                                                             [DO NOT PUBLISH]


                IN THE UNITED STATES COURT OF APPEALS
                                                                    FILED
                         FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                           ________________________ ELEVENTH CIRCUIT
                                                                APRIL 12, 2006
                                  No. 05-12425                THOMAS K. KAHN
                              Non-Argument Calendar                CLERK
                            ________________________

                    D. C. Docket No. 04-00413-CV-4-MMP-AK

RAYMOND C. MILLER, JR.,


                                                           Plaintiff-Appellant,

                                        versus

WILLIAM A. WOODHAM,
Sheriff of Gadsden County,
GADSDEN COUNTY, FL,
A political subdivision of the State of Florida,


                                                           Defendants-Appellees.

                            ________________________

                    Appeal from the United States District Court
                        for the Northern District of Florida
                          _________________________

                                  (April 12, 2006)

Before ANDERSON, BIRCH and HULL, Circuit Judges.

PER CURIAM:
         Raymond Miller, Jr., a pro se state prisoner, appeals the district court’s

dismissal of his 42 U.S.C. § 1983 civil rights complaint for frivolity pursuant to 28

U.S.C. § 1915(e)(2)(B)(i). On appeal, Miller argues that the district court abused

its discretion by dismissing his complaint as frivolous.

         In October 2004, Miller filed his § 1983 complaint against William A.

Woodham, the Sheriff of Gadsden County, Florida, and Gadsden County, Florida,

itself. Miller’s § 1983 complaint addresses events that occurred in 1996.

Specifically, Miller alleges that on July 7, 1996, the defendants arrested him

without a warrant and detained him for 186 days. Miller contends that he did not

receive a probable cause hearing within 48 hours of arrest, in violation of his

Fourth and Fourteenth Amendment rights.

         Pursuant to the Prisoner Litigation Reform Act (“PLRA”), the district “court

shall dismiss the case at any time if the court determines that . . . (B) the action or

appeal – (i) is frivolous or malicious . . . .” 28 U.S.C. § 1915(e)(2)(B)(i). A

district court’s sua sponte dismissal for frivolity under § 1915(e)(2)(B)(i) is

reviewed for abuse of discretion. Hughes v. Lott, 350 F.3d 1157, 1160 (11th Cir.

2003).

         A § 1983 action brought in Florida is governed by Florida’s four-year

personal injury statute of limitations. See Chappell v. Rich, 340 F.3d 1279, 1283



                                             2
(11th Cir. 2003). Because Miller claimed that he was deprived of his rights in July

1996, he was required to file suit no later than August 2000. He did not file suit,

however, until October 2004.

       “The expiration of the statute of limitations is an affirmative defense the

existence of which warrants a dismissal as frivolous.” Clark v. Ga. Pardons and

Paroles Bd., 915 F.2d 636, 641 n.2 (11th Cir. 1990). “When the defense is

apparent from the face of the complaint or the court’s records, courts need not wait

and see if the defense will be asserted in a defensive pleading.” Id. Therefore,

Miller’s § 1983 complaint was barred by the statute of limitations and was

frivolous. Accordingly, the district court did not abuse its discretion by dismissing

Miller’s complaint under § 1915(e)(2)(B)(i) as frivolous.1

       To the extent Miller requests that his § 1983 complaint be converted to a 28

U.S.C. § 2254 petition, we note that because Miller was never convicted and is not


       1
         Although it appears that the district court relied on Miller’s failure to make material
disclosures on his pleadings regarding previous litigation in dismissing his complaint, “we may
affirm the district court as long as the judgment entered is correct on any legal ground regardless
of the grounds addressed, adopted or rejected by the district court.” Ochran v. United States, 273
F.3d 1315, 1318 (11th Cir. 2001) (citation and quotation marks omitted).
        We also point out that Miller’s brief on appeal does not challenge that part of the district
court’s order which discusses Miller’s prior lawsuits and bars him from filing another civil rights
action in any district court without a showing of imminent danger of serious physical injury and
submission for review prior to filing by a magistrate judge. See Procup v. Strickland, 792 F.2d
1069, 1072 (11th Cir. 1986) (en banc) (holding that a plaintiff “can be severely restricted as to
what he may file and how he must behave in his applications for judicial relief. He just cannot
be completely foreclosed from any access to the court.”). Thus, we do not address that part of
the district court’s order.

                                                 3
confined on the charges he seeks to challenge, § 2254 is not the proper avenue for

relief. See Wilkinson v. Dotson, 544 U.S. 74, ___, 125 S.Ct. 1242, 1245-46

(2005).2

        AFFIRMED.




        2
            Appellant’s motion to dismiss defendant Sheriff William A. Woodham is denied as
moot.

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