Joshua Hornback v. Lexington-Fayette Urban County, et al
OPINION filed AFFIRMED, decision not for publication. Karen Nelson Moore AND; David W. McKeague, Circuit JudgeS and Jeffrey James Helmick, (authoring) U.S. District Judge for the Northern District of OH.
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 13a0880n.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
JOSHUA DYLAN HORNBACK,
Plaintiff – Appellant,
COUNTY, GOVERNMENT, a Municipal
Corporation, et al.,
Defendants - Appellees.
Oct 08, 2013
DEBORAH S. HUNT, Clerk
ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF KENTUCKY
Before: MOORE and McKEAGUE, Circuit Judges; HELMICK, District Judge.*
JEFFREY J. HELMICK, District Judge. Appellant Joshua Dylan Hornback appeals the district
court’s dismissal of his complaint pursuant to Rule 12(b)(6). Hornback asserts the district court
erred when it applied the Supreme Court’s ruling in Wallace v. Kato, 549 U.S. 384 (2007), to
Hornback’s § 1983 illegal search claim and dismissed Hornback’s claim as barred by the Kentucky
statute of limitations for personal injury claims. For the reasons stated below, we affirm the district
On August 31, 2010, Kentucky Probation and Parole Officers Alizabeth Graham and Abigail
Dillingham arrived at Hornback’s residence in Lexington, Kentucky to conduct a home visit on
The Honorable Jeffrey J. Helmick, United States District Judge for the Northern District of Ohio,
sitting by designation.
Brandon Bell, one of Hornback’s roommates. On that date, Bell was under the supervision of the
Probation and Parole Division of the Kentucky Department of Corrections, though Hornback was
not. Upon their arrival, Graham and Dillingham smelled burning marijuana. They requested
assistance from Kentucky Probation and Parole Officers Monte Corbett and Paul Fulcher, as well
as Lexington, Kentucky Police Officers Ray Samuel Wilson and Katie Rhea. These defendants
conducted a warrantless search of the residence including Hornback’s private bedroom, where they
discovered and seized marijuana. As a result, Hornback was arrested later that day. He was charged
with four felonies but ultimately indicted on three misdemeanor charges, including possession of
marijuana and drug paraphernalia.
On February 17, 2011, Hornback filed a motion to suppress the evidence seized from his
bedroom, arguing the state lacked probable cause to conduct a warrantless search of his bedroom.
The trial court agreed, and granted Hornback’s motion to suppress on May 9, 2011. On the same
day, the trial court also granted the prosecution’s motion to dismiss all charges against Hornback.
On May 8, 2012, Hornback filed a six-count complaint, alleging, in part, Appellees violated
his constitutional protections against illegal searches and seizures in conducting the warrantless
search. The district court concluded Hornback’s claims were barred by the expiration of the statute
of limitations and dismissed those claims with prejudice as to all Appellees.
II. STANDARD OF REVIEW
We review a district court’s dismissal of a case pursuant to Rule 12(b)(6) de novo. Bloch
v. Ribar, 156 F.3d 673, 677 (6th Cir. 1998). To defeat a defendant’s motion to dismiss, the plaintiff
must allege sufficient facts “to state a claim to relief that is plausible on its face.” City of Columbus
v. Hotels.com, L.P., 693 F.3d 642, 648 (6th Cir. 2012) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007)). Courts must accept as true all of the factual allegations contained in the complaint
when ruling on a motion to dismiss. Erickson v. Pardus, 551 U.S. 89, 94 (2007); Thurman v. Pfizer,
Inc., 484 F.3d 855, 859 (6th Cir. 2007). A determination that a claim is barred by the applicable
statute of limitations is a legal conclusion we also review de novo. Tolbert v. State of Ohio Dep’t
of Transp., 172 F.3d 934, 938 (6th Cir. 1999).
Hornback claims the district court erred in applying Wallace to the facts of his case because,
he contends, the Wallace Court issued a narrow ruling that applies only to claims of false arrest or
false imprisonment. Hornback argues his cause of action did not accrue until the trial court ruled
the warrantless search of his bedroom illegal. Defendants urge us to affirm the district court’s
dismissal. They argue Hornback’s cause of action accrued on the date of the search, as Hornback
knew or should have known of his injury at that time.
State law determines the appropriate statute of limitations for a cause of action arising under
42 U.S.C. § 1983. Roberson v. Tennessee, 399 F.3d 792, 794 (6th Cir. 2005). Under Kentucky law,
the limitations period is one year. See Collard v. Ky. Bd. of Nursing, 896 F.2d 179, 182 (6th Cir.
1990); K.R.S. 413.140(1)(a). In contrast, “federal law governs the question of when that limitations
period begins to run.” Wolfe v. Perry, 412 F.3d 707, 714 (6th Cir. 2005) (quoting Sevier v. Turner,
742 F.2d 262, 272 (6th Cir. 1984)). The statute of limitations “ordinarily does not begin to run until
the plaintiff has a ‘complete and present cause of action.’” Bay Area Laundry and Dry Cleaning
Pension Trust Fund v. Ferbar Corp. of Cal., 522 U.S. 192, 195 (1997); see also Roberson, 399 F.3d
at 794 (quoting Sevier, 742 F.2d at 273) (“The statute of limitations commences to run when the
plaintiff knows or has reason to know of the injury which is the basis of his action. A plaintiff has
reason to know of his injury when he should have discovered it through the exercise of reasonable
The district court correctly concluded Hornback knew or had reason to know of the unlawful
search of his bedroom on the day of the search. On August 31, 2010, Hornback knew he was not
under the supervision of the Division of Probation and Parole, Appellees did not have a warrant or
his consent to search his bedroom, and that Appellees nonetheless had searched his bedroom. On
that date, Hornback had a “complete and present cause of action” and could have sued for relief.
Wallace, 549 U.S. at 388.
Hornback fails to identify any case law in support of his contention that the Supreme Court’s
ruling in Wallace is applicable only to claims of false arrest. While the Wallace Court issued a casespecific ruling, the driving principle behind that ruling – that the deferred accrual rule of Heck v.
Humphrey, 512 U.S. 477 (1994), does not apply to actions “which would impugn an anticipated
future conviction” – is generally applicable, including to claims such as Hornback’s. Wallace, 549
U.S. at 393 (emphasis removed); see also Fox v. DeSoto, 489 F.3d 227, 233 (6th Cir. 2007) (“In no
uncertain terms . . . the Court in Wallace clarified that the Heck bar has no application in the preconviction context.”).
Hornback correctly notes Wallace distinguishes between causes of action for malicious
prosecution and those for false arrest. See Wallace, 549 U.S. at 394. The Court drew this distinction
based on the nature of the claims, however; unlike malicious prosecution, some torts redressable
under § 1983 (like false arrest) “accrue before the setting aside of – indeed even before the existence
of – the related criminal conviction.” Id. Claims of illegal search are analogous to claims of false
arrest, as a potential plaintiff very often has a complete cause of action even before criminal
proceedings commence. While Hornback argues he could not know his rights had been violated
until the trial judge granted his motion to suppress, he fails to identify any authority in support of
his contention. Hornback had a colorable claim for the violation of his Fourth and Fourteenth
Amendment rights on the day of the search, and the statute of limitations began to run on that date.
Hornback also asserts that if this court declines to apply the Wallace holding to § 1983 illegal
search claims, “orderly adjudication of illegal search claims would take place, the risk of
inconsistent legal determinations would be minimized, and the clogging of courts with unnecessary
filings would be avoided.” The Wallace Court, however, announced a procedure for lower courts
to follow when confronted with scenarios such as the one Hornback faced:
If a plaintiff files a false-arrest claim before he has been convicted (or files any other
claim related to rulings that will likely be made in a pending or anticipated criminal
trial), it is within the power of the district court, and in accord with common practice,
to stay the civil action until the criminal case or the likelihood of a criminal case is
Wallace, 549 U.S. at 393-94 (internal citations omitted) (emphasis added). Hornback’s arguments
concerning judicial efficiency are unpersuasive and ultimately irrelevant to the question of when his
legal injury arose.
For the reasons stated above, we conclude Hornback filed his claims after the limitations
period had expired and affirm the district court’s dismissal of his complaint.
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