Bruce Mitchell Nicholson v. Nathan Smoots, et al.

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-10344
Non-Argument Calendar
____________________
BRUCE MITCHELL NICHOLSON,
Plaintiff-Appellant,
versus
NATHAN SMOOTS,
S.A., in his individual and official capacity,
JOHN J. GEER III,
AUSA, in his individual and official capacity,
ANDRES DURANGO,
An FBI Special Agent,
Defendants-Appellees.
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2 Opinion of the Court 22-10344
____________________
Appeal from the United States District Court
for the Middle District of Alabama
D.C. Docket No. 2:18-cv-00681-WKW-JTA
____________________
Before W ILSON, B RASHER , and TJOFLAT, Circuit Judges.
PER CURIAM:
Bruce Mitchell Nicholson,
pro se, appeals the dismissal of his
Bivens action.
See Bivens v. Six Unknown Named Agents of the
Fed. Bureau of Narcotics, 403 U.S. 388, 91 S. Ct. 1999 (1971). He
argues that the District Court for the Middle District of Alabama
applied the wrong statute of limitations, that the statute of limita-
tions should not have run from the date that officers detained him
and collected a saliva sample because the officers lied to him about
having a valid warrant, and that he was entitled to equitable tolling
because he did not discover the warrant’s invalidity until three
years later. For the reasons discussed below, we affirm.
I.
On March 17, 2015,1 Nicholson was approached by a Chil-
ton County Sheriff’s Deputy while on a walk. The deputy asked
1 The facts of March 17, 2015, appear as stated in Nicholson’s complaint, ex-
cluding the pleadings not entitled to the assumption of truth due to their
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22-10344 Opinion of the Court 3
for Nicholson’s name and identification, which Nicholson pro-
vided. The deputy told Nicholson he was wanted for questioning,
frisked him, placed him in restraints, and transported Nicholson to
his home. Upon arrival, they were met by FBI agents and other
officers, who had searched Nicholson’s home after obtaining con-
sent from his father.2
FBI Special Agent (“S.A.”) Nathan Smoots and another S.A.
questioned Nicholson in the driveway.3 They informed Nicholson
that they were there to gather evidence. According to Nicholson,
he requested to see their search warrant, but it was not provided to
him. He then requested to contact his attorney, but was told that
it would be futile to do so, and that if he wanted to contact his at-
torney he could do it from the county jail where he would be taken
for failing to comply.
Nicholson’s complaint alleged that S.A. Smoots, S.A. Du-
rango, and the deputy intimidated and compelled him to consent
to a buccal swab DNA test using threats and coercion.4 Nicholson
conclusory nature.
See Ashcroft v. Iqbal, 556 U.S. 662, 679, 129 S. Ct. 1937,
1950 (2009).
2 They searched the home to see if Nicholson was present; this was not a
search for evidence.
3 This S.A. was later identified as S.A. Andres Durango.
4 Nicholson claimed he was “intimidated by threat and coercion and an over-
whelming concern for my [83-year old] father’s obvious emotional trauma to
the entire situation.” Complaint, Doc. 1, at 4.
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4 Opinion of the Court 22-10344
alleged that he was not read his Miranda rights5 and was not told
that he could refuse the swab.6
In December 2015, Nicholson was indicted by a federal
grand jury in the Northern District of Alabama on six counts, in-
cluding transportation with intent to engage in criminal sexual ac-
tivity with a minor, traveling interstate to engage in illicit sexual
conduct, and child pornography.7 In the course of their investiga-
tion into Nicholson, the Assistant United States Attorneys (the
“AUSAs”) in the Northern District of Alabama referred a motion
to compel a DNA sample to John Geer III, an AUSA in the Middle
District of Alabama, where Nicholson was living at the time. A
magistrate judge in the Middle District of Alabama issued the order
to compel.8 In August 2018, Nicholson filed a motion to suppress
the DNA evidence obtained by the buccal swab,9 but the District
5
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966).
6 Nicholson was not under arrest at the time and did not have the option to
refuse the buccal swab because the FBI agents had a court order to obtain his
DNA.
7 The criminal case against Nicholson in the Northern District of Alabama is
United States v. Nicholson, No. 2:15-cr-418-MHH-JHE.
8 The DNA sample was used to confirm that Nicholson fathered twins with
his 16-year-old stepdaughter.
9 Nicholson argued that his consent to the buccal swab was not voluntary and
was “illegally coerced through force, threat[,] and intimidation,” and that Ni-
cholson consented, in part, because his father, “who suffer[ed] from Alz-
heimer’s, was panicking and confused and wandering about unsupervised at
the scene,” and Nicholson had a “dire fear that his father would be harmed if
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22-10344 Opinion of the Court 5
Court for the Northern District of Alabama denied that motion. A
jury in the Northern District of Alabama found Nicholson guilty
on all counts in October 2018. He was sentenced to life in prison.10
Prior to his conviction, on July 5, 2018, Nicholson filed a
pro
se complaint in the District Court for the Middle District of Ala-
bama against S.A. Smoots, AUSA Geer, and two John Doe defend-
ants—the other S.A. and the sheriff’s deputy.11 He alleged that the
following six violations of his constitutional rights, based on the
facts above, occurred on March 17, 2015:12
I. Violation of his Fourth Amendment right against unlaw-
ful seizure when he was detained by the deputy and
transported back to his house;
II. Violation of his Sixth Amendment right to counsel when
S.A.s Smoots and Durango did not allow him to contact
his attorney;
left unattended any longer.” Mot. to Suppress, N.D. Ala. CM/ECF, Case No.
2:15-cr-00418-MHH-JHE, Doc. 85 at 2.
10 Nicholson appealed his conviction, which this Court affirmed.
See United
States v. Nicholson, 24 F.4th 1341 (11th Cir. 2022),
cert. denied, 142 S. Ct. 2795
(2022).
11 Nicholson later amended his complaint to replace S.A. John Doe with S.A.
Andres Durango as a defendant in the complaint.
12 Nicholson’s complaint did not mention
Bivens, but the District Court for
the Middle District of Alabama classified the claims as
Bivens claims.
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6 Opinion of the Court 22-10344
III. Violation of his Fifth Amendment right of due process,
deprivation of liberty and property without notice or op-
portunity to be heard;
IV. Violation of his Fifth Amendment privilege against self-
incrimination when he was coerced by S.A.s Smoots and
Durango to produce DNA samples;
V. Violation of his Fourth Amendment right to privacy by
S.A.s Smoots and Durango;
VI. Malicious use of process and abuse of process by S.A.
Smoots and AUSA Geer because the Order to Compel
was issued by the Middle District of Alabama as opposed
to the Northern District of Alabama.13
The District Court for the Middle District of Alabama or-
dered the Government to file a Special Report and Answer. The
Government’s Special Report implored the Middle District to dis-
miss Nicholson’s
Bivens claims for five reasons. As relevant here,
the Government argued that Nicholson’s claims were barred by
the two-year statute of limitations for
Bivens claims in federal court
in Alabama.14 According to the Government, Nicholson’s claims
13 Nicholson claimed that the Northern District of Alabama should have ini-
tiated the Order to Compel because the United States Attorney’s Office was
conducting a grand jury investigation into Nicholson in the Northern District
of Alabama, not the Middle District.
14 Additionally, the Government argued (1) that the District Court for the
Middle District of Alabama lacked personal jurisdiction over S.A. Smoots, S.A.
Durango, and AUSA Greer; (2) that Nicholson’s claims were an improper
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22-10344 Opinion of the Court 7
accrued on March 17, 2015, because that was when he knew of his
injury and who inflicted it. Because Nicholson did not file his
Bivens suit until July 2018, it was barred by the statute of limita-
tions.
Nicholson responded by arguing that although the events
did occur on March 17, 2015, he did not become aware of them
until he was afforded full discovery in his criminal case, which did
not occur until after May 2018. He claimed that it was not until
then that he learned the full extent of his injuries or the names of
defendants Smoots and Greer, and that he did not learn Durango’s
name until June 2019.
The magistrate judge’s report and recommendation
(“R&R”) recommended that the District Court dismiss Nicholson’s
complaint as barred by the statute of limitations. Nicholson filed
objections to the R&R, claiming that, with respect to his unlawful
search and seizure claim, the six-year statute of limitations under
Ala. Code § 6-2-34(1) was the appropriate measure, not the two-
year statute of limitations under § 6-2-38(1). With respect to his
other claims, Nicholson argued that he was entitled to equitable
tolling because he was told the FBI agents had a warrant, he did not
become aware of his injuries until he received discovery in his
collateral attack on his conviction in a criminal case that was on appeal to the
Eleventh Circuit at the time; (3) that Nicholson’s complaint failed to state a
Bivens claim upon which relief could be granted; and (4) that S.A. Smoots, S.A.
Durango, and AUSA Greer were protected by the doctrine of qualified im-
munity.
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8 Opinion of the Court 22-10344
criminal case, and the defendants misled him and concealed neces-
sary information from him.
The District Court found that Nicholson’s objections lacked
merit and adopted the R&R. The Court held that equitable tolling
did not save Nicholson’s claim because his assertion of fraudulent
concealment was conclusory; there were no facts that the defend-
ants fraudulently concealed any information or otherwise pre-
vented Nicholson from learning the facts he needed to bring his
claims.
Nicholson timely appealed, arguing: (1) that a six-year stat-
ute of limitations was appropriate for his search and seizure claim;
(2) that his claims did not accrue until he received full discovery in
his criminal case; and (3) that he was entitled to equitable tolling
because of fraudulent concealment by the defendants.
II.
We review
de novo a district court’s dismissal of a complaint
for failure to satisfy the statute of limitations and the question of
whether equitable tolling applies.
Jackson v. Astrue, 506 F.3d 1349,
1352 (11th Cir. 2007). We also review a district court’s interpreta-
tion and application of the statute of limitations
de novo.
Dotson
v. United States, 30 F.4th 1259, 1264 (11th Cir. 2022). In examining
whether a district court’s dismissal was proper, we accept the alle-
gations in the complaint as true and construe them in the light most
favorable to the plaintiff.
Bingham v. Thomas, 654 F.3d 1171, 1175
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22-10344 Opinion of the Court 9
(11th Cir. 2011). This Court holds
pro se pleadings, such as Nichol-
son’s, to a less stringent standard and liberally construes them.
Id.
Constitutional claims under
Bivens are governed by the
same rules applying state personal injury statutes of limitations to
42 U.S.C. § 1983.
Kelly v. Serna, 87 F.3d 1235, 1238 (11th Cir. 1996).
“All constitutional claims brought under § 1983 are tort actions,
subject to the statute of limitations governing personal injury ac-
tions in the state where the § 1983 action has been brought.”
McNair v. Allen, 515 F.3d 1168, 1173 (11th Cir. 2008). Although
Alabama has “more than one statute of limitations for personal in-
jury actions, the residual personal injury statute of limitations ap-
plies to all actions brought under § 1983.”
Jones v. Preuit &
Mauldin, 876 F.2d 1480, 1482 (11th Cir. 1989). Alabama’s residual
personal injury statute of limitations is two years. Ala. Code
§ 6‑2‑38;
McNair, 515 F.3d at 1173. Accordingly, the statute of lim-
itations for a
Bivens claim filed in Alabama is two years. Ala. Code
§ 6‑2‑38;
McNair, 515 F.3d at 1173;
Jones, 876 F.2d at 1483.
The statute of limitations for a civil rights action begins to
run from the date that the cause of action accrues, which occurs
when “the plaintiff has a complete and present cause of action” and
“can file suit and obtain relief.”
Wallace v. Kato, 549 U.S. 384, 388,
127 S. Ct. 1091, 1095 (2007) (internal quotation marks omitted).
Under the discovery rule, an action accrues 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.”
Rozar
v. Mullis, 85 F.3d 556, 561–62 (11th Cir. 1996) (internal quotation
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10 Opinion of the Court 22-10344
marks omitted). A § 1983 cause of action will only accrue once the
plaintiff knows or should know (1) that he has suffered an injury
that forms the basis of his action and (2) the identity of the person
or entity that inflicted the injury.
Chappell v. Rich, 340 F.3d 1279,
1283 (11th Cir. 2003).
Under the doctrine of equitable tolling, the statute of limita-
tions is paused “when a litigant has pursued his rights diligently,
but some extraordinary circumstance prevents him from bringing
a timely action.”
Fedance v. Harris, 1 F.4th 1278, 1285 (11th Cir.
2021) (internal quotation marks omitted). For fraudulent conceal-
ment to toll the statute of limitations, a plaintiff must show that the
defendant actively, fraudulently, and successfully concealed facts,
leaving the plaintiff ignorant of a potential claim but not merely
ignorant of evidence.
Id. at 1287. “Fraudulent concealment occurs
when a defendant makes affirmative acts or misrepresentations
which are calculated to, and in fact do, prevent the discovery of the
cause of action.”
Id. at 1285.
Nicholson’s first argument that Ala. Code § 6-2-34 is the ap-
propriate statute of limitations for his search and seizure claim lacks
merit. The District Court properly applied the two‑year statute of
limitations, as we have already held that § 6‑2‑38 is the sole statute
of limitations that applies to all Alabama § 1983 claims.
McNair,
515 F.3d at 1173.
Second, the District Court also properly determined that Ni-
cholson’s claim accrued on the day of his arrest. On March 17,
2015, Nicholson was aware that the deputy detained him and that
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22-10344 Opinion of the Court 11
FBI agents seized a saliva sample from him. He could have filed an
action then, because that is when he knew he had suffered an injury
and knew who inflicted that injury. That Nicholson did not know
the names of all the officers involved does not mean he could not
have filed his suit, as evidenced by his filing the initial complaint
without knowing two of the defendants’ names. The statute of
limitations, then, expired on March 17, 2017. Nicholson did not file
his
Bivens claims until July 5, 2018—nearly 16 months after the stat-
ute of limitations expired.
Finally, equitable tolling was not warranted because Nichol-
son did not allege any facts establishing intentional misrepresenta-
tion. Nicholson claimed that the agents lied about having a valid
search warrant, but there is no indication that the agents knew or
reasonably believed that they had an invalid warrant.15 Therefore,
their statement that they had a warrant, or court order, could not
have been a lie intended to mislead Nicholson. Even further, Ni-
cholson’s argument is based on his
belief that the warrant or order
to compel was invalid, and thus the FBI agents lied to him about it.
But no court has ever found it to be invalid.
15 In his complaint, Nicholson alleged that he asked to see the warrant and
that S.A.s Smoots and Durango did not show it to him, not that the S.A.s told
him they had a valid warrant. At Nicholson’s detention hearing, S.A. Durango
testified that he and S.A. Smoots told Nicholson that “he was not under arrest
and [that they] had a [c]ourt order to obtain his DNA.” Detention Hr’g Tr.,
N.D. Ala. CM/ECF, Case No. 2:15-cr-00418-MHH-JHE, Doc. 91-1 at 10:12–13.
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12 Opinion of the Court 22-10344
The District Court did not err in applying the two-year stat-
ute of limitations. It correctly found that the statutes of limitations
for all Nicholson’s claims expired before Nicholson filed his com-
plaint, and it correctly found that equitable tolling was not war-
ranted. The District Court’s order is
AFFIRMED.
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