Jesus Maria Lopez v. Michael Wallace , 266 F. App'x 882 ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
FEBRUARY 25, 2008
No. 07-13680 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 07-01505-CV-CAM-1
JESUS MARIA LOPEZ,
Plaintiff-Appellant,
versus
MICHAEL WALLACE, Attorney at Law,
STEPHANIE STUCKEY BENFIELD, Attorney at Law,
TRACI SODERBERG, Assistant District Attorney,
DAVID KEETON, Assistant, VP, Business
Development,(LOMA),
DETECTIVE DAVID P. HENRY, Gwinnett County Police
Department, et al.,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(February 25, 2008)
Before BARKETT, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
Jesus Maria Lopez, a pro se Colombian citizen incarcerated in a Georgia
prison, appeals: (1) the dismissal, pursuant to 28 U.S.C. § 1915A(b)(1), of his civil
action against three detectives involved in his arrest, his trial and appellate
attorneys, and two prosecuting attorneys, alleging that they violated his Vienna
Convention on Consular Relations (“VCCR”) rights by depriving him the
opportunity to contact the Colombian Consulate; and (2) the district court’s denial
of his motion for reconsideration. On appeal, Lopez maintains that (1) the district
court erred in sua sponte dismissing his 28 U.S.C. § 1350 and 42 U.S.C. § 1983
claims, as the court erred by applying § 1983’s two-year statute of limitation
instead of § 1350’s ten-year statute of limitation; and (2) the plain language of
Article 36 of the VCCR creates an individual right to consular communications,
which is enforceable through a private cause of action under §§ 1983 and 1350.
We review de novo a sua sponte dismissal for failure to state a claim,
pursuant to 28 U.S.C. § 1915A(b)(1). Leal v. Ga. Dep’t of Corr., 254 F.3d 1276,
1279 (11th Cir. 2001). A district court’s denial of a motion to reconsider is
reviewed for an abuse of discretion. Fla. Ass’n of Rehab. Facilities, Inc. v. Fla.
Dep’t of Health and Rehab. Servs., 225 F.3d 1208, 1216 (11th Cir. 2000).
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Additionally, we review questions concerning the application of a statute of
limitations de novo. Harrison v. Digital Health Plan, 183 F.3d 1235, 1238 (11th
Cir. 1999). We liberally construe pro se pleadings, holding them to a less stringent
standard than attorney-drafted pleadings. Tannenbaum v. United States, 148 F.3d
1262, 1263 (11th Cir. 1998). If a district court does not address an argument, we
can remand the issue for the district court to consider in the first instance. See
Bartholomew v. AGL Resources, Inc., 361 F.3d 1333, 1342 n.6 (11th Cir. 2004).
In his complaint, Lopez alleged that he suffered substantial harm because the
defendants failed to notify the Columbian Consulate of his arrest, in violation of
his rights under Article 36 of the VCCR. (Compl. 6) Article 36 of the VCCR
states that signatory States shall inform an alien’s consulate when he is arrested or
imprisoned, and the arresting State shall inform the alien of his right to consulate
contact. Vienna Convention on Consular Relations, art. 36(1)(b), Apr. 24, 1963,
21 U.S.T. 77, 101, T.I.A.S. No. 6820. We, like most of our sister circuits, have not
squarely addressed whether Article 36 grants individual rights, enforceable under
§ 1983 or § 1350, though we have suggested that it does not. See e.g., Maharaj v.
Sec’y for Dep’t of Corr., 432 F.3d 1292, 1307 (11th Cir. 2005) (“[O]ur precedent
. . . supports the idea that the Vienna Convention does not confer judicially
enforceable individual rights.” (emphasis in original)).
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The district court dismissed Lopez’s complaint sua sponte, finding that
Lopez “has no ‘judicially enforceable’ right to consular assistance under the
VCCR” and that even if he had such a right, the allegations in his complaint were
too speculative to state a claim. (D. Ct. Order and Op. 5 (July 12, 2007)) In so
finding, the district court only discussed the requirements for stating a claim for
relief under 42 U.S.C. § 1983. In Lopez’s motion for reconsideration, he argued
that the district court “should conclude that Lopez can proceed with his civil action
pursuant to 42 § 1983 and 28 U.S.C. § 1350 for damages.” (Mot. for Recons. 3)
The district court denied Lopez’s motion, again finding that “Plaintiff does not
have, in this Circuit, an individually enforceable right to consular assistance under
the VCCR,” but even assuming he did, he would not be entitled to relief because
his complaint did not reveal any actionable harm and any such claim would be
time-barred based on Georgia’s two-year statute of limitations clause for § 1983
actions. (D. Ct. Order 4-5 (Sept. 20, 2007)) Once again, the district court did not
consider Lopez’s cause of action under 28 U.S.C. § 1350.
We agree with the district court that even if we assume that Article 36 does
grant individual rights enforceable under § 1983, any such claim would be time-
barred by Georgia’s two year statute of limitations. Uboh v. Reno, 141 F.3d 1000,
1002 (11th Cir. 1998) (Georgia’s two-year personal injury statute of limitations
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applies to actions brought pursuant to 42 U.S.C. § 1983). Thus, the district court
did not err in sua sponte dismissing Lopez’s § 1983 claim.
The district court did, however, abuse its discretion in failing to consider
Lopez’s claim under § 1350. Section 1350 states that district courts have
jurisdiction to hear actions brought by aliens for torts committed in violation of
treaties, and we have held that the Act has a ten-year statute of limitations. 28
U.S.C. § 1350; Cabello v. Fernandez-Larios, 402 F.3d 1148, 1153 (11th Cir. 2005).
The Supreme Court has held that § 1350 is jurisdictional, but it recognizes that
there is a set of common law norms that may be enforced through the grant of
jurisdiction. Sosa v. Alvarez-Machain, 542 U.S. 692, 729 (2004).
Neither the district court’s sua sponte order dismissing Lopez’s complaint,
nor its order denying his motion to reconsider, addressed whether, liberally
construed, the complaint asserted an action under § 1350, or if § 1350's ten-year
statute of limitations should have been applied. Because the district court did not
consider Lopez’s argument in his motion for reconsideration that he had raised a
§ 1350 claim, we remand this case for the district court to address in the first
instance whether Lopez’s complaint actually raised a § 1350 claim, and, assuming
that it did, whether the claim could survive § 1915A review. Accordingly, we
affirm in part and vacate and remand in part.
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AFFIRMED IN PART, VACATED AND REMANDED IN PART.
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