Opinion
2:01-CV-0148
March 25, 2001
REPORT AND RECOMMENDATION
Plaintiffs DERRICK A. WALKER, PRO SE, and ELIZABETH WALKER, PRO SE, acting pro se, has filed suit pursuant to Title 42, United States Code, section 1983 complaining against the above-referenced defendants and have been given permission to proceed in forma pauperis.
Plaintiffs allege that, on March 30, 1999, they were subjected to illegal arrest and detention in violation of their constitutionally protected civil rights. Plaintiffs request monetary damages.
JUDICIAL REVIEW
Title 28, United States Code, section 1915(e)(2) provides:
[T]he court shall dismiss the case at any time if the court determines that —
(A) the allegation of poverty is untrue; or
(B) the action or appeal —
(i) is frivolous or malicious;
(ii) fails to state a claim 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). Thus, a pauper's complaint may be dismissed without service of process at any time the Court makes a determination of frivolousness.
The Magistrate Judge has reviewed the plaintiffs' pleadings and has viewed the facts alleged by them to determine if their claims present grounds for dismissal or should proceed to answer by defendants.
THE LAW AND ANALYSIS
Review of court records shows the plaintiffs previously sued all except three of the ten defendants presently named in cause no. 7:99-CV-0121, originally filed in the Dallas Division of the Northern District of Texas but later transferred to the Wichita Falls Division. Review of the original complaint in cause no. 7:99-CV-0121 reveals it concerned the same incident and most of the same causes of action as are asserted in the present suit. Cause no. 7:99-CV-0121 was dismissed for want of prosecution on August 26, 1999, after the plaintiffs failed to attend the Joint Status Conference. The plaintiffs were instructed that any motion for reinstatement had to include a response to the allegations contained in Paragraph A1 of the defendants' Joint Status Report and failed to make any response or appeal the dismissal of the case.
There is no federal statute of limitations for civil rights actions; therefore, the two-year Texas general personal injury limitations period is applied. Gartrell v. Gaylor, 981 F.2d 254, 256 (5th Cir. 1993). The incident date is represented by plaintiffs as March 30, 1999; and the instant cause was filed April 9, 2001.
Limitations has expired, and plaintiffs' claims have expired with it. Consequently, these claims lack an arguable basis in law and are frivolous. Neitzke v. Williams, 490 U.S. 319, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989).
CONCLUSION
For the reasons set forth above, pursuant to Title 28, United States Code, section 1915(e)(2)(B), it is the opinion of the Magistrate Judge and RECOMMENDATION to the United States District Judge that the claims of plaintiffs DERRICK A. WALKER, PRO SE, and ELIZABETH WALKER be dismissed with prejudice as frivolous.
The United States District Clerk shall mail a copy of this Report and Recommendation to plaintiff and to each attorney of record by certified mail, return receipt requested. Any party may object to the proposed findings and to the Report and Recommendation within fourteen (14) days from the date of this Order. Rule 72, Federal Rules of Civil Procedure, and Rule 4(a)(1) of Miscellaneous Order No. 6, as authorized by Local Rule 3.1, Local Rules of the United States District Courts for the Northern District of Texas. Any such objections shall be in writing and shall specifically identify the portions of the findings, recommendation, or report to which objection is made, and set out fully the basis for each objection. Objecting parties shall file the written objections with the Clerk of the Court and serve a copy of such objections on the Magistrate Judge and on all other parties. The failure to timely file written objections to the proposed factual findings, legal conclusions, and the recommendation contained in this report shall bar an aggrieved party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the District Court. Douglass v. United Services Automobile Ass'n 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).