United States District Court, N.D. Florida, Pensacola Division
JOSHUA HULON, Inmate No. 135982 Plaintiff,,
DOZIER SCHOOL FOR BOYS, et al., Defendants.
REPORT AND RECOMMENDATION
ELIZABETH M. TIMOTHY CHIEF UNITED STATES MAGISTRATE JUDGE
cause is before the court on Plaintiff's civil rights
complaint filed under 42 U.S.C. § 1983 (ECF No. 1).
Plaintiff was granted leave to proceed in forma pauperis (ECF
Plaintiff is proceeding in forma pauperis, the court may
dismiss this case if satisfied that the action “(i) is
frivolous or malicious; (ii) fails to state a claim on which
relief may be granted; or (iii) seeks monetary relief against
a defendant who is immune from such relief.” 28 U.S.C.
§ 1915(e)(2)(B). The language in this subsection
“tracks the language of Federal Rule of Civil Procedure
12(b)(6), ” and thus dismissals for failure to state a
claim are governed by the same standard as Rule 12(b)(6).
Mitchell v. Farcass, 112 F.3d 1483, 1490 (11th Cir.
1997). The allegations of the complaint are taken as true and
are construed in the light most favorable to Page 2 of 7
Plaintiff. Davis v. Monroe County Bd. of Educ., 120
F.3d 1390, 1393 (11th Cir. 1997). To survive §
1915(e)(2)(B)(ii), “a complaint must contain sufficient
factual matter, accepted as true, to state a claim to relief
that is plausible on its face.” Ashcroft v.
Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949 (2009)
(quotation and citation omitted). A claim is plausible on its
face where “the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”
Id. (citation omitted). Plausibility means
“more than a sheer possibility that a defendant has
acted unlawfully.” Id. “Where a
complaint pleads facts that are merely consistent with a
defendant's liability, it stops short of the line between
possibility and plausibility of entitlement to relief.”
Id. (quotation and citation omitted). Finally, in
civil rights cases, more than “mere conclusory notice
pleading” is required, and a complaint is subject to
dismissal “as insufficient where the allegations it
contains are vague and conclusory.” Gonzalez v.
Reno, 325 F.3d 1228, 1235 (11th Cir. 2003) (quotation
and citation omitted). Upon review of the complaint, the
court concludes that facts set forth by Plaintiff fail to
state a claim for relief that is plausible on its face.
Dismissal of this action is therefore warranted.
an inmate at Okaloosa Correctional Institution, Plaintiff
alleges that in July of 2006, while in placement at the
Dozier School for Boys, he was beaten, placed in physical
restraints, placed into confinement for three days where he
was ordered to stay in one spot, sit on his hands, and not to
speak under threat of further physical abuse (ECF No. 1 at
6). Plaintiff also alleges that food was
“restricted” from him during this time, though
“most of the time” an empty tray was placed in
front of him (id.). Plaintiff thereby claims a
violation of his rights under the cruel and unusual
punishments clause of the Eighth Amendment, and as relief he
seeks monetary damages (id.).
claims are subject to dismissal because of the passing of the
four-year statute of limitations. “Claims brought
pursuant to 42 U.S.C. § 1983 are subject to the statute
of limitations period governing personal injury actions in
the state where the action is brought.” Wellons v.
Comm'r, Ga. Dep't of Corr., 754 F.3d 1260, 1263
(11th Cir. 2014) (citation omitted); see Owens v.
Okure, 488 U.S. 235, 249-50 (1989) (“We
accordingly hold that where state law provides multiple
statutes of limitations for personal injury actions, courts
considering § 1983 claims should borrow the general or
residual statute for personal injury actions”). In
Florida, “[t]he applicable statute of limitations in a
§ 1983 lawsuit is the four-year Florida state statute of
limitations for personal injuries.” Omar v.
Lindsey, 334 F.3d 1246, 1251 (11th Cir. 2003) (per
curiam) (citations omitted); see also Van Poyck v.
McCollum, 646 F.3d 865, 867 (11th Cir. 2011);
Ellison v. Lester, 275 Fed.Appx. 900, 901 (11th Cir.
the length of the statute of limitations is resolved by
reference to state law, the accrual date of a § 1983
action is governed by federal law. Wallace v. Kato,
549 U.S. 384, 388, 127 S.Ct. 1091, 1095, 166 L.Ed.2d 973
(2007). Under federal law, the limitations period begins to
run when the plaintiff knows or has reason to know “(1)
that [he] ha[s] suffered the injury that forms the basis of
[his] complaint and (2) who has inflicted the injury.”
Chappell v. Rich, 340 F.3d 1279, 1283 (11th
Cir.2003); Brown v. Ga. Bd. of Pardons &
Paroles, 335 F.3d 1259, 1261 (11th Cir.2003) (holding
that the limitations 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”).
Plaintiff was aware of the factual basis for his claims
during 2006, the statute of limitations expired on his claims
several years ago. Plaintiff appears to recognize this, as he
identifies reasons for his delay in bringing this lawsuit.
Primarily, Plaintiff explains that he was sixteen years of
age when he experienced the abuse complained of, and that he
“has been in fear of telling the events that took place
at Dozier School for Boys due to threats made by the officers
involved, saying that if anyone found out ‘you will not
be the only one to suffer'” (ECF No. 1 at 5).
Plaintiff therefore asks that the statute of limitations be
tolled on this basis, apparently for the entire duration
between the incident and the filing of this lawsuit.
tolling of a statute of limitations is an extraordinary
remedy which is applied only in exceptional situations.
See Plaintiff B v. Francis, 2009 WL 10674048, at *2
(N.D. Fla. Nov. 19, 2009) (citing Steed v. Head, 219
F.3d 1298, 1300 (11th Cir. 2005)). Equitable tolling is
generally only available in situations that are both beyond
the plaintiff's control and unavoidable even with the
exercise of due diligence. See Arce v. Garcia, 434
F.3d 1254, 1261 (11th Cir.2006); Lawrence v. Fla.,
421 F.3d 1221, 1226 (11th Cir. 2005). Mental or emotional
incapacity must be shown to have affected one's ability
to file suit. Lewis v. Broward Cty. Sch. Bd., 489
Fed.Appx. 297, 298-99 (11th Cir. 2012). Neither a
plaintiff's status as a pro se litigant nor his ignorance
of the law are grounds for equitable tolling. See
Robinson v. Schafer, 305 Fed.Appx. 629, 630 (11th Cir.
the court appreciates that the alleged incidents would have
had an emotional effect on Plaintiff, he provides only a
conclusory statement that the Defendant officers have
continued to act in a threatening manner toward him, or
otherwise how he would experience that threat onward to the
present day. Nor is there any indication as to how Defendants
could carry out any threat, given that Plaintiff has long
since left the Dozier School and is now incarcerated at a
wholly different institution. See Arce, 434 F.3d at
1264-65 (applying equitable tolling under particularized
limitations provisions of Torture Victim Protection Act and
Alien Tort Claims Act, where Salvadorian refugee plaintiffs
were subjected to legitimate fear of reprisals from the
Salvadoran military which was intent on maintaining its
control at any cost, until the civil war in El Salvador had
ended and the defendants were within the jurisdiction of the
United States courts). Thus, Plaintiff's situation is not
so extraordinary as to warrant the exceptional remedy of
equitable tolling. Therefore, because it is facially clear
that Plaintiff's claims are beyond the statute of
limitations, and because under the facts of this case
equitable tolling should not be applied, the complaint is
subject to dismissal.
it respectfully RECOMMENDED:
the complaint be DISMISSED pursuant to 28
U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim
upon which relief may be granted.
TO THE PARTIES
to these proposed findings and recommendations must be filed
within fourteen (14) days after being served a copy thereof.
Any different deadline that may appear on the electronic
docket is for the court's internal use only, and does not
control. A copy of objections shall be served upon all
other parties. If a party fails to object to the magistrate
judge's findings or recommendations as to any particular
claim or issue contained in a report and recommendation, that
party waives the right to challenge on ...