Hawk v. Pearson, No. 1:2009cv02968 - Document 6 (N.D. Ga. 2010)

Court Description: ORDER AND OPINION DISMISSING Plaintiff's complaint of harassment against DeKalb County and DISMISSING the instant complaint as frivolous pursuant to 28 USC § 1915(e)(2). Signed by Judge Timothy C. Batten, Sr. on 9/15/2010. (alc)
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Hawk v. Pearson Doc. 6 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICTI OF ATLANTA DIVISIOr DANNY HAWK, Plaintiff, v. : . CIVIL RIGHTS § 1983 42 CIVI1 ACTION NO. 1:09­,V 2968­TCB ­ T. PEARSON; DEKALB COUNTY, GEORGIA, Defendants. ORDER AND OPINI N Plaintiff has filed the instant civil rights ction pursuant to 42 U.S.C. § 1983. The matter is now before the Court for a U.S.C. § 1915(e)(2) frivolity screenmg. I. 28 U.S.C. § 1915(e)(2) Frivolity Review Pursuant to 28 U.S.C. § 1915(e)(2), a fede11 court shall dismiss a case at I any time if the court determines that the action is J'frivolous" or "fails to state a i claim on which relief may be granted." 28 u.SjC. § 1915(e)(2). A claim is frivolous when it appears from the face of thf complaint that the factual allegations are "clearly baseless" or that the legal theories are "indisputably meritless." Carroll v. Gross, 984 F.2d 392, 393 (f lth Cir. 1993). A complaint fails to state a claim when it does not include "e10Ugh factual matter (taken as A072A (Rev.8/82) Dockets.Justia.com true)" to "give the defendant fair notice of what thF ... claim is and the grounds upon which it rests[.]" Bell Atlantic Corp. v. T$mbly, 550 U.S. 544, 555­56 I (2007) (noting that "[fJactual allegations must be tOUgh to raise a right to relief above the speculative level," and that the complaint! 'must contain something more ... than ... a statement of facts that merely creltes a suspicion [of] a legally i I cognizable right of action") (citations omitted). In order to state a claim for relief under 42 f.S.C. § 1983, a plaintiff must I allege that: (1) an act or omission deprived him ofa right, privilege, or immunity I i secured by the Constitution or a statute of the United States; and (2) the act or omission was committed by a person acting under of state law. See Hale v. Tallapoosa County, 50 F.3d 1579, 1581 (lIth 1995). If a litigant cannot satisfy these requirements, or fails to provide allegations in support ofhis claim or claims, then the complaint is subject to dirissal. See Chappell v. Rich, 340 F.3d 1279, 1282­84 (lIth Cir. 2003) (affirmi1g the district court's dismissal of a § 1983 complaint because the plaintiffs factuJI allegations were insufficient , to support the alleged constitutional violation). 2 A072A (Rev.S/S2) II. Plaintiffs Claims Plaintiffhas named as Defendants Officer with the DeKalb County + Police Department, and DeKalb County. Plaintiff mPlains that Officer Pearson ; unlawfully stopped Plaintiff for a taillight violation; on the morning of August 25, i 2007. Plaintiff further complains that prior to thI' traffic stop Officer Pearson followed him for four blocks, and that he first ga, e Plaintiff a warning. Upon I finding out that Plaintiff had called 911 to repoj the "harassment and illegal stopped [sic]," however, Officer Pearson ed] his driver's license and warning ticket out of Plaintiff s hand, hitting aT striking Plaintiff' so as to constitute simple battery. According to Plaintiff,1 Officer Pearson then falsely i cited him for a taillight violation. Finally, Plaintiff complains that he has been : "harassed" by several DeKalb County police offi1ers. Plaintiff seeks monetary damages. . III. Analysis of Plaintiff s Claims A. HIe al Search and Seizure False Arr st and False 1m risonment i Federal courts apply their forum state's statute of limitations for actions I brought pursuant to § 1983. See Kelly v. Serna, '7 F.3d 1235, 1238 (11th Cir. 1996); Blanck v. McKeen, 707 F.2d 817, 819 (4thiCir. 1983). The Georgia two3 A072A (Rev.8/82) year statute of limitations, therefore, applies to tl1is action. See Reynolds v. I Murray, 170 F. App'x49, 50­51 (lIth Cir. 2006); Williams v. City ofAtlanta, 794 I F 2d 624 (11 th Cir. 1986). . I The statute of limitations for a § 1983 actiob begins to run from the date "the facts which would support a cause of actidn are apparent or should be i apparent to a person with a reasonably prudent regard for his rights." Brown v. Georgia Bd. of Pardons and Paroles, 335 F.3d f259, 1261 (11 th Cir. 2003) I (citations omitted). "It is well established that a federal claim accrues when the I prospective plaintiffknows or has reason to know (j>fthe injury which is the basis i I of the action." Mcnair v. Allen, 515 F.3d 1168, Il74 (lIth Cir. 2008) (citations omitted). A claim of false arrest and false imJriSOnment accrues when the plaintiff is released from the alleged false imprisqnment. See Brown v. Lewis, 361 F. App'x 51, 55 (lIth Cir. 2010) ("A cla m for false arrest and false imprisonment must be brought within two years 0 the defendant's release from imprisonment. ). " I Plaintiff was stopped by Officer Pearson oh August 25, 2007, and after t receiving an aile g dl false citation, Plain iff was Ireleased. Moreover, Plaintiff e y was aware of the facts about which he complains the moment he was stopped, 4 A072A (Rev. 8/82) as evident from his 911 call to report I and illegal stopped [sic]." I Thus, Plaintiff's claims for false arrest, false imprisfnment, and illegal search and seizure accrued on August 25,2007. 1 Because PIaibtiff did not file his complaint until October 19, 2009, more than two years later,! these claims are time­barred. In the context ofan in forma pauperis frivolit determination pursuant to 28 U.S.C. § 1915, "[t]he expiration of the statute 0 limitations is an affirmative defense the existence of which warrants a dismiss I as frivolous." McKenzie v. I ' o United States Dep t fJustice, Drug Enforcement 143 F. App ' x 165, 167- 68 (lIth Cir. 2005) (citations omitted). This Coprt is authorized to dismiss a I prisoner's complaint as time-barred prior to servicr if it appears "beyond a doubt from the complaint itself that [the prisoner] can no set of facts which would I avoid a statute of limitations bar." Id. at 168 (citations omitted). Because it i appears beyond a doubt from Plaintiff s complaint that he can prove no set offacts which would avoid a statute oflimitations bar, his I arrest, false imprisonment, I and illegal search and seizure claims are dismisset under § 1983. I I Moreover, if, as he claims, the citation was false, he was aware ofthat fact at the moment he received the citation. 1 5 A072A (Rev.8/82) B. Harassment Against DeKalb County. Plaintiff's claim against DeKalb County being stopped by Officer Pearson, Plaintiff has alleges that prior to harassed by the DeKalb County Police Department. This claim, however, not cognizable under § 1983. ! First, a plaintiff seeking to hold a city or municipality liable "must show: (1) that I his constitutional rights were violated; (2) that the municipality had a custom or policy that constituted deliberate indifference to t+t constitutional right; and (3) that the policy or custom caused the violation." ¥cDowell v. Brown, 392 F.3d 1283, 1289 (11th Cir. 2004). Other than his assertion that the DeKalb I County Police Department has victimized Plaintif by harassment and his self­ serving statements of "unconstitutional conductr' by various DeKalb police officers, he has not demonstrated a custom or P()licy by DeKalb County that I constitutes deliberate indifference to his Fourth jendment rights. Moreover, as with Plaintiff's claims againft Officer Pearson, all of the alleged incidents ofharassment occurred more years before Plaintifffiled his complaint on October 19,2009. Accordingly, 1j>laintiff's claim ofharassment against DeKalb County is DISMISSED. 6 A072A (Rev. 8/82) C. I I Simple Battery I Finally, this Court shall exercise over Plaintiffs state law claim of simple battery against Officet Pearson. A federal court's exercise of supplemental jurisdiction over state la,l claims is discretionary. See I United Mine Workers ofAmerica v. Gibbs, 383 U.S. 715, 726 (1966). This claim i is also barred by the statute of limitations. See O.C.G.A. § 9­3­33 (providing a cltimS)' Accordingly, this Court two­year statute oflimitations for personal injury exercises supplemental jurisdiction over Plaintiff slsimple battery claim and finds that it should be dismissed. IV. Conclusion In light ofthe foregoing analysis, the instant bomplaint is DISMISSED AS FRIVOLOUS pursuant to 28 U.S.C. § 1915(e)(2). IT IS SO ORDERED this 15th day tf September, 2010. TI OTHY C. B TTEN, SR. UN TED STATE DISTRICT JUDGE 7 A072A (Rev.8/82)