United States District Court, M.D. Florida, Jacksonville Division
TIMOTHY J. CORRIGAN UNITED STATES DISTRICT JUDGE.
an inmate of the Florida penal system, is proceeding in this
action on a pro se Civil Rights Complaint (Doc. 1)
(Complaint) pursuant to 42 U.S.C. § 1983. Plaintiff
names the Florida Commission on Offender Review (FCOR) as the
defendant. In the Complaint, Plaintiff asserts FCOR
improperly applied guidelines that became effective August 1,
1983, after his convictions and sentences, to determine his
parole release date in violation of his due process rights
under the Fourteenth Amendment and the ex post facto clause
of the United States Constitution. Plaintiff seeks
declaratory and injunctive relief.
the Court is the FCOR's Motion to Dismiss (Doc. 18) (FCOR
Motion) with exhibits (Def. Ex.). Plaintiff filed his
response to the FCOR Motion. See Plaintiff's
Response to Defendant's Motion to Dismiss (Doc. 23)
(Response) with exhibits (Resp. Ex.).
December 30, 1981, Plaintiff entered a negotiated plea of
guilty to burglary of a dwelling with a dangerous weapon and
sexual battery with use of a deadly weapon in the Circuit
Court, Fourth Judicial Circuit in and for Duval County,
Florida. Complaint at 3; Def. Ex. A at 2, 5. On January 29,
1982, the state court sentenced Plaintiff to two consecutive
terms of life imprisonment, Def. Ex. A., making Plaintiff
eligible for parole under the “Objective Parole
Guidelines Act of 1978, or (OPGA).” Complaint at 1.
the OPGA, FCOR must set a Presumptive Parole Release Date
(PPRD) for an inmate and thereafter, if FCOR finds it is
warranted, FCOR sets the inmate's Effective Parole
Release Date (EPRD). On August 1, 1983, new guidelines (1983
Guidelines) were implemented that affected the establishment
of an inmate's EPRD, including the establishment of
extraordinary review procedures.
March 30, 2005, FCOR set Plaintiff's PPRD for August 9,
2007, and scheduled for May 25, 2007, an
“effective” interview with Plaintiff to establish
his EPRD. Id., Def. Ex. I. Plaintiff alleges that at
this interview he presented “satisfactory conduct and a
Parole Release Plan.” Complaint at 5. Nevertheless, on
June 20, 2007, FCOR declined to establish an EPRD for
Plaintiff, and instead scheduled an extraordinary review for
August 8, 2007. Id. at 6, Def. Ex. J, Resp. Ex. D.
After the extraordinary review, at FCOR's meeting on
August 15, 2007, FCOR suspended Plaintiff's PPRD,
declined to establish Plaintiff's EPRD, and scheduled an
extraordinary interview with Plaintiff for March 2012.
Id., Def. Ex. K, Resp. Ex. E. FCOR conducted the
extraordinary interview on March 27, 2012. Id. at 7;
see Def. Ex. L, Resp. Ex. F. Then, on April 25,
2012, FCOR continued Plaintiff's PPRD suspension, again
declined to establish Plaintiff's EPRD, and scheduled a
subsequent extraordinary interview with Plaintiff for January
2019. Id. Plaintiff complains that it was improper
for FCOR to follow the 1983 Guidelines when it suspended his
PPRD, declined to set his EPRD, and followed the
extraordinary review procedures.
argues that Plaintiff's Complaint is
untimely. Specifically, FCOR asserts that the
statute of limitations bars any of Plaintiff's claims
based on actions taken on or before November 5, 2011, four
years before Plaintiff filed his Complaint.
statute of limitations bar is ‘an affirmative defense,
and . . . plaintiff[s] [are] not required to negate an
affirmative defense in [their] complaint.'” La
Grasta v. First Union Sec., Inc., 358 F.3d 840, 845
(11th Cir. 2004) (quoting Tregenza v. Great Am.
Commc'ns Co., 12 F.3d 717, 718 (7th Cir. 1993)).
Thus, at the motion-to-dismiss stage, a “dismissal on
statute of limitations grounds is appropriate only if it is
‘apparent from the face of the complaint' that the
claim is time-barred.” La Grasta, 358 F.3d at
1983 claims “are governed by the forum state's
residual personal injury statute of limitations.”
Burton v. City of Belle Glade, 178 F.3d 1175, 1188
(11th Cir. 1999). In Florida, the applicable limitations
period is four years. Chappell v. Rich, 340 F.3d
1279, 1283 (11th Cir. 2003) (“Florida's four-year
statute of limitations applies to such claims of deprivation
of rights under 42 U.S.C. §§ 1983 and
1985.”); Burton, 178 F.3d at 1188 (same); Fla.
Stat. § 95.11(3)(p). “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.'” Lovett v. Ray, 327 F.3d
1181, 1182 (11th Cir. 2003) (quoting Rozar v.
Mullis, 85 F.3d 556, 561 (11th Cir. 1996)).
the face of Plaintiff's Complaint (and the documents
attached to the FCOR Motion and Plaintiff's Response),
the Court finds that it is untimely. By August 15, 2007,
Plaintiff knew or should have known that FCOR was following
the 1983 Guidelines to suspend his PPRD, withhold his EPRD,
and schedule an extraordinary interview. Yet, Plaintiff
waited until 2015, more than seven years after FCOR's
actions, to file the Complaint. Therefore, to the extent
Plaintiff attempts to assert any claims related to FCOR's
actions up through August 15, 2007, related to the 1983
Guidelines, they are untimely.
Plaintiff's claims related to FCOR's actions in 2012
are also untimely. On August 15, 2007, FCOR suspended
Plaintiff's PPRD, withheld his EPRD, and scheduled an
extraordinary interview for March 2012. FCOR conducted the
extraordinary interview on March 27, 2012. Thereafter, on
April 25, 2012, FCOR decided to continue the suspension of
Plaintiff's PPRD, continue to withhold the establishment
of an EPRD, and schedule a subsequent extraordinary interview
for January 2019. FCOR's actions in 2012 were a
continuation of its actions from 2007 with continued reliance
on the 1983 Guidelines. “Our precedents draw a clear
analytical distinction between continuing violations and the
continuing effects of a completed violation; the former
extends the limitations period while the other does
not”. McGinley v. Mauriello, 682 F. App'x
868, 872 (11th Cir. 2017); see also Brown v. Georgia Bd.
of Pardons & Paroles, 335 F.3d 1259, 1261-62 (11th
Cir. 2003) (“Each time Brown's parole
reconsideration hearing is set, it does not amount to a
distinct and separate injury. Rather, Brown's injury, to
the extent it ever existed, was when the Georgia Parole Board
applied its new policy, eliminating the requirement of parole
review every three years for Brown, retroactively. It is the
decision in 1995 that forms a potential basis for Brown's
claim. It was also at this point that Brown could have
discovered the factual predicate of his claim. The successive