                                                             [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT                       FILED
                         ________________________           U.S. COURT OF APPEALS
                                                              ELEVENTH CIRCUIT
                                                                 September 6, 2006
                               No. 06-11103                    THOMAS K. KAHN
                           Non-Argument Calendar                   CLERK
                         ________________________

                     D. C. Docket No. 05-00044-CV-JTC-3

MILTON ROSS,


                                                               Plaintiff-Appellant,

                                     versus

OFFICER JOEY MICKLE,
LaGrange Ga. Police Department,

                                                              Defendant-Appellee.


                         ________________________

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

                              (September 6, 2006)

Before TJOFLAT, ANDERSON and KRAVITCH, Circuit Judges.

PER CURIAM:

     Milton Ross, a Georgia state prisoner proceeding pro se, appeals the district
court’s dismissal of his civil rights complaint for failure to state a claim under 28

U.S.C. § 1915A because the allegations were barred by the statute of limitations.

We affirm the district court’s decision for the reasons set forth below.

                                           I.

      Ross filed a pro se civil rights complaint under 42 U.S.C. § 1983, alleging

that LaGrange Police Department Officers Joey Mickle and Landy Mabry used

excessive force when Mickle shot Ross in the back on March 21, 2002, resulting in

his being confined to a wheelchair. He further alleged that the officers conspired

to hide the truth of the events. Ross sought $25 million in compensatory damages

and $50 million in punitive damages. The complaint was signed by Ross on May

18, 2005.

      The district court conducted the required screening under the Prison

Litigation Reform Act (“PLRA”), 28 U.S.C. § 1915A, and dismissed the case

because it was barred by the statute of limitations, as it was filed more than two

years after the alleged incident. The district court’s order expressly noted that

Ross’s complaint “made no argument that the statute of limitations should be tolled

or that he was under a disability that prevented him from timely filing his

complaint.”

      Ross moved for reconsideration, explaining that due to his medical status, he



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inadvertently mailed the complaint to state court, which he realized was a mistake

when the complaint was returned to him on May 2, 2005. He claimed that he had

filed the complaint forty-five days earlier. Ross also submitted an amended

complaint with the motion for reconsideration, raising his claims under § 1983 and

the Americans with Disabilities Act. The district court denied the motion, finding

that even if Ross mistakenly mailed the complaint to state court, he had done so in

March 2005, which would still make the complaint untimely. In his notice of

appeal, for the first time, Ross explained that he did not know that he needed to

argue that the limitations period should have tolled.

                                           II.

      On appeal, Ross argues that the district court improperly dismissed his

complaint because (1) he should have been permitted to amend his complaint prior

to the sua sponte dismissal, and (2) the court failed to consider equitable tolling.

According to Ross, had he been permitted to amend, he could have explained why

he was entitled to tolling of the statute of limitations as a result of mental and

physical limitations. Ross then alleges that the officers’ conspiracy prevented him

from learning of the violation and the proper defendants, thus extending the date

on when his action accrued for statute-of-limitations purposes.

      A district court’s dismissal for failure to state a claim under 28 U.S.C.



                                            3
§ 1915A is reviewed de novo, taking the allegations in the complaint as true.

Hughes v. Lott, 350 F.3d 1157, 1160 (11th Cir. 2003). “Pro se pleadings are held

to a less stringent standard than pleadings drafted by attorneys and will, therefore,

be liberally construed.” Id. (citation omitted).

      Under § 1915A, the district court must

      review, before docketing, . . . or, in any event, as soon as practicable
      after docketing, a complaint in a civil action in which a prisoner seeks
      redress from a governmental entity or officer . . . in order to identify
      cognizable claims or dismiss the complaint, or any portion of the
      complaint if it . . . fails to state a claim upon which relief may be
      granted.


28 U.S.C. § 1915A(a), (b)(1); Leal v. Ga. Dep’t of Corr., 254 F.3d 1276, 1278-79

(11th Cir. 2001).

      “To dismiss a prisoner’s complaint as time-barred prior to service, it must

‘appear beyond a doubt from the complaint itself that [the prisoner] can prove no

set of facts which would avoid a statute of limitations bar.’” Hughes, 350 F.3d at

1163 (quoting Leal, 254 F.3d at 1280). Section 1983 has no statute of limitations,

and the limitations period is governed by the forum state’s general personal injury

statute of limitations. Owens v. Okure, 488 U.S. 235, 236, 109 S.Ct. 573, 574, 102

L.Ed.2d 594 (1989). In Georgia, there is a two-year statute of limitations for

personal injury actions. O.C.G.A. § 9-3-33 (1982). Federal law, however,



                                           4
determines when the statute of limitations begins to run. Lovett v. Ray, 327 F.3d

1181, 1182 (11th Cir. 2003). The period begins to run “from the date 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.” Brown v. Ga. Bd. of

Pardons & Paroles, 335 F.3d 1259, 1261 (11th Cir. 2003) (internal quotations and

citation omitted).

      Here, the district court properly dismissed the complaint. First, on its face,

the complaint was filed outside the two-year limitations period. Although Ross

asserts that he did not know that his claim had accrued until 2005 due to the

conspiracy, that claim is without merit. Even if Ross could not identify the specific

officers involved, he would have known that he was shot in the back by the police

in March 2002, at the time of the incident. Thus, the claim began to accrue in

2002, and the complaint, filed in 2005, was untimely. Moreover, in his complaint,

Ross did not plead any facts indicating why the limitations period should toll, nor

did he raise the issue before the district court when he filed his motion for

reconsideration and amended complaint.

      Ross’s argument that the district court should have sua sponte granted him

leave to amend his complaint does not demand a different outcome. In Wagner v.

Daewoo Heavy Industries America Corp., 314 F.3d 541, 542 (11th Cir. 2002) (en



                                           5
banc), this court held that a district court was not required sua sponte to grant a

counseled party leave to amend his complaint when no motion to amend was filed.

We recognize that the applicability of the Wagner rule to pro se plaintiffs remains

an open question, but we need not resolve it here. Even if we were to hold that

Wagner does not extend to pro se plaintiffs, the district court still would have

properly dismissed Ross’s complaint without leave to amend because amendment

would have been futile. See Hall v. United Ins. Co. of Am., 367 F.3d 1255, 1262

(11th Cir. 2004) (holding that “denial of leave to amend is justified by futility

when the complaint as amended is still subject to dismissal”). It was clear on the

face of Ross’s complaint that it was filed out-of-time and there were no facts in the

complaint indicating that Ross could avoid the statute-of-limitations bar.

Moreover, Ross submitted an amended complaint with his motion to reconsider

that also failed to plead any facts that could have alerted the court to the possibility

of a tolling argument, even after the district court in its order of dismissal explicitly

stated that Ross’s complaint “made no argument that the statute of limitations

should be tolled or that he was under a disability that prevented him from timely

filing his complaint.” As a result, the district court did not err in failing to grant

Ross leave to amend his complaint, and accordingly, we AFFIRM the district

court’s dismissal of this action.

      AFFIRMED.


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