Danny Foster, Sr. v. William Guillou, et al

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-13116
Non-Argument Calendar
____________________
DANNY FOSTER, SR.,
Plaintiff-Appellant,
versus
WILLIAM GUILLOU,
Det., individual and official capacity,
SEAN SANDLER,
DUSM, individual and official capacity,
JOHN HAMILTON,
U.S. Marshal, individual and official capacity,
ADAM MILTON,
Chief of Police, individual and official capacity,
JEREMY DUERR,
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2 Opinion of the Court 22-13116
District Attorney, individual and official capacity, et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court
for the Middle District of Alabama
D.C. Docket No. 2:22-cv-00069-MHT-KFP
____________________
Before NEWSOM , BRANCH , and GRANT, Circuit Judges.
PER CURIAM:
Danny Foster, Sr., proceeding pro se, appeals the district
court’s dismissal of his § 1983 and Bivens claims. Because the
district court did not err in dismissing these claims for failure to
state a claim, we affirm.
I.
Foster’s appeal arises from his arrest in February 2013.
Foster was arrested for escaping jail, where he was serving a
sentence for a prior conviction. Foster alleges that, in connection
with his 2013 arrest, officers arrested him and searched his cell
phone, truck, and person, all without a warrant or his consent.
After his 2013 arrest, Foster was immediately ordered to start
serving his initial sentence. He was sentenced again for murder in
November 2017. According to Foster, he wrote the circuit clerk
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22-13116 Opinion of the Court 3
five times a month for ten years requesting a copy of the warrant
for his 2013 arrest, searches, and subsequent imprisonment. Foster
claims he did not receive a response until October 2020, when he
learned that there was never a warrant.
In February 2022, Foster brought claims against the officials
involved with his arrest and sentencing, Detective William
Guillou, Deputy U.S. Marshal Sean Sandler, U.S. Marshal John
Hamilton, Chief of Police Adam Milton, District Attorney Jeremy
Duerr, Circuit Judge Tom F. Young, Investigator Marvin Crayton,
Lieutenant Mike Knowles, Circuit Clerk Chris May, Berry Golden,
Sheriff David Cofield, District Attorney Amy Newsome, and five
unknown federal agents. The magistrate judge construed Foster’s
amended complaint as bringing the following claims under § 1983
and Bivens1: false arrest, unlawful imprisonment, and illegal
searches of his person, truck, and cell phone, all in violation of the
Fourth Amendment; a First Amendment violation for denial of
media access; and conspiracy to violate his constitutional rights.2
The magistrate judge found that Foster’s claims of false arrest,
illegal search, and unlawful imprisonment were untimely given
that they were brought after the statute of limitations period. She
also found that his First Amendment claim was meritless and that
1 This claim originates from Bivens v. Six Unknown Named Agents of Fed. Bureau
of Narcotics, 403 U.S. 388 (1971).
2 Foster also brought a malicious prosecution claim that was dismissed by the
district court. Foster did not challenge this finding and stated that he never
intended to bring this claim. Thus, it will not be reviewed on appeal. See
Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1335 (11th Cir. 2004).
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4 Opinion of the Court 22-13116
his conspiracy allegations were vague and conclusory. The district
court agreed and dismissed Foster’s claims for failure to state a
claim. Foster appeals the dismissal order.3
II.
We review de novo a district court’s sua sponte dismissal for
failure to state a claim and failure to satisfy the statute of
limitations. Karantsalis v. City of Miami Springs, 17 F.4th 1316, 1319
(11th Cir. 2021). A complaint fails to state a claim if, after
disregarding any conclusory allegations, no factual allegations
remain that “plausibly give rise to an entitlement to relief.”
McCullough v. Finley, 907 F.3d 1324, 1333 (11th Cir. 2018) (quoting
Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009)). A complaint also fails to
state a claim if “relief is barred by the applicable statute of
limitations.” Jones v. Bock, 549 U.S. 199, 215 (2007). Pro se
complaints should be construed liberally but still must comply with
the procedural rules. McNeil v. United States, 508 U.S. 106, 113
(1993).
III.
Section 1983 provides a federal cause of action for
constitutional violations by state officials, and Bivens does the same
but for federal officials. Abella v. Rubino, 63 F.3d 1063, 1065 (11th
Cir. 1995). For both, the statute of limitations begins to run when
3 Foster also alleges fraud and violations of his Ninth, Eighth, and Fourteenth
Amendments for the first time on appeal. We disregard these claims as they
are not properly before this Court. See Walker v. Jones, 10 F.3d 1569, 1572 (11th
Cir. 1994).
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22-13116 Opinion of the Court 5
the “cause of action accrues.” Kelly v. Serna, 87 F.3d 1235, 1238–39
(11th Cir. 1996). This is when 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.” Mullinax v. McElhenney,
817 F.2d 711, 716 (11th Cir. 1987) (quotation omitted). State law
governs the length of the statute of limitations for both § 1983 and
Bivens claims. Kelly, 87 F.3d at 1238.
Foster brings claims under § 1983 and Bivens against
Defendants, some of whom are state officials and some of whom
are federal officials. Foster does not clarify exactly which of his
claims apply to which Defendants or which Defendants are state
versus federal officials, and the district court did not make this
distinction either. But because § 1983 applies only to state officials,
and Bivens applies only to federal officials, we construe Foster’s
§ 1983 claims as applying to the state Defendants (whoever they
may be) and his Bivens claims as applying to the federal Defendants
(whoever they may be). This distinction, while helpful to note,
does not ultimately make a difference in the application.
We start first with Foster’s Bivens claims. It is worth noting
that Bivens is not an expansive doctrine. The Supreme Court itself
has recognized the “notable change in the Court’s approach” to
Bivens, so much so that “expanding the Bivens remedy is now a
disfavored judicial activity.” Ziglar v. Abbasi, 582 U.S. 120, 135
(2017) (quotation omitted). Bivens has only been applied in three
specific contexts: a Fourth Amendment search-and-seizure case, a
Fifth Amendment discrimination case, and an Eighth Amendment
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cruel-and-unusual-punishment case. Id. at 130–31. And the
Supreme Court has consistently rejected its application to First
Amendment cases. See, e.g., Bush v. Lucas, 462 U.S. 367, 390 (1983);
Ashcroft, 556 U.S. at 675; Reichle v. Howards, 566 U.S. 658, 663–64
n.4 (2012).
But we need not decide whether Bivens could offer a viable
claim here because even assuming that it does, Foster’s Bivens
claims fail. To start, Foster’s false arrest, illegal search, and
unlawful imprisonment claims were properly dismissed as
untimely. The applicable statute of limitations period under
Alabama law is two years. Ala. Code § 6-2-38(l). Alabama allows
statutory tolling for individuals suffering from certain disabilities,
underrepresented estates, individuals absent from the state, actions
involving nonmerchant mutual accounts, actions stayed by
injunction or statutory prohibition, granting of letters
testamentary or administration, and contracts during war. Id. §§ 6-
2-8 to -14. In addition to statutory tolling, equitable tolling may be
available in rare circumstances when a plaintiff shows “(1) that he
has been pursuing his rights diligently, and (2) that some
extraordinary circumstance stood in his way and prevented timely
filing.” Holland v. Florida, 560 U.S. 631, 649 (2010) (quotation
omitted). Extraordinary circumstances exist where there is some
affirmative misconduct, like deliberate concealment, fraud, or
misinformation. Jackson v. Astrue, 506 F.3d 1349, 1355 (11th Cir.
2007).
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22-13116 Opinion of the Court 7
Foster argues that his false arrest, illegal search, and
unlawful imprisonment claims were not untimely because the
statute of limitations should have been tolled until October 2020,
when he discovered the lack of a warrant. But the failure to
discover this information does not fall under any of Alabama’s
statutory tolling provisions. Nor does it constitute an
“extraordinary circumstance” justifying equitable tolling because
there is no evidence of affirmative misconduct by the circuit clerk;
all Foster alleges is a failure to respond to his requests for a copy of
the warrant.
By the time he was sentenced in November 2017, Foster was
aware of the facts sufficient for his claims. The allegedly illegal
searches and arrest occurred in February 2013, and he was
sentenced in November 2017. Even if he did not know with
certainty until October 2020 that there was no warrant, Foster
clearly suspected as much based on his continuous requests for a
copy of the warrant and thus should have known by November
2017. By waiting until February 2022 to file his initial complaint,
Foster failed to meet the two-year statute of limitations period. His
claims are thus untimely.
Foster’s First Amendment and conspiracy claims were also
properly dismissed. For one, we are skeptical that Bivens applies to
First Amendment claims given the Supreme Court’s treatment of
that topic. See, e.g., Bush, 462 U.S. at 390; Ashcroft, 556 U.S. at 675;
Reichle, 556 U.S. at 663–64 n.4. But even assuming it does, Foster
fails to sufficiently plead a First Amendment violation because he
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does not identify any precedent establishing that an officer
preventing an arrestee’s media access violates the First
Amendment; indeed, the Supreme Court has recognized the
opposite. See Pell v. Procunier, 417 U.S. 817, 823 (1974).
Furthermore, Foster’s conspiracy claim fails because his complaint
broadly asserts only conclusory allegations of a conspiracy and
lacks specific factual allegations. See McCullough, 907 F.3d at 1333.
For the same reasons that Foster’s Bivens claims against the
federal Defendants fail, his § 1983 claims against the state
Defendants fail. The same statute of limitations applies, and thus
Foster’s false arrest, illegal search, and unlawful imprisonment
claims were untimely. See Kelly, 87 F.3d at 1238. Additionally,
Foster’s First Amendment and conspiracy claims fail because, as
discussed, he fails to plead sufficient facts to support them.
* * *
The district court properly dismissed Foster’s claims for
failure to state a claim. Foster’s claims alleging illegal searches,
false arrest, and unlawful imprisonment are untimely, and he failed
to allege sufficient facts to support his First Amendment and
conspiracy claims. We thus AFFIRM the district court’s dismissal.
AFFIRMED.
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