RUSHING

v.

WILLIAMSON

Rushing’s complaint alleges that the defendants violated her civil rights on specified days during her detention and criminal prosecution. Rushing neither moved for leave to proceed in forma pauperis nor paid the full $400 filing fee. Nevertheless, under either 28 U.S.C. § 1915(e) (if proceeding in forma pauperis) or 28 U.S.C. § 1915A (if the full filing fee is paid), the Prisoner Litigation Reform Act (“PLRA”) requires a district court both to review the complaint and to dismiss the complaint if frivolous or malicious or for failing to state a claim upon “which relief may be granted.” Although the complaint is entitled to a generous interpretation, Haines v. Kerner, 404 U.S. 519 (1972) (per curiam), this pro se complaint lacks merit under this standard for four reasons. First, Rushing lists a dozen days on which the defendants allegedly violated her rights. Although Section 1983 contains no limitation, the state’s limitation controls. Generally, the state limitation for a personal injury claim applies to a Section 1983 claim. Wilson v. Garcia, 471 U.S. 261, 276–79 (1985). See Lovett v. Ray, 327 F. 3d 1181, 1182 (11th Cir. 2003) (“Federal courts apply their forum state’s statute of limitations for personal injury actions to actions brought pursuant to 42 U.S.C. § 1983.”) (per curiam). In Florida, the limitation for a personal injury, and derivatively for a Section 1983 claim, is four years. Fla. Stat. § 95.11(3). Consequently, a claim based on an event that occurred before December 2018, is time-barred.

Second, Rushing can pursue a claim against neither a judge nor a prosecutor nor her defense lawyer. A state court judge is entitled to absolute immunity from suit in a civil rights action for an act that is within the scope of judicial authority. Bradley v. Fisher, 80 U.S. (13 Wall.) 355 (1871); Supreme Court of Virginia v. Consumers Union of U.S., Inc., 446 U.S. 719 (1980); Jones v. Cannon, 174 F. 3d 1271, 1281–82 (11th Cir. 1999). “Like other forms of official immunity, judicial immunity is an immunity from suit, not just from ultimate assessment of damages.” Mireles v. Waco, 502 U.S. 9, 10 (1991). Prosecutorial immunity precludes Rushing’s recovering either compensatory or punitive damages, each of which Rushing requests. Imbler v. Pachtman, 424 U.S. 409, 431 (1976) (“[I]n initiating a prosecution and in presenting the State’s case, the prosecutor is immune from a civil suit for damages under § 1983.”); Jones v. Cannon, 174 F. 3d 1271, 1281 (11th Cir. 1999) (“[A]bsolute immunity extends to a prosecutor’s acts undertaken . . . in preparing for the initiation of judicial proceedings or for trial, and which occur in the course of his role as an advocate for the State . . . .’”) (quoting Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993)). See also Van de Kamp v. Goldstein, 555 U.S. 335, 340–43 (2009), and Hart v. Hodges, 587 F. 3d 1288, 1294–96 (11th Cir. 2009), for a thorough review of the breadth of prosecutorial immunity. As a consequence, Rushing cannot pursue a claim for damages against any of the name prosecutors. Similarly, Rushing’s complaint fails to state a claim against her defense attorney because the complaint must allege facts showing that counsel acted under color of state law. See generally Dennis v. Sparks, 449 U.S. 24 (1980). The complaint fails to state a claim against the defense attorney because no defense counsel — whether publicly provided or privately retained — acts under color of law. “[A] public defender does not act under color of state law when performing a lawyer’s traditional functions as counsel to a defendant in a criminal proceeding.” Polk County v. Dobson,

454 U.S. 312, 325 (1981). Rushing’s allegations are based on his counsel’s actions while “performing a lawyer’s traditional functions” as described in Dobson. Therefore, Rushing’s defense attorney was not acting under color of state law and is not liable under Section 1983.1 See also Barr v. Gee, 437 F. App’x 865, 875 (11th Cir. 2011)2

UNITED STATES DISTRICT JUDGE

5.