Driessen v. Florida Department of Children & Families ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
Oct. 29, 2009
No. 09-13149 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 09-21512-CV-UU
ROCHELLE DRIESSEN,
Mother of minor children B.O.
D/O/B 1993, and B.O. D/O/B 1994,
Plaintiff-Appellant,
versus
FLORIDA DEPARTMENT OF CHILDREN AND FAMILIES,
BAL HARBOUR POLICE DEPARTMENT,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(October 29, 2009)
Before BLACK, CARNES and BARKETT, Circuit Judges.
PER CURIAM:
Rochelle Driessen, proceeding pro se, appeals the district court’s sua sponte
dismissal of her complaint for failure to state a basis for federal jurisdiction and
failure to state a claim under Federal Rule of Civil Procedure 8(a). Because
Driessen’s claims are barred by the applicable statute of limitations, we affirm the
court’s dismissal of her complaint.1
Driessen contends the Florida Department of Children and Families (FDCF),
and the Bal Harbour Police Department violated her rights when they removed her
two minor children from her custody on February 9, 2005. Although Driessen
does not cite 42 U.S.C. § 1983 in her complaint, she appears to raise two claims
under that statute when she alleges that Bal Harbour and FDCF: (1) violated her
due process rights by not following Florida’s procedural requirements for
removing minor children from a parent’s custody; and (2) lacked probable cause
under the Fourth Amendment to take custody of her children.2
We review de novo the district court’s interpretation and application of
1
Driessen appeals on three grounds: (1) the district court erred in dismissing her
complaint sua sponte when the summons had not yet been issued or served on the defendants; (2)
her complaint should not have been dismissed because she satisfied the requirements of Fed. R.
Civ. P. 8(a); and (3) she was not time-barred by the statute of limitations. Because we conclude
that her complaint was in fact time-barred by the statute of limitations, we do not address the
other two issues.
2
Federal Rule of Civil Procedure 8 requires that federal courts give pleadings a liberal
reading. “This admonition is particularly true when the parties are proceeding pro se. Courts do
and should show a leniency to pro se litigants not enjoyed by those with the benefit of a legal
education.” GJR Investments, Inc. v. County of Escambia, Fla.,132 F.3d 1359, 1369 (11th Cir.
1998).
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statutes of limitations. Center for Biological Diversity v. Hamilton, 453 F.3d 1331,
1334 (11th Cir. 2006). “[A] plaintiff must commence a § 1983 claim arising in
Florida within four years of the allegedly unconstitutional or otherwise illegal act.”
Burton v. City of Belle Glade, 178 F.3d 1175, 1188 (11th Cir. 1999); see also Fla.
Stat. § 95.11(3)(p). For a cause of action under § 1983 the limitations clock begins
to run when “the plaintiffs know or should know (1) that they have suffered the
injury that forms the basis of their complaint and (2) who has inflicted the injury.”
Chappell v. Rich, 340 F.3d 1279, 1283 (11th Cir. 2003).
The alleged violations of Driessen’s constitutional rights occurred on
February 9, 2005, when FDCS and Bal Harbour removed her children from her
custody, and Driessen filed her complaint on June 4, 2009. Because approximately
four years and four months passed between when Driessen knew of the injury (and
who caused it) and when she filed her complaint, Driessen’s suit is clearly time-
barred by Florida Statute § 95.11(3)(p).3
Driessen argues that the statute of limitations does not apply because her
3
Driessen alleges that FDCS and Bal Harbour violated Fla. Stat. § 39.402(13), which
states, in part, that “A child may not be held in a shelter under an order so directing for more
than 60 days without an adjudication of dependency.” This 60-day time limit was violated,
Driessen argues, because the shelter order regarding her children was issued on February 9,
2005, but there was no adjudicatory hearing until July 1, 2005. Driessen’s brief to this Court
argues the 60-day time period lapsed on April 10, 2005. But even if the limitations clock did not
begin until that date, the statute of limitations would have expired on April 10, 2009,
approximately two months before Driessen filed suit.
3
children are still within the state’s custody, but that fact does not extend the time
limit that she had to file her complaint. Florida law does allow for tolling of the
statute of limitations in certain circumstances, but this is not one of them. See Fla.
Stat. § 95.051; see also Chappell, 340 F.3d at 1283; Justice v. United States, 6 F.3d
1474, 1479 (11th Cir. 1993) (explaining that equitable tolling is an “extraordinary
remedy” that is not applicable when the plaintiff reasonably should have known the
limitations period was running).
While the district court did not unequivocally hold that Driessen’s complaint
was time-barred, we affirm the district court’s dismissal on this ground. See, e.g.,
Cochran v. U.S. Health Care Fin. Admin., 291 F.3d 775, 778 (11th Cir. 2002)
(“[W]e may affirm for any reason supported by the record.”).
AFFIRMED.
4