                                                      [DO NOT PUBLISH]


          IN THE UNITED STATES COURT OF APPEALS
                                                               FILED
                   FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS
                     ________________________ ELEVENTH CIRCUIT
                                                            FEB 25, 2010
                          No. 09-13580                       JOHN LEY
                      Non-Argument Calendar                    CLERK
                    ________________________

               D. C. Docket No. 08-00054-CV-KD-C

MICHAEL JOHNSON,


                                                        Plaintiff-Appellant,

                               versus

MICHAEL GREAVES,
TIRAS CUNNINGHAM,
GUY BAKER,
DEBORA COTTON,
CORNELL WILSON,
DARRELL DAVID,

                                                     Defendants-Appellees.


                    ________________________

             Appeal from the United States District Court
                for the Southern District of Alabama
                   _________________________

                         (February 25, 2010)
Before BIRCH, BARKETT and ANDERSON, Circuit Judges.

PER CURIAM:

       Michael Johnson, a federal prisoner proceeding pro se, appeals the district

court's sua sponte dismissal, under 28 U.S.C. § 1915A(b), of his Bivens1 action.

Johnson sued Michael Greaves, Tiras Cunningham, Guy Baker, and Debora

Cotton, special agents for the Drug Enforcement Administration ("DEA"); Cornell

Wilson, Jr., a forensic chemist for the DEA; and Darrell Davis, a laboratory

director for the DEA, each in their individual and official capacity. He alleged that

they violated his First, Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendment

rights, and committed the following torts against him: false arrest and

imprisonment, assault and battery, malicious prosecution, abuse of process,

negligence, and gross negligence. Generally, he alleged that the agents falsely

reported that he sold their informant crack cocaine, while the transactions really

involved powder cocaine. Also, they used excessive force when they arrested him.

       The district court concluded that Johnson’s action was barred by Heck2 and

the statute of limitations, and it dismissed his case as frivolous. On appeal,




       1
         Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S.
388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971).
       2
           Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994).

                                                2
Johnson argues that his action was not Heck-barred, and that, pursuant to Spencer,3

the district court was required to consider whether habeas relief was available to

him before dismissing his case as barred by Heck. In addition, he contends that the

statute of limitations did not bar his excessive force claim, because he was entitled

to equitable tolling of the limitations period. Finally, he argues that the district

court should have granted his motion for reconsideration of its dismissal.

                                            I. Heck

      We reject each of Johnson’s arguments on this issue. First, there is no merit

to his contention that the court was required to consider the availability of habeas

relief before determining that his case was barred by Heck. Second, the district

court correctly concluded that Johnson's claims of DEA misconduct were

Heck-barred because, if his allegations were proven, the validity of his sentences

would be implicated.

                                 II. Statute of Limitations

      The district court’s interpretation and application of the statute of limitations

is reviewed de novo. Brown v. Georgia Bd. of Pardons & Paroles, 335 F.3d 1259,

1261 n.2 (11th Cir. 2003). "The expiration of the statute of limitations is an

affirmative defense the existence of which warrants a dismissal as frivolous."



      3
          Spencer v. Kenma, 523 U.S. 1, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998).

                                               3
Clark v. Ga. Pardons and Paroles Bd., 915 F.2d 636, 641 n. 2 (11th Cir. 1990).

"When the defense is apparent from the face of the complaint or the court's records,

courts need not wait and see if the defense will be asserted in a defensive

pleading." Id.

      Actions brought under Bivens are subject to the statute of limitations

governing personal injury actions in the state where the claim has been brought.

Kelly v. Serna, 87 F.3d 1235, 1238 (11th Cir. 1996). Johnson brought his claim in

Alabama, where the governing limitations period is two years. McNair v. Allen,

515 F.3d 1168, 1173 (11th Cir. 2008) (citing Ala. Code § 6-2-38).

      The limitations period begins to run when the cause of action accrues, and

this is a question of federal law. Rozar v. Mullis, 85 F.3d 556, 561 (11th Cir.

1996). Generally, a cause of action accrues when the plaintiff knows or has reason

to know (1) that he was injured, and (2) who inflicted the injury. Id. at 561-62.

      Equitable tolling is an extraordinary remedy which is typically applied

sparingly. Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 96, 111 S.Ct. 453, 457,

112 L.Ed.2d 435 (1990). The plaintiff has the burden of showing that equitable

tolling is warranted. Booth v. Carnival Corp., 522 F.3d 1148, 1150 (11th Cir.

2008). It is most likely to be applied if the claimant "actively pursued his judicial

remedies by filing a defective pleading during the statutory period," or if his



                                           4
adversary induced or tricked him into filing after the deadline. Irwin, 498 U.S. at

96, 111 S.Ct. at 458. It generally is not appropriate if the claimant’s late filing is a

result of his “fail[ure] to exercise due diligence in preserving his legal rights.” Id.

         Here, Johnson did not allege facts tending to show that he diligently

attempted to file his action within the statutory period, or that he filed his action as

soon as he could. Accordingly, he did not show that equitable tolling was

warranted.

                            III. Motion for Reconsideration

         A district court's denial of a motion for reconsideration is reviewed for an

abuse of discretion. Corwin v. Walt Disney Co., 475 F.3d 1239, 1254 (11th Cir.

2007).

         As discussed above, Johnson's action was barred by Heck and the statute of

limitations. Accordingly, the district court did not abuse its discretion by denying

his motion for reconsideration.

         AFFIRMED.




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