Terry L. Fish v. Geico Insurance

Case: 14-12772 Date Filed: 07/09/2015 Page: 1 of 3
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 14-12772
Non-Argument Calendar
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D.C. Docket No. 8:14-cv-00919-JSM-TBM
TERRY L. FISH,
Plaintiff-Appellant,
versus
GEICO INSURANCE,
CREDIT COLLECTION SERVICES,
Defendants-Appellees.
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Appeal from the United States District Court
for the Middle District of Florida
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(July 9, 2015)
Before MARTIN, ANDERSON, and COX, Circuit Judges.
PER CURIAM:
Case: 14-12772 Date Filed: 07/09/2015 Page: 2 of 3
Terry L. Fish, proceeding pro se, appeals the district court’s sua sponte
dismissal, under 28 U.S.C. § 1915(e)(2)(B)(i), of Fish’s civil complaint as time-
barred.
Fish’s complaint alleges violations of the Fair Debt Collection Practices Act
(“the Act”), 15 U.S.C. §§ 1962, et seq. An action brought under this Act must be
brought within one year from the date on which the alleged violation occurred.
Fish’s action was filed more than eight years after his claim accrued. We assume
arguendo that Fish’s claims could be subject to equitable tolling. The district
court’s order dismissing the action adopted and approved the Magistrate Judge’s
Report and Recommendation which concluded that “it appears beyond doubt from
the Complaint itself that Plaintiff cannot prove any set of facts that would avoid a
statute of limitations bar.” (Doc. 7 at 5).
We review de novo the district court’s dismissal of a plaintiff’s complaint
for failure to satisfy the statute of limitations. Jackson v. Astrue, 506 F.3d 1349,
1352 (11th Cir. 2007). We also review de novo whether a plaintiff is entitled to
equitable tolling. Id.Where it is clear from the face of a complaint filed in forma pauperis that the
claims asserted are barred by the statute of limitations, the claims are properly
dismissed pursuant to § 1915 as frivolous. Hughes v. Lott, 350 F.3d 1157, 1160
(11th Cir. 2003).
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Case: 14-12772 Date Filed: 07/09/2015 Page: 3 of 3
Fish’s complaint fails to show that the statute of limitations did not bar the
action. And, Fish failed to meet his burden of showing that equitable tolling was
warranted in this case. Equitable tolling is appropriate only when a plaintiff
untimely files due to “extraordinary circumstances that are both beyond his control
and unavoidable even with diligence.” Arce v. Garcia, 434 F.3d 1254, 1261 (11th
Cir. 2006) (internal quotations omitted) (emphasis in original). The circumstances
here were neither beyond Fish’s control nor unavoidable with diligence.
The district court did not err in dismissing this action as frivolous.
AFFIRMED.
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