C. H. Kinsey v. CenturyTel

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-11927
Non-Argument Calendar
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D.C. Docket No. 1:11-cv-00866-MEF-WC
C. H. KINSEY,
Plaintiff-Appellant,
versus
CENTURYTEL,
is now Centurylink,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Alabama
________________________
(September 21, 2012)
Before TJOFLAT, BARKETT and KRAVITCH, Circuit Judges.
PER CURIAM:
C.H. Kinsey, proceeding pro se and in forma pauperis, appeals the district
court’s sua sponte dismissal of his amended complaint for failure to state a claim
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on which relief may be granted, pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).
Kinsey alleges that CenturyTel committed fraud under Alabama state law, based on
his telephone bills documenting phone calls that allegedly CenturyTel cannot prove
that Kinsey made. On appeal, Kinsey argues that the district court erred in finding
that Kinsey failed to plead sufficient facts to constitute fraud. We review the
district court’s dismissal de novo. Mitchell v. Farcass, 112 F.3d 1483, 1488-90
(11th Cir. 1997) (holding that the standards of review under Fed. R. Civ. P.
12(b)(6) apply for dismissals under § 1915(e)(2)(B)(ii)).
In dismissing the complaint, the district court adopted the recommendation
of the magistrate judge who additionally raised concerns that Kinsey’s complaint
was time-barred under Alabama law. See Cambridge Mut. Fire Ins. Co. v. City of
Claxton, Ga., 720 F.2d 1230, 1232 (11th Cir. 1983) (stating that federal courts
must apply state statute of limitations to claims based on diversity jurisdiction).
A claim for fraud, under Alabama law, has a two-year statute of limitations, see
Ala. Code § 6-2-38(l), which begins accruing upon “the discovery by the aggrieved
party of the fact constituting the fraud,” Ala. Code § 6-2-3. Such “discovery is
made when facts become known which provoke inquiry in the mind of a man of
reasonable prudence, and which, if followed up, would have led to a discovery of
the fraud[.]” Ryan v. Charles Townsend Ford, Inc., 409 So. 2d 784, 786 (Ala.
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1981) (quotations and citations omitted).
Here, discovery of the fraud occurred when Kinsey received his telephone
bills in April, May, and June 2009. However, Kinsey did not file his initial
complaint until more than two years later on October 17, 2011. Thus, we hold
that the district court did not err because the statute of limitations barred Kinsey’s
complaint, even assuming that it contained sufficient facts to state a claim.
AFFIRMED.
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