Opinion
CASE NO. CV412-100
05-23-2012
WILLIE G. SMITH, Plaintiff, v. PHILLIPS WINTERS APARTMENTS, a/k/a Independent Lifestyles, Inc.; HALLMARK MANAGEMENT; ETHAL JACKSON; and JANET STRICKLAND; Defendants.
ORDER
Before the Court is the Magistrate Judge's Report and Recommendation (Doc. 7), to which objections have been filed (Doc. 10). After a careful de novo review of the record, the Court finds Plaintiff's objections without merit and concurs with the report and recommendation. Accordingly, the report and recommendation is ADOPTED as the Court's opinion in this case and Plaintiff's case is DISMISSED. The Clerk of Court is DIRECTED to close this case.
Plaintiff objects to the computation of the two-years limitations period and claims that 42 U.S.C. § 3613(a)(1)(B) excludes any time during which administrative proceedings are pending. (Doc. 10 at 1.) However, Plaintiff avers that "[f]rom January 1, 2005 until April 1, 2007, [he] paid Defendants the unlawful 'Full Contract Rent' " and also that "[on June 20, 2008], the Defendant had continued to enforce their retaliatory, discriminatory, and unauthorized policy." {Doc. 4 ¶¶ 17, 22.) As discussed in the report and recommendation, " [a] claim arising out of an injury which is 'continuing' only because a putative plaintiff knowingly fails to seek relief is exactly the sort of claim that Congress intended to bar by the . . . limitation period." Roberts v. Gadsen Mem'l Hosp., 850 F.2d 1549, 1550 (11th Cir. 1988) (per curiam); see also Telseca v. Vill. of Kings Creek Condo. Ass'n, 390 F. App'x 877, 882 (11th Cir. 2010). Here, Plaintiff admits knowledge of the discrimination starting back in 2005—a period well outside of the two-year statute of limitations period, regardless of any excludable time. Plaintiff cannot overcome the two-year bar by simply alleging that the discrimination is a continual violation. See Telseca, 390 F. App' x at 882. Accordingly, Plaintiff‘s case is DISMISSED. The Clerk of Court is DIRECTED to close this case.
In his amended complaint, Plaintiff alleges that "January 1, 2005 is when Defendants retaliated and discriminated against Plaintiff, because this is when the palpable act of discrimination occurred." (Doc. 4 ¶ 31.)
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WILLIAM T. MOORE, JR.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA