             Case: 14-10239    Date Filed: 03/21/2017   Page: 1 of 9


                                                          [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                               No. 14-10239
                         ________________________

                  D.C. Docket No. 8:11-cv-00322-EAK-TBM

HUGH MCGINLEY,
Individually and as Personal Representative
of the Estate of Kevin P. McGinley, Deceased,
GILLIAN MCGINLEY,


                                                Plaintiffs - Appellants
                                                Cross Appellees,


versus

STEPHEN C. MAURIELLO,
MORRIS E. LEGGETT,
JAMES LEE,
CHARLES C. HALL, et al.,


                                                Defendants - Appellees,


DENNIS JETTON,
WAYNE CHALU,
MARK OBER,
RANDY M. SNOW,
DIANE MARTINEZ,
JOHN CZERNIS,
LAURENCE NODA,
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                                                           Defendants – Appellees
                                                           Cross Appellants,


                               ________________________

                     Appeals from the United States District Court
                          for the Middle District of Florida
                            ________________________

                                      (March 21, 2017)

Before TJOFLAT and MARTIN, Circuit Judges, and ROSENTHAL,∗ District
Judge.

PER CURIAM:

       This case comes before us on appeal from a District Court order granting the

defendants’ motion for summary judgment. The District Court granted the motion

on the grounds that the plaintiffs’ claim under 42 U.S.C. § 1983 for denial of

access to courts on an underlying wrongful death claim was barred by the statute of

limitations and that some of the defendants were entitled to qualified immunity.

We affirm the District Court’s order granting summary judgment to the defendants

on statute of limitations grounds and, therefore, do not reach the issue of qualified

immunity.


                                               I.




∗
  Honorable Lee H. Rosenthal, United States District Judge for the Southern District of Texas,
sitting by designation.
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        This case arose in the aftermath of a wrongful death action that the plaintiffs

brought after their son, Kevin McGinley, was struck and killed by United Parcel

Service (UPS) truck on Interstate 275 on February 13, 1998. The plaintiffs filed

their wrongful death action against UPS on February 13, 2002, but it was

dismissed as barred by Florida’s two-year statute of limitations. The reason for the

delay in filing the action was that the Traffic Homicide Investigation Report

authored by Defendant Corporal Dennis E. Jetton of the Florida Highway Patrol

concluded the UPS driver bore no fault for McGinley’s death due to the

circumstances of the incident; however, by 2002 the plaintiffs had come to believe

that Jetton’s report was inaccurate and then filed suit.

        The plaintiffs had initially been unsatisfied with Jetton’s report when it was

released to them on July 21, 1999. By September 12, 2000, after the two-year

statute of limitations on their wrongful death claim had run, 1 the plaintiffs received

a supplement to Jetton’s report from the Florida Highway Patrol, which contained

evidence that conflicted with Jetton’s report. Throughout the year 2000, the

plaintiffs wrote several letters to the Governor of Florida and his administration

expressing their suspicions that Jetton’s conclusions were incorrect and even the

product of criminal wrongdoing. By August 4, 2000, the plaintiffs’ letters asserted

that they had “provided substantial evidence that clearly disproves the conclusions

        1
            The limitations period for the plaintiffs’ wrongful death claim expired on February 13,
2000.
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of Corporal Jetton’s Investigation Report.” Their letters of that year further

referred to the “woeful inadequacy” of Jetton’s report and expressed deep concern

that Jetton remained involved in the investigation. The plaintiffs hired two experts

to independently evaluate the evidence of Kevin McGinley’s death. By

September, 2003, both experts had rendered opinions that there were many

evidentiary inconsistencies, and that Jetton’s conclusions were erroneous.

       By June 18, 2008, the plaintiffs had convinced the Florida Highway Patrol to

conduct an internal investigation of Jetton’s handling of the investigation. The

internal investigation concluded that Jetton had seriously mishandled the

investigation of Kevin McGinley’s death. The report of the internal investigation

was made available to the plaintiffs on April 8, 2009.

       The plaintiffs filed the present action under § 1983 on December 11, 2010

in the Circuit Court for Hillsborough County, Florida, and it was timely removed

to the United States District Court for the Middle District of Florida.2 The

plaintiffs alleged that the defendants had unconstitutionally denied them access to

the courts on their wrongful death claim by misleading them as to the facts

surrounding their son’s death. Their complaint alleged that they had first learned

of the facts giving rise to their cause of action on or after December 11, 2006.

       2
         This is the plaintiffs’ second § 1983 suit arising out of these facts. They filed the
former suit on November 10, 2008 in state court, apparently alleging malicious prosecution. It
was timely removed to federal court before being dismissed on October 12, 2010 on statute of
limitations grounds.
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                                         II.

      We review district court orders granting or denying summary judgment de

novo. Holloman v. Mail-Well Corp., 443 F.3d 832, 836 (11th Cir. 2006). A

district court must grant summary judgment when the movant shows that there is

no genuine issue of material fact and that she is entitled to judgment as a matter of

law. Fed. R. Civ. P. 56(a). An issue of material fact is genuine if a reasonable jury

could return a verdict for the nonmoving party, and, therefore, the nonmoving

party must submit evidence on which a jury could base a decision in its favor.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249–50, 106 S. Ct. 2505, 2510, 91

L. Ed. 2d 202 (1986). The summary judgment determination is based on the

evidence viewed in the light most favorable to the nonmoving party. Holloman,

443 F.3d at 836.

      The limitations period for a § 1983 claim is imported from the relevant state

statute of limitations for personal injury. Wilson v. Garcia, 471 U.S. 261, 275–76

105 S. Ct. 1938, 1946–47, 85 L. Ed. 2d 254 (1985). The applicable limitations

period under Florida’s residual personal injury statute is four years from the time

that the claim accrues. Burton v. City of Belle Glade, 178 F.3d 1175, 1188 (11th

Cir. 1999). A claim accrues under § 1983—as a matter of federal law—when “the

plaintiff knows or has reason to know that he has been injured” and by whom.

Mullinax v. McElhenney, 817 F.2d 711, 716 (11th Cir. 1987). A plaintiff has

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reason to know that she has been injured 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.” Id. (internal quotations omitted).

       A claim under § 1983 for denial of their constitutional right to access courts

has two elements: (1) an underlying cause of action and (2) “official acts

frustrating the litigation” of that underlying cause of action. See Christopher v.

Harbury, 536 U.S. 403, 415, 122 S. Ct.1279, 1287, 153 L. Ed. 2d 413 (2002);

Chappell v. Rich, 340 F.3d 1279, 1282–83 (11th Cir. 2003).

       In this case, the plaintiffs filed their complaint on December 11, 2010, so

their claim is barred if it accrued prior to December 11, 2006 under Florida’s

residual personal injury statute of limitations. See Burton, 178 F.3d at 1188.

There is ample, uncontradicted evidence that the plaintiffs’ claim had accrued long

before the cutoff date, and the District Court correctly concluded that the plaintiffs’

suit was time-barred.3 The plaintiffs clearly believed that Jetton and the Florida

Highway Patrol had not conducted an accurate investigation into their son’s death

by the close of the year 2000. Indeed, they claimed that they had “provided

       3
          The plaintiffs complain on appeal that the District Court erred in granting the
defendants summary judgment on the statute of limitations issue because it only found that
“Plaintiffs possessed facts sufficient to support a wrongful death cause of action against UPS
prior to December 11, 2006.” The plaintiffs are certainly correct that such a finding would not
be sufficient to support summary judgment that the plaintiffs’ § 1983 claim was time-barred.
However, taken in context, it is clear that the District Court meant that the plaintiffs possessed
sufficient facts to support their § 1983 cause of action prior to December 11, 2006. All of the
evidence the District Court’s order recounts in support of its judgment on the statute of
limitations issue goes to the plaintiffs’ § 1983 claim, not their wrongful death claim.
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substantial evidence that clearly disproves the conclusions of Corporal Jetton’s

Investigation Report” by that time. By the close of 2003, the plaintiffs possessed

two expert reports that directly contradicted Jetton’s conclusions and cast serious

doubt on his investigative methods. At this point, the plaintiffs plainly knew or

should have known that Jetton’s report was misleading and they had objective

evidence that the “official acts” of the Florida Highway Patrol’s investigation

“frustrated the litigation” of their wrongful death suit.4 Harbury, 536 U.S. at 415,

122 S. Ct.at 1287. While it is doubtless true, as the plaintiffs point out, that they

lacked the direct evidence of malfeasance that the Florida Highway Patrol’s

internal investigation ultimately revealed, such evidence is not required for a claim

to accrue. The limitations clock begins running when a reasonable person would

know they had a claim, not only when the facts crystalize into a slam-dunk case. 5

See Mullinax, 817 F.2d at 716.



        4
          The plaintiffs repeatedly ask us to discount the evidence on which the District Court
relied in deciding the statute of limitations issue, including their letter-writing campaign and the
expert reports they commissioned. Their arguments, however, are neither credible nor based on
evidence and thus fail to generate a genuine issue of material fact. See Anderson 477 U.S. at
249–50, 106 S. Ct. at 2510.
        5
          The plaintiffs alternatively argue that they are entitled to equitable tolling of the statute
of limitations due to the defendants’ “grossly negligent investigation and supervision of those
investigating, and continual acts to cover up so malfeasance.” Equitable tolling is an
extraordinary remedy available only when unavoidable circumstances beyond the plaintiffs’
control delay filing. Downs v. McNeil, 520 F.3d 1311, 1318–19 (11th Cir. 2008). As we have
seen, the plaintiffs were or should have been aware of facts giving rise to their cause of action at
least by the end of 2003; that they did not receive the direct evidence resulting from the Florida
Highway Patrol’s internal investigation until 2009 hardly justified their waiting over seven
additional years to file their claim.
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         The plaintiffs also argue that their claim was not time-barred because this

was a continuing violation. This contention misses the mark. Our precedents draw

a clear analytical distinction between continuing violations and the continuing

effects of a completed violation; the former extends the limitations period while

the other does not. E.g., Lovett v. Ray, 327 F.3d 1181, 1183 (11th Cir. 2003). The

present case presents an archetypal example of plaintiffs who feel the continuing

effects of a completed violation. The plaintiffs alleged that they were denied

access to courts on their wrongful death claim because Jetton’s Traffic Homicide

Investigation Report erroneously caused them to believe that they had no claim for

wrongful death until after the two-year limitations period on that claim had expired

on February 13, 2000. The alleged violation was thus complete by February 13,

2000 and the violation could not have continued after that date. While there have

since been many events which helped the plaintiffs to realize that this alleged

violation of their rights occurred, none of those acts continued the alleged

underlying violation that denied them access to the courts on their wrongful death

claim.


                                           III.

         In conclusion, the District Court correctly granted the defendants’ motion for

summary judgment on the statute of limitations issue because there was no genuine

issue of material fact as to whether the plaintiffs knew or should have known of the

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facts underlying their § 1983 claim before December 11, 2006, and the defendants

were entitled to judgment as a matter of law.

      AFFIRMED.




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