John Walker, Jr. v. United States

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
August 23, 2006
No. 06-10761 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________

D. C. Docket No. 03-01246-CV-JEC-1

JOHN WALKER, JR.,

Plaintiff-Appellant,

versus

UNITED STATES OF AMERICA,
WARDEN WILLIE SCOTT,
PHYSICIAN JOHN DOE,
COUNSELOR MASTERS,
UNIT MANAGER STONE,
et al.,

Defendants-Appellees,

FEDERAL BUREAU OF PRISONS,

Defendant.
________________________

Appeal from the United States District Court
for the Northern District of Georgia
_________________________

(August 23, 2006)
Before ANDERSON, CARNES and PRYOR, Circuit Judges.

PER CURIAM:

John Walker, a federal prisoner, appeals the dismissal of his civil complaint

under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2674, and Bivens v. Six

Unknown Agents & Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29

L.Ed.2d 619 (1971), and the denial of his motions for leave to proceed in forma

pauperis (“IFP”) and for appointment of counsel in the district court.

Walker raises four issues on appeal. First, Walker challenges that the

district court erred in dismissing his complaint without prejudice. He argues that a

“blind and pauperized prisoner” could not obtain the addresses of the named

defendants or arrange for service of process from prison. Walker contends that he

“made a mighty effort” to arrange service. Second, Walker argues that the district

court erred in denying his motion for appointment of counsel in the district court.

Walker acknowledges that he has no right to counsel, but contends that the

extraordinary circumstances present here of the defendants’ conduct causing him to

go blind and preventing him from representing himself warrants appointment of

counsel. Third, Walker argues that the district court’s denial of IFP status and

appointment of counsel constituted a denial of meaningful access to the courts.

Walker argues that a blind pro se litigant cannot effectively pursue a legal action.

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Finally, Walker argues on appeal that the district court erred in denying IFP status.

Walker describes himself as a “pauper” and notes that we granted him IFP status

on appeal even though his assets remained the same.

However, we need not consider these issues on appeal because Walker’s suit

is barred by the statute of limitations.

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).

In the context of an IFP frivolity determination under 28 U.S.C. § 1915, “[t]he

expiration of the statute of limitations is an affirmative defense the existence of

which warrants a dismissal as frivolous.” Clark v. State of Georgia Pardons and

Paroles Bd., 915 F.2d 636, 640 n.2 (11th Cir. 1990). We have further explained,

“[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).

Federal officials may be sued in their individual capacities for violations of

an individual’s constitutional rights. Bivens, 403 U.S. at 397, 91 S.Ct. at 2005.

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). Section 1983 claims

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are governed by the forum state's residual personal injury statute of limitations.

City of Hialeah, Fla. v. Rojas, 311 F.3d 1096, 1103 n.2 (11th Cir. 2002). The

Georgia two-year personal injury limitations period applies to § 1983 actions in a

Georgia district court. Mullinax v. McElhenney, 817 F.2d 711, 715-16 (11th Cir.

1987). A cause of action accrues for purposes of the statute of limitations in

§ 1983 and Bivens cases when the plaintiff knows or has reason to know of an

injury and who has inflicted it. Kelly, 87 F.3d at 1238-39.

The FTCA is a congressional waiver of sovereign immunity that allows the

government to be sued under certain circumstances for particular tortious acts

committed by employees of the government. 28 U.S.C. § 2674. “The Federal Tort

Claims Act (FTCA) provides that an ‘action shall not be instituted upon a claim

against the United States for money damages' unless the claimant has first

exhausted his administrative remedies.” McNeil v. United States, 508 U.S. 106,

107, 113 S.Ct. 1980, 1981, 124 L.Ed.2d 21 (1993). 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 an injury and

its cause. United States v. Kubrick, 444 U.S. 111, 123, 100 S.Ct. 352, 360, 62

L.Ed.2d 259 (1979).

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 Upon review of the record and upon consideration of the parties’ briefs, we

find no reversible error as to this issue.

In his argument on appeal challenging the district court’s dismissal of his

complaint, Walker does not challenge the court’s finding that his claims - under the

FTCA or Bivens - were barred by the statute of limitations, nor does he state

anything that could be liberally construed as a challenge to the court’s finding. We

will not consider issues that are not raised in an initial brief. See Access Now, Inc.

v. Southwest Airlines Co., 385 F.3d 1324, 1330 (11th Cir. 2004). While we

liberally construe pro se pleadings, we will not act as de facto counsel for pro se

parties. See GJR Invs., Inc. v. County of Escambia, 132 F.3d 1359, 1369 (11th

Cir. 1998). Thus, we hold that Walker has abandoned any challenge to the district

court’s dismissal of his complaint as barred by the statute of limitations.

Even if Walker preserved a challenge on this ground, the district court

properly found that Walker’s claims were barred by the statute of limitations.

First, the district court correctly found that Walker’s Bivens claims would be

barred by the statute of limitations. Walker’s complaint, dated April 30, 2003, was

filed more than three years after he was transferred from the United States

Penitentiary in Atlanta (“USP Atlanta”) on April 3, 2000. Walker’s complaint

reflects that his eye problems worsened throughout his nearly four year term at

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USP Atlanta and that he was aware of the injury by April 3, 2000 at the latest.

Thus, Walker’s Bivens claims were beyond the two-year statute of limitations

period, unless equitable tolling applied. We have declined to decide whether the

statute of limitations is tolled in a § 1983 case while a petitioner is pursuing

administrative remedies. See Leal v. Georgia Dept. of Corrections, 254 F.3d 1276,

1280 (11th Cir. 2001). Even if tolling applied, however, Walker’s complaint only

reflects that he pursued administrative remedies from February 2002 to January

2003, which would still leave his complaint outside of the two-year period. Thus,

the district court properly found that Walker’s Bivens claim was barred by the

statute of limitations.

Second, the district court also correctly found that Walker’s FTCA claims

were barred by the statute of limitations. Walker’s complaint states that he filed

his administrative claim on March 30, 2002. We know that Walker has alleged no

injury after he was transferred from USP Atlanta on April 3, 2000. Therefore, to

fall within the two-year statute of limitations period, Walker’s claim must have

accrued between March 30, 2000, and April 3, 2000, the date he was transferred

from USP Atlanta. Walker’s complaint only states that he was placed in a separate

area in preparation for his transfer during those four days and does not allege that

any injury occurred or that any preexisting injury was exacerbated during that time.

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Walker also does not indicate that he learned of any injury after he left USP

Atlanta. To the contrary, Walker’s complaint reflects that he was injured at USP

Atlanta and was aware of his eye injuries before March 30, 2000. Because

Walker’s complaint does not reflect any set of facts that he could prove to satisfy

the statute of limitations, the district court properly found that Walker’s FTCA

claims were barred by the statute of limitations.

AFFIRMED.

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