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                                                          [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________

                              No. 20-10464
                          Non-Argument Calendar
                        ________________________

                    D.C. Docket No. 1:19-cv-00607-CG-B

DAVID P. PETERSEN, I,
                                                           Plaintiff - Appellant,

versus

ADAM W. OVERSTREET,
Esq.- was AUSDA now with private practice,
GREGORY A. BORDENKIRCHER,
Esq.- Was AUSDA now with Alabama Securities Commission, et. al.,


                                                        Defendants - Appellees,


                        ________________________

                 Appeal from the United States District Court
                    for the Southern District of Alabama
                        ________________________

                                (July 1, 2020)

Before GRANT, LUCK, and LAGOA, Circuit Judges.

PER CURIAM:
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      David Petersen (“Petersen”), a Nebraska resident proceeding pro se and in

forma pauperis, appeals from the dismissal with prejudice of his Bivens 1 action. In

support of the dismissal, the district court made the following two findings: first, that

Petersen’s claims are barred because his conviction has not been invalidated; and

second, that Petersen’s claims are time-barred under Alabama law. Petersen appeals

only the second finding and argues that the district court should have applied

Nebraska law, under which, Petersen asserts, his claims are not time-barred and the

dismissal therefore should be without prejudice.

I.    FACTUAL AND PROCEDURAL HISTORY

      Petersen’s Bivens claims arise out of his 2013 conviction for securities and

wire fraud. Petersen was convicted after a jury trial in the U.S. District Court for the

Southern District of Alabama and sentenced to sixty months’ imprisonment. We

affirmed the conviction and sentence on direct appeal. United States v. Sencan, 629

F. App’x 884, 889–93 (11th Cir. 2015).

      On July 18, 2019, Petersen filed a complaint in the U.S. District Court for the

District of Nebraska against eleven federal officials in their individual capacities.

Petersen asserted Bivens claims for violation of his constitutional and other rights

during his prosecution. The district court found that Nebraska was not a proper




      1
          Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971).



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venue because all of the alleged events giving rise to Petersen’s claims occurred in

Alabama, and transferred the case to the Southern District of Alabama.

      After the transfer, a magistrate judge granted Petersen leave to proceed in

forma pauperis and ordered him to file an amended complaint. Petersen’s amended

complaint asserted, among other things, that the government elicited grand jury

testimony it knew to be false from agents who were committing perjury, withheld

exculpatory evidence at trial and committed perjury to keep that evidence withheld,

and fraudulently obtained a waiver of Petersen’s right to a speedy trial.

      The magistrate judge reviewed the amended complaint under 28 U.S.C.

§ 1915(e)(2)(B) and issued a report and recommendation that the complaint be

dismissed with prejudice for failure to state a claim upon which relief can be granted.

The magistrate judge stated that judgment in favor of Petersen on his Bivens claims

would necessarily implicate the validity of his conviction. Because the conviction

had not been invalidated, Petersen’s claims were not ripe and therefore barred by

Heck v. Humphrey, 512 U.S. 477 (1994), and Abella v. Rubino, 63 F.3d 1063 (11th

Cir. 1995).

      Although cases barred by Heck and Abella are typically dismissed without

prejudice, the magistrate judge recommended that Petersen’s case be dismissed with

prejudice because it was time-barred. Petersen’s complaint asserted that his claims

arose out of misconduct that occurred “from June 2012 to the present,” but the



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magistrate judge found that the alleged misconduct “all relat[ed] directly to the

investigation, trial, and Petersen’s conviction in 2013.”

       Petersen objected to the report and recommendation.                 Among other

objections, he argued that the case should be dismissed without prejudice because it

was unripe and that the statute of limitations should have been tolled during his

incarceration. The district court overruled Petersen’s objections and adopted the

report and recommendation. Specifically, the district court found that Petersen’s

claims would be dismissed with prejudice because Alabama no longer tolls statutes

of limitations during incarceration. This appeal ensued.

II.    STANDARD OF REVIEW

       We review de novo a district court’s dismissal under 28 U.S.C.

§ 1915(e)(2)(B)(ii) for failure to state a claim. Mitchell v. Farcass, 112 F.3d 1483,

1490 (11th Cir. 1997). We further review a district court’s interpretation and

application of statutes of limitations, as well as questions of ripeness, de novo. Ctr.

for Biological Diversity v. Hamilton, 453 F.3d 1331, 1334 (11th Cir. 2006); Elend

v. Basham, 471 F.3d 1199, 1204 (11th Cir. 2006).

III.   DISCUSSION

       On appeal, Petersen does not challenge the district court’s finding that his

claims are barred by Heck and Abella. Instead, his sole argument is that because he

is a Nebraska resident, the district court should have applied Nebraska law, which



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according to Petersen, tolls claims during incarceration, thereby making his suit

timely. Compare Ala. Code § 6-2-8, with Neb. Rev. Stat. § 25-213. But see Gordon

v. Connell, 545 N.W.2d 722, 726 (Neb. 1996) (indicating that “a showing of a

recognizable legal disability, separate from the mere fact of imprisonment, which

prevents a person from protecting his or her rights is required to entitle a prisoner to

have the statute of limitations tolled during imprisonment”).2 Petersen argues that

the dismissal in this case therefore should have been without prejudice.

       A state’s personal injury statute of limitations applies in the context of Bivens

actions. Kelly v. Serna, 87 F.3d 1235, 1238 (11th Cir. 1996). A statute of limitations

begins to run, however, when the cause of action accrues, and when that occurs is a

question of federal law. Uboh v. Reno, 141 F.3d 1000, 1002 (11th Cir. 1998). If a

claim is not ripe, the district court lacks subject-matter jurisdiction, and the claim

should be dismissed without prejudice. Ga. Advocacy Office, Inc. v. Camp, 172 F.3d

1294, 1299 (11th Cir. 1999).

       In Heck, the Supreme Court held that a § 1983 cause of action for damages

attributable to an unconstitutional conviction or sentence does not accrue until the

conviction or sentence has been invalidated. 512 U.S. at 489–90 (1994). This Court

subsequently held that the rule established in Heck applies to Bivens damages


       2
        As discussed below, we need not decide whether Petersen’s claims would be tolled under
Nebraska law, because the claims have yet to accrue.



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claims. See Abella v. Rubino, 63 F.3d 1063, 1065 (11th Cir. 1995). Therefore,

Bivens damages claims that necessarily imply the invalidity of a plaintiff’s

convictions are not ripe when they are brought before the convictions are

invalidated.   Id. at 1065 n.3 (affirming district court’s dismissal “on ripeness

grounds”).

      Following Heck and Abella, in Uboh this Court reversed a district court’s

ruling that the plaintiff’s Bivens claim for malicious prosecution was time-barred.

141 F.3d at 1007. As explained in Uboh, “in order to state a cause of action for

malicious prosecution, a plaintiff must allege and prove that the criminal proceeding

that gives rise to the action has terminated in favor of the accused.” Id. at 1004. A

plaintiff’s claims accrue, and the statute of limitations starts to run, on the date that

favorable termination occurs. Id. at 1006. To hold otherwise would place the

plaintiff “in a double-bind,” where his claim would expire before he could meet

Heck’s requirement of favorable termination. Id. at 1006–07.

        The same is true here. The district court’s first finding that Petersen’s claims

are barred by Heck and Abella is necessarily in conflict with its second finding that

Petersen’s claims are time-barred. Under Heck, Abella, and Uboh, Petersen’s claims

have yet to accrue, and therefore the statute of limitations has not started to run. See

Abella, 63 F.3d at 1066; Uboh, 141 F.3d at 1006. Because Petersen’s claims are

unripe, the complaint must be dismissed without prejudice. We therefore need not



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decide which state’s tolling rules apply, nor whether Petersen’s claims would be

tolled under either state’s rules, since under federal law Petersen’s claims have not

yet accrued. If Petersen’s conviction or sentence is overturned or expunged, only

then will his Bivens claims ripen and the statute of limitations clock start to run. If

that occurs, Petersen is free to file another complaint asserting the same claims.

       Accordingly, we affirm the dismissal of Petersen’s complaint, but vacate the

order of dismissal and remand with instructions for the district court to dismiss the

complaint without prejudice.

      AFFIRMED IN PART, VACATED, AND REMANDED WITH

INSTRUCTIONS.




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