Gustavo Gomez v. State of California

Filing

Opinion issued by court as to Appellant Gustavo Gomez. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

Case: 16-12147

Date Filed: 07/18/2017

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 16-12147
Non-Argument Calendar
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D.C. Docket No. 1:15-cv-24483-CMA

GUSTAVO GOMEZ,
Plaintiff is a prisoner of the State of California,
confined by the Florida Dept. of Corrections at Dade
Correctional Institution under the Interstate Compact
Agreement,
Plaintiff-Appellant,
versus
STATE OF CALIFORNIA,
Superior court of California, (County of Ventura),
Case No.: CR22052,
Defendant-Appellee.

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________________________
Appeal from the United States District Court
for the Southern District of Florida
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(July 18, 2017)
Before TJOFLAT, WILLIAM PRYOR, and MARTIN, Circuit Judges.
PER CURIAM:
Gustavo Gomez, a California prisoner proceeding pro se, appeals the
dismissal of his 42 U.S.C. § 1983 complaint as barred by the statute of limitations.
After careful review, we affirm.
I.
In 1994, Gomez was convicted in California of second-degree murder. He is
currently serving his sentence in a Florida state prison under an interstate compact
agreement between California and Florida. On November 25, 2015, while in
Florida, Gomez filed a complaint against the State of California and Ventura
County Assistant District Attorney Donald Grant. Gomez alleges the prosecution
never advanced any motive for the murder and that there was insufficient crime
scene evidence to convict him. He also alleges the judge improperly withheld
evidence from the jury, and that the prosecution withheld favorable evidence from
him, both in violation of his due process rights.

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Due to some deficiencies in Gomez’s complaint, the district court asked him
to file an amended complaint. Gomez did so, alleging the same misconduct with
more specificity. Because Gomez is a prisoner proceeding in forma pauperis
seeking redress from a governmental entity, his complaint was subject to an initial
screening under 28 U.S.C. §§ 1915(e) and 1915A. The magistrate judge who
screened Gomez’s amended complaint recommended it be dismissed for failure to
state a claim, under 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1), because it
was barred by the statute of limitations. After reviewing the magistrate judge’s
report and Gomez’s amended complaint, the district court dismissed Gomez’s
complaint with prejudice because it was barred by the statute of limitations. The
district court found it unclear whether the Florida or California statute of
limitations applied, but further found that Gomez’s complaint was not timely filed
under either state’s law. The district court therefore concluded his complaint was
due to be dismissed. Gomez now appeals that decision.
II.
We review de novo the district court’s decision to dismiss a complaint for
failure to state a claim under § 1915(e)(2)(B)(ii), viewing the allegations in the
complaint as true. Hughes v. Lott, 350 F.3d 1157, 1159–60 (11th Cir. 2003). “The
standards that govern a dismissal under Federal Rule of Civil Procedure 12(b)(6)
apply” to a dismissal under § 1915(e)(2)(B)(ii). Douglas v. Yates, 535 F.3d 1316,
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1320 (11th Cir. 2008). Dismissal under Rule 12(b)(6) “on statute of limitations
grounds is appropriate if it is apparent from the face of the complaint that the claim
is time-barred.” Gonsalvez v. Celebrity Cruises Inc., 750 F.3d 1195, 1197 (11th
Cir. 2013) (per curiam) (quotation omitted). We review independently “the district
court’s ruling concerning the applicable statute of limitations.” Lovett v. Ray, 327
F.3d 1181, 1182 (11th Cir. 2003) (per curiam) (quotation omitted). This Court also
liberally construes pro se pleadings and briefs, but “issues not briefed on appeal by
a pro se litigant are deemed abandoned.” Timson v. Sampson, 518 F.3d 870, 874
(11th Cir. 2008) (per curiam); see Tannenbaum v. United States, 148 F.3d 1262,
1263 (11th Cir. 1998) (per curiam).
Section 1983 claims are governed by the applicable state’s residual personal
injury statute of limitations. See City of Hialeah v. Rojas, 311 F.3d 1096, 1103 n.2
(11th Cir. 2002). The district court correctly stated that this Court has not yet
decided for § 1983 actions whether to apply the statute of limitations from the
forum state in which the case is brought or instead from the state where the alleged
injury occurred. And again here, we need not reach that issue today. Under either
the Florida or California statute of limitations, Gomez’s complaint was not timely
filed.
In Florida, the relevant statute of limitations is four years. See id.; Fla. Stat.
§ 95.11(3)(p). In California, it is one year. See Canatella v. Van De Kamp, 486
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F.3d 1128, 1132–33 (9th Cir. 2007) (“[A]ny cause of action . . . more than oneyear old as of January 1, 2003 [is] barred under the previous one-year statute of
limitations.”). In the circumstances of Gomez’s case, we must also apply any
statutory tolling period. See Dukes v. Smitherman, 32 F.3d 535, 537 (11th Cir.
1994) (per curiam). Florida does not allow statutory tolling for prisoners. Fla.
Stat. § 95.051. California law allows for up to two years from the accrual of a
claim that accrued before January 1, 1995. See Johnson v. California, 207 F.3d
650, 654 (9th Cir. 2000) (per curiam). Although both states allow for equitable
tolling, see Williams v. Albertson’s, Inc., 879 So. 2d 657, 659 (Fla. 5th DCA
2004); Fink v. Shedler, 192 F.3d 911, 916 (9th Cir. 1999), Gomez has made no
allegation in his complaint that would justify equitable tolling. Neither has he
raised any equitable tolling argument on appeal. We must therefore view that
argument as abandoned. See Timson, 518 F.3d at 874.
As a result, Gomez had four years under Florida law and up to three years
under California law in which to bring suit. Viewing the allegations in his
complaint as true, the misconduct he complains of occurred leading up to his 1994
conviction. This § 1983 action was not brought until over twenty-one years later,
in 2015. Under either state’s statute of limitations then, Gomez’s complaint is
time-barred. For this reason, we conclude the district court did not err in

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dismissing Gomez’s complaint for failure to state a claim upon which relief may be
granted under 28 U.S.C. § 1915(e)(2)(B)(ii).
AFFIRMED.

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