Donald Smith v. Harry Shorstein

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
FEBRUARY 13, 2007
No. 06-13246 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-00345-CV-J-20-TEM
DONALD SMITH,
Plaintiff-Appellant,
versus
HARRY SHORSTEIN,
ERNEST BELL,
LAURA BAER,
JOHN DOE,
One unknown Duval County Assistant State Attorney,
JAMES MCDONOUGH, et al.,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(February 13, 2007)
Before TJOFLAT, HULL and KRAVITCH, Circuit Judges.
PER CURIAM:
Donald Smith, a Florida state prisoner proceeding pro se, appeals the district
court’s dismissal, pursuant to 28 U.S.C. § 1915(e), of his civil rights action against
various state officials. For the reasons that follow, we affirm in part, and vacate
and remand in part.
I. BACKGROUND
Smith was originally sentenced in Florida state court to fifteen-years
imprisonment for attempted kidnaping and selling obscene material to a minor.
That sentence was later reduced to six years. Smith was subsequently released
from state incarceration and placed on conditional-release supervision to run until
February 21, 1999, the date his six-year sentence was to expire. While on release,
however, Smith was arrested for an unrelated misdemeanor offense and confined in
a county jail. A warrant was issued for Smith’s violation of his conditional release
on December 22, 1998, and, after he waived his right to a conditional-release-
revocation hearing, Smith was returned to the custody of the Florida Department of
Corrections (“FDOC”) on January 19, 1999. Smith was transferred to the Putnam
Correctional Institution (“PCI”) on January 28, 1999. On February 21, 1999,
Smith’s original prison sentence expired, but Smith remained incarcerated at PCI.
2
On March 3, 1999, the Florida Parole Commission revoked Smith’s
conditional release, and forwarded Smith’s file to FDOC administrators, including
Chris Gordon. On March 9, 1999, Gordon notified the Florida Department of
Children and Family Services (“DCFS”) that Smith potentially qualified for
commitment under the Involuntary Civil Commitment of Sexually Violent
Predators Act (“Jimmy Ryce Act”), Fla. Stat. Ann. § 394.910. “To be committed
under the Jimmy Ryce Act, an individual must be lawfully incarcerated at the time
commitment is sought, and meet the two-prong definition of a sexually violent
predator.” Hadi v. Liberty Behavioral Health Corp., 927 So. 2d 34, 39 (Fla. Dist.
Ct. App. 2006). On March 11, 1999, DCFS psychologists interviewed Smith to
ascertain whether he qualified for “Jimmy Ryce” commitment. On March 15,
1999, the State Attorney’s Office obtained a warrant for Smith’s continued
detention under the Jimmy Ryce Act, and Smith was transported to Martin
Correctional Institution (“MCI”) where he was placed in a Jimmy Ryce treatment
center. He remained confined under the Act until April 15, 2002.
On April 13, 2006, Smith filed a pro se complaint under 42 U.S.C. §§ 1983,
1985, and 1986 1 against, in their individual capacities, Florida State Attorney
Harry Shorstein, state prosecutors Ernest Bell and Laura Baer (collectively, the
1
Smith also raised claims under the Federal Tort Claims Act (“FTCA”), 28 U.S.C.
§ 2680, but because none of the defendants are federal officials, the FTCA is inapposite.
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“Prosecutors”), James Crosby, John McGlaughlin, Mike Workman, and Chris
Gordon of the FDOC, psychologists Ted Shaw and Jeffery Benoit of the DCFS,
and Monica David of the Florida Parole Commission, and various unknown
corrections officers at PCI and MCI. Smith claimed that the defendants conspired
to, and did, kidnap and falsely imprison him without legal authority or jurisdiction
in violation of his due process and equal protection rights under the United States
Constitution. He alleged that he was illegally confined beyond the expiration of
his prison sentence in February 21, 1999 so that the defendants could civilly
commit him under the Jimmy Ryce Act—an Act requiring the state to have lawful
custody of the person for whom commitment is being sought. Smith further
claimed that he was unlawfully confined from February 21, 1999 to April 15, 2002
without access to a law library or an attorney. Smith also alleged violations of
state tort law by the unknown corrections officers at PCI and MCI.
After performing the required screening under the Prison Litigation Reform
Act, 28 U.S.C. § 1915(e)(2), the district court sua sponte dismissed the complaint,
without prejudice, on the grounds that: (1) the claims against the Prosecutors were
barred by prosecutorial immunity, (2) the claims against the MCI employees
should have been filed in the Southern District of Florida, (3) the state-law tort
claims (including those against the PCI corrections officers) were not cognizable in
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a federal civil rights action, and (4) the federal claims against the defendants who
were not entitled to prosecutorial immunity were time-barred. Smith moved for
relief from the judgment and to alter or amend the judgment, which the district
court summarily denied. Smith filed this appeal.2
II. DISCUSSION
Under § 1915(e)(2), the district court is required to screen civil complaints
filed by prisoners against governmental officers or entities, and shall dismiss the
complaint if it is frivolous, fails to state a claim, or seeks monetary relief from a
defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B)(i)-(iii). An
action is considered “frivolous if it is without arguable merit either in law or fact.”
Bilal v. Driver, 251 F.3d 1346, 1349 (11th Cir. 2001). An action is also considered
frivolous when it appears that the plaintiff has little or no chance of success—that
is, when the complaint on its face makes clearly baseless allegations or relies on
legal theories that are indisputably meritless. See Carroll v. Gross, 984 F.2d 392,
393 (11th Cir. 1993). But “[p]ro se pleadings are held to a less stringent standard
than pleadings drafted by attorneys and will, therefore, be liberally construed.”
Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998).
2
Smith does not challenge the dismissal of his state tort claims, nor does he challenge the
district court’s holding that the claims against the officers at MCI were filed in the wrong
district. Accordingly, he has abandoned those issues on appeal. Rowe v. Schreiber, 139 F.3d
1381, 1382 n.1 (11th Cir. 1998).
5
We review de novo questions concerning the application of a statute of
limitations. Harrison v. Digital Health Plan, 183 F.3d 1235, 1238 (11th Cir.1999).
We likewise review de novo a district court’s grant of absolute immunity. See
Scarbrough v. Myles, 245 F.3d 1299, 1302 (11th Cir. 2001). And we review a
district court’s sua sponte dismissal of a claim as frivolous under § 1915(e) for
abuse of discretion. Bilal, 251 F.3d at 1349.
A. Prosecutorial Immunity
“A prosecutor is entitled to absolute immunity for all actions he takes while
performing his function as an advocate for the government.” Rivera v. Leal, 359
F.3d 1350, 1353 (11th Cir. 2004). Such absolute immunity extends to a
prosecutor’s acts performed “in preparing for the initiation of judicial proceedings
or for trial, and which occur in the course of his role as an advocate for the State.”
Jones v. Cannon, 174 F.3d 1271, 1281 (11th Cir. 1999) (citations omitted). So
long as such acts are within the “scope and territorial jurisdiction of his office,” the
prosecutor is immune from an action for damages under § 1983. Elder v.
Athens-Clarke County, Ga. Through O’Looney, 54 F.3d 694, 695 (11th Cir. 1995).
“Although absolutely immune for actions taken as an advocate, the prosecutor has
only qualified immunity when performing a function that is not associated with his
role as an advocate for the state.” Jones, 174 F.3d at 1281-82 (citations omitted).
6
Thus, when determining whether a prosecutor is entitled to absolute immunity, we
look to “the nature of the function performed, not the identity of the actor who
performed it.” Buckley v. Fitzsimmons, 509 U.S. 259, 269, 113 S. Ct. 2606, 2613,
125 L. Ed. 2d 209 (1993).
Here, Smith argues that the Prosecutors are not entitled to immunity because
in their efforts to have him civilly committed, they acted in the clear absence of
jurisdiction as Smith was not “serving a sentence in the custody of” the FDOC at
the time civil commitment was sought. But the “clear absence of jurisdiction”
exception to absolute immunity applies to judges, not to prosecutors, and it refers
to jurisdiction over the subject matter. Dykes v. Hosemann, 776 F.2d 942, 946-
949 (11th Cir. 1985). By contrast, a prosecutor is entitled to absolute immunity for
actions taken in his role as a government advocate and that are within the “scope
and territorial jurisdiction of his office.” Elder, 54 F.3d at 695 (emphasis added).
Nothing in the record indicates that the Prosecutors here acted outside of their
territorial jurisdiction. Thus, the district court properly dismissed Smith’s claims
against the Prosecutors—Baer, Bell, and Shorstein—as they are entitled to absolute
prosecutorial immunity.
B. Statute of Limitations
The expiration of the statute of limitations warrants dismissing a complaint
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as frivolous. Clark v. Ga. Pardons and Paroles Bd., 915 F.2d 636, 641 n. 2 (11th
Cir. 1990). But “[t]o dismiss a prisoner’s complaint as time-barred prior to
service, it must appear beyond a doubt from the complaint itself that [the prisoner]
can prove no set of facts which would avoid a statute of limitations bar.” Hughes
v. Lott, 350 F.3d 1157, 1163 (11th Cir. 2003).
The length of the limitations period governing actions under 42 U.S.C.
§§ 1983 and 1985 is dictated by state law. Chappell v. Rich, 340 F.3d 1279, 1283
(11th Cir. 2003). Accordingly, Florida’s four-year statute of limitations for
personal injury actions applies to Smith’s §§ 1983 and 1985 claims. Id. Section
1986 actions must be brought “within one year after the cause of action has
accrued.” 42 U.S.C. § 1986. The question of when the limitations period begins to
run (that is, when the cause of action has accrued), is one of federal law. Rozar v.
Mullis, 85 F.3d 556, 561 (11th Cir. 1996). The general federal rule is that a cause
of action “will not accrue, and thereby set the limitations clock running, until the
plaintiffs know or should know (1) that they have suffered the injury that forms the
basis of their complaint and (2) who has inflicted the injury.” Chappell, 340 F.3d
at 1283 (citing Mullinax v. Mc Elhenny, 817 F.2d 711, 716 (11th Cir. 1987)). In
analyzing this issue, a court must first identify the alleged injuries, and then
determine when the plaintiff could have sued for them. Rozar, 85 F.3d at 562.
8
An exception to the general rule is the “continuing violation” doctrine. See
Lovett v. Ray, 327 F.3d 1181, 1183 (11th Cir. 2003). When the violation alleged
involves continuing injury, the cause of action accrues, and the limitation period
begins to run, at the time the unlawful conduct ceases. Donaldson v. O’Connor,
493 F.2d 507, 529 (5th Cir. 1974) 3 (holding that a § 1983 action brought by a
former mental patient for continuous civil confinement without psychiatric
treatment did not accrue until the patient was released), vacated on other grounds
by O’Connor v. Donaldson, 422 U.S. 563, 95 S. Ct. 2486, 45 L. Ed. 2d 396 (1975);
Santiago v. Lykes Bros. S.S. Co., 986 F.2d 423, 426 (11th Cir. 1993) (discussing
Donaldson); Abiff v. Slaton, 806 F. Supp. 993, 996 (N.D. Ga. 1992) (holding that a
former prisoner’s § 1983 claim for the state’s failure to immediately release him
from state prison or transfer him to county jail after his sentence was vacated on
appeal was a continuing violation that tolled the limitations period), aff’d, 3 F.3d
443 (11th Cir. 1993).
On appeal, Smith argues that because his six-year prison sentence had
expired on February 21, 1999, his continued incarceration after that date was
unlawful so that when state officials commenced proceedings (some time in March
3
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this
court adopted as binding precedent all decisions handed down by the former Fifth Circuit before
the close of business on September 30, 1981.
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of 1999) to have him civilly committed, he was not lawfully incarcerated as
required by Florida law. See Hadi, 927 So. 2d at 39. We conclude that Smith does
allege a continuing violation that did not end until he was released on April 15,
2002. Thus, with regard to his §§ 1983 and 1985 actions, this claim is not time-
barred because Smith filed his complaint on April 13, 2006—less than four years
after his cause of action had accrued. But Smith’s § 1986 action is time-barred
because § 1986 actions must be brought “within one year after the cause of action
has accrued.” 42 U.S.C. § 1986.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the dismissal of Smith’s claims
against the Prosecutors—Baer, Bell, and Shorstein, and we AFFIRM the dismissal
of Smith’s § 1986 action against the remaining defendants. We VACATE the
dismissal of Smith’s §§ 1983 and 1985 claims against Benoit, David, Crosby,
Gordon, McGlaughlin, Shaw, and Workman regarding his approximately three-
year civil confinement under the Jimmy Ryce Act, and we REMAND for further
proceedings.
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