Case: 20-10464 Date Filed: 07/01/2020 Page: 1 of 7
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 20-10464 Non-Argument Calendar ________________________
D.C. Docket No. 1:19-cv-00607-CG-B
DAVID P. PETERSEN, I, Plaintiff - Appellant,
versus
ADAM W. OVERSTREET, Esq.- was AUSDA now with private practice, GREGORY A. BORDENKIRCHER, Esq.- Was AUSDA now with Alabama Securities Commission, et. al.,
Defendants - Appellees,
________________________
Appeal from the United States District Court for the Southern District of Alabama ________________________
(July 1, 2020)
Before GRANT, LUCK, and LAGOA, Circuit Judges.
PER CURIAM: Case: 20-10464 Date Filed: 07/01/2020 Page: 2 of 7
David Petersen (“Petersen”), a Nebraska resident proceeding pro se and in
forma pauperis, appeals from the dismissal with prejudice of his Bivens 1 action. In
support of the dismissal, the district court made the following two findings: first, that
Petersen’s claims are barred because his conviction has not been invalidated; and
second, that Petersen’s claims are time-barred under Alabama law. Petersen appeals
only the second finding and argues that the district court should have applied
Nebraska law, under which, Petersen asserts, his claims are not time-barred and the
dismissal therefore should be without prejudice.
I. FACTUAL AND PROCEDURAL HISTORY
Petersen’s Bivens claims arise out of his 2013 conviction for securities and
wire fraud. Petersen was convicted after a jury trial in the U.S. District Court for the
Southern District of Alabama and sentenced to sixty months’ imprisonment. We
affirmed the conviction and sentence on direct appeal. United States v. Sencan, 629
F. App’x 884, 889–93 (11th Cir. 2015).
On July 18, 2019, Petersen filed a complaint in the U.S. District Court for the
District of Nebraska against eleven federal officials in their individual capacities.
Petersen asserted Bivens claims for violation of his constitutional and other rights
during his prosecution. The district court found that Nebraska was not a proper
1 Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971).
2 Case: 20-10464 Date Filed: 07/01/2020 Page: 3 of 7
venue because all of the alleged events giving rise to Petersen’s claims occurred in
Alabama, and transferred the case to the Southern District of Alabama.
After the transfer, a magistrate judge granted Petersen leave to proceed in
forma pauperis and ordered him to file an amended complaint. Petersen’s amended
complaint asserted, among other things, that the government elicited grand jury
testimony it knew to be false from agents who were committing perjury, withheld
exculpatory evidence at trial and committed perjury to keep that evidence withheld,
and fraudulently obtained a waiver of Petersen’s right to a speedy trial.
The magistrate judge reviewed the amended complaint under 28 U.S.C.
§ 1915(e)(2)(B) and issued a report and recommendation that the complaint be
dismissed with prejudice for failure to state a claim upon which relief can be granted.
The magistrate judge stated that judgment in favor of Petersen on his Bivens claims
would necessarily implicate the validity of his conviction. Because the conviction
had not been invalidated, Petersen’s claims were not ripe and therefore barred by
Heck v. Humphrey, 512 U.S. 477 (1994), and Abella v. Rubino, 63 F.3d 1063 (11th
Cir. 1995).
Although cases barred by Heck and Abella are typically dismissed without
prejudice, the magistrate judge recommended that Petersen’s case be dismissed with
prejudice because it was time-barred. Petersen’s complaint asserted that his claims
arose out of misconduct that occurred “from June 2012 to the present,” but the
3 Case: 20-10464 Date Filed: 07/01/2020 Page: 4 of 7
magistrate judge found that the alleged misconduct “all relat[ed] directly to the
investigation, trial, and Petersen’s conviction in 2013.”
Petersen objected to the report and recommendation. Among other
objections, he argued that the case should be dismissed without prejudice because it
was unripe and that the statute of limitations should have been tolled during his
incarceration. The district court overruled Petersen’s objections and adopted the
report and recommendation. Specifically, the district court found that Petersen’s
claims would be dismissed with prejudice because Alabama no longer tolls statutes
of limitations during incarceration. This appeal ensued.
II. STANDARD OF REVIEW
We review de novo a district court’s dismissal under 28 U.S.C.
§ 1915(e)(2)(B)(ii) for failure to state a claim. Mitchell v. Farcass, 112 F.3d 1483,
1490 (11th Cir. 1997). We further review a district court’s interpretation and
application of statutes of limitations, as well as questions of ripeness, de novo. Ctr.
for Biological Diversity v. Hamilton, 453 F.3d 1331, 1334 (11th Cir. 2006); Elend
v. Basham, 471 F.3d 1199, 1204 (11th Cir. 2006).
III. DISCUSSION
On appeal, Petersen does not challenge the district court’s finding that his
claims are barred by Heck and Abella. Instead, his sole argument is that because he
is a Nebraska resident, the district court should have applied Nebraska law, which
4 Case: 20-10464 Date Filed: 07/01/2020 Page: 5 of 7
according to Petersen, tolls claims during incarceration, thereby making his suit
timely. Compare Ala. Code § 6-2-8, with Neb. Rev. Stat. § 25-213. But see Gordon
v. Connell, 545 N.W.2d 722, 726 (Neb. 1996) (indicating that “a showing of a
recognizable legal disability, separate from the mere fact of imprisonment, which
prevents a person from protecting his or her rights is required to entitle a prisoner to
have the statute of limitations tolled during imprisonment”).2 Petersen argues that
the dismissal in this case therefore should have been without prejudice.
A state’s personal injury statute of limitations applies in the context of Bivens
actions. Kelly v. Serna, 87 F.3d 1235, 1238 (11th Cir. 1996). A statute of limitations
begins to run, however, when the cause of action accrues, and when that occurs is a
question of federal law. Uboh v. Reno, 141 F.3d 1000, 1002 (11th Cir. 1998). If a
claim is not ripe, the district court lacks subject-matter jurisdiction, and the claim
should be dismissed without prejudice. Ga. Advocacy Office, Inc. v. Camp, 172 F.3d
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Case: 20-10464 Date Filed: 07/01/2020 Page: 1 of 7
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 20-10464 Non-Argument Calendar ________________________
D.C. Docket No. 1:19-cv-00607-CG-B
DAVID P. PETERSEN, I, Plaintiff - Appellant,
versus
ADAM W. OVERSTREET, Esq.- was AUSDA now with private practice, GREGORY A. BORDENKIRCHER, Esq.- Was AUSDA now with Alabama Securities Commission, et. al.,
Defendants - Appellees,
________________________
Appeal from the United States District Court for the Southern District of Alabama ________________________
(July 1, 2020)
Before GRANT, LUCK, and LAGOA, Circuit Judges.
PER CURIAM: Case: 20-10464 Date Filed: 07/01/2020 Page: 2 of 7
David Petersen (“Petersen”), a Nebraska resident proceeding pro se and in
forma pauperis, appeals from the dismissal with prejudice of his Bivens 1 action. In
support of the dismissal, the district court made the following two findings: first, that
Petersen’s claims are barred because his conviction has not been invalidated; and
second, that Petersen’s claims are time-barred under Alabama law. Petersen appeals
only the second finding and argues that the district court should have applied
Nebraska law, under which, Petersen asserts, his claims are not time-barred and the
dismissal therefore should be without prejudice.
I. FACTUAL AND PROCEDURAL HISTORY
Petersen’s Bivens claims arise out of his 2013 conviction for securities and
wire fraud. Petersen was convicted after a jury trial in the U.S. District Court for the
Southern District of Alabama and sentenced to sixty months’ imprisonment. We
affirmed the conviction and sentence on direct appeal. United States v. Sencan, 629
F. App’x 884, 889–93 (11th Cir. 2015).
On July 18, 2019, Petersen filed a complaint in the U.S. District Court for the
District of Nebraska against eleven federal officials in their individual capacities.
Petersen asserted Bivens claims for violation of his constitutional and other rights
during his prosecution. The district court found that Nebraska was not a proper
1 Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971).
2 Case: 20-10464 Date Filed: 07/01/2020 Page: 3 of 7
venue because all of the alleged events giving rise to Petersen’s claims occurred in
Alabama, and transferred the case to the Southern District of Alabama.
After the transfer, a magistrate judge granted Petersen leave to proceed in
forma pauperis and ordered him to file an amended complaint. Petersen’s amended
complaint asserted, among other things, that the government elicited grand jury
testimony it knew to be false from agents who were committing perjury, withheld
exculpatory evidence at trial and committed perjury to keep that evidence withheld,
and fraudulently obtained a waiver of Petersen’s right to a speedy trial.
The magistrate judge reviewed the amended complaint under 28 U.S.C.
§ 1915(e)(2)(B) and issued a report and recommendation that the complaint be
dismissed with prejudice for failure to state a claim upon which relief can be granted.
The magistrate judge stated that judgment in favor of Petersen on his Bivens claims
would necessarily implicate the validity of his conviction. Because the conviction
had not been invalidated, Petersen’s claims were not ripe and therefore barred by
Heck v. Humphrey, 512 U.S. 477 (1994), and Abella v. Rubino, 63 F.3d 1063 (11th
Cir. 1995).
Although cases barred by Heck and Abella are typically dismissed without
prejudice, the magistrate judge recommended that Petersen’s case be dismissed with
prejudice because it was time-barred. Petersen’s complaint asserted that his claims
arose out of misconduct that occurred “from June 2012 to the present,” but the
3 Case: 20-10464 Date Filed: 07/01/2020 Page: 4 of 7
magistrate judge found that the alleged misconduct “all relat[ed] directly to the
investigation, trial, and Petersen’s conviction in 2013.”
Petersen objected to the report and recommendation. Among other
objections, he argued that the case should be dismissed without prejudice because it
was unripe and that the statute of limitations should have been tolled during his
incarceration. The district court overruled Petersen’s objections and adopted the
report and recommendation. Specifically, the district court found that Petersen’s
claims would be dismissed with prejudice because Alabama no longer tolls statutes
of limitations during incarceration. This appeal ensued.
II. STANDARD OF REVIEW
We review de novo a district court’s dismissal under 28 U.S.C.
§ 1915(e)(2)(B)(ii) for failure to state a claim. Mitchell v. Farcass, 112 F.3d 1483,
1490 (11th Cir. 1997). We further review a district court’s interpretation and
application of statutes of limitations, as well as questions of ripeness, de novo. Ctr.
for Biological Diversity v. Hamilton, 453 F.3d 1331, 1334 (11th Cir. 2006); Elend
v. Basham, 471 F.3d 1199, 1204 (11th Cir. 2006).
III. DISCUSSION
On appeal, Petersen does not challenge the district court’s finding that his
claims are barred by Heck and Abella. Instead, his sole argument is that because he
is a Nebraska resident, the district court should have applied Nebraska law, which
4 Case: 20-10464 Date Filed: 07/01/2020 Page: 5 of 7
according to Petersen, tolls claims during incarceration, thereby making his suit
timely. Compare Ala. Code § 6-2-8, with Neb. Rev. Stat. § 25-213. But see Gordon
v. Connell, 545 N.W.2d 722, 726 (Neb. 1996) (indicating that “a showing of a
recognizable legal disability, separate from the mere fact of imprisonment, which
prevents a person from protecting his or her rights is required to entitle a prisoner to
have the statute of limitations tolled during imprisonment”).2 Petersen argues that
the dismissal in this case therefore should have been without prejudice.
A state’s personal injury statute of limitations applies in the context of Bivens
actions. Kelly v. Serna, 87 F.3d 1235, 1238 (11th Cir. 1996). A statute of limitations
begins to run, however, when the cause of action accrues, and when that occurs is a
question of federal law. Uboh v. Reno, 141 F.3d 1000, 1002 (11th Cir. 1998). If a
claim is not ripe, the district court lacks subject-matter jurisdiction, and the claim
should be dismissed without prejudice. Ga. Advocacy Office, Inc. v. Camp, 172 F.3d
1294, 1299 (11th Cir. 1999).
In Heck, the Supreme Court held that a § 1983 cause of action for damages
attributable to an unconstitutional conviction or sentence does not accrue until the
conviction or sentence has been invalidated. 512 U.S. at 489–90 (1994). This Court
subsequently held that the rule established in Heck applies to Bivens damages
2 As discussed below, we need not decide whether Petersen’s claims would be tolled under Nebraska law, because the claims have yet to accrue.
5 Case: 20-10464 Date Filed: 07/01/2020 Page: 6 of 7
claims. See Abella v. Rubino, 63 F.3d 1063, 1065 (11th Cir. 1995). Therefore,
Bivens damages claims that necessarily imply the invalidity of a plaintiff’s
convictions are not ripe when they are brought before the convictions are
invalidated. Id. at 1065 n.3 (affirming district court’s dismissal “on ripeness
grounds”).
Following Heck and Abella, in Uboh this Court reversed a district court’s
ruling that the plaintiff’s Bivens claim for malicious prosecution was time-barred.
141 F.3d at 1007. As explained in Uboh, “in order to state a cause of action for
malicious prosecution, a plaintiff must allege and prove that the criminal proceeding
that gives rise to the action has terminated in favor of the accused.” Id. at 1004. A
plaintiff’s claims accrue, and the statute of limitations starts to run, on the date that
favorable termination occurs. Id. at 1006. To hold otherwise would place the
plaintiff “in a double-bind,” where his claim would expire before he could meet
Heck’s requirement of favorable termination. Id. at 1006–07.
The same is true here. The district court’s first finding that Petersen’s claims
are barred by Heck and Abella is necessarily in conflict with its second finding that
Petersen’s claims are time-barred. Under Heck, Abella, and Uboh, Petersen’s claims
have yet to accrue, and therefore the statute of limitations has not started to run. See
Abella, 63 F.3d at 1066; Uboh, 141 F.3d at 1006. Because Petersen’s claims are
unripe, the complaint must be dismissed without prejudice. We therefore need not
6 Case: 20-10464 Date Filed: 07/01/2020 Page: 7 of 7
decide which state’s tolling rules apply, nor whether Petersen’s claims would be
tolled under either state’s rules, since under federal law Petersen’s claims have not
yet accrued. If Petersen’s conviction or sentence is overturned or expunged, only
then will his Bivens claims ripen and the statute of limitations clock start to run. If
that occurs, Petersen is free to file another complaint asserting the same claims.
Accordingly, we affirm the dismissal of Petersen’s complaint, but vacate the
order of dismissal and remand with instructions for the district court to dismiss the
complaint without prejudice.
AFFIRMED IN PART, VACATED, AND REMANDED WITH
INSTRUCTIONS.