Dormezil Jean Erick v. Border Patrol of FL State , 154 F. App'x 193 ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
NOVEMBER 14, 2005
No. 04-16276
THOMAS K. KAHN
Non-Argument Calendar
CLERK
________________________
D. C. Docket No. 04-60941-CV-JIC
DORMEZIL JEAN ERICK,
Plaintiff-Appellant,
versus
BORDER PATROL OF FLORIDA STATE,
Chief Patrol Agent,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(November 14, 2005)
Before DUBINA, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
Appellant Dormezil Jean Erick, a prisoner proceeding pro se and in forma
pauperis, appeals the district court’s dismissal of his civil action, brought pursuant
to Bivens v. Six Unknown Agents of the Federal Bureau of Narcotics, 403 U.S.
388, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971). Erick sought monetary damages, in
June of 2004, as compensation for his allegedly illegal detention by the Border
Patrol for 39 days in 1997, following his order of release from jail on cocaine
charges, and for his 1998 conviction and sentence for those charges, which he
claims resulted from the fact that his Border Patrol detention was revealed to the
jury at trial. The district court dismissed Erick’s complaint pursuant to 28 U.S.C.
§ 1915(e)(2)(B)(ii), finding that his cause of action had accrued no later than his
trial in 1998, beyond the four year limitations period that applied to Erick’s Bivens
claim under Florida law.
We review a § 1915(e)(2)(B)(ii) dismissal de novo. Mitchell v. Farcass, 112
F.3d 1483, 1490 (11th Cir. 1997). Erick contends that his cause of action did not
accrue until December of 2000, less than four years before he filed his complaint,
when he received an information sheet from prison officials containing the reason
for his 1997 detention. Erick also argues on appeal that his claim was brought
under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 1346(b), rather than
Bivens.
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Federal officials can be held liable for injuries that they cause in violation of
the Constitution. Bivens, 403 U.S. at 395, 91 S. Ct. at 2004. The statute of
limitations applicable to 42 U.S.C. § 1983 actions applies to Bivens claims. Kelly
v. Serna, 87 F.3d 1235, 1239 (11th Cir. 1996). State law governs the limitations
period in § 1983 cases, and “§ 1983 claims are best characterized as personal
injury actions.” Wilson v. Garcia, 471 U.S. 261, 280, 105 S. Ct. 1938, 1949, 85 L.
Ed. 2d 254 (1985). “[W]here state law provides multiple statutes of limitations for
personal injury actions, courts considering § 1983 claims should borrow the
general or residual statute for personal injury actions.” Owens v. Okure, 488 U.S.
235, 249-50, 109 S. Ct. 573, 582, 102 L. Ed. 2d 594 (1989). Florida law provides
multiple statutes of limitations for personal injury actions, and a residual
limitations period of four years. Fla. Stat. § 95.11(3)(p); Baker v. Gulf & W.
Indus., 850 F.2d 1480, 1481-83 (11th Cir. 1988). The method for determining the
date when a cause of action accrued for purposes of the statute of limitations in
§ 1983 cases is also used for Bivens claims, and the plaintiff’s cause of action
accrues when he knows or has reason to know of his injury and who has inflicted
it. Kelly, 87 F.3d at 1238-39; Mullinax v. McElhenney, 817 F.2d 711, 716 (11th
Cir. 1987).
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The FTCA imposes a two-year statute of limitations within which tort claims
against the United States must be “presented in writing to the appropriate Federal
agency.” 28 U.S.C. § 2401(b). A claim under the FTCA accrues when the
plaintiff has knowledge of his injury and its cause. United States v. Kubrick, 444
U.S. 111, 123, 100 S. Ct. 352, 360, 62 L. Ed. 2d 259 (1979).
Erick’s complaint indicates that the jury at his 1998 trial was made aware of
his detention by the Border Patrol. As a result, we conclude that his cause of
action accrued at that time, when he knew or had reason to know of any possible
injury and its cause. The fact that the jury in Erick’s 1998 trial learned of his
detention, which is at the very heart of his complaint, contradicts Erick’s assertion
that he himself did not learn that the Border Patrol was responsible for his
detention until 2000. Regardless of whether Erick’s complaint had been construed
as a Bivens claim or a claim under the FTCA, his complaint was brought before the
district court nearly six years after his claim accrued, well past the longest possible
statutory limitations period of four years.
Erick also argues, for the first time on appeal, that the district court should
have applied equitable tolling to the statute of limitations in his case, because he
was misled about the cause of his detention and had no reasonable way of
discovering the cause. We do not consider arguments raised for the first time on
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appeal unless one of five exceptions is met. Narey v. Dean, 32 F.3d 1521, 1526-27
(11th Cir. 1994). No exception is found in this case so we decline to address this
issue.
For the foregoing reasons, we affirm the judgment of dismissal.
AFFIRMED.
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