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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 17-12112
Non-Argument Calendar
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D.C. Docket No. 1:16-cv-23210-JEM
SEAN SALLEY,
Plaintiff-Appellant,
versus
OFFICER TERRY GOLDSTON,
OFFICER PATRICIA NOGUES,
Miami-Dade Police Department,
in their individual and official capacity,
Defendants-Appellees.
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Appeal from the United States District Court
for the Southern District of Florida
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(February 27, 2018)
Before JULIE CARNES, NEWSOM, and FAY, Circuit Judges.
PER CURIAM:
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Plaintiff Sean Salley, a state prisoner proceeding pro se, filed a complaint
pursuant to 42 U.S.C. § 1983 against defendants Terry Goldston and Patricia
Nogues, who are both officers with the Miami-Dade Police Department
(collectively referred to as “Defendants”).1 The district court sua sponte dismissed
Plaintiff’s complaint pursuant to 28 U.S.C. §§ 1915A and 1915(e)(2)(B) for failure
to state a claim. On appeal, Plaintiff argues that the district court erred by
dismissing his complaint because he was entitled to equitable tolling. He also
challenges the court’s dismissal without first permitting him leave to amend. After
careful review, we affirm.
I. BACKGROUND
A. Facts
According to the complaint, on the evening of July 15, 2001, Plaintiff was
arrested pursuant to a defective arrest affidavit signed by Defendant Goldston,
which charged Plaintiff with three counts of first-degree murder under Florida
Statute § 782.04. Goldston later questioned Plaintiff without advising him of his
Miranda 2 rights and without the presence of an attorney.
The next day, July 16, 2001, Defendant Nogues swore before a state judge in
Florida that Plaintiff was a fugitive and had been charged in New York with
1
Plaintiff’s complaint also listed Edyth Gareer, a clerk at the Ruvin Circuit and County
Courthouse in Florida, as a defendant. However, Plaintiff does not make any specific allegations
against Gareer in his complaint and she was not docketed as a defendant in this appeal.
2
Miranda v. Arizona,
384 U.S. 436 (1966).
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intentional murder. Nogues also signed an affidavit of probable cause and filed it
with the clerk’s office. Defendant was subsequently arraigned in Florida on three
counts of first-degree murder under § 782.04, but those charges were later
invalidated.
On July 26, 2001, Nogues persuaded Plaintiff to sign a waiver of extradition
related to the intentional murder charge in New York. Plaintiff was later extradited
to New York on August 2, 2001, even though no formal charges were ever lodged
against him in New York.
In 2010, Plaintiff’s case was featured on a television show, and at that point,
Plaintiff alleges he learned for the first time that the State of Florida had relied on
fraudulent information to deceive him into signing the waiver of extradition.
Plaintiff thereafter received copies of his arrest affidavit, the affidavit of probable
cause, the warrant of arrest, and the waiver of extradition from the Florida court.
Upon reviewing the arrest warrant—which had served as the basis for his arrest
and detention in Florida—Plaintiff realized that the warrant lacked a judicial
signature.
Plaintiff further alleged that he was subjected to excessive use of force when
he was attacked by a police dog during his 2001 arrest in Florida and that he did
not receive proper medical care following this dog attack.
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B. Procedural History
In July 2016, Plaintiff filed a civil rights action pursuant to 42 U.S.C. § 1983
against Defendants alleging that he was unlawfully arrested and extradited to New
York in violation of his Fourth and Fourteenth Amendment rights.
A magistrate judge issued a Report and Recommendation (“R&R”),
recommending dismissal of Plaintiff’s complaint pursuant to 28 U.S.C. §§ 1915A
and 1915(e) because it was barred by the statute of limitations. Specifically, the
incidents giving rise to Plaintiff’s allegations occurred in 2001, but Plaintiff did not
file his complaint until 2016, which was well beyond the four-year statute of
limitations. The magistrate judge further determined that Plaintiff was not entitled
to equitable tolling and that any amendment to his complaint would be futile.
The district court adopted the R&R and dismissed Plaintiff’s complaint
pursuant to §§ 1915A and 1915(e). This appeal followed.3
II. DISCUSSION
We review de novo the district court’s sua sponte dismissal of a complaint
for failure to state a claim pursuant to 28 U.S.C. §§ 1915A and 1915(e)(2)(B)(ii),
viewing all allegations in the complaint as true. Boxer X v. Harris,
437 F.3d 1107,
3
We construed Plaintiff’s motion for leave to proceed in forma pauperis as a notice of appeal.
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1110 (11th Cir. 2006) (addressing § 1915A); Mitchell v. Farcass,
112 F.3d 1483,
1490 (11th Cir. 1997) (addressing § 1915(e)(2)).4
Pursuant to 28 U.S.C. § 1915A, a court “shall review, before docketing, if
feasible or, in any event, as soon as practicable after docketing, a complaint in a
civil action in which a prisoner seeks redress from a governmental entity or officer
or employee of a governmental entity.” 28 U.S.C. § 1915A(a). Upon review, the
court must dismiss the complaint if it fails to state a claim.
Id. § 1915A(b).
Similarly, § 1915(e)(2)(B), which governs in forma pauperis complaints, provides
in relevant part that an action shall be dismissed for failure to state a claim upon
which relief may be granted. 28 U.S.C. § 1915(e)(2)(B)(ii). “A complaint is
subject to dismissal for failure to state a claim if the allegations, taken as true,
show the plaintiff is not entitled to relief.” Jones v. Bock,
549 U.S. 199, 215
(2007).
The statute of limitations for a § 1983 claim is governed by the statute of
limitations for a personal injury case in the state where the cause of action arose,
4
We note that Plaintiff did not file any formal objections to the R&R. He did, however, file a
notice of appeal related to the R&R, in which he challenged the magistrate judge’s determination
that his complaint was barred by the statute of limitations and that he was not entitled to
equitable tolling. We liberally construe Plaintiff’s pro se notice of appeal as an objection to the
R&R and afford his claims full review on appeal. Hughes v. Lott,
350 F.3d 1157, 1160 (11th
Cir. 2003) (“Pro se pleadings are held to a less stringent standard than pleadings drafted by
attorneys and will, therefore, be liberally construed.”); Cf. 11th Cir. R. 3-1 (explaining that a
party who fails to object to the magistrate judge’s R&R waives the right to challenge unobjected-
to factual and legal conclusions on appeal, but even absent an objection, this Court may review
an argument on appeal for plain error “if necessary in the interests of justice”). Nonetheless,
Plaintiff’s claims lack merit regardless of the standard of review.
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which in this case is Florida. Wallace v. Kato,
549 U.S. 384, 387 (2007). Personal
injury actions in Florida have a four-year statute of limitations. See Fla. Stat.
§ 95.11(3). The statute of limitations begins to run from the date “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) (quotations omitted).
The district court properly determined that Plaintiff’s § 1983 claims were
barred by the statute of limitations. Plaintiff alleged that the actions giving rise to
his § 1983 claims occurred in 2001. Because his claims accrued in 2001, he should
have filed his complaint by 2005. See
Rozar, 85 F.3d at 561–62. Plaintiff,
however, did not file his § 1983 complaint until 2016, which was more than ten
years after the statute of limitations expired. Even if it is true that Plaintiff did not
learn about the Defendants’ alleged fraudulent actions until 2010, as he claims, he
still would have needed to file the § 1983 complaint by 2014. He clearly missed
that deadline.
Id.
Plaintiff argues that he is entitled to equitable tolling based on the
Defendants’ actions in falsifying charges against him and failing to disclose
relevant information, documents, and evidence. To warrant equitable tolling, a
party must generally prove that he pursued his rights diligently and that
extraordinary circumstances prevented him from filing a timely complaint.
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Villarreal v. R.J. Reynolds Tobacco Co.,
839 F.3d 958, 971 (11th Cir. 2016) (en
banc). Plaintiff has not met his burden, as he has failed to explain how the
Defendants’ alleged misconduct in 2001 prevented him from filing a timely
complaint during the four-year period between 2010 and 2014, when he was
admittedly on notice of the acts on which he bases his lawsuit. Indeed, Plaintiff
offers no explanation why he waited approximately six years to file the present
lawsuit. For that reason, Plaintiff has failed to establish that he pursued his rights
diligently or that some extraordinary circumstance prevented him from timely
filing his complaint. See Bost v. Fed. Express Corp.,
372 F.3d 1233, 1242 (11th
Cir. 2004) (“Equitable tolling ‘is an extraordinary remedy which should be
extended only sparingly.’”).
Finally, the district court did not abuse its discretion by dismissing
Plaintiff’s complaint without first granting him leave to amend. See Hall v. United
Ins. Co. of Am.,
367 F.3d 1255, 1262 (11th Cir. 2004) (reviewing the district
court’s denial of a motion for leave to amend for an abuse of discretion). To the
extent any amendment would have been based on the same allegations and claims,
leave to amend would have been futile because those claims would still be barred
by the statute of limitations. See Cockrell v. Sparks,
510 F.3d 1307, 1310 (11th
Cir. 2007) (“Leave to amend a complaint is futile when the complaint as amended
would still be properly dismissed or be immediately subject to summary judgment
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for the defendant.”); Bryant v. Dupree,
252 F.3d 1161, 1163 (11th Cir. 2001)
(stating that a district court need not permit leave to amend if amendment would be
futile).
Accordingly, we affirm the district court’s dismissal of Plaintiff’s complaint.
AFFIRMED.
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