The opinion of the court was delivered by: James H. Jarvis United States District Judge
The court is in receipt of a pro se prisoner's civil rights complaint under 42 U.S.C. § 1983 and an application to proceed in forma pauperis. It appears from the application that the plaintiff lacks sufficient financial resources to pay the $350.00 filing fee. Accordingly, pursuant to 28 U.S.C. § 1915(b)(4), the Clerk is DIRECTED to file this action without the prepayment of costs or fees or security therefor as of the date the complaint was received. However, for the reasons stated below, process shall not issue and this action is DISMISSED.
Plaintiff is in the custody of the Tennessee Department of Correction. The defendants are four former deputies with the Grainger County Sheriff's Department. They were named as defendants, in addition to others, in another civil rights action which remains pending in this court. Mickey Williams v. Randy Holt, et al., Civil Action No. 3:02-cv-634 (E.D. Tenn.). In that case, plaintiff unsuccessfully attempted to serve these four defendants, and on November 10, 2005, the court granted the defendants' motion to dismiss based upon insufficiency of service of process; Randy Holt, Greg Dalton, Travis Stansberry, and Dusty Burch were dismissed as defendants. Id. (Court File No. 84). Plaintiff has now filed this action against defendants Holt, Dalton, Stansberry, and Burch on the same facts and allegations as in the prior action, and seeks to consolidate the two cases.
The incidents that form the basis of plaintiff's complaint occurred in 2002; plaintiff filed the pending action on October 24, 2006.*fn1 Federal courts must refer to state statutes and state law to determine the statute of limitation and tolling rules with respect to an action brought pursuant to 42 U.S.C. § 1983. Board of Regents v. Tomanio, 446 U.S. 478 (1980). The applicable statute of limitation controlling a civil rights action for damages in the State of Tennessee is Tenn. Code Ann. § 28-3-104, which provides a one (1) year period in which a civil rights lawsuit may be commenced after the cause of action accrued. Sevier v. Turner, 742 F.2d 262, 273 (6th Cir. 1984).
If it is obvious from the face of the complaint that the plaintiff's cause of action is clearly barred by the applicable statute of limitation, the district court may sua sponte dismiss the case as frivolous pursuant to 28 U.S.C. § 1915(e) and § 1915A. See, e.g., Day v. E.I. Du Pont De Nemours and Company, No. 97-6233, 1998 WL 669939 *1 (6th Cir. September 17, 1998) (unpublished decision) ("a sua sponte dismissal of an in forma pauperis complaint is appropriate where the complaint bears an affirmative defense such as the statute of limitations and is therefore frivolous on its face").
Plaintiff contends his action should not be time-barred, because the prior action was timely filed and the dismissal of the defendants from the prior action was not a dismissal on the merits. He relies on Tennessee's savings statute, which provides in relevant part:
If the action is commenced within the time limited by a rule or statute of limitation, but the judgment or decree is rendered against the plaintiff upon any ground not concluding the plaintiff's right of action, or where the judgment or decree is rendered in favor of the plaintiff, and is arrested, or reversed on appeal, the plaintiff, or the plaintiff's representatives and privies, as the case may be, may, from time to time, commence a new action within one (1) year after the reversal or arrest.
Tenn. Code Ann. § 28-1-105(a).
In Tennessee, "[a]ll civil actions are commenced by filing a complaint with the clerk of the court." Rule 3 of the Tennessee Rules of Civil Procedure. Rule 3 also provides that "[a]n action is commenced within the meaning of any statute of limitations upon such filing of a complaint, whether process be issued or not issued and whether process be returned served or unserved. Id. Rule 3 goes further, however, and states as follows:
If process remains unissued for 90 days or is not served within 90 days from issuance, regardless of the reason, the plaintiff cannot rely upon the original commencement to toll the running of a statute of limitations unless the plaintiff continues the action by obtaining issuance of new process within one year from issuance of the previous process or, if no process is issued, within one year of the filing of the complaint.
Plaintiff's original action has a convoluted and protracted history. It was timely filed on November 15, 2002. Mickey Williams v. Randy Holt, et al., Civil Action No. 3:02-cv-634 (E.D. Tenn.). Due to confusion over whether plaintiff complied with the deficiency order, his case was dismissed without prejudice on February 3, 2003, and reopened on November 18, 2003. Id. (Court File Nos. 4 & 15, respectively, Orders of the Court). Process then issued on December 11, 2003. The four defendants in this case were served by certified mail, failed to answer, and eventually were dismissed based upon plaintiff's failure to prosecute as evidenced by his failure to seek judgment by default. Id. (Court File No. 41, Order entered September 30, 2004).
On plaintiff's motion, the court subsequently reinstated the four defendants and ordered them to show cause why they had failed to answer the complaint. Id. (Court File No. 48, Order entered December 8, 2004). In response, the four defendants appeared specially by counsel to contest the service by certified mail because the return receipt was signed by the secretary to their former employer, who was not authorized to act on their behalf. Id. (Court File No. 49, Response filed December 22, 2004). The court then directed the Clerk to issue summonses for the four defendants to plaintiff for service of process. Id. (Court File No. 56, Order entered February 3, 2005).
Although plaintiff then served each of the four defendants by certified mail with a copy of the summons, he did not included a copy of the complaint as required by Rule 4.04(10) of the Tennessee Rules of Civil Procedure. For that reason, the court granted the defendants' motion to dismiss for insufficiency of service of process. Mickey Williams v. Randy Holt, et al., ...