                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT                     FILED
                      ________________________          U.S. COURT OF APPEALS
                                                          ELEVENTH CIRCUIT
                                                               May 16, 2008
                             No. 07-13971                  THOMAS K. KAHN
                         Non-Argument Calendar                 CLERK
                       ________________________

                   D. C. Docket No. 06-22883-CV-JAL

EUGENE HUNTER, JR.,


                                                           Plaintiff-Appellant,

                                  versus

ROBERT MILLER,
MIAMI-DADE COUNTY SHERIFF'S OFFICE,
d.b.a. Metro Dade Police Department,


                                                        Defendants-Appellees.


                       ________________________

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

                              (May 16, 2008)

Before TJOFLAT, MARCUS and WILSON, Circuit Judges.

PER CURIAM:
      Eugene Hunter, Jr., a Florida prison inmate proceeding pro se, brought this

42 U.S.C. § 1983 action against Robert Miller, a Metro-Dade police officer,

claiming that Miller filed a false affidavit in support of an application for a warrant

for Hunter’s arrest. The affidavit was false, he alleges, because it represented that

Miller had shown the victim of a robbery (purportedly perpetrated by Hunter) a

photographic lineup with six photos, whereas he had shown the victim only one

photo, a photograph of Hunter. Acting pursuant to 28 U.S.C. § 1915(e)(2)(b)(ii),

the district court dismissed the suit sua sponte, as time-barred. Hunter now

appeals.

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

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

complaint as true. Hughes v. Lott, 350 F.3d 1157, 1159-60 (11th Cir. 2003). The

standard for reviewing a dismissal under Federal Rule of Civil Procedure 12(b)(6)

applies to our review of a dismissal under § 1915(e)(2)(B)(ii). Mitchell v. Farcass,

112 F.3d 1483, 1490 (11th Cir. 1997). A complaint should not be dismissed under

Rule12(b)(6) unless there is no proof the complainant could present in support of

the complaint that would entitle him to relief. Marsh v. Butler County, Ala., 268

F.3d 1014, 1022 (11th Cir. 2001) (en banc). However, “[a] complaint is . . .

subject to dismissal under Rule 12(b)(6) when its allegations – on their face – show



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that an affirmative defense bars recovery on the claim.” Id.

      “Section 1983 claims are governed by the forum state’s residual personal

injury statute of limitations, which in Florida is four years.” City of Hialeah v.

Rojas, 311 F.3d 1096, 1103 n.2 (11th Cir. 2002). Although the limitations period

in § 1983 actions is governed by the forum state’s law, the time of accrual of the

cause of action is governed by federal law. Kelly v. Serna, 87 F.3d 1235, 1238-39

(11th Cir. 1996). Section 1983 actions do not accrue until the plaintiff knows or

has reason to know both (1) that he has been injured, and (2) who has inflicted the

injury. Mullinax v. McElhenney, 817 F.2d 711, 716 (11th Cir. 1987).

      The district court erred in dismissing Hunter’s complaint as time-barred

under Florida’s four-year statute of limitations because the evidence in the record

did not demonstrate that there was no proof Hunter could present to support his

claim that he is entitled to relief. Marsh, 268 F.3d at 1022. We therefore vacate

the district court’s dismissal order and remand the case for further consideration.

In view of this disposition, we need not address the question of whether the

limitations period was equitably tolled.

      VACATED AND REMANDED.




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