[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
September 6, 2006
No. 06-11103 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-00044-CV-JTC-3
MILTON ROSS,
Plaintiff-Appellant,
versus
OFFICER JOEY MICKLE,
LaGrange Ga. Police Department,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(September 6, 2006)
Before TJOFLAT, ANDERSON and KRAVITCH, Circuit Judges.
PER CURIAM:
Milton Ross, a Georgia state prisoner proceeding pro se, appeals the district
court’s dismissal of his civil rights complaint for failure to state a claim under 28
U.S.C. § 1915A because the allegations were barred by the statute of limitations.
We affirm the district court’s decision for the reasons set forth below.
I.
Ross filed a pro se civil rights complaint under 42 U.S.C. § 1983, alleging
that LaGrange Police Department Officers Joey Mickle and Landy Mabry used
excessive force when Mickle shot Ross in the back on March 21, 2002, resulting in
his being confined to a wheelchair. He further alleged that the officers conspired
to hide the truth of the events. Ross sought $25 million in compensatory damages
and $50 million in punitive damages. The complaint was signed by Ross on May
18, 2005.
The district court conducted the required screening under the Prison
Litigation Reform Act (“PLRA”), 28 U.S.C. § 1915A, and dismissed the case
because it was barred by the statute of limitations, as it was filed more than two
years after the alleged incident. The district court’s order expressly noted that
Ross’s complaint “made no argument that the statute of limitations should be tolled
or that he was under a disability that prevented him from timely filing his
complaint.”
Ross moved for reconsideration, explaining that due to his medical status, he
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inadvertently mailed the complaint to state court, which he realized was a mistake
when the complaint was returned to him on May 2, 2005. He claimed that he had
filed the complaint forty-five days earlier. Ross also submitted an amended
complaint with the motion for reconsideration, raising his claims under § 1983 and
the Americans with Disabilities Act. The district court denied the motion, finding
that even if Ross mistakenly mailed the complaint to state court, he had done so in
March 2005, which would still make the complaint untimely. In his notice of
appeal, for the first time, Ross explained that he did not know that he needed to
argue that the limitations period should have tolled.
II.
On appeal, Ross argues that the district court improperly dismissed his
complaint because (1) he should have been permitted to amend his complaint prior
to the sua sponte dismissal, and (2) the court failed to consider equitable tolling.
According to Ross, had he been permitted to amend, he could have explained why
he was entitled to tolling of the statute of limitations as a result of mental and
physical limitations. Ross then alleges that the officers’ conspiracy prevented him
from learning of the violation and the proper defendants, thus extending the date
on when his action accrued for statute-of-limitations purposes.
A district court’s dismissal for failure to state a claim under 28 U.S.C.
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§ 1915A is reviewed de novo, taking the allegations in the complaint as true.
Hughes v. Lott, 350 F.3d 1157, 1160 (11th Cir. 2003). “Pro se pleadings are held
to a less stringent standard than pleadings drafted by attorneys and will, therefore,
be liberally construed.” Id. (citation omitted).
Under § 1915A, the district court must
review, before docketing, . . . or, in any event, as soon as practicable
after docketing, a complaint in a civil action in which a prisoner seeks
redress from a governmental entity or officer . . . in order to identify
cognizable claims or dismiss the complaint, or any portion of the
complaint if it . . . fails to state a claim upon which relief may be
granted.
28 U.S.C. § 1915A(a), (b)(1); Leal v. Ga. Dep’t of Corr., 254 F.3d 1276, 1278-79
(11th Cir. 2001).
“To 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, 350 F.3d at
1163 (quoting Leal, 254 F.3d at 1280). Section 1983 has no statute of limitations,
and the limitations period is governed by the forum state’s general personal injury
statute of limitations. Owens v. Okure, 488 U.S. 235, 236, 109 S.Ct. 573, 574, 102
L.Ed.2d 594 (1989). In Georgia, there is a two-year statute of limitations for
personal injury actions. O.C.G.A. § 9-3-33 (1982). Federal law, however,
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determines when the statute of limitations begins to run. Lovett v. Ray, 327 F.3d
1181, 1182 (11th Cir. 2003). The period begins to run “from the date 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.” Brown v. Ga. Bd. of
Pardons & Paroles, 335 F.3d 1259, 1261 (11th Cir. 2003) (internal quotations and
citation omitted).
Here, the district court properly dismissed the complaint. First, on its face,
the complaint was filed outside the two-year limitations period. Although Ross
asserts that he did not know that his claim had accrued until 2005 due to the
conspiracy, that claim is without merit. Even if Ross could not identify the specific
officers involved, he would have known that he was shot in the back by the police
in March 2002, at the time of the incident. Thus, the claim began to accrue in
2002, and the complaint, filed in 2005, was untimely. Moreover, in his complaint,
Ross did not plead any facts indicating why the limitations period should toll, nor
did he raise the issue before the district court when he filed his motion for
reconsideration and amended complaint.
Ross’s argument that the district court should have sua sponte granted him
leave to amend his complaint does not demand a different outcome. In Wagner v.
Daewoo Heavy Industries America Corp., 314 F.3d 541, 542 (11th Cir. 2002) (en
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banc), this court held that a district court was not required sua sponte to grant a
counseled party leave to amend his complaint when no motion to amend was filed.
We recognize that the applicability of the Wagner rule to pro se plaintiffs remains
an open question, but we need not resolve it here. Even if we were to hold that
Wagner does not extend to pro se plaintiffs, the district court still would have
properly dismissed Ross’s complaint without leave to amend because amendment
would have been futile. See Hall v. United Ins. Co. of Am., 367 F.3d 1255, 1262
(11th Cir. 2004) (holding that “denial of leave to amend is justified by futility
when the complaint as amended is still subject to dismissal”). It was clear on the
face of Ross’s complaint that it was filed out-of-time and there were no facts in the
complaint indicating that Ross could avoid the statute-of-limitations bar.
Moreover, Ross submitted an amended complaint with his motion to reconsider
that also failed to plead any facts that could have alerted the court to the possibility
of a tolling argument, even after the district court in its order of dismissal explicitly
stated that Ross’s complaint “made no argument that the statute of limitations
should be tolled or that he was under a disability that prevented him from timely
filing his complaint.” As a result, the district court did not err in failing to grant
Ross leave to amend his complaint, and accordingly, we AFFIRM the district
court’s dismissal of this action.
AFFIRMED.
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