           Case: 13-10327   Date Filed: 01/23/2014   Page: 1 of 8


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 13-10327
                        Non-Argument Calendar
                      ________________________

                  D.C. Docket No. 0:12-cv-61260-KMW



WILLIAM M. KELLY, III,

                                                          Plaintiff-Appellant,

                                  versus

BROWARD SHERIFF’S OFFICE
DEPARTMENT OF DETENTION’S,
CLINT MARTIN,
ARMOR CORRECTIONAL HEALTH, INC.,
all affiliates,

                                                        Defendants-Appellees.

                      ________________________

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

                            (January 23, 2014)
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Before PRYOR, MARTIN, and FAY, Circuit Judges.

PER CURIAM:

       William M. Kelly, III, a Florida prisoner proceeding pro se, appeals the

district court’s dismissal of his 42 U.S.C. § 1983 complaint against the Broward

County Sheriff’s Office, Clint Martin, and Armor Correctional Health 1 for failure

to state a claim under 28 U.S.C. § 1915(e)(2)(B)(ii). On appeal, Kelly argues that

the district court erred when it dismissed his complaint, particularly in light of his

efforts to correct deficiencies in his initial complaint and the extraordinary

circumstances surrounding his filings. After a careful review of the record, we

affirm.

                                                 I.

       According to Kelly’s complaint, Martin, Kelly’s neighbor, first called the

Broward County Sheriff’s Office “[o]n or about 2006 or 2007 . . . to respond to a

possible Peeping Tom.” Kelly had apparently been using binoculars to look into

Martin’s home. After that call, Kelly alleged that Broward County officers

responded to several calls at his residence, and held him at gun point no less than

ten times. Kelly complained that the officers violated his constitutional rights by

using excessive force to enter his property and by seizing a number of items


1
 Although it is not entirely clear from the record, Armor is presumably under contract to provide
medical treatment to individuals detained in the facility in which Kelly is presently held or one in
which he has been held in the past.
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without a warrant. Kelly alleged that on many of these occasions the officers

forcibly removed him from his home and “fabricated and concocted” allegations to

have him hospitalized and evaluated for mental health issues. Eventually, through

the alleged collusion of Martin and the Broward County Sheriff’s Office, Kelly

was arrested in 2011 for aggravated assault with a deadly weapon. Prosecutors

filed charges against Kelly, and the criminal proceedings were ongoing at the time

Kelly filed his complaint. Kelly contested both the validity of his incarceration

and the effectiveness of his representation in the resulting prosecution. Finally, he

alleged that the defendants defamed and slandered him. For this conduct, Kelly

sought an unspecified amount of damages and the imposition of up to $6 million in

fines.

         The magistrate judge issued a Report and Recommendation recommending

that Kelly’s complaint be dismissed because it failed to plead facts sufficient to

render any of the defendants proper § 1983 defendants. Also, the district court

noted that many claims were time barred, not cognizable, or inappropriate for

resolution in federal court under comity and abstention principles. After reviewing

the Report and Kelly’s written objections to it, the district court affirmed and

adopted the Report and dismissed the case without prejudice.

                                          II.




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      For parties proceeding in forma pauperis, a court is required to dismiss a

case if it determines that the action or appeal fails to state a claim on which relief

may be granted. 28 U.S.C. § 1915(e)(2)(B)(ii). When a district court sua sponte

dismisses a claim under § 1915(e)(2)(B)(ii), we review the decision de novo and

take the allegations in the complaint as true. Hughes v. Lott, 350 F.3d 1157, 1159–

60 (11th Cir. 2003). Furthermore, because Kelly proceeds pro se, his filings must

be liberally construed and held to a less stringent standard than those drafted by

attorneys. Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998).

      The standard for dismissal under § 1915(e)(2)(B)(ii) is the same as the

standard for dismissal under Rule 12(b)(6) of the Federal Rules of Civil Procedure.

Mitchell v. Farcass, 112 F.3d 1483, 1490 (11th Cir. 1997). Thus, the district court

was required to dismiss Kelly’s complaint if the facts as pleaded fail to state a

claim that is “plausible on its face” for which relief can be granted. Ashcroft v.

Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 1949 (2009) (quotation mark omitted).

      We note first that much of the conduct alleged in Kelly’s complaint may

have taken place outside the statute of limitations for bringing a § 1983 claim.

“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, Fla. v.

Rojas, 311 F.3d 1096, 1103 n.2 (11th Cir. 2002). A district court does not err

when it dismisses a time-barred § 1983 claim for failure to state a claim. Jones v.


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Bock, 549 U.S. 199, 215, 127 S. Ct. 910, 920–21 (2007) (“If the allegations . . .

show that relief is barred by the applicable statute of limitations, the complaint is

subject to dismissal for failure to state a claim . . . .”).

       Kelly does not allege any specific date in his complaint beyond noting that

Martin initially called the police in 2006 or 2007 and that Kelly was arrested on or

around October 5, 2011. Kelly filed his complaint on June 22, 2012, and so, as the

magistrate judge noted, the district court lacks jurisdiction over Kelly’s claims to

the extent the underlying conduct took place before June 22, 2008.

       The failure to provide sufficient facts in the complaint regarding the dates of

the relevant conduct makes it difficult, if not impossible, for this Court to

distinguish conduct within the statute of limitations from conduct outside of it. On

appeal, Kelly has argued that this issue should not give us pause because the initial

call actually took place in 2009, and his allegation to the contrary was in error.

Kelly attempted to correct this purported error in his written objections to the

magistrate judge’s Report and Recommendation. In those objections, he claimed

that the call actually took place on December 4, 2009, which would bring that and

all subsequent conduct within the statute of limitations. The district court’s failure

to accept this attempted correction to the record, Kelly argues, was error.

       We assume, without deciding, that the district court should have liberally

construed Kelly’s written objection as a motion to amend his complaint and that


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the district court erred to the extent its decision relied on the dates as originally

pleaded. Even so, the district court did not err in dismissing Kelly’s complaints

because other issues render his complaint insufficient to state grounds upon which

the federal courts can grant relief.

       First, the district court correctly concluded that many of Kelly’s allegations

do not provide a basis for relief under § 1983. Defamation by government

officials, for example, does not amount to a constitutional deprivation under

§ 1983 except in circumstances that do not apply to this case. See Von Stein v.

Brescher, 904 F.2d 572, 582 (11th Cir. 1990).

       To the extent Kelly raises cognizable claims, the district court correctly

concluded that all claims must be dismissed because the complaint’s allegations

were insufficient to render any defendant a proper § 1983 defendant. 2

       Regarding Kelly’s claims against Martin, § 1983 claims can only be brought

against “person[s] acting under color of state law.” Griffin v. City of Opa-Locka,

261 F.3d 1295, 1303 (11th Cir. 2001). “Only in rare circumstances can a private

party be viewed as a ‘state actor’ for section 1983 purposes.” Harvey v. Harvey,

2
  The district court also justified the dismissal under the abstention doctrine set forth in Younger
v. Harris, 401 U.S. 37, 91 S. Ct. 746 (1971). But a recent Supreme Court decision casts doubt on
the applicability of Younger abstention in cases outside the narrow circumstances in which its
application has already been endorsed. Sprint Commc’ns, Inc. v. Jacobs, ___ U.S. ___, ___, ___
S. Ct. ___, ___, 2013 WL 6410850, at *8 (Dec. 10, 2013). Today we need not decide whether
Sprint Communications would preclude Younger abstention here. Neither do we need to remand
to the district court for reconsideration in light of Sprint Communications, because Kelly’s
complaint was properly dismissed on the alternative ground that it fails to identify any proper
defendant.
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949 F.2d 1127, 1130 (11th Cir. 1992). Merely making a report of perceived

misconduct and furnishing information to the police is not such a “rare

circumstance.” See Benavidez v. Gunnell, 722 F.2d 615, 618 (10th Cir. 1983)

(“The mere furnishing of information to police officers does not constitute joint

action under color of state law which renders a private citizen liable under §§ 1983

or 1985.”). And while it is true that a private citizen may collude with state actors

to such an extent that his action becomes state action, neither the minimal facts

alleged in the complaint nor the more descriptive allegations included in Kelly’s

objections sufficiently state a claim that Martin’s cooperation with police

constituted state action. Thus, the court did not err in dismissing Kelly’s claims

against Martin.

      Neither did the district court err in dismissing the claims against Armor. To

state a claim against Armor, the complaint must allege that Armor’s employees

violated Kelly’s constitutional rights while executing a company custom or policy.

See Buckner v. Toro, 116 F.3d 450, 452–53 (11th Cir. 1997) (holding that an

“essential element” of a § 1983 claim brought against a private entity contracting

to provide medical services to prison inmates is proof that the entity’s employees

acted pursuant to a policy or custom). The only allegations in the complaint

related to medical treatment state that police officers fabricated facts to have Kelly

admitted to a hospital against his will. Beyond this, it is only in the caption that the


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complaint even refers to Armor. And even if the employees admitting and treating

Kelly based on the officers’ representations were in fact affiliated with Armor,

Kelly has not alleged that the employees acted pursuant to any entity policy or

custom. Such bare and at best implicit factual allegations are insufficient to state a

claim against Armor.

      The only remaining defendant is the Broward County Sheriff’s Office. As is

the case with the claims against Armor, the Sheriff’s Office can only be held liable

for injuries inflicted by individual officers under § 1983 if the officers acted

pursuant to a departmental policy or custom. See Monnell v. Dep’t of Soc. Servs.,

436 U.S. 658, 694, 98 S. Ct. 2018, 2037–38 (1978). Although Kelly’s complaint

alleges misconduct on the part of the Office’s individual officers—for example, the

alleged warrantless seizure of property and the nefarious efforts to have Kelly

hospitalized—it contains no allegations that it was a departmental policy or custom

that caused the officers to engage in the offensive conduct. To the extent the

complaint makes allegations against the Sheriff’s Office as well as its individual

officers, the statements are no more than “unadorned, the-defendant-unlawfully-

harmed-me accusation[s],” Iqbal, 556 U.S. at 678, 129 S. Ct. at 1949. Such

statements are insufficient to state a claim. Id.

      For these reasons, we AFFIRM the district court’s dismissal of Kelly’s

§ 1983 complaint.


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