Christian Borda v. Michael Chase, et al.

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-11133
Non-Argument Calendar
________________________
D.C. Docket No. 1:14-cv-24724-MGC
CHRISTIAN BORDA,
Plaintiff-Appellant,
versus
MICHAEL CHASE,
Special Agent of the DEA,
UNKNOWN AGENTS OF THE DEA,
UNKNOWN AGENTS OF THE FBI,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(October 26, 2015)
Before TJOFLAT, WILSON, and MARTIN, Circuit Judges.
PER CURIAM:
Case: 15-11133 Date Filed: 10/26/2015 Page: 1 of 8

-- 1 of 8 --

2
Christian Borda, a prisoner proceeding pro se, appeals the dismissal of his
Bivens action.1 The district court held that Borda’s suit was barred by the
applicable four-year statute of limitations. Borda argues on appeal that the facts
supporting his suit became apparent only during cross-examination of DEA agent
Michael Chase, which took place within the limitations period. After careful
consideration, we affirm.
I.
We review the district court’s grant of a motion to dismiss de novo,
accepting the allegations in the complaint as true. Chappell v. Rich, 340 F.3d
1279, 1282 (11th Cir. 2003) (per curiam). Under 28 U.S.C. § 1915A, federal
courts must screen prisoners’ civil complaints against the government or its
officers, dismissing any suits that are frivolous, malicious, or that fail to state a
claim. 28 U.S.C. § 1915A(a)–(b). Expiration of the applicable statute of
limitations warrants dismissal of a claim as frivolous. Clark v. Ga. Pardons &
Paroles Bd., 915 F.2d 636, 640 n.2 (11th Cir. 1990).
Bivens actions are subject to the same statute of limitations that governs
actions brought under 42 U.S.C. § 1983. Kelly v. Serna, 87 F.3d 1235, 1238 (11th
Cir. 1996). Section 1983 actions are in turn subject to the relevant state’s personal
injury limitations period. See Wilson v. Garcia, 471 U.S. 261, 276, 105 S. Ct.
1 Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 91 S. Ct.
1999 (1971).
Case: 15-11133 Date Filed: 10/26/2015 Page: 2 of 8

-- 2 of 8 --

3
1938, 1947 (1985). Florida’s statute of limitations for personal injury claims is
four years. Chappell, 340 F.3d at 1283. Borda’s Bivens claim is therefore subject
to that four-year clock.
That clock began to run when his cause of action accrued. Federal law
determines when a federal claim accrues. Rozar v. Mullis, 85 F.3d 556, 561 (11th
Cir. 1996). Accrual occurs 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.” Id. at 561–62 (quotation omitted). In other words, the statute of
limitations starts to run when a plaintiff knows or should know that he was injured
and who inflicted that injury. Id. at 562. We must first identify the injury alleged,
and then determine when Borda could have sued for it. Id.
II.
In December 2014, Borda filed a Bivens action against Chase and other
government agents. Borda alleged that (1) Chase unreasonably seized his person
in violation of the Fourth Amendment, and (2) Chase violated his Fifth
Amendment procedural and substantive due process rights by knowingly making
false statements in an affidavit supporting Borda’s extradition from Colombia on
drug trafficking charges. Borda claimed that the falsity of Chase’s statements
became apparent to him only during a Brady hearing2 on December 12, 2011,
2 Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963).
Case: 15-11133 Date Filed: 10/26/2015 Page: 3 of 8

-- 3 of 8 --

4
when Chase was cross-examined about an alleged inconsistency between his field
notes and the extradition affidavit.
The alleged inconsistency was as follows. In ¶ 10 of the extradition
affidavit, dated January 14, 2009, Chase stated that (1) Borda met his co-
conspirators at a restaurant in Mexico to discuss smuggling cocaine into Mexico
and the United States; (2) this meeting was observed by DEA agents; and (3)
Borda agreed to arrange half of the 1,000-kilogram shipment. During cross-
examination at the Brady hearing, Chase testified that the notes on which he based
this extradition affidavit did not specifically say that Borda agreed to smuggle
drugs into the United States. Instead, Chase’s notes read: “Tony3 authorized
Junior4 to move dope to Monterray [sic].5 Tony told [confidential informant] that
he gave trust to Junior and he blew it.” Chase admitted that his statement in the
extradition affidavit interpreted what the informant had told him.
Borda attached to his Bivens complaint a letter from the government to his
attorney, dated June 22, 2010. This letter, titled “RE: Questions in regard to
extradition affidavit,” answered specific queries from Borda’s attorney regarding
the extradition affidavit, including one about ¶ 10.
3 The code name for Borda.
4 The code name for one of Borda’s co-conspirators.
5 Monterrey, Mexico, is a city located relatively near the United States–Mexico border.
Case: 15-11133 Date Filed: 10/26/2015 Page: 4 of 8

-- 4 of 8 --

5
In screening Borda’s case as required by § 1915A, the magistrate judge
recommended that it be dismissed as barred by the four-year statute of limitations.
The magistrate judge noted that Borda based his claim on an allegedly false
affidavit dated January 14, 2009. The latest Borda could possibly have become
aware of the affidavit was June 22, 2010, because the government’s letter to
Borda’s counsel proved that Borda was aware of the affidavit’s contents at that
time, if not earlier. Yet Borda filed his complaint in December 2014, nearly six
years after the affidavit and over four years after the letter.
Borda objected to the magistrate judge’s R&R, arguing he was not actually
aware that his constitutional rights were violated until the December 12, 2011
Brady hearing. However, Borda did not dispute the magistrate judge’s finding that
he was aware of the letter on June 22, 2010. He also acknowledged that he “was
aware of some of the contents of the affidavit,” but claimed he was not aware of
¶ 10’s alleged falsity. The district court adopted the magistrate judge’s R&R and
dismissed Borda’s complaint. This appeal followed.
III.
Borda misconstrues the test for accrual. Whether he was actually aware of
the affidavit’s alleged falsity is only one component of the test. The other is
whether the alleged falsity should have been apparent to a reasonably prudent
person in his situation. See Brown v. Ga. Bd. of Pardons & Paroles, 335 F.3d
Case: 15-11133 Date Filed: 10/26/2015 Page: 5 of 8

-- 5 of 8 --

6
1259, 1261 (11th. Cir 2003) (per curiam) (“What Brown ignores is the fact that the
statute of limitations 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.’ For the purposes of this case the operative phrase is
‘should be apparent.’” (citation omitted)). Borda argues on appeal that “the factual
background of the appellant’s criminal case is entirely too complex,” and nothing
would “arouse the appellant’s suspicion that potentially, one paragraph out of
thousands of documents, was false.” He claims that “the District Court erred in
dismissing the action as time barred by failure to have looked to when the
appellant first realized that he had been injured.” But actual awareness is only half
the test.
Chase’s extradition affidavit issued January 14, 2009. A letter to Borda’s
counsel responding to specific inquiries about the extradition affidavit is dated
June 22, 2010. Both in his objection to the R&R and on appeal, Borda admits that
he was generally aware of the extradition affidavit: “[p]laintiff[]6 acknowledges
that he was aware of some of the contents of the affidavit”; “[t]he letter in question
generally informed the appellant that some of the intercepted wire taps were
recorded, and would be interpreted by the government informant . . .” Borda has
6 In his filings below and on appeal, Borda refers to himself in the third person as “plaintiff” and
“appellant,” respectively.
Case: 15-11133 Date Filed: 10/26/2015 Page: 6 of 8

-- 6 of 8 --

7
never argued that he was unaware of the affidavit’s existence at least as of June 22,
2010—only that he was unaware of its falsity.
The facts supporting Borda’s Bivens claim would have been apparent to a
person with a reasonably prudent regard for his rights as of at least June 22, 2010.
Chase’s allegedly false statement regarding Borda’s drug smuggling activities
occurred in ¶ 10 of the six-page extradition affidavit. Borda acknowledged that he
was generally aware of the affidavit. And as soon as he became aware of the
extradition affidavit, which would have been discoverable to a person with a
reasonably prudent regard for his rights by at least the date of the letter to his
counsel discussing it, Borda should have known that he was injured and who
injured him. See Rozar, 85 F.3d at 562. Assuming that Chase’s statement actually
was false, Borda should have immediately recognized this mischaracterization of
his own activities.
That Borda only later recognized the alleged falsity of ¶ 10 is immaterial to
the accrual test’s second component. Cross-examining Chase at the Brady hearing
may have revealed the reason for the purported falsehood: an inconsistency
between Chase’s field notes and the extradition affidavit. But no such inquiry was
needed to identify the alleged falsehood itself—which is the basis for Borda’s
Bivens claim—or who was responsible for it. The clock on Borda’s claim thus
began to run, at the latest, on June 22, 2010. By that time he should have been
Case: 15-11133 Date Filed: 10/26/2015 Page: 7 of 8

-- 7 of 8 --

8
aware of the affidavit’s contents, even if he was not aware of its alleged falsity.7
Because Borda did not file his complaint until December 2014, it was barred by the
four-year statute of limitations.
Borda’s complaint also included a Fourth Amendment seizure claim, but he
never stated when or how he was actually seized by Chase in violation of his
rights. This claim was not addressed by the magistrate judge or the district court,
and Borda does not challenge that omission or raise the claim on appeal. He has
thus abandoned the issue. See United States v. Cunningham, 161 F.3d 1343, 1344
(11th Cir. 1998).
We conclude that the district court did not err in dismissing Borda’s action
as barred by the statute of limitations.
AFFIRMED.
7 Though we do not reach the merits, Borda’s assertion that he was aware of the extradition
affidavit but failed to recognize its falsehood undermines his claim. He says that “there is no
obvious indication[] on the face of the documents that could have made the appellant . . .
investigate the veracity of paragraph #10 of the extradition affidavit.” But if Chase’s statements
regarding Borda’s conduct were actually false, this falsity should have been immediately obvious
to Borda simply from reading the affidavit. Lies about one’s own conduct—if they are lies—
should jump off the page.
Case: 15-11133 Date Filed: 10/26/2015 Page: 8 of 8

-- 8 of 8 --