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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 14-14630
Non-Argument Calendar
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D.C. Docket No. 5:14-cv-00304-CAR
ROBERT HARVEY, III,
Plaintiff-Appellant,
versus
ALEXANDER DANIELS,
Officer, Forsyth Police Department,
Defendant-Appellee.
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Appeal from the United States District Court
for the Middle District of Georgia
________________________
(September 2, 2015)
Before JORDAN, JILL PRYOR, and ANDERSON, Circuit Judges.
PER CURIAM:
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Robert Harvey, III appeals the district court’s sua sponte dismissal of his pro
se 42 U.S.C. § 1983 complaint against Officer Alexander Daniels of the Forsyth
Police Department. In his complaint, Harvey alleged that Daniels wrongfully
arrested him for assaulting someone with a knife, and that the illegality of his arrest
and other evidence invalidated his conviction. He had already completed serving
his prison sentence before filing his complaint. The district court dismissed the
complaint without providing Harvey an opportunity to amend it.
On appeal, Harvey does not expressly challenge any of the bases for the
district court’s dismissal of his complaint, but, instead, disputes the factual basis
for the arrest at the heart of his § 1983 complaint.1
I.
A district court must screen a complaint in a civil action in which an
indigent plaintiff seeks redress from a governmental entity, officer, or employee,
and the court must dismiss the complaint if it is frivolous, malicious, or fails to
state a claim upon which relief may be granted. 28 U.S.C. § 1915A(a), (e)(2)(B).
This Court reviews de novo a district court’s sua sponte dismissal for failure to
state a claim under 28 U.S.C. § 1915A(e)(2). Leal v. Georgia Dept. of Corr., 254
F.3d 1276, 1278-79 (11th Cir. 2001). A claim is frivolous only if it “lacks an
1
Harvey does not raise any issues regarding the district court’s failure to afford him an
opportunity to amend his complaint prior to dismissing it. Accordingly, he has abandoned any
such issue. Timson v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008) (Although we construe pro
se briefs liberally, “issues not briefed on appeal by a pro se litigant are deemed abandoned.”).
In any event, amendment would have been futile for reasons set forth infra.
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arguable basis either in law or in fact,” and pro se pleadings must be liberally
construed. Miller v. Donald, 541 F.3d 1091, 1100 (11th Cir. 2008) (quotations
omitted). We may affirm on any basis supported by the record, regardless of
whether the district court decided the case on that basis. Lucas v. W.W. Grainger,
Inc., 257 F.3d 1249, 1256 (11th Cir. 2001).
State prisoners must use habeas corpus, not § 1983, when seeking, whether
directly or indirectly, to invalidate their convictions. Wilkinson v. Dotson, 544
U.S. 74, 78-82, 125 S.Ct. 1242, 1245-48, 161 L.Ed.2d 253 (2005). A prisoner
indirectly challenges his confinement by requesting monetary damages for claims
that would require a judicial determination about the invalidity of his conviction.
Id. at 80-82, 125 S.Ct. at 1247-48. This bar to challenges under § 1983 to the fact
or duration of confinement was articulated by Heck v. Humphrey, 512 U.S. 477,
114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), which held that a § 1983 action will not
lie where “establishing the basis for the damages claim necessarily demonstrates
the invalidity of the conviction.” Heck, 512 U.S. at 481-82, 114 S.Ct. at 2369-70.
It is unclear, however, whether Heck bars § 1983 claims once, as in the instant
case, a state prisoner is no longer in custody and cannot pursue habeas relief. See
Morrow v. Fed. Bureau of Prisons, 610 F.3d 1271, 1272 (11th Cir. 2010) (“[W]e
do not understand Heck’s rule to extend to a case . . . where Plaintiff is not in
custody and where Plaintiff’s action . . . in no way implies the invalidity of his
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conviction or of the sentence imposed by his conviction) (citing Spencer v. Kemna,
523 U.S. 1, 17, 118 S.Ct. 978, 988, 140 L.Ed.2d 43 (1998)).
A claimant is entitled to relief under § 1983 if he can prove that a person
acting under color of state law deprived him of a federal right. Almand v. DeKalb
Cnty., Ga., 103 F.3d 1510, 1513 (11th Cir. 1997). We have identified malicious
prosecution as a violation of the Fourth Amendment and a viable constitutional tort
under § 1983. Wood v. Kesler, 323 F.3d 872, 881 (11th Cir. 2003). The common
law elements of malicious prosecution include: “(1) prosecution for a criminal
offense; (2) instigated without probable cause; (3) with malice; (4) under a valid
warrant, accusation or summons; (5) which has terminated favorably to the
plaintiff; and (6) has caused damage to the plaintiff.” Barnette v. Coastal
Hematology & Oncology, P.C., 294 Ga.App. 733, 735, 670 S.E.2d 217, 220 (2008)
(internal quotation marks omitted).
We have also identified false arrest and false imprisonment as violations of
the Fourth and Fourteenth Amendment, respectively, and viable claims under
§ 1983. See Ortega v. Christian, 85 F.3d 1521, 1525-26 (11th Cir. 1996). The
common law elements of false arrest include: (1) an arrest under the process of
law; (2) without probable cause; and (3) which is made maliciously. Mohamud v.
Wachovia Corp., 260 Ga. App. 612, 612, 580 S.E.2d 259, 259 (2003). The
common law elements of false imprisonment include: (1) the unlawful arrest,
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confinement, or detention of another, and (2) which is in violation of the
individual’s personal liberty. Garcia v. State, 240 Ga. App. 53, 54, 527 S.E.2d
877, 878 (1999).
To avoid dismissal of a § 1983 claim, a plaintiff must allege facts showing
he was deprived of a constitutional right by a person acting under color of state
law. 42 U.S.C. § 1983; Holmes v. Crosby, 418 F.3d 1256, 1258 (11th Cir. 2005).
All constitutional claims brought under § 1983 are subject to the statute of
limitations governing personal injury actions in the state where the § 1983 action
was brought. McNair v. Allen, 515 F.3d 1168, 1173 (11th Cir. 2008). We
independently review the district court’s ruling concerning the applicable statute of
limitations. Uboh v. Reno, 141 F.3d 1000, 1002 (11th Cir. 1998). “Federal courts
apply their forum state’s statute of limitations for personal injury actions to actions
brought pursuant to 42 U.S.C. § 1983.” Id. Federal law determines when the
statute of limitations begins to run. Rozar v. Mullis, 85 F.3d 556, 561 (11th Cir.
1996). Generally, “the statute of limitations does not begin to run until the facts
which would support a cause of action are apparent or should be apparent to a
person with a reasonably prudent regard for his rights.” Id. at 561-62 (internal
marks omitted). Georgia’s statute of limitations is two years. Thigpen v. Bibb
County, Ga., Sheriff’s Dep’t, 223 F.3d 1231, 1243 (11th Cir. 2000). Under
Georgia law, an action may be filed after the running of the statute of limitations
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period under certain circumstances provided for in the state’s renewal statute,
which states that:
When any case has been commenced in either state or federal court
within the applicable statute of limitations and the plaintiff
discontinues or dismisses the same, it may be recommenced in a court
of this state or in a federal court within the original applicable period
of limitations or within six months after the discontinuance or
dismissal, whichever is later . . .
O.C.G.A. § 9–2–61. It is appropriate for a district court to dismiss a complaint as
time-barred where the prisoner fails to identify why the statute of limitations might
be tolled in his case. Hughes v. Lott, 350 F.3d 1157, 1163 (11th Cir. 2003).
Assuming arguendo that Harvey adequately preserved a challenge to the
district court’s dismissal of his complaint and that Heck does not apply, we still
affirm. Harvey filed his complaint in federal court more than two years after his
arrest, past the applicable statute of limitations. Thigpen, 223 F.3d at 1243. The
limitations period was not tolled by Harvey’s earlier state court litigation, because
he did not discontinue or dismiss the suit but, instead, judgment was entered
against him, and it thereby does not satisfy the renewal statute. O.C.G.A. § 9–2–
61. Accordingly, because the claims in Harvey’s § 1983 brief were time-barred,
amending the complaint would have been futile, and the district court was not
required to provide Harvey with an opportunity to amend his complaint. Sibley,
437 F.3d at 1074. As such, we affirm the district court’s sua sponte dismissal of
Harvey’s complaint.
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AFFIRMED. 2
2
Harvey’s motions for review of state court litigation and for default or declaratory judgment
are DENIED.
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