John Walker, Jr. v. United States

196 F. App'x 774
Court of Appeals for the Eleventh Circuit·Decided August 23, 2006·No. 06-10761·Unpublished

Opinion

PER CURIAM:

John Walker, a federal prisoner, appeals the dismissal of his civil complaint under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2674, and Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), and the denial of his motions for leave to proceed in forma pauperis (“IFP”) and for appointment of counsel in the district court.

Walker raises four issues on appeal. First, Walker challenges that the district court erred in dismissing his complaint without prejudice. He argues that a “blind and pauperized prisoner” could not obtain the addresses of the named defendants or arrange for service of process from prison. Walker contends that he “made a mighty effort” to arrange service. Second, Walker argues that the district court erred in denying his motion for appointment of counsel in the district court. Walker acknowledges that he has no right to counsel, but contends that the extraordinary circumstances present here of the defendants’ conduct causing him to go blind and preventing him from representing himself warrants appointment of coun *776 sel. Third, Walker argues that the district court’s denial of IFP status and appointment of counsel constituted a denial of meaningful access to the courts. Walker argues that a blind pro se litigant cannot effectively pursue a legal action. Finally, Walker argues on appeal that the district court erred in denying IFP status. Walker describes himself as a “pauper” and notes that we granted him IFP status on appeal even though his assets remained the same.

However, we need not consider these issues on appeal- because Walker’s suit is barred by the statute of limitations.

We review de novo questions concerning the application of a statute of limitations. Harrison v. Digital Health Plan, 183 F.3d 1235, 1238 (11th Cir.1999). In the context of an IFP frivolity determination under 28 U.S.C. § 1915, “[t]he expiration of the statute of limitations is an affirmative defense the existence of which warrants a dismissal as frivolous.” Clark v. State of Georgia Pardons and Paroles Bd., 915 F.2d 636, 640 n. 2 (11th Cir.1990). We have further explained, “[t]o 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).

Federal officials may be sued in their individual capacities for violations of an individual’s constitutional rights. Bivens, 403 U.S. at 397, 91 S.Ct. at 2005. The statute of limitations applicable to 42 U.S.C. § 1983 actions applies to Bivens claims. Kelly v. Serna, 87 F.3d 1235, 1239 (11th Cir.1996). Section 1983 claims are governed by the forum state’s residual personal injury statute of limitations. City of Hialeah, Fla. v. Rojas, 311 F.3d 1096, 1103 n. 2 (11th Cir.2002). The Georgia two-year personal injury limitations period applies to § 1983 actions in a Georgia district court. Mullinax v. McElhenney, 817 F.2d 711, 715-16 (11th Cir.1987). A cause of action accrues for purposes of the statute of limitations in § 1983 and Bivens cases when the plaintiff knows or has reason to know of an injury and who has inflicted it. Kelly, 87 F.3d at 1238-39.

The FTCA is a congressional waiver of sovereign immunity that allows the government to be sued under certain circumstances for particular tortious acts committed by employees of the government. 28 U.S.C. § 2674. “The Federal Tort Claims Act (FTCA) provides that an ‘action shall not be instituted upon a claim against the United States for money damages’ unless the claimant has first exhausted his administrative remedies.” McNeil v. United States, 508 U.S. 106, 107, 113 S.Ct. 1980, 1981, 124 L.Ed.2d 21 (1993). The FTCA imposes a two-year statute of limitations within which tort claims against the United States must be “presented in writing to the appropriate Federal agency.” 28 U.S.C. § 2401(b). A claim under the FTCA accrues when the plaintiff has knowledge of an injury and its cause. United States v. Kubrick, 444 U.S. 111, 123, 100 S.Ct. 352, 360, 62 L.Ed.2d 259 (1979).

Upon review of the record and upon consideration of the parties’ briefs, we find no reversible error as to this issue.

In his argument on appeal challenging the district court’s dismissal of his complaint, Walker does not challenge the court’s finding that his claims — under the FTCA or Bivens — were barred by the statute of limitations, nor does he state anything that could be liberally construed as a challenge to the court’s finding. We will not consider issues that are not raised in an initial brief. See Access Now, Inc. v. Southwest Airlines Co., 385 F.3d 1324, *777 1330 (11th Cir.2004). While we liberally construe pro se pleadings, we will not act as de facto counsel for pro se parties. See GJR Invs., Inc. v. County of Escambia, 132 F.3d 1359, 1369 (11th Cir.1998). Thus, we hold that Walker has abandoned any challenge to the district court’s dismissal of his complaint as barred by the statute of limitations.

Free access — add to your briefcase to read the full text and ask questions with AI

John Walker, Jr. v. United States, 196 F. App'x 774 (11th Cir. 2006).

196 F. App'x 774 (John Walker, Jr. v. United States) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

Untitled Case
M.D. Florida, 2026