            Case: 13-11369    Date Filed: 04/02/2014   Page: 1 of 5


                                                          [DO NOT PUBLISH]

             IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________

                              No. 13-11369
                          Non-Argument Calendar
                        ________________________

                     D.C. Docket No. 1:13-cv-20497-JAL

ANTHONY L. MOORE,

                                                             Plaintiff-Appellant,


                                    versus

MRS. B. E. CHAMBERLAIN, Nurse,
MR. CHANDILIER, Nurse,
MS. L. CONCEPCION, Nurse,
MHM SERVICE, INC.,

                                                          Defendants-Appellees.

                        ________________________

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

                                (April 2, 2014)

Before PRYOR, MARTIN and ANDERSON, Circuit Judges.

PER CURIAM:

     Anthony L. Moore, a Florida prisoner proceeding pro se, appeals from the
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district court’s sua sponte dismissal, under 28 U.S.C. §1915(e)(2)(B), of his

42 U.S.C. § 1983 civil rights suit for failure to state a claim. On appeal, Moore

argues that his suit should have been construed as an amended complaint which

related back to the date of an earlier suit he filed in 2009, 1 (“Moore I”) which was

within the statute of limitations period. Alternatively, he argues that the district

court should have equitably tolled the statute of limitations period. In Moore I, the

district court dismissed Moore’s deliberate indifference claims against defendants

Chandilier and Chamberlain without prejudice for insufficient service of process

when the U.S. Marshal was unable to locate them based on the information

provided by Moore.

       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, using the same standards that govern

Fed.R.Civ.P. 12(b)(6) dismissals. Mitchell v. Farcass, 112 F.3d 1483, 1490 (11th

Cir. 1997).

       In actions filed pursuant to § 1983, the length of the statute of limitations

period and the closely related questions of tolling an application are governed by

state law. Mullinax v. Mcelhenney, 817 F.2d 711, 716 (11th Cir. 1987). Civil

rights causes of action are characterized as personal injury actions. Owens v.

Okure, 488 U.S. 235, 240-41, 109 S.Ct. 573, 576-77, 102 L.Ed.2d 594 (1989). In

       1
         See Moore v. Warden, 1:09-cv-22754 (S.D. Fla. Oct. 30, 2012) appeal docketed, Moore
v. Albury, 13-10346 (11th Cir. May, 5, 2013).
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Florida, the applicable statute of limitations for civil rights actions is four years.

Fla. Stat. § 95.11(3)(p). To dismiss a prisoner's complaint as time-barred prior to

service, it must appear beyond a doubt from the complaint itself that the prisoner

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)(quotation omitted).

      While Rule 15(c) allows an amended complaint to relate back to the date of

filing of an initial complaint in limited circumstances, we have held that dismissal

without prejudice of a timely filed complaint does not allow a later complaint to be

filed outside the limitations period. Fed.R.Civ.P. 15(c); Bost v. Fed. Express

Corp., 372 F.3d 1233, 1242 (11th Cir. 2004). Voluntary dismissal of a federal

action has the effect of placing the parties in a position as if the suit had never been

filed. Dade County v. Rohr Industries, Inc., 826 F.2d 983, 989 (11th Cir. 1987).

      Nevertheless, under federal law, circumstances may equitably toll a

limitations period. See Bost, 372 F.3d at 1242. The fact that dismissal of an earlier

suit was without prejudice does not authorize a subsequent suit brought outside of

the otherwise binding period of limitations, even when the district court dismissed

the timely-filed action solely as a result of excusable delay. Justice v. United

States, 6 F.3d 1474, 1479 (11th Cir. 1993). “Equitable tolling is appropriate when

a [plaintiff] untimely files because of extraordinary circumstances that are both

beyond his control and unavoidable even with diligence.” Arce v. Garcia, 434


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F.3d 1254, 1261 (11th Cir. 2006) (quotation omitted). Similarly, Florida law

allows for equitable tolling of a statute of limitations when 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 mistakenly in the wrong

forum. Williams v. Albertson’s, Inc., 879 So.2d 657, 659 (Fla. Dist. Ct. App.

2004). Due diligence, though necessary, is not sufficient to prevail on the issue of

equitable tolling. Justice, 6 F.3d at 1479. The plaintiff bears the burden of

showing that equitable tolling is warranted. Bost, 372 F.3d at 1242.

      Moore’s claim accrued in September 2007, and he had four years, or until

September 2011, to file suit. Since the instant suit was not filed until February

2013—more than five years after the claim accrued—it was untimely.

Additionally, since Moore’s initial suit was dismissed in September 2012, the

doctrine of relation back could not save the instant suit from being untimely. See

Bost, 372 F.3d at 1242. Where the district court has dismissed an original, timely

complaint, relation-back is unavailable to save a second, virtually identical

complaint that is filed after the running of the applicable limitations period. See

Rohr Indus., Inc., 826 F.2d at 989.

      Furthermore, Moore does not cite any binding precedent supporting his

argument that the U.S. Marshal’s failure to serve is the type of extraordinary

circumstance that warrants equitable tolling. Moreover, Moore does not


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demonstrate that the defendants have in any way misled or lulled him into inaction,

and has not met his burden of demonstrating that equitable tolling was warranted.

Williams, 879 So.2d at 659. Accordingly, we affirm.

      AFFIRMED.




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