Arnold A. Covington v. Steven Smith, et al

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-12147
Non-Argument Calendar
____________________
ARNOLD A. COVINGTON,
Plaintiff-Appellant,
versus
STEVEN SMITH,
Deputy,
CHRISTOPHER MCHUGH,
Sgt.,
MICHEAL GETTERELLO, JR.,
Deputy,
BOB GUALTIERI,
Sheriff, Pinellas County,
MARION VIERA,
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2 Opinion of the Court 21-12147
Lieutenant, Individual Capacity, Official Capacity,
Defendants-Appellees.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 8:20-cv-02400-TPB-SPF
____________________
Before J ORDAN, NEWSOM , and BRASHER , Circuit Judges.
PER CURIAM:
Arnold Covington, a Florida prisoner, appeals
pro se the dis-
trict court’s
sua sponte dismissal of his civil rights complaint as
time-barred under 28 U.S.C. § 1915A.
Mr. Covington initially filed a complaint under 42 U.S.C.
§ 1983 on October 9, 2020, against various officials from the Pinel-
las County Sheriff’s Office. He later filed a second amended com-
plaint that alleged violations of his Fourth and Fourteenth Amend-
ment rights based on conduct that began in 2014 and led to his ar-
rest. The district court concluded that his complaint was time-
barred under the applicable four-year statute of limitations because
the allegations in his complaint showed that his claims accrued
more than four years before he brought his action, and the statute
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21-12147 Opinion of the Court 3
of limitations was not tolled. After review of the record and Mr.
Covington’s brief, we affirm in part and vacate in part.1
I
Mr. Covington filed his initial § 1983 complaint on October
9, 2020. In his second amended (and operative) complaint, he
stated that he was convicted in state court of drug charges involv-
ing marijuana but acquitted of drug charges involving heroine.
See
D.E. 19 at 4. But he did not indicate whether the marijuana con-
victions were the result of a guilty plea or a jury verdict.
The complaint alleges that in February of 2014, Deputy
Smith stated that he observed Mr. Covington sell suspected heroin
to a confidential informant (CI). However, Deputy Smith was un-
able to find the drugs when he later met with the CI. Instead, an-
other deputy went back to the scene of the sale and returned with
a bag of suspected heroin.
According to Mr. Covington, about a month later Deputy
Smith applied for a “mobile tracking device” and “pen register
1 Mr. Covington filed a motion to supplement the record on June 21, 2022.
The exhibit in question is a portion of a transcript from Mr. Covington’s mo-
tion to suppress hearing on August 21, 2015, before a state court. It appears
from Mr. Covington’s underlining of certain portions of that transcript that he
seeks to introduce this exhibit to support his merits claim that the warrant for
the tracking device was based on certain omissions and misstatements made
by Deputy Steven Smith.
See Motion to Supplement at 15–16. As we do not
reach the merits of Mr. Covington’s claims related to the seizure of the mari-
juana from his home, we deny the motion to supplement as moot.
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device,” misrepresenting that the CI had provided him with the
drugs from the sale. Mr. Covington learned about these alleged
misstatements—which were used to establish probable cause for
the warrant—during Deputy Smith’s deposition.
Mr. Covington claimed that after he was arrested in April of
2014 following an “alleged final control buy” with a CI, officials
from the sheriff’s office threatened him during a custodial inter-
view in which he did not confess, used his car without his consent,
illegally searched his residence without a warrant or consent and
found marijuana and currency, and split his confiscated money.
Mr. Covington also alleged that he was charged with crimes based
on the illegal search and given a jail ID with an alias name.
Mr. Covington alleged that Deputy Smith’s misrepresenta-
tion about the suspected heroin transaction to obtain warrants for
the devices, and the subsequent use of those devices, violated his
Fourth and Fourteenth Amendment rights. He also alleged that
the sheriff’s office officials violated his Fourth and Fourteenth
amendment rights in their treatment of him after his arrest and in
their use of his car, search of his residence, and splitting of his con-
fiscated money. Finally, he posited that being charged based on the
illegal search and given the wrong name violated his Fourteenth
Amendment rights. Mr. Covington requested damages and a de-
claratory judgment that his rights were violated. He also noted
that he “has been and will continue to be held unlawfully” as a re-
sult of the alleged conduct.
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21-12147 Opinion of the Court 5
The defendants did not appear in the district court. The rec-
ord does not indicate whether they were served with process.
The district court
sua sponte dismissed the case with preju-
dice under 28 U.S.C. § 1915A because it was clear from the face of
the complaint that Mr. Covington’s § 1983 claims were time-
barred.
See D.E. 27 at 3–5. The court explained that Mr. Coving-
ton’s claims were governed by Florida’s four-year statute of limita-
tions for personal injury claims. The events Mr. Covington de-
scribed occurred between February and April of 2014, but he did
not file his initial complaint until October 9, 2020. Accordingly, his
claims were barred by the statute of limitations.
See id. at 4. Mr.
Covington timely appealed.
II
We review a district court’s
sua sponte dismissal of a com-
plaint under 28 U.S.C. § 1915A
de novo.
See Leal v. Ga. Dep’t of
Corr., 254 F.3d 1276, 1278 (11th Cir. 2001). Plenary review also ap-
plies to “a district court’s interpretation and application of a statute
of limitations.”
Foudy v. Indian River Cnty. Sheriff’s Off., 845 F.3d
1117, 1122 (11th Cir. 2017). Because Mr. Covington is proceeding
pro se, we liberally construe his pleadings.
See Alba v. Montford,
517 F.3d 1249, 1252 (11th Cir. 2008). But issues not briefed on ap-
peal, even by
pro se appellants, are deemed abandoned.
See Tim-
son v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008).
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III
On appeal, Mr. Covington argues that the district court
erred in dismissing his 42 U.S.C. § 1983 complaint for a number of
reasons. First, he asserts that his injuries were not apparent (and
therefore his claims did not accrue) until the conclusion of his state-
court criminal proceedings (i.e., trial, appeal, and post-conviction).
Second, he contends that he could not have brought his § 1983
claims earlier due to
Heck v. Humphrey, 512 U.S. 477 (1994).
Third, he claims that he was entitled to statutory and equitable toll-
ing. We address each in turn.
A
We begin with Mr. Covington’s argument related to
Heck.
In
Heck, the Supreme Court held that a plaintiff who has been con-
victed cannot bring a claim for damages under § 1983 if “a judg-
ment in [his] favor . . . would necessarily imply the invalidity of his
conviction or sentence[.]” 512 U.S. at 487. Such a plaintiff “must
first achieve favorable termination of his available state, or federal
habeas, opportunities to challenge the underlying conviction or
sentence.”
Muhammad v. Close, 540 U.S. 749, 751 (2004). But
where the § 1983 action, “even if successful, will
not demonstrate
the invalidity of any outstanding criminal judgment . . . , the action
should be allowed to proceed[.]”
Heck, 512 U.S. at 487.
In his complaint, Mr. Covington stated that he had been con-
victed of charges related to marijuana but acquitted of charges re-
lated to heroin.
See D.E. 19 at 5. Because Mr. Covington has no
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21-12147 Opinion of the Court 7
heroin-related conviction,
Heck is not a bar to his claim that Dep-
uty Smith lied about the supposed heroin sales to the CI in his affi-
davit to obtain a warrant for the mobile tracking and pen register
devices.
Heck also is not a bar to Mr. Covington’s claim that the
officials from the sheriff’s office threatened him during a custodial
interrogation. Because the complaint indicates that Mr. Coving-
ton—despite the alleged threats—did not confess, success on the
claim related to the threats would not necessarily demonstrate the
invalidity of his marijuana-based convictions.
See D.E. 19 at 12–14.
The same is true for Mr. Covington’s claim that the police used his
car without his consent, confiscated and divided his money, and
booked him under an alias name.
See Dyer v. Lee, 488 F.3d 876,
884 (11th Cir. 2007) (“[F]or
Heck to apply, it must be the case that
a successful § 1983 suit and the underlying conviction be logically
contradictory.”). In Part B, therefore, we address whether the ap-
plicable statute of limitations bars Mr. Covington’s claims for Dep-
uty Smith’s alleged misstatements about the heroin sales to obtain
a warrant for the mobile tracking and pen register devices; for the
threats during the custodial interrogation; for the use of his car; for
the theft of his currency; and for his booking under an alias name.
There is, however, one claim that
Heck potentially impacts.
That is the claim for the illegal search and seizure at Mr. Coving-
ton’s home. During this search, conducted without a warrant or
consent, Mr. Covington alleges that the police found marijuana at
his home.
See D.E. 19 at 15–17. Because Mr. Covington was con-
victed of marijuana-related charges, it is possible that
Heck bars a
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8 Opinion of the Court 21-12147
claim at this time for the allegedly illegal search and seizure. If Mr.
Covington’s conviction was based on the marijuana found at the
home, a successful § 1983 claim might be “logically contradictory”
with the conviction.
See Dyer, 488 F.3d at 884. Without more
information, and given the district court’s
sua sponte dismissal, we
cannot determine with any certainty whether
Heck bars Mr. Cov-
ington from bringing his illegal search and seizure claim at this
time.
See generally Hughes v. Lott, 350 F.3d 1157, 1160–61 (11th
Cir. 2003) (“Because an illegal search or arrest may be followed by
a valid conviction, . . . a successful § 1983 action for Fourth Amend-
ment search and seizure violations does not necessarily imply the
invalidity of a conviction. . . . In this case, the circumstances sur-
rounding [the plaintiff’s] convictions for burglary and receipt of sto-
len property are unknown from the record. It was impossible,
therefore, for the district court to determine that a successful § 1983
action for unreasonable search and seizure
necessarily implied the
invalidity of those convictions.”).
We therefore vacate the district court’s dismissal of the ille-
gal search and seizure claim and remand for a determination as to
whether
Heck bars Mr. Covington from asserting such a claim at
this time. If it does, that claim should be dismissed without preju-
dice.
B
We now turn to the dismissal of Mr. Covington’s other
claims as untimely. Under 28 U.S.C. § 1915A, a district court must
review a complaint in a civil action in which a prisoner seeks
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21-12147 Opinion of the Court 9
redress from a governmental entity or officer. The complaint must
be dismissed if it fails to state a claim upon which relief may be
granted.
See § 1915A(b)(1). If a prisoner’s allegations in his com-
plaint show that relief is barred by the applicable statute of limita-
tions, the complaint is subject to dismissal for failure to state a via-
ble claim.
See Jones v. Bock, 549 U.S. 199, 215 (2007).
In § 1983 actions, federal courts look to state law to deter-
mine the applicable statute of limitations and statutory tolling
rules.
See Wallace v. Kato, 549 U.S. 384, 394 (2007). The limita-
tions period for a § 1983 claim is governed by the statute of limita-
tions for a personal injury claim in the state where the cause of ac-
tion arose.
See id. at 387. Here, the cause of action arose in Florida,
and the statute of limitations period for Florida personal injury
claims, and thus § 1983 claims, is four years.
See Fla Stat.
§ 95.11(3)(p).
See also Chappell v. Rich, 340 F.3d 1279, 1283 (11th
Cir. 2003) (“Florida's four-year statute of limitations applies to . . .
claims of deprivation of rights under 42 U.S.C. §§ 1983[.]”). Florida
permits statutory tolling in only limited circumstances.
See Fla.
Stat. § 95.051 (setting out scenarios that permit tolling for certain
limitations periods).
Although state law determines the applicable statute of lim-
itation and statutory tolling rules, “[f]ederal law determines when
a federal civil rights claim accrues.”
Rozar v. Mullis, 85 F.3d 556,
561 (11th Cir. 1996). The general federal rule is that a cause of ac-
tion will not accrue until the plaintiff knows or should know “(1)
that [he] ha[s] suffered the injury that forms the basis of [his]
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10 Opinion of the Court 21-12147
complaint and (2) who has inflicted the injury.”
Chappell, 340 F.3d
at 1283. “This [general] rule requires a court first to identify the
alleged injuries, and then to determine when plaintiffs could have
sued for them.”
Rozar, 85 F.3d at 562. The filing date for a § 1983
complaint filed by a
pro se prisoner is the date of delivery to prison
officials for mailing.
See Jeffries v. United States, 748 F.3d 1310,
1314 (11th Cir. 2014).
Here, the district court did not err in dismissing Mr. Coving-
ton’s § 1983 claims for Deputy Smith’s misstatements concerning
the alleged heroin sales to obtain warrants for the mobile tracking
and pen register devices, the threats during the custodial interroga-
tion, the use of the car, the theft of the currency, and the booking
under an alias name. As to those claims, it was clear from Mr. Cov-
ington’s allegations that he knew or should have known about his
injuries at the time they occurred, and those injuries occurred more
than four years before he filed his initial complaint.
See D.E. 19 at
12–18. Mr. Covington filed his initial complaint in October of 2020,
more than six years after the conduct he complained of in these
claims allegedly took place. The limitations period ended in April
2018, and so Mr. Covington’s filing, two years after the limitations
period expired, was untimely.2
2 For example, with respect to his claims related to the warrants for the mobile
tracking and pen register devices, it is clear from the face of the complaint that
Mr. Covington learned of the facts supporting this cause of action during the
deposition of Deputy Smith.
See D.E. 19 at 10. Although he does not identify
the date of the deposition, at the latest it must have occurred before his trial
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21-12147 Opinion of the Court 11
C
Mr. Covington also argues that even if he filed his complaint
outside the limitations period, that period should be tolled. He is
mistaken.
First, Florida law does not permit statutory tolling here.
Prisoner status, the pendency of parallel court proceedings, or the
potential a § 1983 complaint could be barred under
Heck, are not
listed as bases for statutory tolling.
See Fla. Stat. 95.051 (not listing
these reasons as permitting tolling).
Second, Mr. Covington’s reliance on
Bonner v. City of Prich-
ard, 661 F.2d 1206 (11th Cir. 1981) (en banc), is misplaced. In
Bon-
ner, we held that a prisoner’s due process rights were violated
when his § 1983 action was dismissed for limited reasons that did
not include the expiration of the applicable statute of limitations.
See id. at 1212. Mr. Covington cites to one of the magistrate judge’s
reasons in his report and recommendation below—that the gov-
erning statute of limitations would be tolled until Mr. Bonner com-
pleted his sentence—to conclude that his prisoner status tolls the
in September of 2016.
See D.E. 13 at 2. Moreover, the motion to suppress,
which asserted the same challenge to probable cause Mr. Covington now as-
serts in his § 1983 complaint, was filed in April of 2015.
Compare D.E. 13-1 at
11–14 (motion to suppress)
with D.E. 19 at 8–11 (§ 1983 second amended com-
plaint). Assuming the deposition occurred in September of 2016, his initial
complaint—which was filed in October of 2020—was still outside the statute
of limitations period. Using this latest possible timeline, the limitations period
expired in September of 2020.
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12 Opinion of the Court 21-12147
statute of limitations here.
See id. at 1208. But the holding in
Bon-
ner does not rest on this singular, isolated conclusion from the
magistrate judge. On the contrary, we reversed the district court’s
dismissal and noted that there was “no evidence” that Mr. Bonner
“was incapable of effectively pursing his suit” while he remained
incarcerated.
See id. at 1213. Furthermore,
Bonner is a case out of
Alabama, and Mr. Covington must contend with the tolling princi-
ples of Florida.
Third, Mr. Covington is not entitled to equitable tolling. In
§ 1983 cases, the Supreme Court has said that it looks to state law
for tolling rules, just as it does for statute of limitations.
See Kato,
549 U.S. at 394. Florida recognizes equitable tolling in certain cir-
cumstances.
See Machules v. Dep’t of Admin., 523 So. 2d 1132,
1134–37 (Fla. 1988);
FDIC v. Nationwide Equities Corp., 304 So. 3d
1240, 1243–45 (Fla. 3d DCA 2020). Mr. Covington, however, does
not adequately explain why he was prevented from timely filing his
claims. Equitable tolling is therefore not warranted.
IV
The district court did not err in dismissing Mr. Covington’s
§ 1983 claims—with the exception of the illegal search and seizure
claim—as time-barred. As to the illegal search and seizure claim,
we vacate the dismissal and remand for a determination on a more
developed record, whether that claim is currently barred by
Heck.
AFFIRMED IN PART AND VACATED IN PART.
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