Opinion
CIVIL ACTION NO.: 2:15-cv-12
02-03-2016
GARY CHARLES BRESTLE, Plaintiff, v. SUZANNE R. HASTINGS, et al., Defendants.
ORDER
After an independent and de novo review of the record, the undersigned concurs with the Magistrate Judge's January 19, 2016 Report and Recommendation, dkt. no. 35, to which objections have been filed. Accordingly, the Report and Recommendation of the Magistrate Judge is hereby ADOPTED as the opinion of the Court and Plaintiff's Objections, dkt nos. 36, 37, 38, are OVERRULED. The Court DISMISSES Plaintiff's Complaint and DENIES Plaintiff leave to appeal in forma pauperis. The Clerk of Court is DIRECTED to enter the appropriate judgment of dismissal and to CLOSE this case.
In his Objections, Plaintiff argues that the Court should excuse the untiraeliness of his claims under the continuing violation doctrine. The continuing violation doctrine holds that a plaintiff's action is not time-barred where some of the alleged violations occurred within the statutory period, even though other violations did not, because the early acts were part of a continuing wrong. Hipp v. Liberty Nat'l Life Ins. Co., 252 F.3d 1208, 1221 (11th Cir.2001). However, the Eleventh Circuit has "limited the application of the continuing violation doctrine to situations in which a reasonably prudent plaintiff would have been unable to determine that a violation had occurred." Ctr. for Biological Diversity v. Hamilton, 453 F.3d 1331, 1335 (11th Cir.2006). "If an event or series of events should have alerted a reasonable person to act to assert his or her rights at the time of the violation, the victim cannot later rely on the continuing violation doctrine." Hipp, 252 F.3d at 1222. Here, Plaintiff was alerted to act on his rights several years before filing this action. Dkt. no. 25, p. 7. Indeed, Plaintiff signed a lawsuit against the United States, making basically the same factual allegations that he makes in this lawsuit, on December 29, 2011. Compl., Brestle v. United States, No. 2:12-cv-116 (S.D. Ga. Jan. 19, 2012), ECF No. 1, p. 4. Consequently, the continuing violation doctrine cannot excuse the readily apparent untimeliness of Plaintiff's claims. --------
SO ORDERED, this 3 day of February, 2016.
/s/_________
LISA GODBEY WOOD, CHIEF JUDGE
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA