1:23-cv-00341•Attia v. Ford Motor Co. et al
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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION JOEL B. ATTIA, ) ) Plaintiff, ) ) vs. ) CIVIL ACTION NO. 23-00341-JB-N ) FORD MOTOR CO., et al., ) ) Defendants. ) REPORT AND RECOMMENDATION Plaintiff Joel Attia, who is proceeding without counsel (pro se) and without prepayment of fees (in forma pauperis), filed this a complaint against Ford Motor Company and Merit Hospital.1 See (Doc. 1).2 Upon careful review of the complaint (Doc. 1), the undersigned finds that this action is due to be DISMISSED without prejudice. I. Complaint (Doc. 1). On September 5, 2023, Plaintiff filed this complaint alleging that while driving his Ford truck at 50 miles per hour, his front tires “blew out,” causing him to hit his head on the steering wheel (because the airbag failed to deploy) and suffer a broken neck and severed spinal cord. (Doc. 1; PageID.4-5). He alleges having no 1 Plaintiff filed this civil action based on diversity jurisdiction, identifying Defendant Ford Motor Company as a citizen of the state of Michigan and Defendant Merit Hospital as a citizen of Georgia. (Doc. 1; PageID.2). 2 The assigned District Judge has referred the complaint to the undersigned Magistrate Judge for appropriate action under 28 U.S.C. § 636(a)-(b), Federal Rule of Civil Procedure 72, and S.D. Ala. GenLR 72(a). See S.D. Ala. GenLR 72(b); (9/05/2023 electronic reference). Case 1:23-cv-00341-JB-N Doc# 8 Filed 03/27/25 Page 1 of 9 PageID# <pageID>
2 recall of the incident until he heard “’on the news 2 years later = Ford trucks 2010 down to 2002 has been recalled with air bag safety issues’ to[sic] late for [his] severed neck and spinal cord.” (Id.; PageID.5). However, he goes on to allege that he died in the accident but after “God, Jesus gave [him] back life,” he took off his seatbelt, crawled through the top of the sunroof, “stood and started walking around the front of the truck smoking a cigarette,” where he met an undercover agent who claimed to have witnessed the accident and another man who told him to lay down because he might be in shock. (Id.; PageID.6-7). He claims one of the men “did something” to him and he “fell asleep” and woke up in Merit Hospital, where he could not move for 4 days. (Id.; PageID.7). Thereafter, Plaintiff claims he was “kidnapped” because he was held in the hospital’s psychiatric ward without a court order. (Id.; PageID.8). He further alleges Merit Hospital did not tell him that he suffered a broken neck and severed spinal cord for a couple of weeks. He claims just before he was released from Merit Hospital: [T]hey took me down to MRI and checked my neck and spinal cord shook their heads and left and ruined the paper work on purpose saying that I was 102 year old China Reno playing I guess, but it has been 10 years and after 25 hospitals all have lied to my face. I have a credit card sixed computer and it hurts me, but I will never be able to get it out, I am holding it in my belly for Jesus. They tried to take it out, but we have one layer of skin, and after 10 or 12 the doctor gave up, to his shargrin he is the one that put it in. (Id.; PageID.8-9). Plaintiff requests monetary relief in the amount of two quadrillion dollars. (Id.; PageID.3). II. Standard of Review Under 28 U.S.C. § 1915(e)(2)(B) Case 1:23-cv-00341-JB-N Doc# 8 Filed 03/27/25 Page 2 of 9 PageID# <pageID>
3 Because Plaintiff is proceeding without the prepayment of fees, his complaint is subject to review under § 1915(e)(2)(B)(i)-(iii), which requires dismissal of a complaint, or any portion of the complaint, that the Court finds (1) is frivolous or malicious, (2) fails to state a claim upon which relief may be granted, or (3) seeks monetary relief against a defendant immune from such relief. See 28 U.S.C. § 1915(e)(2)(B)(i)–(iii). Pertinent here, a claim may be dismissed as “frivolous where it lacks an arguable basis in law or fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989). A claim is frivolous as a matter of law where, among other things, the defendants are immune from suit, id. at 327, the claim seeks to enforce a right that clearly does not exist, id., or an affirmative defense (such as the statute of limitations) would defeat the claim, Clark v. Georgia Pardons & Paroles Bd., 915 F.2d 636, 640 n.2 (11th Cir. 1990). Also, to avoid dismissal for failure to state a claim upon which relief can be granted, the allegations must show plausibility. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557, 127 S. Ct. 1955, 1966, 167 L. Ed. 2d 929 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009). That is, “[f]actual allegations must be enough to raise a right to relief above the speculative level” and must be a “‘plain statement’ possess[ing] enough heft to Case 1:23-cv-00341-JB-N Doc# 8 Filed 03/27/25 Page 3 of 9 PageID# <pageID>
4 ‘sho[w] that the pleader is entitled to relief.’” Twombly, 550 U.S. at 555, 557 (second brackets in original). When considering a pro se litigant's allegations, a court gives them a liberal construction holding them to a more lenient standard than those of an attorney, Tannenbaum v. U.S., 148 F.3d 1262, 1263 (11th Cir. 1998), but “this leniency does not give a court license to serve as de facto counsel for a party, or to rewrite an otherwise deficient pleading in order to sustain an action.” Campbell v. Air Jamaica Ltd., 760 F.3d 1165, 1168–69 (11th Cir.) (citation and quotation marks omitted), cert. denied, 574 U.S. 1047 (2014). The court treats factual allegations as true, but it does not treat as true conclusory assertions or a recitation of a cause of action's elements. Iqbal, 556 U.S. at 678. In addition, a pro se litigant “is subject to the relevant law and rules of court including the Federal Rules of Civil Procedure.” Moon v. Newsome, 863 F.2d 835, 837 (11th Cir.), cert. denied, 493 U.S. 863 (1989). III. Discussion. It is difficult for the Court to discern the actual claims asserted by Plaintiff, as the allegations are unclear, nonsensical, and Plaintiff fails to state a direct claim against the defendants. Consequently, the complaint allegations are insufficient for the defendants to be able to answer the complaint. As pleaded, Plaintiff’s complaint is simply indiscernible, or frivolous, and should be dismissed. Neitzke, 490 U.S. at 325 (An action is frivolous if it “lacks an arguable basis in either fact or law.”). Courts have the authority to “dismiss [as frivolous] a claim based on indisputably meritless legal theory,” as well as to dismiss claims “whose factual contentions are Case 1:23-cv-00341-JB-N Doc# 8 Filed 03/27/25 Page 4 of 9 PageID# <pageID>
5 clearly baseless.” Id. at 327. Courts are not obligated to allow an opportunity to amend when a claim is patently frivolous. Nezbeda v. Liberty Mutual Ins. Corp., 789 F. App'x 180, 183 (11th Cir. 2019) (per curiam) (“The district court may dismiss a plaintiff's claims sua sponte—without requiring or permitting the plaintiff to amend—if it concludes that the claims are frivolous.”); Gary v. U.S. Government, 540 F. App'x 916, 918 (11th Cir. 2013) (“[W]e conclude that the district court did not abuse its discretion by not affording [the plaintiff] an opportunity to amend her complaint because any amendment would have been futile, as none of [the plaintiff's] allegations are credible or rational.”). Moreover, the action appears to be barred by the statute of limitations, as Plaintiff asserted the same set of facts in a lawsuit filed in June of 2021, see Attia v. Ford Motor Co., 21-cv-0280-KD-N (S.D. Ala.),3 where Plaintiff claimed that Ford Motor Company was liable for his airbag failing to deploy “in August 10-20[.] Broke neck[.] They addmitted [sic] to air bad [sic] falty [sic] in Oct. 20[.]” (Id.; Doc. 2, PageID.5). In that same matter, he alleges: “On August 10, 2000, I fractured my neck in a one car accident the air bag did not deploy I hit my front bumper.” (Id.; Doc. 4, PageID.20). And in an unsigned filing titled “Facts of the Case,” he alleges: “I had a crash and I hit the median head on, but my air bag in the steering wheel 3 “A court may take judicial notice of its own records and the records of inferior courts.” United States v. Rey, 811 F.2d 1453, 1457 n.5 (11th Cir. 1987); see also Horne v. Potter, 392 F. App'x 800, 802 (11th Cir. 2010) (per curiam) (“The district court properly took judicial notice of the documents in [the plaintiff’s] first case, which were public records that were ‘not subject to reasonable dispute’ because they were ‘capable of accurate and ready determination by resort to sources whose accuracy could not reasonably be questioned.’”) (quoting Fed. R. Evid. 201(b)). Case 1:23-cv-00341-JB-N Doc# 8 Filed 03/27/25 Page 5 of 9 PageID# <pageID>
6 did not deploy, this was on August 10th 2020 I fractured my neck, I had a Ford Truck 2004 .... I [sic] December Ford announced on national news that all trucks from 2002 to 20010 [sic] had faulty air bags as mine was.” (Id.; Doc. 5, PageID.26). Plaintiff also attaches the same photographs from his 2021 suit to this current action. (Compare Doc. 1; PageID.10-11 and Doc. 3, with 21-cv-0280-KD-N at Doc. 5- 1; PageID.28-29 (the photographs are of the same wrecked truck, and both are stamped/posted with the same claim no.: 20-5339005 01 on the photographs)). Because Plaintiff was clearly aware of the cause of action against Defendant Ford Motor Company in June of 2021, if not earlier, he cannot now bring this lawsuit. In Alabama, the governing limitations period is two years for personal injury claims, including those against car manufacturers. See Ala. Code § 6–2–38. Therefore, to have his claim heard, Plaintiff was required to bring the claim within two years from the date that the limitations period began to run. “‘[T]he statute of limitations does not begin to run until the facts which would support a cause of action are apparent or should be apparent to a person with a reasonably prudent regard for his rights.’” McNair v. Allen, 515 F.3d 1168, 1173 (11th Cir. 2008) (quoting Mullinax v. McElhenney, 817 F.2d 711, 716 (11th Cir. 1987)). While the complaint does not provide the date of the accident or the date Plaintiff learned of a Ford Motor Company recall or air bag problem, it is obvious that he knew of the relevant facts on June 21, 2021, when he filed his previous case, 21-cv-0280-KD-N. It thus reasons that his claim accrued no later than June 21, 2021, when he filed Case 1:23-cv-00341-JB-N Doc# 8 Filed 03/27/25 Page 6 of 9 PageID# <pageID>
7 his previous lawsuit. (See 21-cv-0280-KD-N at Doc. 1). Therefore, at the very latest, Plaintiff had until June 21, 2023, to file suit against Ford Motor Company for the incident and/or injuries caused by the alleged accident. Consequently, this current action, filed on September 5, 2023, is past the applicable statute of limitations period, and his claim is now time-barred.4 Similarly, Plaintiff’s claim against Merit Hospital is barred by the statute of limitations. In his complaint, Plaintiff states that he was taken to Merit Hospital immediately after his front tires blew out – and he hit his head because his truck airbag did not deploy. Accordingly, the claims against Merit Hospital accrued at the same time as the accident. Thus, for the same reason Plaintiff’s claim against 4 A litigant who seeks to toll the statute of limitations “bears the burden of establishing two elements: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstances stood in his way’ as to the filing of his action.” Weaver v. Firestone, 155 So. 3d 952, 957 (Ala. 2013) (citation omitted); see also Bd. Of Regents v. Tomanio, 446 U.S. 478, 483 (1980) (Federal courts apply state rules for tolling). The Alabama Supreme Court has stated “the threshold necessary to trigger equitable tolling is very high, lest the exceptions swallow the rule[;]” however, “equitable tolling is available in extraordinary circumstances that are beyond the petitioner's control and that are unavoidable even with the exercise of diligence.” Ward v. State, 46 So. 3d 888, 897 (Ala. 2007) (citation omitted); see Weaver, 155 So. 3d at 958 (citing Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 96 (1990)) (“We have allowed equitable tolling in situations where the claimant has actively pursued his judicial remedies by filing a defective pleading during the statutory period, or where the complainant has been induced or tricked by his adversary's misconduct into allowing the filing deadline to pass. We have generally been much less forgiving in receiving late filings where the claimant failed to exercise due diligence in preserving his legal rights.” (footnotes omitted)). Plaintiff has offered no explanation for why his claim is untimely, and there are no facts provided in the complaint that suggest equitable tolling would be appropriate under the circumstances of this action. Case 1:23-cv-00341-JB-N Doc# 8 Filed 03/27/25 Page 7 of 9 PageID# <pageID>
8 Ford Motor Company is time-barred, his claim against Merit Hospital is also barred by Alabama’s two-year statute of limitations. See Ala. Code § 6–2–38. Generally, plaintiffs proceeding without an attorney are given at least one opportunity to amend their pleadings and draft a complaint that might state a claim. Jenkins v. Walker, 620 F. App'x 709, 711 (11th Cir. 2015) (“When a more carefully drafted complaint might state a claim, a district court should give a pro se plaintiff at least one chance to amend the complaint before the court dismisses the action.”); see also Fed. R. Civ. P. 15(a)(2) (courts should grant leave to amend “freely. . . when justice so requires”). Here, however, amendment would be futile as the time for filing suit under Alabama law has clearly passed. Accordingly, this action is due to be dismissed without prejudice under 28 U.S.C. § 1915(e)(2)(B)(i) as frivolous.5 IV. Conclusion. Based upon the foregoing reason, it is RECOMMENDED that the complaint be DISMISSED WITHOUT PREJUDICE, prior to service of process, pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) because it is frivolous and fails to state a claim and amendment is futile as the claims are barred by Alabama’s two-year statute of limitations period. 5 Dismissal of Plaintiff’s complaint without prejudice has the effect of precluding him from refiling his claim due to the running of the statute of limitations; thus, the dismissal is tantamount to a dismissal with prejudice. Justice v. United States, 6 F.3d 1474, 1482 n.15 (11th Cir. 1993). Nevertheless, dismissal is appropriate because Plaintiff has had ample opportunity to bring this claim since its accrual. Case 1:23-cv-00341-JB-N Doc# 8 Filed 03/27/25 Page 8 of 9 PageID# <pageID>
9 NOTICE OF RIGHT TO FILE OBJECTIONS A copy of this report and recommendation shall be served on all parties in the manner provided by law. Any party who objects to this recommendation or anything in it must, within fourteen (14) days of the date of service of this document, file specific written objections with the Clerk of this Court. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); S.D. Ala. GenLR 72(c). The parties should note that under Eleventh Circuit Rule 3-1, “[a] party failing to object to a magistrate judge's findings or recommendations contained in a report and recommendation in accordance with the provisions of 28 U.S.C. § 636(b)(1) waives the right to challenge on appeal the district court's order based on unobjected-to factual and legal conclusions if the party was informed of the time period for objecting and the consequences on appeal for failing to object. In the absence of a proper objection, however, the court may review on appeal for plain error if necessary in the interests of justice.” 11th Cir. R. 3-1. In order to be specific, an objection must identify the specific finding or recommendation to which objection is made, state the basis for the objection, and specify the place in the Magistrate Judge's report and recommendation where the disputed determination is found. An objection that merely incorporates by reference or refers to the briefing before the Magistrate Judge is not specific. DONE this 27th day of March, 2025. /s/ KATHERINE P. NELSON UNITED STATES MAGISTRATE JUDGE Case 1:23-cv-00341-JB-N Doc# 8 Filed 03/27/25 Page 9 of 9 PageID# <pageID>
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