[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
FEB 25, 2010
No. 09-13580 JOHN LEY
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 08-00054-CV-KD-C
MICHAEL JOHNSON,
Plaintiff-Appellant,
versus
MICHAEL GREAVES,
TIRAS CUNNINGHAM,
GUY BAKER,
DEBORA COTTON,
CORNELL WILSON,
DARRELL DAVID,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Alabama
_________________________
(February 25, 2010)
Before BIRCH, BARKETT and ANDERSON, Circuit Judges.
PER CURIAM:
Michael Johnson, a federal prisoner proceeding pro se, appeals the district
court's sua sponte dismissal, under 28 U.S.C. § 1915A(b), of his Bivens1 action.
Johnson sued Michael Greaves, Tiras Cunningham, Guy Baker, and Debora
Cotton, special agents for the Drug Enforcement Administration ("DEA"); Cornell
Wilson, Jr., a forensic chemist for the DEA; and Darrell Davis, a laboratory
director for the DEA, each in their individual and official capacity. He alleged that
they violated his First, Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendment
rights, and committed the following torts against him: false arrest and
imprisonment, assault and battery, malicious prosecution, abuse of process,
negligence, and gross negligence. Generally, he alleged that the agents falsely
reported that he sold their informant crack cocaine, while the transactions really
involved powder cocaine. Also, they used excessive force when they arrested him.
The district court concluded that Johnson’s action was barred by Heck2 and
the statute of limitations, and it dismissed his case as frivolous. On appeal,
1
Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S.
388,
91 S.Ct. 1999,
29 L.Ed.2d 619 (1971).
2
Heck v. Humphrey,
512 U.S. 477,
114 S.Ct. 2364,
129 L.Ed.2d 383 (1994).
2
Johnson argues that his action was not Heck-barred, and that, pursuant to Spencer,3
the district court was required to consider whether habeas relief was available to
him before dismissing his case as barred by Heck. In addition, he contends that the
statute of limitations did not bar his excessive force claim, because he was entitled
to equitable tolling of the limitations period. Finally, he argues that the district
court should have granted his motion for reconsideration of its dismissal.
I. Heck
We reject each of Johnson’s arguments on this issue. First, there is no merit
to his contention that the court was required to consider the availability of habeas
relief before determining that his case was barred by Heck. Second, the district
court correctly concluded that Johnson's claims of DEA misconduct were
Heck-barred because, if his allegations were proven, the validity of his sentences
would be implicated.
II. Statute of Limitations
The district court’s interpretation and application of the statute of limitations
is reviewed de novo. Brown v. Georgia Bd. of Pardons & Paroles,
335 F.3d 1259,
1261 n.2 (11th Cir. 2003). "The expiration of the statute of limitations is an
affirmative defense the existence of which warrants a dismissal as frivolous."
3
Spencer v. Kenma,
523 U.S. 1,
118 S.Ct. 978,
140 L.Ed.2d 43 (1998).
3
Clark v. Ga. Pardons and Paroles Bd.,
915 F.2d 636, 641 n. 2 (11th Cir. 1990).
"When the defense is apparent from the face of the complaint or the court's records,
courts need not wait and see if the defense will be asserted in a defensive
pleading."
Id.
Actions brought under Bivens are subject to the statute of limitations
governing personal injury actions in the state where the claim has been brought.
Kelly v. Serna,
87 F.3d 1235, 1238 (11th Cir. 1996). Johnson brought his claim in
Alabama, where the governing limitations period is two years. McNair v. Allen,
515 F.3d 1168, 1173 (11th Cir. 2008) (citing
Ala. Code § 6-2-38).
The limitations period begins to run when the cause of action accrues, and
this is a question of federal law. Rozar v. Mullis,
85 F.3d 556, 561 (11th Cir.
1996). Generally, a cause of action accrues when the plaintiff knows or has reason
to know (1) that he was injured, and (2) who inflicted the injury.
Id. at 561-62.
Equitable tolling is an extraordinary remedy which is typically applied
sparingly. Irwin v. Dep’t of Veterans Affairs,
498 U.S. 89, 96,
111 S.Ct. 453, 457,
112 L.Ed.2d 435 (1990). The plaintiff has the burden of showing that equitable
tolling is warranted. Booth v. Carnival Corp.,
522 F.3d 1148, 1150 (11th Cir.
2008). It is most likely to be applied if the claimant "actively pursued his judicial
remedies by filing a defective pleading during the statutory period," or if his
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adversary induced or tricked him into filing after the deadline. Irwin, 498 U.S. at
96, 111 S.Ct. at 458. It generally is not appropriate if the claimant’s late filing is a
result of his “fail[ure] to exercise due diligence in preserving his legal rights.” Id.
Here, Johnson did not allege facts tending to show that he diligently
attempted to file his action within the statutory period, or that he filed his action as
soon as he could. Accordingly, he did not show that equitable tolling was
warranted.
III. Motion for Reconsideration
A district court's denial of a motion for reconsideration is reviewed for an
abuse of discretion. Corwin v. Walt Disney Co.,
475 F.3d 1239, 1254 (11th Cir.
2007).
As discussed above, Johnson's action was barred by Heck and the statute of
limitations. Accordingly, the district court did not abuse its discretion by denying
his motion for reconsideration.
AFFIRMED.
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