Keira v. United States Postal Inspection Service Ex Rel. Heath , 157 F. App'x 135 ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
November 28, 2005
No. 05-12975
THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-60004-CV-JIC
TARIKU H. KEIRA,
Plaintiff-Appellant,
versus
UNITED STATES POSTAL INSPECTION SERVICE,
by serving Lee R. Heath Departmental Agency Head,
ROSARIO PRIOLO, Special Agent,
JOHNNY L. MCRAY,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(November 28, 2005)
Before MARCUS, WILSON and PRYOR, Circuit Judges.
PER CURIAM:
Tariku Keira, on behalf of himself and his family, appeals, pro se, the
dismissal of his complaint against the United States Postal Inspection Service,
Special Agent Rosario Priolo, and Johnny L. McRay as untimely. Read liberally,
Keira’s complaint alleged violations of the Fourth Amendment, under Bivens v.
Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.
Ct. 1999 (1971), and the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b)(1), 2671.
Because the claims raised by Keira are barred by the statute of limitations, we
affirm the dismissal.
We review de novo the grant of a motion to dismiss. Doe v. Pryor, 344 F.3d
1282, 1284 (11th Cir. 2003). “When considering a motion to dismiss, all facts set
forth in the plaintiff’s complaint are to be accepted as true and the court limits its
consideration to the pleadings and exhibits attached thereto.” Grossman v.
Nationsbank, N.A., 225 F.3d 1228, 1231 (11th Cir. 2000) (internal quotation marks
and citation omitted). “Dismissal . . . on statute of limitations grounds is
appropriate . . . if it is apparent from the face of the complaint that the claim is
time-barred.” Tello v. Dean Writter Reynolds, Inc., 410 F.3d 1275, 1288 (11th
Cir. 2005) (internal quotation marks and citation omitted). “At the
motion-to-dismiss stage, a complaint may be dismissed on the basis of a
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statute-of-limitations defense only if it appears beyond a doubt that Plaintiffs can
prove no set of facts that toll the statute.” Id. at 1288 n.13 (internal quotation
marks and citation omitted).
Keira’s complaint is time-barred. Both claims asserted in the complaint are
based on an alleged warrantless search of Keira’s residence that occurred on
February 4, 2000. We address each claim separately.
The limitations period for Keira’s claim under the FTCA elapsed more than
two years before the filing of his complaint. “A tort claim against the United
States shall be forever barred unless it is presented in writing to the appropriate
Federal agency within two years after such claim accrues . . . .” 28 U.S.C. §
2401(b). An action under the FTCA accrues when the plaintiff is aware of his
injury and its cause. See United States v. Kubrick, 444 U.S. 111, 123-24, 100 S.
Ct. 352, 358-60 (1979). To preserve his claim, a plaintiff “must first present the
claim to the appropriate federal agency and wait for the agency to finally deny it.”
Burchfield v. United States, 168 F.3d 1252, 1254 (11th Cir. 1999). The district
court has jurisdiction over a claim under the FTCA only if the plaintiff has first
applied to the appropriate agency and been denied. Id. at 1254-55. Construed
liberally, Keira filed an administrative claim on December 23, 2004, and filed his
complaint in the district court on January 3, 2005. His claim under the FTCA is,
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therefore, time barred, and the district court did not have jurisdiction to consider it.
Keira’s Bivens claim is also barred by the statute of limitations. The statute
of limitations for a Bivens action is taken from the most analogous limitations
statute of the state in which the district court sits. See Uboh v. Reno, 141 F.3d
1000, 1002 (11th Cir. 1998). The action accrues when the plaintiff knows or has
reason to know of his injury and who inflicted it. See Pilkington v. United
Airlines, 112 F.3d 1532, 1535 (11th Cir. 1997). The applicable statute of
limitations in Florida is four years. Fla. Stat. Ann. § 95.11(3). Keira filed his
complaint on January 3, 2005, almost one year after the statute of limitations had
run. The Bivens claims, therefore, was time barred.
Keira argues that he did not become aware of the unlawful activity until
September 28, 2004, and, therefore, the complaint should be considered timely.
This argument is meritless. The record, unequivocally shows that Keira was aware
of the facts underlying his complaint as early as April 2000. The dismissal is
AFFIRMED.
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