United States District Court, E.D. Louisiana
LEROY B. SIMMONS
RICHARD L. STALDER, ET AL.
REPORT AND RECOMMENDATION
se plaintiff Leroy B. Simmons filed the above-captioned
matter in this Court in which he sues Richard L. Stalder, C.
Brown, O.P.P. Temp 11, the Secretary of Department Public
Safety and Correctional Services, Denny Creed, and Dimar
Ramsay for allegedly having confined him in prison for too
long of a time. On December 11, 2018, this Court ordered
Simmons to show cause why this case should not be summarily
dismissed under 28 U.S.C. § 1915(e)(2)(B)(i-iii) on the
ground that all of Simmons' claims have long prescribed.
Simmons has now done so. [Doc. #5].
U.S.C. § 1915(e)(2)(B) provides for summary dismissal
sua sponte, should the Court determine that a case
is frivolous. Section 1915(e)(2)(B) provides in pertinent
part as follows:
Notwithstanding any filing fee, or any portion thereof, that
may have been paid, the court shall dismiss
the case at any time if the court determines that-
(B) the action or appeal-
(i) is frivolous or malicious;
(ii) fails to state a claim on which relief may be granted;
(iii) seeks monetary relief against a defendant who is immune
from such relief.
28 U.S.C. § 1915(e)(2)(B)(i)-(iii) (emphasis added). In
plain language, Section 1915 requires dismissal if the Court
is satisfied that the case fails to state a claim on which
relief may be granted.
Court has permitted the plaintiff to proceed in forma
pauperis in the instant proceeding under the provisions
of 28 U.S.C. Â§1915(a). However, summons has not issued in
order to allow the Court to review plaintiff's complaint
to determine whether it satisfies the requirements of the
federal in forma pauperis statute. On its face,
plaintiff's complaint fails to meet the requirements of
the statute. There exists no absolute right to proceed in
forma pauperis in federal civil matters; instead, it is
a privilege extended to those unable to pay filing fees
when it is apparent that the claims do not lack merit on
an action under section 1915, a district court may raise the
defense of limitations sua sponte.” Harris
v. Hegmann, 198 F.3d 153, 156 (5th Cir. 1999). A
complaint asserting prescribed claims is properly dismissed
as frivolous. See, e.g., Brown v. Pool, 79 Fed.Appx.
15, 17 (5th Cir. 2003); Gonzales v. Wyatt, 157 F.3d
1016, 1019-20 (5th Cir. 1998); Francis v. United
States, Civil Action No. 07-1991, 2007 WL 2332322 (E.D.
La. Aug.13, 2007). “[F]or a § 1983 action, the
court looks to the forum state's personal-injury
limitations period. In Louisiana, that period is one
year.” Jacobsen v. Osborne, 133 F.3d 315, 319
(5th Cir. 1998) (citation omitted); see also Clifford v.
Gibbs, 298 F.3d 328, 332 (5th Cir. 2002); La. Civ. Code
Ann. art. 3492. “Ordinarily, a cause of action under
section 1983 accrues when the plaintiff knows or has reason
to know of the injury which is the basis of the
action.” Price v. City of San Antonio, Tex.,
431 F.3d 890, 893 (5th Cir. 2005) (quotation marks omitted).
face of the complaint, Simmons' claims have prescribed
and are time barred, and his response to the rule to show
cause does not change that fact. While the complaint is far
from clear, Simmons complains of actions taken against him in
1996, 1997, 1999, and 2003. In his response to the rule to
show cause, Simmons argues only that the Orleans Criminal
District Court and the Allen Correctional Center made some
sort of mistake with regard to the length of his sentence.
That does not change the dates on which he knew of any
potential claims against defendants.
initiated this lawsuit on December 5, 2018, more than 15
years after the latest date alleged in the complaint.
Therefore, unless the statute of limitations was tolled for
some reason, Simmons claims would be timely only if the
instant lawsuit was filed within one year from any of those
dates. Vicks v. Griffin, Civ. A. No., 07-5471, 2008
WL 553186, at *3 (E.D. La. Feb. 28, 2008). Simmons makes no
argument that tolling is appropriate here. His claims here
are all prescribed given that he filed this lawsuit well
after the one-year statute of limitations had run. His claims
must be dismissed with prejudice. Accordingly, IT IS
RECOMMENDED that Leroy B. Simmons' complaint be
DISMISSED WITH PREJUDICE as prescribed.