           Case: 19-13457   Date Filed: 04/06/2020   Page: 1 of 8



                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 19-13457
                        Non-Argument Calendar
                      ________________________

                 D.C. Docket No. 4:19-cv-00111-RH-HTC



DOYE L. HEARD,

                                                           Plaintiff-Appellant,

                                 versus

PUBLIX SUPERMARKETS INC,
NEW LEAF MARKETS INC,

                                                        Defendants-Appellees.

                      ________________________

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

                             (April 6, 2020)

Before WILSON, LAGOA and ANDERSON, Circuit Judges.

PER CURIAM:
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      Doye Heard (“Heard”), a prisoner proceeding pro se, appeals the district

court’s sua sponte dismissal of his action filed under 42 U.S.C. § 1983 for

violations of the First, Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments, as

well as his state law claims of fraud against Publix Supermarkets, Inc., and New

Leaf Markets, Inc. On appeal, Heard raises the following two arguments: (1) that

the district court failed to consider the claims raised in his Amended Complaint;

and (2) that the district court erred in sua sponte dismissing his Amended

Complaint for failure to state a claim on which relief may be granted because it

erroneously concluded that his claims were untimely. For the reasons discussed

below, we find Heard’s arguments without merit and affirm the district court’s

dismissal.

                                          I.

      We review a district court’s decision regarding leave to amend a complaint

for an abuse of discretion but review questions of law de novo. Williams v. Bd. of

Regents of Univ. Sys. of Ga., 477 F.3d 1282, 1291 (11th Cir. 2007). “Pro se

pleadings are held to a less stringent standard than pleadings drafted by attorneys

and will, therefore, be liberally construed.” Tannenbaum v. United States, 148

F.3d 1262, 1263 (11th Cir. 1998).

      A party may amend his or her pleading once as a matter of course “within 21

days after serving it” or, “if a responsive pleading is required, within 21 days after


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service of a responsive pleading or motion under Rule 12(b), (e), or (f) [of the

Federal Rules of Civil Procedure], whichever is earlier.”          Fed. R. Civ. P.

15(a)(1)(A)-(B). “In all other cases, a party may amend its pleading only with the

opposing party’s written consent or the court’s leave.” Fed. R. Civ. P. 15(a)(2).

Leave to amend under Rule 15(a) should be freely given where the “underlying

facts or circumstances relied upon by a plaintiff may be a proper subject of relief.”

Hall v. United Ins. Co. of Am., 367 F.3d 1255, 1262 (11th Cir. 2004) (quoting

Foman v. Davis, 371 U.S. 178, 182 (1962)); accord Fed. R. Civ. P. 15(a)(2) (“The

court should freely give leave when justice so requires.”). Notably, “‘a [pro se]

plaintiff must be given at least one chance to amend the complaint before the

district court dismisses the action with prejudice’—at least, that is, where ‘a more

carefully drafted complaint might state a claim.’”        Silberman v. Miami Dade

Transit, 927 F.3d 1123, 1132 (11th Cir. 2019) (alteration in original) (quoting

Woldeab v. DeKalb Cty. Bd. of Educ., 885 F.3d 1289, 1290, 1292 (11th Cir.

2018)). However, the court may deny leave to amend the complaint “where further

amendment would be ‘futile,’” see id. at 1133 (quoting Wodleab, 885 F.3d at

1291), i.e., that the complaint would still be subject to dismissal as amended, id.

(quoting Cockrell v. Sparks, 510 F.3d 1307, 1310 (11th Cir. 2007); accord Hall,

367 F.3d at 1262-63.




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      Contrary to Heard’s contention, a review of the record establishes that the

district court considered the claims in Heard’s Amended Complaint. In its written

order, the district court expressly recognized that Heard had amended his

complaint as a matter of course and proceeded to examine the claims raised in

Heard’s Amended Complaint, as well as the claims in his unauthorized

supplemental filings.    To the extent that Heard’s brief could be construed as

arguing that the district court should have given him leave to further amend his

complaint before dismissing the action, we find that the district court did not abuse

its discretion in denying further amendment because, for the reasons stated below,

amending the complaint would be futile.

                                           II.

      We review a district court’s sua sponte dismissal for failure to state a claim

under 28 U.S.C. § 1915(e)(2)(B)(ii) de novo, viewing the allegations in the

complaint as true. See Alba v. Montford, 517 F.3d 1249, 1252 (11th Cir. 2008).

Additionally, “[w]e review the district court’s interpretation and application of

statutes of limitations de novo.” Ctr. for Biological Diversity v. Hamilton, 453

F.3d 1331, 1334 (11th Cir. 2006) (quoting Tello v. Dean Witter Reynolds, Inc., 410

F.3d 1275, 1278 (11th Cir. 2005)).

      When a plaintiff proceeds in forma pauperis, 28 U.S.C. § 1915 requires the

district court to dismiss the action if it “fails to state a claim on which relief may be


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granted.” 28 U.S.C. § 1915(e)(2)(B)(ii). Dismissal under § 1915(e)(2)(B)(ii) is

governed by the same standard as dismissal under Rule 12(b)(6) of the Federal

Rules of Civil Procedure. Mitchell v. Farcass, 112 F.3d 1483, 1490 (11th Cir.

1997).   A complaint must contain “a short and plain statement of the claim

showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Dismissal

for failure to state a claim is appropriate if the facts as pleaded fail to “state a claim

for relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A district court

may only dismiss a prisoner’s complaint as untimely prior to service if it

“appear[s] beyond a doubt from the complaint itself that [he] can prove no set of

facts which would avoid a statute of limitations bar.” Hughes v. Lott, 350 F.3d

1157, 1163 (11th Cir. 2003) (quoting Leal v. Ga. Dep’t of Corr., 254 F.3d 1276,

1280 (11th Cir. 2001) (per curiam)).

      Turning to Heard’s Amended Complaint, Heard alleged claims under § 1983

as well as claims for fraud under Florida and Georgia law. Section 1983 provides

a cause of action based on “the deprivation of any rights, privileges, or immunities

secured by the Constitution and laws.”          42 U.S.C. § 1983.        The statute of

limitations for personal injury actions in the state in which the cause of action

arose governs claims under § 1983, Wallace v. Kato, 549 U.S. 384, 387 (2007),

and the limitations period begins to run from the date that the cause of action


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accrues, i.e., where the plaintiff has “a complete and present cause of action” and

“can file suit and obtain relief.” Id. at 388 (quoting Bay Area Laundry & Dry

Cleaning Pension Tr. Fund v. Ferbar Corp. of Cal., 522 U.S. 192, 201 (1997)).

The statute of limitations period is four years for § 1983 claims arising in Florida,

Chappell v. Rich, 340 F.3d 1279, 1283 (11th Cir. 2003), and two years for § 1983

claims arising in Georgia. DeYoung v. Owens, 646 F.3d 1319, 1324 (11th Cir.

2011) (citing Ga. Code Ann. § 9-3-33). When determining whether the statute of

limitations for a § 1983 action is tolled, we look to state law. See Wallace, 549

U.S. at 394.      The limitations period in Florida may be tolled in some

circumstances, including by a defendant’s absence from the state, a defendant’s use

of a false name or concealment so that she or he cannot be served, the plaintiff’s

adjudicated incapacity before the cause of action accrued, pending arbitration

proceedings, or the plaintiff’s adjudicated incapacity during any time period in

which he does not have a guardian ad litem capable of representing him. Fla. Stat.

§ 95.051(1) (2019). Similarly, the statute of limitations in Georgia may be tolled

in some circumstances, including when the plaintiff is legally incompetent because

of an intellectual disability or mental illness when or after his cause of action

accrued, a defendant is absent from the state, or a defendant committed fraud “by

which the plaintiff has been debarred or deterred from bringing an action.” Ga.

Code Ann. §§ 9-3-90 to -96 (2019).


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       Regarding Heard’s state law fraud claims, the statute of limitations for a

fraud claim in Florida is four years, Fla. Stat. § 95.11(3)(j) (2019), and the

limitations period begins to run when the “facts giving rise to the cause of action

were discovered or should have been discovered with the exercise of due

diligence.” Fla. Stat. § 95.031(2)(a) (2019). Under Georgia law, the statute of

limitations for fraud and misrepresentation claims is four years. Nash v. Ohio

Nat’l Life Ins. Co., 597 S.E.2d 512, 515 (Ga. Ct. App. 2004) (citing Ga. Code Ann.

§ 9-3-31). When the case involves fraud, the statute of limitations is tolled until

the fraud is discovered or could have been discovered through the exercise of

ordinary care and diligence. Id. at 515.

       Here, we find that the district court properly dismissed the Amended

Complaint on the ground that it failed to state a claim on which relief may be

granted because Heard’s § 1983 and state fraud claims are untimely. At the latest,

the various limitations periods for Heard’s claims began to run in October 2014,

when the charges against Heard for passing worthless bank checks were dropped.

Assuming that the Amended Complaint relates back to the date that Heard signed

his original Complaint, i.e. February 20, 2019,1 Heard filed suit approximately four


       1
         Under the mailbox rule, a pro se prisoner’s complaint alleging claims under § 1983 is
deemed filed on the date that he delivers it to prison officials. Garvey v. Vaughn, 993 F.2d 776,
783 (11th Cir. 1993). Unless otherwise indicated, a pleading is presumed to have been delivered
to prison officials on the date that the pro se prisoner signed it. Daniels v. United States, 809
F.3d 588, 589 (11th Cir. 2015) (per curiam) (applying the prison mailbox rule to a 28 U.S.C. §
2255 motion). Here, Heard appears to have signed his original Complaint on February 20, 2019.
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and a half years after the limitations period applicable to each of his claims began

to run. Moreover, Heard does not allege, nor does the record demonstrate, that any

of Florida’s or Georgia’s tolling provisions apply in this case. Heard’s § 1983

claims therefore are barred by Florida’s four-year and Georgia’s two-year statutes

of limitations for personal injury actions, and his state claims are barred by

Florida’s and Georgia’s four-year statutes of limitations for actions alleging fraud.

Accordingly, we affirm the district court’s dismissal of Heard’s Amended

Complaint.

      AFFIRMED.




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