           Case: 18-14396   Date Filed: 12/02/2019   Page: 1 of 6


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 18-14396
                        Non-Argument Calendar
                      ________________________

               D.C. Docket No. 8:17-cv-00554-JDW-TGW

ARNOLD MAURICE MATHIS,

                                                           Plaintiff-Appellant,

                                  versus

ZULAIKA ZOE VIZCARRONDO,

                                                          Defendant-Appellee,

JAMES MICHAEL EVANS,

                                                                    Defendant.

                      ________________________

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

                            (December 2, 2019)

Before MARCUS, ROSENBAUM and BLACK, Circuit Judges.

PER CURIAM:
               Case: 18-14396     Date Filed: 12/02/2019    Page: 2 of 6


      Arnold Mathis, a prisoner proceeding pro se, appeals the dismissal of his 42

U.S.C. § 1983 action for violations of the Fourth, Fifth, and Fourteenth

Amendments. First, Mathis asserts the district court erred in dismissing his

unlawful arrest claims as barred by the statute of limitations. Second, he contends

the district court erred in dismissing his illegal search claim on the basis of

qualified immunity. After review, we affirm the district court.

                                  I. DISCUSSION

A. Unlawful Arrest Claims

      A § 1983 claim is governed by the forum state’s residual personal injury

statute of limitations. Burton v. City of Belle Glade, 178 F.3d 1175, 1188 (11th

Cir. 1999). In Florida, “a plaintiff must commence a § 1983 claim . . . within four

years of the allegedly unconstitutional or otherwise illegal act.” Id.; see also Fla.

Stat. § 95.11(3)(p). The statute of limitations “does not begin to run until 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.” Rozar v. Mullis, 85 F.3d

556, 561–62 (11th Cir. 1996). When an allegedly false arrest is followed by

criminal proceedings, the statute of limitations for the false arrest begins to run

once the claimant becomes detained pursuant to legal process. Wallace v. Kato,

549 U.S. 384, 397 (2007).




                                           2
              Case: 18-14396      Date Filed: 12/02/2019   Page: 3 of 6


      The district court did not err in dismissing Mathis’s unlawful arrest claims as

barred by the statute of limitations. See Hughes v. Lott, 350 F.3d 1157, 1159-60

(11th Cir. 2003) (reviewing de novo a district court’s dismissal for failure to state a

claim under 28 U.S.C. § 1915(e)(2)(B) and viewing the allegations in the

complaint as true). Accepting Mathis’s version of the facts as true, he learned

there was no probable cause supporting his December 2011 arrest on February 4,

2013. Thus, the facts supporting his unlawful arrest action were apparent on

February 4, 2013, making that date the latest possible accrual date for the statute of

limitations. Even using this date, the four-year statute of limitations would have

run out on February 4, 2017, almost one month before Mathis filed his complaint

on March 1, 2017.

      Mathis also contends the statute of limitations was equitably tolled because

he was prevented from asserting his rights because he was in Polk County jail until

February 2015. However, equitable tolling does not apply. Mathis was not

prevented in any way from asserting his rights as he would have been able to file

this suit from jail. See Williams v. Albertson's, Inc., 879 So. 2d 657, 659 (Fla. 5th

DCA 2004) (explaining Florida law allows for equitable tolling where “the

plaintiff has been misled or lulled into inaction, has in some extraordinary way

been prevented from asserting his rights, or has timely asserted his rights




                                           3
               Case: 18-14396      Date Filed: 12/02/2019    Page: 4 of 6


mistakenly in the wrong forum”). Therefore, the district court did not err in

dismissing his unlawful arrest claims as barred by the statute of limitations.

B. Unlawful Search Claim

      The doctrine of “[q]ualified immunity shields public officials from suits

against them in their individual capacities for torts committed while performing

discretionary duties unless the tortious act violates a clearly established statutory or

constitutional right.” Zivojinovich v. Barner, 525 F.3d 1059, 1071 (11th Cir.

2008). If the official was acting within the scope of his discretionary authority, the

burden shifts to the plaintiff to show that the official is not entitled to qualified

immunity. Skop v. City of Atlanta, 485 F.3d 1130, 1136–37 (11th Cir. 2007).

Overcoming the official’s qualified immunity defense ordinarily involves a

two-part inquiry considering (1) whether facts alleged or shown by the plaintiff

make out a violation of a constitutional right, and (2) whether the right violated

was clearly established at the time of the official’s alleged misconduct. Roberts v.

Spielman, 643 F.3d 899, 904 (11th Cir. 2011). Both elements must be satisfied to

overcome qualified immunity. Id.

      The district court did not err in dismissing Mathis’s unlawful search claim

because Vizcarrondo is entitled to qualified immunity. See Griffin Indus., Inc. v.

Irvin, 496 F.3d 1189, 1199 (11th Cir. 2007) (stating when reviewing a motion to

dismiss on qualified immunity grounds, we determine whether a complaint sets


                                            4
               Case: 18-14396     Date Filed: 12/02/2019    Page: 5 of 6


forth a violation of a clearly established constitutional right de novo). First,

Vizcarrondo was acting within her discretionary authority when she conducted the

warrantless search of Mathis’s cell phone because she was performing routine

investigatory monitoring of Mathis and his jail visits when the search occurred.

Second, while Mathis alleged a constitutional violation—the warrantless search of

his cell phone—that right was not clearly established in 2011 when the alleged

unlawful search took place. It was not until 2013 and 2014, two to three years

after the search of Mathis’s cell phone, that both the Florida Supreme Court and

the United States Supreme Court conclusively determined that warrantless searches

of cell phones were unconstitutional. See Smallwood v. State, 113 So. 3d 724, 732-

33 (Fla. 2013) (holding the search incident to arrest exception to the Fourth

Amendment warrant requirement does not permit an officer to search an arrestee’s

cellphone without a warrant); Riley v. California, 573 U.S. 373, 386 (2014)

(holding the police may not search digital information on a cellphone seized from

an arrested individual without a warrant). In Smallwood, the Florida Supreme

Court noted that prior to its decision in 2013, “such searches [had] been held both

valid and invalid by various state and federal courts.” Smallwood, 113 So. 3d at

728. Therefore, the constitutional right could not have been clearly established

when Vizcarrondo searched Mathis’s phone almost two years prior to the




                                           5
                 Case: 18-14396       Date Filed: 12/02/2019        Page: 6 of 6


Smallwood decision. Because the right was not clearly established at the time she

searched Mathis’s cell phone, Vizcarrondo is entitled to qualified immunity.

                                      II. CONCLUSION

       The district court did not err in dismissing Mathis’s complaint because

Mathis’s unlawful arrest claims were barred by the statute of limitations and

Vizcarrondo’s search of Mathis’s cell phone was protected by qualified immunity. 1

       AFFIRMED.




       1
           As we affirm the district court’s holding on these issues, we need not address the
district court’s alternate holding that Mathis was not entitled to punitive damages under 42
U.S.C. § 1997e(e).
                                                 6
