Carlos H. Henriquez v. Georgia Department of Revenue, et al

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-12567
Non-Argument Calendar
____________________
CARLOS H. HENRIQUEZ,
Plaintiff-Appellant,
versus
GEORGIA DEPARTMENT OF REVENUE,
STATE OF GEORGIA,
COMMISSIONER, GEORGIA DEPARTMENT OF REVENUE,
in their official capacity,
ANN RAINES WILLIAMSON,
JOSHUA K. WAITES, et al.,
Defendants-Appellees.
____________________
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2 Opinion of the Court 21-12567
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 1:20-cv-03901-WMR
____________________
Before J ILL PRYOR , BRANCH, and J ULIE CARNES, Circuit Judges.
PER CURIAM:
Plaintiff, proceeding pro se, appeals the district court’s order
dismissing his Title VII, § 1983, and Privacy Protection Act (“PPA”)
claims as barred by the statute of limitations. Plaintiff also appeals
the district court’s denial of his fourth motion to amend his com-
plaint. Having reviewed the record and the briefing submitted by
the parties, we affirm.
BACKGROUND
This case arises from Plaintiff’s employment with the Geor-
gia Department of Revenue (“Department”). Plaintiff, a natural-
ized United States citizen1 who was born in Colombia, worked as
a revenue agent at the Atlanta regional office of the Department
from December 2010 to May 2016. According to Plaintiff, he was
the “only Hispanic American” out of approximately 45 employees
who worked in the Department’s Atlanta office during that time
frame.
Plaintiff claims he was treated worse than his African Amer-
ican or white coworkers while he worked for the Department, that
1 Plaintiff has legally resided in the United States since 1982.
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21-12567 Opinion of the Court 3
he was terminated in May 2016 in retaliation for filing an EEOC
charge against the Department, that an employee of the Depart-
ment thereafter instigated an unlawful search of his home and sei-
zure of his computer in July 2016, and that he subsequently was
maliciously prosecuted on charges of computer invasion of privacy
based on false sworn statements provided by the same Department
employee. Plaintiff filed the present suit on September 21, 2020,
asserting claims for race and national origin discrimination and re-
taliation in violation of Title VII of the Civil Rights Act of 1964,
claims for unreasonable search and seizure, due process violations,
and malicious prosecution under 42 U.S.C. § 1983, and a claim un-
der the PPA based on Defendant’s search and seizure of work prod-
uct materials from Plaintiff’s computer.
As described in the complaint, Plaintiff’s Title VII discrimi-
nation and retaliation claims are based on his alleged mistreatment
at work beginning on April 30, 2014, when Lisa Meek became his
supervisor, and on his subsequent termination in May 2016. Plain-
tiff claims Meek had negative beliefs about Hispanic people, and
that as a result she treated him less favorably than his coworkers
who were not Hispanic. The alleged mistreatment included verbal
abuse, excessive criticism, unwarranted discipline and reprimands,
and negative performance reviews. Meek supervised Plaintiff until
she was promoted to a regional office manager position in August
2015, at which time Kathleen Campbell undertook Plaintiff’s super-
vision. Plaintiff claims Campbell shared Meek’s unfavorable opin-
ion of Hispanic people, and that she continued the pattern of
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4 Opinion of the Court 21-12567
discriminatory treatment for the remainder of his term of employ-
ment.
Between 2014 and 2016, Plaintiff complained multiple times
to Department EEO manager Veronica Peeples and to human re-
sources director Anne Williamson about Meek and Campbell’s dis-
criminatory conduct. He asserts that his complaints were not in-
vestigated. Plaintiff made several requests to be assigned to a dif-
ferent supervisor or to have Meek and Campbell “recused” from
participating in his performance reviews, but those requests were
denied. Plaintiff’s internal appeals of his reprimands, discipline, and
negative performance reviews also were denied. Plaintiff claims
that he advised EEO manager Peeples in late April 2016 of his deci-
sion to file an EEOC charge concerning the alleged discrimination
and that he was terminated shortly thereafter.
Pertinent to the present Title VII claims, Plaintiff filed an
EEOC charge on June 17, 2016 alleging race and national origin
discrimination and retaliation in violation of Title VII. He
amended the charge on June 22, 2016 to correct errors, and he filed
a second charge on July 6, 2016 to add allegations he had omitted
from the first charge. Plaintiff subsequently received a right to sue
notice from the EEOC dated September 27, 2016, which states:
This will be the only notice of dismissal and of your
right to sue that we will send you. You may file a
lawsuit against the respondent(s) under federal law
based on this charge in federal or state court. Your
lawsuit must be filed WITHIN 90 DAYS of your
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21-12567 Opinion of the Court 5
receipt of this notice; or your right to sue based on
this charge will be lost.
Plaintiff’s PPA claims are based on the search and seizure of
his computer. Plaintiff’s § 1983 claims are based on the search of
his home and seizure of his computer in July 2016 and on his sub-
sequent arrest and prosecution on state criminal charges of com-
puter invasion of privacy. As for the factual basis of these claims,
Plaintiff alleges that Department employee Brian Crisp2 falsely ac-
cused him of using his computer to access confidential financial and
personal information about taxpayers, and that Crisp’s false state-
ments were then used to obtain a search warrant. When the search
warrant was executed on July 1, 2016, officers seized Plaintiff’s
computer and hard drive, which Plaintiff claims contained personal
work product, including music composed by his wife and written
material he and his wife planned to use for a book they were writ-
ing, as well as Plaintiff’s evidentiary notes concerning the discrimi-
nation he experienced while working for the Department. Plaintiff
argues there was no probable cause for the search or for the seizure
of his computer and hard drive.
Plaintiff claims he was unable to secure the return of his
computer until July 30, 2020, despite multiple inquiries to Defend-
ant. According to Plaintiff, the computer was damaged while in
Defendant’s possession and, consequently, he lost his and his wife’s
work product that was stored there.
2 Crisp was an agent with the Department’s Office of Special Investigations.
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About a year after the search and seizure described above,
on April 16, 2017, Plaintiff was arrested. Plaintiff claims he was ar-
rested pursuant to an arrest warrant that was issued based on
Crisp’s false statements made in an affidavit on April 11, 2017. After
his arrest, Plaintiff was taken to the Hall County Jail. He states in
his complaint that he knew from the arresting officer’s statements
and the warrant that he was being arrested for unlawfully obtaining
“taxpayer information with the intention of distributing it.” Plain-
tiff alleges further that he was advised at the jail that his charged
offense was computer invasion of privacy—specifically, unlawfully
accessing taxpayer information with the intent to distribute it.
Plaintiff’s wife posted bond for him on April 16, 2017, the
same day he was arrested, and he was released from jail the next
day. Plaintiff argues he was not released on the same timeline as
non-Hispanic arrestees in the Hall County jail who posted bond.
According to Plaintiff, he was told he could not be released until
jail authorities obtained clearance from US immigration.
A criminal accusation was filed against Plaintiff on Decem-
ber 14, 2017, asserting three counts of computer invasion of privacy
in violation of Georgia law. Although Plaintiff now claims that his
prosecution was not based on probable cause, he acknowledges
that he nonetheless pled guilty to a reduced charge and began serv-
ing his sentence (consisting of one year of probation, a fine, and
community service) on September 19, 2018, which date constitutes
the date that his criminal case is deemed to have concluded for pur-
poses of his § 1983 malicious prosecution claim. Plaintiff asserts
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21-12567 Opinion of the Court 7
that he pled guilty because he was afraid a Hall County jury would
be prejudiced against him on account of his ethnicity and he
wanted to avoid further reprisals by Defendant.
Plaintiff filed the original complaint in this case on Septem-
ber 21, 2020. He subsequently filed an amended complaint, fol-
lowed by the now operative second amended complaint. Defend-
ants moved to dismiss the claims asserted in the second amended
complaint on numerous grounds. Plaintiff responded with mo-
tions to file a third and a fourth amended complaint.3 The motions
were referred to a Magistrate Judge, who issued a Report and Rec-
ommendation (“R&R”) concluding that Plaintiff’s claims should be
dismissed as untimely and his motion to amend denied as futile.
The Magistrate Judge noted in the R&R that Plaintiff’s com-
plaint was filed well beyond the 90-day deadline from the EEOC’s
notice of right to sue applicable under Title VII, more than four
years after the search of his house and seizure of his computer,
more than three years after his arrest and release on bond, and
more than two years after the conclusion of his criminal case. As
such, the Magistrate Judge determined that all of Plaintiff’s claims
were barred under the governing statutes of limitations. Further,
the Magistrate Judge identified no allegations in the complaint that
would support equitable tolling of the limitations period as to any
of Plaintiff’s claims. Finally, the Magistrate Judge concluded that
3 Plaintiff ultimately withdrew his motion to file a third amended complaint
and advised the district court that he was relying solely on his fourth amended
complaint.
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Plaintiff’s proposed third and fourth amendments to the complaint
would be futile because the amendments did not fix the fundamen-
tal statute of limitations issue with his claims.
Plaintiff filed timely objections to the R&R, in which he ar-
gued that he was entitled to equitable tolling because he did not
have access to his evidentiary notes concerning the alleged discrim-
ination after his computer was seized and because, although Plain-
tiff knew he was injured when his home was searched in July 2016
and when he was arrested and prosecuted in 2017 and 2018, he did
not know the cause of the injury until he retrieved certain docu-
ments from his criminal attorney on September 30, 2019. The dis-
trict court overruled Plaintiff’s objections, adopted the Magistrate
Judge’s R&R, and dismissed all of Plaintiff’s claims, explaining that
(1) it was clear from Plaintiff’s complaint that his claims were filed
outside the applicable statutes of limitations and (2) there was no
viable basis for applying equitable tolling as to any of the claims.
The court also denied Plaintiff’s motions to amend his complaint.
Plaintiff appeals the district court’s rulings on the motion to
dismiss and the motion to amend. Regarding the dismissal, Plain-
tiff argues on appeal that equitable estoppel should apply (1) to his
Title VII claims—because he could not file those claims until he
retrieved his computer and evidentiary notes and (2) to his § 1983
claims—because he could not file those claims until he reviewed
certain documents he retrieved from his criminal attorney on Sep-
tember 30, 2019 when he discovered that the July 2016 search of
his home and seizure of his computer, followed by his arrest and
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21-12567 Opinion of the Court 9
prosecution, were premised on false statements. As for his PPA
claim, Plaintiff argues that the limitations period should be four
years, not the two-year period that the magistrate judge applied,
and that this time period should be further extended because of the
COVID pandemic that began in March 2020. Plaintiff also argues
that the district court erred by denying his fourth motion to amend.
We are unpersuaded by these arguments and, for the rea-
sons discussed below, we affirm the district court’s dismissal of
Plaintiff’s claims and its denial of his motion to amend.
DISCUSSION
I. Standards of Review
This Court reviews de novo the district court’s “interpreta-
tion and application of a statute of limitations.” See Foudy v. Indian
River Cnty. Sheriff’s Off., 845 F.3d 1117, 1122 (11th Cir. 2017). When
it is apparent from the face of a complaint that the claims asserted
therein are time-barred, the complaint is subject to dismissal pur-
suant to Rule 12(b)(6). See United States v. Henco Holding Corp., 985
F.3d 1290, 1296 (11th Cir. 2021). We generally review the denial of
a motion to amend for abuse of discretion, “but we review the un-
derlying legal conclusion that an amendment would be futile de
novo.” Wade v. Daniels, 36 F.4th 1318, 1328 (11th Cir. 2022).
II. Dismissal of Plaintiff’s Claims as Time-Barred
As discussed above, Plaintiff’s amended complaint includes
claims for employment discrimination and retaliation asserted un-
der Title VII, § 1983 claims based on various alleged constitutional
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10 Opinion of the Court 21-12567
violations related to a search and seizure conducted at Plaintiff’s
home and Plaintiff’s subsequent arrest and prosecution on charges
of computer violation of privacy, and a PPA claim arising from the
seizure of work product materials on Plaintiff’s computer. For the
reasons discussed below, the district court correctly determined
that all these claims are time-barred and that dismissal of Plaintiff’s
complaint pursuant to Federal Rule 12(b)(6) was thus warranted.
A. Plaintiff’s Title VII Claims
Title VII of the Civil Rights Act of 1964 makes it unlawful
for an employer to discriminate against an employee because of the
employee’s “race . . . or national origin” or to retaliate against an
employee for opposing such discrimination. 42 U.S.C. §§ 2000e-
2(a)(1), 2000e-3(a). To assert a claim under Title VII, a plaintiff first
must file a charge with the EEOC within 180 days of the alleged
discrimination or retaliation. Id. § 2000e-5(e)(1). The EEOC then
has an opportunity to investigate and decide whether to litigate the
charge on the plaintiff’s behalf. See id. § 2000e-5(f)(1). If the EEOC
decides not to litigate the charge, it notifies the plaintiff of that de-
cision in what is commonly referred to as a notice of the plaintiff’s
right to sue. See id. To file a timely Title VII claim, the plaintiff
must file suit within 90 days of receiving the EEOC’s notice. Id.
See also Santini v. Cleveland Clinic Fla., 232 F.3d 823, 825 (11th Cir.
2000) (“Title VII . . . actions may not be brought more than 90 days
after a complainant has adequate notice that the EEOC has dis-
missed the Charge.”).
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21-12567 Opinion of the Court 11
Plaintiff alleges in his complaint that he filed an EEOC
charge in June 2016 and received a notice of right to sue from the
EEOC around the time the notice was issued on September 27,
2016. As noted above, that notice stated in bold print that any law-
suit based on the EEOC charge had to be filed with 90 days of re-
ceipt of the notice. Plaintiff chose to ignore that notice, waiting
almost four years to initiate a lawsuit asserting his Title VII claims,
which action was filed on September 21, 2020. That is well beyond
the 90-day time limit that applies under Title VII. See Santini, 232
F.3d at 825.
It is true that the 90-day limitations period applicable to Title
VII claims can be subject to equitable tolling in an appropriate case.
See id. Equitable tolling is applied sparingly, however, and it re-
quires the plaintiff to show both that he pursued his rights “dili-
gently” and that “some extraordinary circumstance” prevented his
timely filing. Villarreal v. R.J. Reynolds Tobacco Co., 839 F.3d 958, 971
(11th Cir. 2016) (en banc) (quotation marks omitted). Plaintiff’s al-
legations foreclose a finding of diligence here because he admits
that he received the EEOC’s notice of his right to sue shortly after
the notice was issued in September 2016 but that he did not file this
action asserting his Title VII claims until nearly four years later in
September 2020.
Plaintiff nevertheless claims equitable tolling is warranted
because his computer and evidentiary notes had been earlier seized
in July 2016 and because—four months after the expiration of this
90-day deadline to file a lawsuit—he was arrested on charges of
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12 Opinion of the Court 21-12567
computer invasion. But Plaintiff does not explain how either of
those circumstances prevented him from timely asserting his Title
VII claims. Further, Plaintiff undoubtedly was aware of the facts
underlying his Title VII claims because he described those facts in
the EEOC charge he filed in June 2016. He was not required to
submit evidence to support his claims at the pleading stage, and
there is no reason that his civil and criminal cases could not have
proceeded at the same time. See Fed. R. Civ. P. 8(a)(2) (stating that
a complaint should contain a “short and plain statement . . . show-
ing that the pleader is entitled to relief”). Plaintiff’s argument that
he feared retaliation in his criminal case if he filed a Title VII com-
plaint is insufficient to invoke equitable tolling as a matter of law.
See Carter v. West Pub. Co., 225 F.3d 1258, 1266 (11th Cir. 2000)
(“Plaintiffs’ purported fear of retaliation . . . is not a ground for eq-
uitable tolling. Otherwise, the doctrine of equitable tolling would
effectively vitiate the statutory time requirement because an em-
ployee could defer filing indefinitely so long as she had an appre-
hension about possible retaliation.” (citations omitted)).
In short, Plaintiff has not alleged facts showing that he
“pursu[ed] his rights diligently” but was prevented by “some ex-
traordinary circumstance” from asserting his Title VII claims
within the applicable 90-day time period. See Villarreal, 839 F.3d at
971. On the contrary, Plaintiff’s own allegations clearly establish
that he could have filed suit within 90 days of receiving the EEOC’s
September 27, 2016 right to sue notice, but that he simply chose
not to do so. “Equitable tolling is inappropriate when a plaintiff did
not file an action promptly or failed to act with due diligence.” Bost
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21-12567 Opinion of the Court 13
v. Fed. Express Corp., 372 F.3d 1233, 1242 (11th Cir. 2004). That is
the case here.
B. Plaintiff’s § 1983 Claims
Section 1983 provides a cause of action for private citizens
against state actors who violate their constitutional rights. See 42
U.S.C. § 1983. To prevail on a § 1983 claim, a plaintiff must show
(1) that he was deprived of a right secured by the Constitution or
laws of the United States (2) by a person acting under color of state
law. See Focus on the Family v. Pinellas Suncoast Transit Auth., 344
F.3d 1263, 1276–77 (11th Cir. 2003). Constitutional claims brought
under § 1983 “are tort actions, subject to the statute of limitations
governing personal injury actions in the state where the § 1983 ac-
tion has been brought.” Powell v. Thomas, 643 F.3d 1300, 1303 (11th
Cir. 2011) (quotation marks omitted). In Georgia, where Plaintiff
brought this action, the applicable statute provides for a two-year
time period in which to file suit. See O.C.G.A. § 9-3-33.
While federal courts look to state law for the length of the
limitations period, “the time at which a § 1983 claim accrues is a
question of federal law.” McDonough v. Smith, 139 S. Ct. 2149, 2155
(2019) (quotation marks omitted). Under federal law, accrual gen-
erally occurs “when the plaintiff has a complete and present cause
of action.” Id. (quotation marks omitted). Stated another way, a
claim under § 1983 claim accrues “when the plaintiff can file suit
and obtain relief.” Wallace v. Kato, 549 U.S. 384, 388 (2007) (quota-
tion marks omitted). See also Brown v. Ga. Bd. of Pardons & Paroles,
335 F.3d 1259, 1261 (11th Cir. 2003) (explaining that the limitations
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14 Opinion of the Court 21-12567
period on a § 1983 claim begins to run when the “facts supporting
the [claim] are or should be reasonably apparent to the plaintiff”).
As described in the complaint, Plaintiff’s § 1983 claims are
predicated on: (1) an unreasonable search and seizure and due pro-
cess violation that occurred at Plaintiff’s home on July 1, 2016,
(2) Plaintiff’s arrest on April 16, 2017 based on false statements
made by Department employee Crisp a few days prior to the arrest,
(3) an equal protection violation that occurred when Plaintiff was
not immediately released from jail after bond was posted on April
16, 2017, and (4) a malicious prosecution in Plaintiff’s criminal case,
which case concluded on September 19, 2018 when Plaintiff was
sentenced pursuant to a negotiated plea agreement. Each of these
claims has a different accrual date, depending on the type of claim
asserted and the date of the alleged constitutional violation. See
McDonough, 139 S. Ct. at 2156, 2159 (explaining that a § 1983 claim
alleging unlawful arrest accrues when the arrestee is “detained pur-
suant to legal process” while the § 1983 analogue to a malicious
prosecution claim accrues when a criminal proceeding terminates
in the plaintiff’s favor) (quotation marks omitted). But the allega-
tions of the complaint make clear that all of Plaintiff’s § 1983 claims
accrued more than two years prior to September 21, 2020, the date
Plaintiff filed this action. Specifically, the search and seizure about
which Plaintiff complains occurred more than four years prior to
the filing date of the complaint, Plaintiff’s arrest and allegedly de-
layed release from jail occurred more than three years prior to the
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21-12567 Opinion of the Court 15
filing date, and Plaintiff’s criminal case terminated more than two
years prior to this filing date.4
Moreover, Plaintiff’s stated reasons for excusing the tardy
filing of his § 1983 claims do not constitute valid grounds for equi-
tably tolling or for determining that those claims did not accrue
until sometime after the relevant events described above—namely,
the search and seizure in July 2016, Plaintiff’s arrest and the delay
in releasing him from jail in 2017, and Plaintiff’s prosecution in a
criminal case that concluded on September 19, 2018. In support of
his equitable tolling and delayed accrual argument, Plaintiff claims
he did not know about the alleged fraud in connection with the
search and arrest warrants—which issued in 2016 and 2017, respec-
tively, and which resulted in Plaintiff’s criminal prosecution that
concluded in 2018—until he picked up the documents that in-
volved his criminal case from his attorney on September 30, 2019.
As the district court pointed out, Plaintiff fails to identify the docu-
ments he retrieved from his attorney or what the documents
4 An essential prerequisite for a malicious prosecution claim is a showing that
the criminal proceeding has terminated in the plaintiff’s favor. See Luke v. Gul-
ley, 975 F.3d 1140, 1144 (11th Cir. 2020) (noting that a plaintiff must allege fa-
vorable termination to state a claim for malicious prosecution). Here, Plaintiff
ultimately pled guilty to a reduced charge and was sentenced on that charge.
Further, Plaintiff’s complaint does not assert that his criminal proceeding ter-
minated in his favor and, indeed, he acknowledges in his brief before this
Court that his criminal case did not terminate in his favor. Nonetheless, for
purposes of this opinion, and consistent with that same assumption reflected
in the magistrate judge’s R&R and district court’s order, we will likewise as-
sume that Plaintiff’s criminal proceeding terminated in his favor.
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16 Opinion of the Court 21-12567
revealed about the fraud Plaintiff alleges. Nor does Plaintiff explain
why he did not have access to those documents during his criminal
case, or, more obviously, why he did not attempt to retrieve these
documents sooner.
Moreover, Plaintiff’s claim that he did not know about
Crisp’s false accusations until 2019 is belied by the facts asserted in
his complaint. Plaintiff alleges in the complaint that at the time the
search warrant was executed at his home on July 1, 2016, he knew
there was no legal basis for it and that he believed then that the
search was racially motivated and done for the purpose of confis-
cating Plaintiff’s evidentiary notes documenting the discrimination
he experienced while working for the Department. Likewise,
Plaintiff states in the complaint that he knew at the time of his ar-
rest and when the charges were filed against him that the arrest was
unlawful and that he had been charged with crimes he did not com-
mit. Finally, Plaintiff acknowledges in his complaint that it was ex-
plained to him while he was in jail that he was being charged with
“computer invasion” and unauthorized disclosure of confidential
taxpayer information: charges Plaintiff believed at the time to be
false and unwarranted.
As with his Title VII claims, Plaintiff has offered no satisfac-
tory, legally cognizable explanation for his failure to file his § 1983
claims within the applicable statute of limitations. Accordingly, we
affirm the district court’s dismissal of these claims as being time-
barred.
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C. Plaintiff’s PPA Claim
In addition to his Title VII and § 1983 claims, Plaintiff also
claims a violation of the federal Privacy Protection Act, which we
have referred to in this opinion as the PPA. The PPA prohibits
government officers from “search[ing] for or seiz[ing] any work
product materials possessed by a person reasonably believed to
have a purpose to disseminate to the public a newspaper, book,
broadcast, or other similar form of public communication.”
42 U.S.C. § 2000aa(a). Plaintiff argues that Defendants violated the
PPA when, on July 1, 2016, they seized material stored on his com-
puter that he and his wife were intending to publish in a book.
Plaintiff acknowledges that his complaint was untimely as to
this claim if it is deemed to have accrued when his computer was
seized on July 1, 2016 and if the Georgia two-year statute of limita-
tions applicable to personal injury claims applies to his PPA claim.
Instead, he notes that a Georgia statue creating a civil claim for
property damage has a four-year statute of limitations and argues
that because this type of claim is the closest analogue to a PPA
claim, it is this four-year limitation period that should be applied to
his claim. He further argues that his PPA claim should not be
deemed to have accrued on July 1, 2016—the date when his com-
puter was seized—but on September 30, 2019—when he came to
believe that Defendants had committed conspiracy and perjury—
or even later—on January 7, 2021—when he learned that his hard
drive had been destroyed while in Defendants’ custody.
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18 Opinion of the Court 21-12567
Concluding that Plaintiff’s PPA claim had accrued on July
2016—the date his computer was seized—and that the Georgia
two-year statute of limitations applicable to personal injury claims
should be applied to PPA claims, the magistrate judge’s R&R rec-
ommended that the PPA claim be dismissed as time-barred. The
district court subsequently dismissed the PPA claim on this
ground.5 Plaintiff argues on appeal that the district court erred
when it dismissed his PPA claim as time barred, again contending
that a four-year statute of limitations should be applied or, alterna-
tively, that even with a two-year limit, his PPA claim should be
deemed to have accrued later than the date on which his computer
was seized.
We agree with the magistrate judge’s recommendation and
conclude that a PPA cause of action accrued in July 2016, that a
two-year statute of limitations applies to that claim, and that
5 In so ruling, the district court reasoned that it was unnecessary to decide
which statute of limitations applied because the PPA claim was time-barred
under either a four-year or a two-year statute of limitations. It is true that
Plaintiff’s objections to the magistrate judge’s recommended ruling are hardly
a model of clarity and he did not expressly explain in those objections why his
PPA claim would be timely even with a four-year statute of limitation. Nev-
ertheless, in his Objections, he does cite one of his earlier pleadings stating that
it set out his explanation why the PPA claim would be timely were a four-year
statute of limitation to be applied, and he repeats that argument on appeal.
We will thus assume that he has preserved this argument. Further, deciding
which statute of limitations applies to a PPA claim involves in this case a pure
question of law. Accordingly, like the magistrate judge, we proceed to decide
the question which limitation period—the two-year or the four-year period—
should apply to Plaintiff’s PPA claim.
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Plaintiff’s claim filed over four years later greatly exceeded that lim-
itation period, meaning that the district court’s dismissal on timeli-
ness grounds is due to be affirmed.
1. Accrual of the PPA Claim
Federal law governs the accrual of a state statute of limita-
tions when it is borrowed for a federal cause of action.6 See Kelly v.
Serna, 87 F.3d 1235, 1238–39 (11th Cir. 1996) (“Accrual of a cause of
action under 42 U.S.C. § 1983 is a question of federal law.”); Rozar
v. Mullis, 85 F.3d 556, 561 (11th Cir. 1996) (“Federal law determines
when a federal civil rights claim accrues.”); see also 19 Charles Alan
Wright & Arthur R. Miller, Federal Practice and Procedure § 4519 (3d
ed. 2022) (“[F]ederal law usually has been held to govern the time
of a claim’s accrual, regardless of the source of the limitations pe-
riod being applied by the court or the basis of the court’s subject
matter jurisdiction.”).
Further, “[t]he general federal rule is that the statute of lim-
itations 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.” Rozar, 85 F.3d at
561–62 (internal quotation marks omitted and alterations adopted).
Therefore, for a claim to accrue, plaintiffs “must know or have
6 As discussed infra, the PPA having articulated no limitations period, we must
apply the most analogous limitations period from Georgia, which is the state
in which Plaintiff filed his federal lawsuit, as well as the state where the claim
arose.
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20 Opinion of the Court 21-12567
reason to know that they were injured, and must be aware of who
inflicted the injury.” Id. at 562.
Plaintiff argues that even if this Court adopts Georgia’s two-
year personal injury statute of limitations, his PPA claim is still not
time barred because it did not accrue until either September 30,
2019—when Plaintiff began to believe Defendants committed con-
spiracy and perjury—or January 7, 2021, when Plaintiff learned that
Defendants had destroyed a hard drive belonging to him. We find
this argument to be unpersuasive, as Plaintiff acknowledges that he
was aware that state agents had searched his home and seized his
computer at the time the seizure occurred: July 1, 2016.
The act prohibited by the PPA is the unlawful “search[ing]
or seiz[ing]” of work product: an act performed by state actors of
which Plaintiff was well aware at the time it occurred. 42 U.S.C.
§ 2000aa(a). As to the September 30, 2019 date picked by Plaintiff,
that he chose to wait over three years to obtain records from his
attorney that further convinced him of the unlawfulness of the
state actors’ acts does not delay the accrual date of the claim, be-
cause a reasonable person would have known that he was injured
by these state actors at the time of the search and seizure.
Moreover, Plaintiff’s alternative argument that his PPA
claim did not accrue until even later—in 2021—when he discov-
ered that his hard drive had been destroyed also fails to persuade
because a plaintiff does not need to know or “suffer the full extent
of his injury before his cause of action accrues” but rather “a plain-
tiff must know or have reason to know that he was injured to some
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21-12567 Opinion of the Court 21
extent.” Karantsalis v. City of Miami Springs, 17 F.4th 1316, 1323
(11th Cir. 2021). Plaintiff’s awareness of the conduct forming the
basis of his PPA-related injury occurred in July 2016. Therefore,
Plaintiff’s PPA claim accrued at the same time.
2. The Applicable Georgia Statute of Limitations
Plaintiff’s PPA claim having accrued in July 2016, the next
question is what limitations period applies. The PPA makes no
mention of the applicable limitations period. That being so, we
must apply the limitations period in the statute’s closest state-law
analogue.7 See Graham Cnty. Soil & Water Conservation Dist. v.
United States ex rel. Wilson, 545 U.S. 409, 414 (2005) (“To determine
the applicable statute of limitations for a cause of action created by
a federal statute, we first ask whether the statute expressly supplies
a limitations period. If it does not, we generally borrow the most
closely analogous state limitations period.” (quotation marks omit-
ted)).
Defendants argue that the Georgia two-year statute of limi-
tations for actions alleging an injury to the person (O.C.G.A. § 9-3-
7 In Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369, 377–81 (2004), the Su-
preme Court noted that “[e]xcept as otherwise provided by law, a civil action
arising under an Act of Congress enacted after [December 1, 1990] may not be
commenced later than 4 years after the cause of action accrues.” Id. at 372
(quoting 28 U.S.C. § 1658(a)). Thus, for such statutes, a four-year statute of
limitations applies. Because the PPA was not enacted after December 1, 1990,
but instead was enacted ten years earlier—in 1980—§ 1658(a) does not apply,
and we must therefore identify the most analogous state limitations statute.
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22 Opinion of the Court 21-12567
338) should apply to PPA claims. Defendants note that the law is
well-settled that § 1983 claims alleging constitutional violations un-
der the First and Fourth Amendments are subject to the statute of
limitations for personal injury claims in the state where the § 1983
suit has been filed. Given that the PPA’s purpose is to protect the
First and Fourth Amendment rights of a person covered by that
statute, Defendants contend that a PPA claim should be subject to
the same rule.
Plaintiff disagrees, arguing that a Georgia four-year statute
of limitations should apply given that there was “sized work prod-
uct”9 and damage to his property. Plaintiff does not cite to the spe-
cific Georgia statute he proposes, but the Court assumes he means
§ 9-3-32. Section 9-3-32 provides that “[a]ction for the recovery of
personal property, or for damages for the conversion or destruc-
tion of the same, shall be brought within four years after the right
of action accrues.” We agree with Defendants’ position.
To identify the most closely analogous state statute for pur-
poses of borrowing a limitations period, “we first determine the
essential nature” of the federal claim at issue. See Clark v. Coats &
Clark, Inc., 865 F.2d 1237, 1241 (11th Cir. 1989). To assess “the
8 O.C.G.A. § 9-3-33 provides that “actions for injuries to the person shall be
brought within two years after the right of actions accrues ….”
9 The Court assumes that Plaintiff means “seized” work product, but is not
absolutely certain about that as sometimes Plaintiff also uses the word
“seized” in the same paragraph where he repeatedly refers to the property
taken as “sized.”
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21-12567 Opinion of the Court 23
essential nature” of the federal claim for statute of limitations pur-
poses, courts examine the “elements of the cause of action” and
“Congress’ purpose in providing it.” Wilson v. Garcia, 471 U.S. 261,
268 (1985).
As to the elements of the PPA, the statute in pertinent part
provides:
(a) Work product materials
Notwithstanding any other law, it shall be unlawful
for a government officer or employee, in connection
with the investigation or prosecution of a criminal of-
fense, to search for or seize any work product materi-
als possessed by a person reasonably believed to have
a purpose to disseminate to the public a newspaper,
book, broadcast or other similar form of public com-
munication . . . but this provision shall not impair or
affect the ability of any government officer or em-
ployee, pursuant to otherwise applicable law, to
search for or seize such materials, if—
(1) there is probable cause to believe that the per-
son possessing such materials has committed
or is committing the criminal offense to which
the materials relate . . . .
42 U.S.C. § 2000aa(a)(1).
Thus, the PPA makes it unlawful for a government official,
in the course of investigating a possible criminal offense, to look
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24 Opinion of the Court 21-12567
for or seize work product materials that the official reasonably be-
lieves were intended to be disseminated publicly—either in a book,
newspaper, a public broadcast, or the like—unless there is probable
cause to believe that the person possessing the materials has com-
mitted, or is committing, a criminal offense to which the materials
relate.10
Examining these elements of the statute, the PPA is obvi-
ously addressing the interaction of the First and Fourth Amend-
ments in connection with searches conducted during a criminal in-
vestigation that could well satisfy the Fourth Amendment’s re-
quirement that all governmental searches and seizures of an indi-
vidual’s property be reasonable, but that might, at the same time,
implicate a putative publisher’s First Amendment interest in not
having those materials seized absent probable cause to believe that
the latter has some connection to the crime being investigated.
A federal civil claim that a state official has violated one’s
First or Fourth Amendment is typically brought as a § 1983 action.11
10 Here, Defendants, looking for tax records of Georgia citizens that they be-
lieved Plaintiff had wrongfully taken and intended to use for unlawful pur-
poses, conducted a search of his premises, ultimately seizing, perhaps among
other things, Plaintiff’s personal computer. Plaintiff avers that his wife is a
gospel singer and he is minister and that there was work product contained in
the computer relating to those endeavors that he and his wife intended to dis-
seminate publicly.
11 Section 1983 provides for civil liability against any person acting under color
of state law who causes a person to be deprived of “any rights, privileges, or
immunities secured by the Constitution and laws.” 42 U.S.C. § 1983.
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21-12567 Opinion of the Court 25
Indeed, § 1983 is the vehicle generally used to assert the violation
of a plaintiff’s civil rights by a state actor. See Wilson, 471 U.S. at
274 (listing some of the constitutional claims that have been made
pursuant to § 1983). Section 1983, however, does not contain its
own statute of limitations. That being so, in Wilson, the Supreme
Court held that, to identify the statute of limitations applicable to
a § 1983 action, one looks to the statute of limitations used for per-
sonal injury claims in the state where the federal action has been
brought. 471 U.S. at 276.
With his PPA claim here, Plaintiff is likewise asserting—al-
beit indirectly—that a First Amendment right was violated through
Defendants’ seizure of his computer. It makes sense that Plaintiff’s
First Amendment-type claims under the PPA be treated in the
same, way, for statute of limitations purposes, as would a First
Amendment claim brought via § 1983.
Our conclusion that Georgia’s two-year statute of limita-
tions for personal injury claims should be adopted for the PPA is
further supported by “Congress’ purpose in providing” the PPA.
Wilson, 471 U.S. at 268. We have consistently evaluated the pur-
pose of a statute when determining the most analogous limitations
period. See Harrison v. Digital Health Plan, 183 F.3d 1235, 1239 (11th
Cir. 1999) (determining the proper Georgia limitations period to
adopt for the Employee Retirement Income Security Act (ERISA)
by considering Congress’ purpose for enacting it); Clark, 865 F.2d
at 1242 (determining the proper Georgia limitations period to
adopt for Section 510 of ERISA by analyzing the primary purpose
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26 Opinion of the Court 21-12567
of the statute through the use of a United States House of Repre-
sentatives Committee Report).
The purpose behind the PPA, as set forth in the Senate Com-
mittee on the Judiciary’s report, was to afford additional statutory
protection to the First and Fourth Amendment rights of the press
and related groups. See S. Rep. No. 96-874, at 4–5 (1980), reprinted
in 1980 U.S.C.C.A.N. 3950, 3950–51, 1980 WL 13002. Specifically,
Congress expressed its concern regarding the interference with pri-
vacy interests, not property interests, that arose out of the search
and seizure of evidence belonging to those not under investigation.
Id. Notably, Congress explained that the Supreme Court’s decision
in Zurcher v. Stanford Daily, 436 U.S. 547 (1978), upholding the
search and seizure of a student newspaper that was not itself under
investigation of a crime, prompted the enactment of the PPA. Id.
The “historical catalyst” for the PPA further bolsters our conclu-
sion that Georgia’s personal injury statute is the closest state ana-
logue to the PPA. See Wilson, 471 U.S. at 276 (considering the his-
torical catalyst for the Civil Rights Act of 1871 in order to determine
the most closely analogous state limitations period to § 1983). Be-
cause the PPA stemmed from Congress’ decision to enhance civil
rights protections of journalists following Zurcher, it follows that
the historical catalyst for the PPA provides additional support to
our view of the PPA as a statute protecting civil liberties rather than
property interests.
Our sister circuits have described the PPA as a statute pro-
tecting civil liberties rather than narrowly protecting property
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21-12567 Opinion of the Court 27
interests. See In re Young, 141 F.3d 854, 860 (8th Cir. 1998) (describ-
ing the PPA as an example of Congress providing “statutory pro-
tection of individual liberties that exceed the Supreme Court’s in-
terpretation of constitutional protection”); Citicasters v. McCaskill,
89 F.3d 1350, 1355 (8th Cir. 1996) (describing the PPA as a “straight-
forward statutory scheme for protecting those engaged in infor-
mation dissemination from government intrusion”); Guest v. Leis,
255 F.3d 325, 340 (6th Cir. 2001) (noting the PPA’s Fourth Amend-
ment origins). Commentators also share the broader civil-liberties-
centric view of the PPA. See Patricia K. Bellia, Federalization in In-
formation Privacy Law, 118 Yale L.J. 868, 881 (2009) (describing the
PPA as one of “a number of federal information privacy statutes
directly respond[ing] to judicial rulings on the contours of permis-
sible official conduct”); Daniel J. Solove, The First Amendment as
Criminal Procedure, 82 N.Y.U. L. Rev. 112, 130 n.98 (2007) (noting
that “Congress responded to the [First Amendment protection]
problem in the Zurcher case with the Privacy Protection Act”);
Elizabeth B. Uzelac, Note, Reviving the Privacy Protection Act of 1980,
107 Nw. U. L. Rev. 1437, 1457 (2013) (noting “the apparent con-
gressional intent [for the PPA] to protect activities ranging the full
extent of the First Amendment”); Jenny Maynard, Comment, Stop
the Presses: Police Can Arrest Journalists on Their Own Whims with the
Protection of Their Broad Probable Cause Defense to Retaliatory Arrest
Claims, 11 Wake Forest J.L. & Pol’y 757, 760 (2021) (noting that the
Fourth Amendment protection of journalists is “further expanded”
under the Privacy Protection Act).
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28 Opinion of the Court 21-12567
We agree that the historical underpinnings of the PPA sup-
port interpreting the statute as protecting civil liberties rather than
property interests. Plaintiff’s contrary interpretation of the PPA
fails because it asks us to focus too narrowly on the collateral prop-
erty interest at stake in a PPA claim and overlook its broader con-
stitutional context. In Goodman v. Lukens Steel Co., 482 U.S. 656
(1987), the Supreme Court faced a similar state statute of limita-
tions adoption question arising from employees’ racial discrimina-
tion claims under 42 U.S.C. § 1981, among others, against their em-
ployer. The employees argued that the Court should adopt a state
limitations period “applicable to suits for interference with contrac-
tual rights.” Goodman, 482 U.S. at 661. The Court disagreed and
held that § 1981 “has a much broader focus than contractual rights”
and speaks to additional rights including the “personal rights to sue,
to testify, and to equal rights under all laws for the security of per-
sons and property.” Id. For that reason, the Court concluded that
a state personal injury limitations period is appropriate for § 1981
claims. Id. at 661–62. Like the employees’ rebuffed argument in
Goodman, Plaintiff’s reasoning that we should adopt Georgia’s lim-
itations period applicable to property-related torts for PPA claims
fails because it reflects too narrow an exposition of the essential na-
ture of the PPA.
Although the issue of which state limitations period to use
for the PPA has seemingly not been addressed by our sister circuits,
one district court has examined the issue. In Powell v. Tordoff, 911
F. Supp. 1184, 1192 (N.D. Iowa 1995), the United States District
Court for the Northern District of Iowa addressed the question of
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21-12567 Opinion of the Court 29
which Iowa statute of limitations was most closely analogous the
PPA and concluded that “it is apparent from the purpose of the
PPA that the ‘most analogous’ state cause of action is not one for
injuries to property, but one for injuries to personal rights.” Id. Not-
ing the report published by the Senate Committee on the Judiciary
that described the purpose of the PPA and the Zurcher decision, the
court concluded that “[i]t is obvious from this recitation of the pur-
pose of the PPA that Congress’s intent in passing the Act was not
to provide a cause of action for the carrying away of property.” Id.
at 1193. Instead, “Congress’s purpose was to provide special pro-
tections similar to but greater than those afforded by the First and
Fourth Amendments and warrant procedures for the privacy rights
of nonsuspects, particularly the press, in possession of documen-
tary evidence.” Id. We find the Powell court’s reasoning persua-
sive.
The essential nature of the PPA, derived from its plain lan-
guage, purpose, and historical catalyst, is to protect civil liberties.
Under the Supreme Court’s precedent in Wilson, a state’s personal
injury statute provides the closest analogue to a civil rights claim.
Thus, it is the former’s statute of limitations that we should apply
to the PPA, and we do so here by using Georgia’s two-year per-
sonal injury statute of limitations to determine the timeliness of
Plaintiff’s PPA claim. We conclude that Plaintiff’s PPA claim was
untimely and therefore was properly dismissed by the district
court.
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30 Opinion of the Court 21-12567
III. Plaintiff’s Motion to Amend
In addition to the statute of limitations issues discussed
above, Plaintiff argues on appeal that the district court erred by dis-
missing his complaint without giving him an opportunity to
amend. “A district court’s discretion to deny leave to amend a
complaint is severely restricted by [Federal Rule 15], which stresses
that courts should freely give leave to amend when justice so re-
quires.” Woldeab v. DeKalb Cnty. Bd. of Educ., 885 F.3d 1289, 1291
(11th Cir. 2018) (quotation marks and citation omitted). “Where a
more carefully drafted complaint might state a claim, a plaintiff
must be given at least one chance to amend the complaint before
the district court dismisses the action with prejudice.” Id. (quota-
tion marks omitted). However, a district court need not allow an
amendment that would be futile. See Garcia v. Chiquita Brands Int’l,
Inc., 48 F.4th 1202, 1220 (11th Cir. 2022).
Plaintiff claims that his fourth amended complaint was “bet-
ter organized and more concise” than his second amended com-
plaint, and he argues that the district court abused its discretion by
denying his motion to amend. But Plaintiff amended his complaint
two times—once as of right and once with the permission of the
court—before he filed the fourth motion to amend that is at issue
in this appeal. And, as the district court correctly recognized, Plain-
tiff’s amendment would have been futile because his fourth
amended complaint includes essentially the same allegations as his
second amended complaint and it does not fix the fundamental
problem with his claims: they all are barred by the applicable
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21-12567 Opinion of the Court 31
statute of limitations. Accordingly, the district court did not abuse
its discretion by denying Plaintiff’s motion to amend.
CONCLUSION
For the reasons stated above, we AFFIRM the district
court’s order dismissing Plaintiff’s claims as untimely and denying
his motion to file a fourth amendment complaint as futile.
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