                                                         [DO NOT PUBLISH]




             IN THE UNITED STATES COURT OF APPEALS
                                                        FILED
                    FOR THE ELEVENTH CIRCUIT   U.S. COURT OF APPEALS
                      ________________________   ELEVENTH CIRCUIT
                                                     APRIL 30, 2008
                                                  THOMAS K. KAHN
                            No. 07-10366
                                                       CLERK
                       ________________________

                 D. C. Docket No. 06-02285-CV-T-26EAJ

JOHNNY E. ELLISON, JR.,


                                                  Plaintiff-Appellant,

                                  versus

JEREMY LESTER,
Officer (PCSO),
DEPUTY FNU SIMPSON,
Officer (PCSO).
JOHN DOE, 1,
Officer (PCSO),
JOHN DOE, 2,
Officer (PCSO), et al.,

                                                  Defendants-Appellees.

                       ________________________

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

                             (April 30, 2008)
Before BIRCH and DUBINA, Circuit Judges, and GOLDBERG,* Judge.

PER CURIAM:

       Johnny E. Ellison, a Florida prisoner, initiated the present action by filing a

pro se civil rights complaint, pursuant to 42 U.S.C. § 1983, against, inter alia,

Deputy Jeremy Lester and other personnel at the Pinellas County Jail. Ellison

alleges that Deputy Lester destroyed his legal mail and personal property and

assaulted him while he was handcuffed. Ellison argues that the other defendants

either failed to intervene or failed to treat his injuries after the attack. The district

court sua sponte dismissed the complaint as untimely, pursuant to 28 U.S.C. §

1915(e). Ellison then filed a “Motion to Alter or Amend Judgment,” which the

district court denied.1 The district court also denied him leave to proceed on

appeal. We granted Ellison leave to proceed and determined that his action was

not frivolous. See Napier v. Preslicka, 314 F.3d 528, 531 (11th Cir. 2002).

       Ellison filed this § 1983 action in December 2006. According to his

recitation of facts, Deputy Lester assaulted him in March 2004. Thus, nearly three


       *
         Honorable Richard W. Goldberg, United States Court of International Trade Judge,
sitting by designation.
       1
          Because Ellison’s motion for reconsideration was filed within 10 days of the entry of
judgment, it is properly construed as a tolling Rule 59 motion. See Stallworth v. Shuler, 758
F.2d 1409, 1410 (11th Cir. 1985) (per curiam) (holding that a timely motion under Fed.R.Civ.P.
59(e) to alter or amend a judgment suspends the finality of the judgment for purposes of appeal
and tolls the time for taking appeal).

                                               2
years elapsed before he filed his complaint. Federal courts apply their forum

state’s statute of limitations for personal injury actions to actions brought pursuant

to § 1983. Uboh v. Reno, 141 F.3d 1000, 1002 (11th Cir. 1998); see also 42

U.S.C. § 1988(a) (providing that state law determines the statute of limitations

applicable to a claim filed pursuant to § 1983).

      The district court found that the statute of limitations was governed by Fla.

Stat. § 95.11(5)(g), which provides a one-year statute of limitations for “action[s]

brought by or on behalf of a prisoner . . . relating to the conditions of the

prisoner’s confinement.” Therefore, the district court determined that the

complaint was untimely. However, we have held that the four-year statute of

limitations under Fla. Stat. § 95.11(3) applies to § 1983 claims arising in Florida.

See e.g., Chappell v. Rich, 340 F.3d 1279, 1283 (11th Cir. 2003) (per curiam).

Thus, the district court erred when it applied the one-year statute of limitations of

Fla. Stat. § 95.11(5)(g).

      Accordingly, we REVERSE and REMAND.




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