and recommendation shall be served on 

all parties in the manner provided by law. Any party who objects 

to this recommendation or anything in it must, within fourteen 

(14) days of the date of service of this document, file specific 

written objections with the Clerk of this Court. See 28 U.S.C. § 

636(b)(1); FED.R.CIV.P. 72(b); S.D. ALA. L.R. 72.4. The parties 

should note that under Eleventh Circuit Rule 3-1, “[a] party 

failing to object to a magistrate judge's findings or 

recommendations contained in a report and recommendation in 

accordance with the provisions of 28 U.S.C. § 636(b)(1) waives 

the right to challenge on appeal the district court's order 

based on unobjected-to factual and legal conclusions if the 

party was informed of the time period for objecting and the 

consequences on appeal for failing to object. In the absence of 

a proper objection, however, the court may review on appeal for 

plain error if necessary in the interests of justice.” 11th 

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Cir. R. 3-1. In order to be specific, an objection must 

identify the specific finding or recommendation to which 

objection is made, state the basis for the objection, and 

specify the place in the Magistrate Judge’s report and 

recommendation where the disputed determination is found. An 

objection that merely incorporates by reference or refers to the 

briefing before the Magistrate Judge is not specific. 

DONE this 10th day of June, 2015. 

s/BERT W. MILLING, JR.

UNITED STATES MAGISTRATE JUDGE

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