Inyang Peter Oduok v. Sean Phillips , 154 F. App'x 878 ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
Nos. 04-15564 & 05-10855 NOVEMBER 18, 2005
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
D. C. Docket No. 03-03386-CV-JEC-1
INYANG PETER ODUOK,
Plaintiff-Appellant,
versus
SEAN PHILLIPS, Individually and In his official
Capacity,
DEKALB POLICE DEPARTMENT,
DEKALB DEPARTMENT OF PUBLIC SAFETY,
BOBBY BURGESS,
EDDIE MOODY, et al.,
Defendants-Appellees.
________________________
Appeals from the United States District Court
for the Northern District of Georgia
_________________________
(November 18, 2005)
Before DUBINA, HULL and MARCUS, Circuit Judges.
PER CURIAM:
Inyang Peter Oduok, proceeding pro se, appeals the district court’s order
dismissing his 42 U.S.C. § 1983 civil rights suit against Sean Phillips, individually
and in his official capacity as a DeKalb County police officer; the DeKalb County
Police Department; the DeKalb County Department of Public Safety; Vernon
Jones, individually and in his official capacity as chief executive officer of DeKalb
County; Bobby Burgess, individually and in his official capacity; Eddie Moody,
individually and in his official capacity as chief of the DeKalb County Police
Department; and John Does 1-3 (collectively, “Defendants”). On appeal, Oduok
challenges (1) the district court’s dismissal based on the statute of limitations, (2)
the district court’s dismissal of Phillips based on res judicata, and (3) the district
court’s dismissal of Moody based on collateral estoppel.1 After thorough review,
we affirm.
1
We find no abuse of discretion in the district court’s denial of Oduok’s motion for
recusal. Cf. United States v. Berger, 375 F.3d 1223, 1227 (11th Cir. 2004) (reviewing district
judge’s decision on motion to recuse for abuse of discretion). We likewise find no error in the
district court’s denial of Oduok’s motion to remand. Simply put, remand was not warranted because
Oduok stated federal claims based on 42 U.S.C. § 1983 and, accordingly, the district court had
original jurisdiction over the action. See 28 U.S.C. §§ 1441(b) and 1446(b). We decline to
consider Oduok’s other arguments as they are raised for the first time on appeal and they do not fall
within any of the exceptions we have recognized to the rule that we will not consider issues not
raised in the district court first. See Access Now, Inc. v. Southwest Airlines Co., 385 F.3d 1324,
1331-32 (11th Cir. 2004).
2
First, Oduok challenges the district court’s dismissal of his complaint based
on the statute of limitations. He argues that the limitations period was tolled
during the pendency of an action he filed in 2000 against Phillips individually and
certain Cobb County officers and entities, and that the instant action relates back to
the 2000 action, which was dismissed by the district court. He asserts that the
Defendants are estopped from arguing the statute of limitations as a defense
because they participated in the 2000 action.
We review a district court’s dismissal under Rule 12(b)(6) for failure to state
a claim de novo, accepting the allegations in the complaint as true and construing
them in the light most favorable to the plaintiff. See Hill v. White, 321 F.3d 1334,
1335 (11th Cir. 2003). A complaint should not be dismissed pursuant to Rule
12(b)(6) for failure to state a claim unless it appears beyond a doubt that the
plaintiff can prove no set of facts in support of his claim that would entitle him to
relief. See Jackam v. Hosp. Corp. of Am. Mideast, Ltd., 800 F.2d 1577, 1579
(11th Cir. 1986). Our review of a district court’s interpretation and application of a
statute of limitations is also de novo. See United States v. American States Ins.
Co., 252 F.3d 1268, 1270 (11th Cir. 2001).
“Federal courts apply their forum state’s statute of limitations for personal
injury actions to actions brought pursuant to 42 U.S.C. § 1983[.]” Uboh v. Reno,
3
141 F.3d 1000, 1002 (11th Cir. 1998). “A statute of limitations begins to run when
the cause of action accrues. The question of when the limitations period begins to
run, however, is one of federal law.” Id. (citation omitted). “[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.” Rozar v. Mullis, 85 F.3d 556, 561-62 (11th Cir. 1996)
(quotation marks omitted).
The statute of limitations for personal injury actions in Georgia is two years.
See O.C.G.A. § 9-3-33. The Georgia renewal statute provides:
When any case has been commenced in either a state or federal court
within the applicable statute of limitations and the plaintiff
discontinues or dismisses the same, it may be recommenced in a court
of this state or in a federal court either within the original applicable
period of limitations or within six months after the discontinuance or
dismissal, whichever is later, subject to the requirement of payment of
costs in the original action as required by subsection (d) of Code
Section 9-11-41; provided, however, if the dismissal or
discontinuance occurs after the expiration of the applicable period of
limitation, this privilege of renewal shall be exercised only once.
O.C.G.A. § 9-2-61(a) (emphasis added). Federal Rule of Civil Procedure 15(c)
provides:
(c) Relation Back of Amendments. An amendment of a pleading
relates back to the date of the original pleading when
(1) relation back is permitted by the law that provides the statute of
limitations applicable to the action, or
4
(2) the claim or defense asserted in the amended pleading arose out of
the conduct, transaction, or occurrence set forth or attempted to be set
forth in the original pleading, or
(3) the amendment changes the party or the naming of the party
against whom a claim is asserted if the foregoing provision (2) is
satisfied and, within the period provided by Rule 4(m) for service of
the summons and complaint, the party to be brought in by amendment
(A) has received such notice of the institution of the action that the
party will not be prejudiced in maintaining a defense on the merits,
and (B) knew or should have known that, but for a mistake concerning
the identity of the proper party, the action would have been brought
against the party.
Fed. R. Civ. P. 15(c). “Congress intended Rule 15(c) to be used for a relatively
narrow purpose; it did not intend for the rule to be so broad to allow an amended
pleading to add an entirely new claim based on a different set of facts.” Farris v.
United States, 333 F.3d 1211, 1215 (11th Cir. 2003). “[A]n untimely claim must
have more in common with the timely filed claim than the mere fact that they arose
out of the same trial or sentencing proceeding” and “must have arisen from the
‘same set of facts’ as the timely filed claim, not from separate conduct or a separate
occurrence in ‘both time and type.’” Id.Here, the district court did not err by granting the Defendants’ 12(b)(6)
motion to dismiss based on the statute of limitations. Oduok’s cause of action
accrued on August 28, 1998, when he was injured while being arrested. He filed
the instant action in state court over five years later, on October 6, 2003, which was
5
beyond Georgia’s applicable two-year limitations period. Neither the Georgia
renewal statute nor the relation back doctrine renders Oduok’s complaint timely.
Simply put, by its plain terms, the Georgia renewal statute does not apply because
the federal claims in Oduok’s 2000 action were dismissed on the merits by the
district court, not Oduok as O.C.G.A. § 9-2-61(a) requires. Moreover, Oduok’s
instant complaint, which was filed in state court over three years after the dismissal
of the 2000 action and which names entirely different defendants, does not meet
the requirements of Rule 15(c).2 Therefore, the district court did not err by
granting the Defendants’ motion to dismiss based on the statute of limitations.3
AFFIRMED.
2
We are unpersuaded by Oduok’s additional argument -- that the 2000 action equitably
tolled the statute of limitations -- because he has not demonstrated extraordinary circumstances
beyond his control and avoidable even with diligence. See Cabello v. Fernandez-Larios, 402 F.3d
1148, 1155 (11th Cir. 2005) (“Equitable tolling is appropriate only in ‘extraordinary circumstances’
that are both beyond the plaintiff’s control and unavoidable even with diligence.” (internal quotation
marks omitted)). We observe that Odouk has demonstrated no basis, let alone extraordinary
circumstances, to explain why he could not have brought the instant claims against the Defendants
in the 2000 action.
3
Because we find the instant action barred by the statute of limitations, we need not, and
do not, reach the district court’s alternate grounds for dismissing Oduok’s claims against Defendant
Phillips as precluded by res judicata and against Defendant Moody as precluded by collateral
estoppel.
6