              Case: 12-11927    Date Filed: 09/21/2012   Page: 1 of 3

                                                             [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                 No. 12-11927
                             Non-Argument Calendar
                           ________________________

                      D.C. Docket No. 1:11-cv-00866-MEF-WC


C. H. KINSEY,

                                                                Plaintiff-Appellant,

                                       versus

CENTURYTEL,
is now Centurylink,

                                                               Defendant-Appellee.

                           ________________________

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

                               (September 21, 2012)

Before TJOFLAT, BARKETT and KRAVITCH, Circuit Judges.

PER CURIAM:

      C.H. Kinsey, proceeding pro se and in forma pauperis, appeals the district

court’s sua sponte dismissal of his amended complaint for failure to state a claim
              Case: 12-11927     Date Filed: 09/21/2012     Page: 2 of 3

on which relief may be granted, pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).

Kinsey alleges that CenturyTel committed fraud under Alabama state law, based on

his telephone bills documenting phone calls that allegedly CenturyTel cannot prove

that Kinsey made. On appeal, Kinsey argues that the district court erred in finding

that Kinsey failed to plead sufficient facts to constitute fraud. We review the

district court’s dismissal de novo. Mitchell v. Farcass, 112 F.3d 1483, 1488-90

(11th Cir. 1997) (holding that the standards of review under Fed. R. Civ. P.

12(b)(6) apply for dismissals under § 1915(e)(2)(B)(ii)).

      In dismissing the complaint, the district court adopted the recommendation

of the magistrate judge who additionally raised concerns that Kinsey’s complaint

was time-barred under Alabama law. See Cambridge Mut. Fire Ins. Co. v. City of

Claxton, Ga., 720 F.2d 1230, 1232 (11th Cir. 1983) (stating that federal courts

must apply state statute of limitations to claims based on diversity jurisdiction).

A claim for fraud, under Alabama law, has a two-year statute of limitations, see

Ala. Code § 6-2-38(l), which begins accruing upon “the discovery by the aggrieved

party of the fact constituting the fraud,” Ala. Code § 6-2-3. Such “discovery is

made when facts become known which provoke inquiry in the mind of a man of

reasonable prudence, and which, if followed up, would have led to a discovery of

the fraud[.]” Ryan v. Charles Townsend Ford, Inc., 409 So. 2d 784, 786 (Ala.


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1981) (quotations and citations omitted).

      Here, discovery of the fraud occurred when Kinsey received his telephone

bills in April, May, and June 2009. However, Kinsey did not file his initial

complaint until more than two years later on October 17, 2011. Thus, we hold

that the district court did not err because the statute of limitations barred Kinsey’s

complaint, even assuming that it contained sufficient facts to state a claim.

      AFFIRMED.




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