Michael Johnson v. Michael Greaves , 366 F. App'x 976 ( 2010 )


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  •                                                       [DO NOT PUBLISH]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
    4
    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.
    5