Nicholson v. Nathan Smoots, S.A.

1

BRUCE MITCHELL NICHOLSON, Plaintiff-Appellant, v. 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.

No. 22-10344

United States Court of Appeals, Eleventh Circuit

March 8, 2023

DO NOT PUBLISH

Appeal from the United States District Court for the Middle District of Alabama D.C. Docket No. 2:18-cv-00681-WKW-JTA

Before WILSON, BRASHER, 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 limitations 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 Chilton County Sheriff's Deputy while on a walk. The deputy asked for Nicholson's name and identification, which Nicholson provided. 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 consent 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 attorney 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. Durango, and the deputy intimidated and compelled him to consent to a buccal swab DNA test using threats and coercion.^[4] Nicholson alleged that he was not read his Miranda rights^[5] 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, including transportation with intent to engage in criminal sexual activity with a minor, traveling interstate to engage in illicit sexual conduct, and child pornography.^[7] In the course of their investigation 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 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 Alabama 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 unlawful 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. III. Violation of his Fifth Amendment right of due process, deprivation of liberty and property without notice or opportunity to be heard;

IV. Violation of his Fifth Amendment privilege against selfincrimination 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 ordered the Government to file a Special Report and Answer. The Government's Special Report implored the Middle District to dismiss 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 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 limitations.

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 criminal case, and the defendants misled him and concealed necessary 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 defendants fraudulently concealed any information or otherwise prevented Nicholson from learning the facts he needed to bring his claims.

Nicholson timely appealed, arguing: (1) that a six-year statute 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 interpretation 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 allegations in the complaint as true and construe them in the light most favorable to the plaintiff. Bingham v. Thomas, 654 F.3d 1171, 1175 (11th Cir. 2011).

This Court holds pro se pleadings, such as Nicholson'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 actions 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 injury actions, the residual personal injury statute of limitations applies 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 limitations 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 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. Chappellv. ...