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Parole Board Decision One Time Act That Fails to Toll Statute of Limitations
Parole Board Decision One Time Act That Fails to Toll Statute of
Limitations
The Eleventh Circuit Court of Appeals held a parole board's setting of a
parole date is a one time act and not a continuing consequence. This
action was brought by a Georgia prisoner under 42 U.S.C. § 1983, alleging
the defendants violated his constitutional rights against ex post facto
laws by changing the frequency of his parole consideration under a newly
enacted law. The district court dismissed the action as time barred, and
the prisoner appealed.
The Eleventh Circuit held that federal courts apply the forum state's
statute of limitations for personal injury actions to actions brought
pursuant to § 1983. Georgia's statute of limitations is two years. As the
prisoner was advised in 1998 that the parole board would not reconsider
him for parole until 2006, the filing of his complaint in 2001 placed him
outside the statute of limitations and he was time-barred.
The prisoner argued his complaint should not be barred under the
continuing violation doctrine. "The critical distinction in the continuing
violation analysis is whether the plaintiff complains of the present
consequence of a one time violation, which does not extend the limitations
period, or the continuation of that violation into the present, which
does." The appeals court held the defendants' act was a one time act with
continued consequences, and thus the limitation period was not extended.
The judgment of the district court was affirmed. See: Lovett v. Ray, 327
F.3d 1181 (11th Cir. 2003).
Limitations
The Eleventh Circuit Court of Appeals held a parole board's setting of a
parole date is a one time act and not a continuing consequence. This
action was brought by a Georgia prisoner under 42 U.S.C. § 1983, alleging
the defendants violated his constitutional rights against ex post facto
laws by changing the frequency of his parole consideration under a newly
enacted law. The district court dismissed the action as time barred, and
the prisoner appealed.
The Eleventh Circuit held that federal courts apply the forum state's
statute of limitations for personal injury actions to actions brought
pursuant to § 1983. Georgia's statute of limitations is two years. As the
prisoner was advised in 1998 that the parole board would not reconsider
him for parole until 2006, the filing of his complaint in 2001 placed him
outside the statute of limitations and he was time-barred.
The prisoner argued his complaint should not be barred under the
continuing violation doctrine. "The critical distinction in the continuing
violation analysis is whether the plaintiff complains of the present
consequence of a one time violation, which does not extend the limitations
period, or the continuation of that violation into the present, which
does." The appeals court held the defendants' act was a one time act with
continued consequences, and thus the limitation period was not extended.
The judgment of the district court was affirmed. See: Lovett v. Ray, 327
F.3d 1181 (11th Cir. 2003).
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Related legal case
Lovett v. Ray
| Year | 2003 |
|---|---|
| Cite | 327 F.3d 1181 (11th Cir. 2003). |
| Level | Court of Appeals |
| Attorney Fees | 0 |
| Damages | 0 |
| Injunction Status | N/A |
Lovett v. Ray, 327 F.3d 1181 (11th Cir. 02/28/2003)
[1] U.S. Court of Appeals, Eleventh Circuit
[2] No. 02-14660
[3] 327 F.3d 1181, 2003
[4] February 28, 2003
[5] ROBERT LOVETT, PLAINTIFF-APPELLANT,
v.
WALTER S. RAY, CHAIRMAN, GEORGIA STATE BOARD OF PARDONS AND PAROLES, DEFENDANTS-APPELLEES.
[6] Appeal from the United States District Court for the Northern District of Georgia D.C. Docket No. 01-02155-CV-BBM-1
[7] Before Dubina, Carnes and Marcus, Circuit Judges.
[8] The opinion of the court was delivered by: Per Curiam
[9] [PUBLISH]
[10] Non-Argument Calendar
[11] Robert Lovett, a state prisoner, filed a 42 U.S.C. § 1983 complaint, alleging that the defendants violated his constitutional right against ex post facto laws by changing the frequency of his parole consideration under a newly enacted law. The district court dismissed his complaint as time barred, and he now appeals pro se. We affirm.
[12] "We independently review the district court's ruling concerning the applicable statute of limitations." Uboh v. Reno, 141 F.3d 1000, 1002 (11th Cir. 1998). "Federal courts apply their forum state's statute of limitations for personal injury actions to actions brought pursuant to 42 U.S.C. § 1983." Id. Federal law determines when the statute of limitations begins to run. Rozar v. Mullis, 85 F.3d 556, 561 (11th Cir. 1996). Generally, "the statute of limitations does not begin to run until the facts which would support a cause of action are apparent or should be apparent to a person with a reasonably prudent regard for his rights." Id. at 561-62 (internal marks omitted).
[13] Georgia's statute of limitations is two years. Thigpen v. Bibb County, Ga., Sheriff's Dep't, 223 F.3d 1231, 1243 (11th Cir. 2000). Lott was notified by the defendants in September 1998 that he would not be reconsidered for parole until 2006. As of that time he knew, or should have known, all of the facts necessary to pursue a cause of action, but he did not file his complaint until August 10, 2001, more than two years later. Therefore, his claim was untimely.
[14] Lott contends his complaint should not be time barred under the continuing violation doctrine. "The critical distinction in the continuing violation analysis . . . is whether the plaintiff[] complain[s] of the present consequence of a one time violation, which does not extend the limitations period, or the continuation of that violation into the present, which does." Knight v. Columbus, Ga., 19 F.3d 579, 580-81 (11th Cir. 1994) (internal marks omitted). Here, the defendants' act (deciding not to consider Lovett for parole again until 2006) was a one time act with continued consequences, and the limitations period is not extended.
[15] Lovett's final argument is that the untimeliness of his complaint should be excused. He states that he filed his complaint in 2000 but that it was not docketed until later because of delays in the processing of his in forma pauperis paperwork. Because he raises that argument for the first time in his reply brief, it is not properly before us. Walker v. Jones, 10 F.3d 1569, 1572 (11th Cir. 1994). Further, the only evidence regarding Lovett's alleged 2000 complaint is an exhibit to his reply brief, which appears to be from a different case because it contains a different docket number.
[16] AFFIRMED.
[1] U.S. Court of Appeals, Eleventh Circuit
[2] No. 02-14660
[3] 327 F.3d 1181, 2003
[4] February 28, 2003
[5] ROBERT LOVETT, PLAINTIFF-APPELLANT,
v.
WALTER S. RAY, CHAIRMAN, GEORGIA STATE BOARD OF PARDONS AND PAROLES, DEFENDANTS-APPELLEES.
[6] Appeal from the United States District Court for the Northern District of Georgia D.C. Docket No. 01-02155-CV-BBM-1
[7] Before Dubina, Carnes and Marcus, Circuit Judges.
[8] The opinion of the court was delivered by: Per Curiam
[9] [PUBLISH]
[10] Non-Argument Calendar
[11] Robert Lovett, a state prisoner, filed a 42 U.S.C. § 1983 complaint, alleging that the defendants violated his constitutional right against ex post facto laws by changing the frequency of his parole consideration under a newly enacted law. The district court dismissed his complaint as time barred, and he now appeals pro se. We affirm.
[12] "We independently review the district court's ruling concerning the applicable statute of limitations." Uboh v. Reno, 141 F.3d 1000, 1002 (11th Cir. 1998). "Federal courts apply their forum state's statute of limitations for personal injury actions to actions brought pursuant to 42 U.S.C. § 1983." Id. Federal law determines when the statute of limitations begins to run. Rozar v. Mullis, 85 F.3d 556, 561 (11th Cir. 1996). Generally, "the statute of limitations does not begin to run until the facts which would support a cause of action are apparent or should be apparent to a person with a reasonably prudent regard for his rights." Id. at 561-62 (internal marks omitted).
[13] Georgia's statute of limitations is two years. Thigpen v. Bibb County, Ga., Sheriff's Dep't, 223 F.3d 1231, 1243 (11th Cir. 2000). Lott was notified by the defendants in September 1998 that he would not be reconsidered for parole until 2006. As of that time he knew, or should have known, all of the facts necessary to pursue a cause of action, but he did not file his complaint until August 10, 2001, more than two years later. Therefore, his claim was untimely.
[14] Lott contends his complaint should not be time barred under the continuing violation doctrine. "The critical distinction in the continuing violation analysis . . . is whether the plaintiff[] complain[s] of the present consequence of a one time violation, which does not extend the limitations period, or the continuation of that violation into the present, which does." Knight v. Columbus, Ga., 19 F.3d 579, 580-81 (11th Cir. 1994) (internal marks omitted). Here, the defendants' act (deciding not to consider Lovett for parole again until 2006) was a one time act with continued consequences, and the limitations period is not extended.
[15] Lovett's final argument is that the untimeliness of his complaint should be excused. He states that he filed his complaint in 2000 but that it was not docketed until later because of delays in the processing of his in forma pauperis paperwork. Because he raises that argument for the first time in his reply brief, it is not properly before us. Walker v. Jones, 10 F.3d 1569, 1572 (11th Cir. 1994). Further, the only evidence regarding Lovett's alleged 2000 complaint is an exhibit to his reply brief, which appears to be from a different case because it contains a different docket number.
[16] AFFIRMED.