Gustavo Gomez v. State of California

Case: 16-12147 Date Filed: 07/18/2017 Page: 1 of 6

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________

No. 16-12147
Non-Argument Calendar
________________________

D.C. Docket No. 1:15-cv-24483-CMA

GUSTAVO GOMEZ,
Plaintiff is a prisoner of the State of California,
confined by the Florida Dept. of Corrections at Dade
Correctional Institution under the Interstate Compact
Agreement,

Plaintiff-Appellant,

versus

STATE OF CALIFORNIA,
Superior court of California, (County of Ventura),
Case No.: CR22052,

Defendant-Appellee.
Case: 16-12147 Date Filed: 07/18/2017 Page: 2 of 6

________________________

Appeal from the United States District Court
for the Southern District of Florida
________________________

(July 18, 2017)

Before TJOFLAT, WILLIAM PRYOR, and MARTIN, Circuit Judges.

PER CURIAM:

Gustavo Gomez, a California prisoner proceeding pro se, appeals the

dismissal of his 42 U.S.C. § 1983 complaint as barred by the statute of limitations.

After careful review, we affirm.

In 1994, Gomez was convicted in California of second-degree murder. He is

currently serving his sentence in a Florida state prison under an interstate compact

agreement between California and Florida. On November 25, 2015, while in

Florida, Gomez filed a complaint against the State of California and Ventura

County Assistant District Attorney Donald Grant. Gomez alleges the prosecution

never advanced any motive for the murder and that there was insufficient crime

scene evidence to convict him. He also alleges the judge improperly withheld

evidence from the jury, and that the prosecution withheld favorable evidence from

him, both in violation of his due process rights.

2
Case: 16-12147 Date Filed: 07/18/2017 Page: 3 of 6

Due to some deficiencies in Gomez’s complaint, the district court asked him

to file an amended complaint. Gomez did so, alleging the same misconduct with

more specificity. Because Gomez is a prisoner proceeding in forma pauperis

seeking redress from a governmental entity, his complaint was subject to an initial

screening under 28 U.S.C. §§ 1915(e) and 1915A. The magistrate judge who

screened Gomez’s amended complaint recommended it be dismissed for failure to

state a claim, under 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1), because it

was barred by the statute of limitations. After reviewing the magistrate judge’s

report and Gomez’s amended complaint, the district court dismissed Gomez’s

complaint with prejudice because it was barred by the statute of limitations. The

district court found it unclear whether the Florida or California statute of

limitations applied, but further found that Gomez’s complaint was not timely filed

under either state’s law. The district court therefore concluded his complaint was

due to be dismissed. Gomez now appeals that decision.

II.

We review de novo the district court’s decision to dismiss a complaint for

failure to state a claim under § 1915(e)(2)(B)(ii), viewing the allegations in the

complaint as true. Hughes v. Lott, 350 F.3d 1157, 1159–60 (11th Cir. 2003). “The

standards that govern a dismissal under Federal Rule of Civil Procedure 12(b)(6)

apply” to a dismissal under § 1915(e)(2)(B)(ii). Douglas v. Yates, 535 F.3d 1316,

3
Case: 16-12147 Date Filed: 07/18/2017 Page: 4 of 6

1320 (11th Cir. 2008). Dismissal under Rule 12(b)(6) “on statute of limitations

grounds is appropriate if it is apparent from the face of the complaint that the claim

is time-barred.” Gonsalvez v. Celebrity Cruises Inc., 750 F.3d 1195, 1197 (11th

Cir. 2013) (per curiam) (quotation omitted). We review independently “the district

court’s ruling concerning the applicable statute of limitations.” Lovett v. Ray, 327

F.3d 1181, 1182 (11th Cir. 2003) (per curiam) (quotation omitted). This Court also

liberally construes pro se pleadings and briefs, but “issues not briefed on appeal by

a pro se litigant are deemed abandoned.” Timson v. Sampson, 518 F.3d 870, 874

(11th Cir. 2008) (per curiam); see Tannenbaum v. United States, 148 F.3d 1262,

1263 (11th Cir. 1998) (per curiam).

Section 1983 claims are governed by the applicable state’s residual personal

injury statute of limitations. See City of Hialeah v. Rojas, 311 F.3d 1096, 1103 n.2

(11th Cir. 2002). The district court correctly stated that this Court has not yet

decided for § 1983 actions whether to apply the statute of limitations from the

forum state in which the case is brought or instead from the state where the alleged

injury occurred. And again here, we need not reach that issue today. Under either

the Florida or California statute of limitations, Gomez’s complaint was not timely

filed.

In Florida, the relevant statute of limitations is four years. See id.; Fla. Stat.

§ 95.11(3)(p). In California, it is one year. See Canatella v. Van De Kamp, 486

4
Case: 16-12147 Date Filed: 07/18/2017 Page: 5 of 6

F.3d 1128, 1132–33 (9th Cir. 2007) (“[A]ny cause of action . . . more than one-

year old as of January 1, 2003 [is] barred under the previous one-year statute of

limitations.”). In the circumstances of Gomez’s case, we must also apply any

statutory tolling period. See Dukes v. Smitherman, 32 F.3d 535, 537 (11th Cir.

1994) (per curiam). Florida does not allow statutory tolling for prisoners. Fla.

Stat. § 95.051. California law allows for up to two years from the accrual of a

claim that accrued before January 1, 1995. See Johnson v. California, 207 F.3d

650, 654 (9th Cir. 2000) (per curiam). Although both states allow for equitable

tolling, see Williams v. Albertson’s, Inc., 879 So. 2d 657, 659 (Fla. 5th DCA

2004); Fink v. Shedler, 192 F.3d 911, 916 (9th Cir. 1999), Gomez has made no

allegation in his complaint that would justify equitable tolling. Neither has he

raised any equitable tolling argument on appeal. We must therefore view that

argument as abandoned. See Timson, 518 F.3d at 874.

As a result, Gomez had four years under Florida law and up to three years

under California law in which to bring suit. Viewing the allegations in his

complaint as true, the misconduct he complains of occurred leading up to his 1994

conviction. This § 1983 action was not brought until over twenty-one years later,

in 2015. Under either state’s statute of limitations then, Gomez’s complaint is

time-barred. For this reason, we conclude the district court did not err in

5
Case: 16-12147 Date Filed: 07/18/2017 Page: 6 of 6

dismissing Gomez’s complaint for failure to state a claim upon which relief may be

granted under 28 U.S.C. § 1915(e)(2)(B)(ii).

AFFIRMED.