Smith v. Pate
ORDER granting 18 Defendant's motion to dismiss; finding as moot 24 Motion to Substitute Party. This case is DISMISSED with prejudice. The Clerk of Court shall enter judgment dismissing this case with prejudice, terminate any pending motions, and close this case. Signed by Judge Timothy J. Corrigan on 9/14/2017. (HMJ)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
Case No. 3:15-cv-1355-J-32MCR
FLORIDA COMMISSION ON
Plaintiff, an inmate of the Florida penal system, is proceeding in this action on a pro
se Civil Rights Complaint (Doc. 1) (Complaint) pursuant to 42 U.S.C. § 1983. Plaintiff
names the Florida Commission on Offender Review (FCOR) as the defendant. In the
Complaint, Plaintiff asserts FCOR improperly applied guidelines that became effective
August 1, 1983, after his convictions and sentences, to determine his parole release date
in violation of his due process rights under the Fourteenth Amendment and the ex post
facto clause of the United States Constitution. Plaintiff seeks declaratory and injunctive
Before the Court is the FCOR’s Motion to Dismiss (Doc. 18) (FCOR Motion) with
exhibits (Def. Ex.). Plaintiff filed his response to the FCOR Motion.
Response to Defendant’s Motion to Dismiss (Doc. 23) (Response) with exhibits (Resp.
On December 30, 1981, Plaintiff entered a negotiated plea of guilty to burglary of a
dwelling with a dangerous weapon and sexual battery with use of a deadly weapon in the
Circuit Court, Fourth Judicial Circuit in and for Duval County, Florida. Complaint at 3; Def.
Ex. A at 2, 5. On January 29, 1982, the state court sentenced Plaintiff to two consecutive
terms of life imprisonment, Def. Ex. A., making Plaintiff eligible for parole under the
“Objective Parole Guidelines Act of 1978, or (OPGA).” Complaint at 1.
Under the OPGA, FCOR must set a Presumptive Parole Release Date (PPRD) for
an inmate and thereafter, if FCOR finds it is warranted, FCOR sets the inmate’s Effective
Parole Release Date (EPRD). On August 1, 1983, new guidelines (1983 Guidelines) were
implemented that affected the establishment of an inmate’s EPRD, including the
establishment of extraordinary review procedures.
On March 30, 2005, FCOR set Plaintiff’s PPRD for August 9, 2007, and scheduled
for May 25, 2007, an “effective” interview with Plaintiff to establish his EPRD. Id., Def. Ex.
I. Plaintiff alleges that at this interview he presented “satisfactory conduct and a Parole
Release Plan.” Complaint at 5. Nevertheless, on June 20, 2007, FCOR declined to
establish an EPRD for Plaintiff, and instead scheduled an extraordinary review for August
8, 2007. Id. at 6, Def. Ex. J, Resp. Ex. D. After the extraordinary review, at FCOR’s meeting
on August 15, 2007, FCOR suspended Plaintiff’s PPRD, declined to establish Plaintiff’s
EPRD, and scheduled an extraordinary interview with Plaintiff for March 2012. Id., Def. Ex.
K, Resp. Ex. E. FCOR conducted the extraordinary interview on March 27, 2012. Id. at 7;
see Def. Ex. L, Resp. Ex. F. Then, on April 25, 2012, FCOR continued Plaintiff’s PPRD
suspension, again declined to establish Plaintiff’s EPRD, and scheduled a subsequent
extraordinary interview with Plaintiff for January 2019. Id. Plaintiff complains that it was
improper for FCOR to follow the 1983 Guidelines when it suspended his PPRD, declined
to set his EPRD, and followed the extraordinary review procedures.
FCOR argues that Plaintiff’s Complaint is untimely. 1 Specifically, FCOR asserts
that the statute of limitations bars any of Plaintiff’s claims based on actions taken on or
before November 5, 2011, four years before Plaintiff filed his Complaint. 2
“A statute of limitations bar is ‘an affirmative defense, and . . . plaintiff[s] [are] not
required to negate an affirmative defense in [their] complaint.’” La Grasta v. First Union
Sec., Inc., 358 F.3d 840, 845 (11th Cir. 2004) (quoting Tregenza v. Great Am. Commc’ns
Co., 12 F.3d 717, 718 (7th Cir. 1993)). Thus, at the motion-to-dismiss stage, a “dismissal
on statute of limitations grounds is appropriate only if it is ‘apparent from the face of the
complaint’ that the claim is time-barred.” La Grasta, 358 F.3d at 845.
Section 1983 claims “are governed by the forum state's residual personal
injury statute of limitations.” Burton v. City of Belle Glade, 178 F.3d 1175, 1188 (11th Cir.
1999). In Florida, the applicable limitations period is four years. Chappell v. Rich, 340 F.3d
1279, 1283 (11th Cir. 2003) (“Florida's four-year statute of limitations applies to such
claims of deprivation of rights under 42 U.S.C. §§ 1983 and 1985.”); Burton, 178 F.3d at
1188 (same); Fla. Stat. § 95.11(3)(p). “Generally, ‘the statute of limitations does not begin
Defendant also argues that it is entitled to Eleventh Amendment Immunity and Plaintiff
fails to state a claim. However, the Court will not address these arguments because
Defendant’s timeliness argument properly resolves the FCOR Motion.
Defendant inadvertently states that Plaintiff filed his Complaint in November 2013. FCOR
Motion at 6. Plaintiff, however, filed his Complaint on or about November 5, 2015. This
discrepancy does not alter the Court’s ruling on the FCOR Motion.
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.’” Lovett v. Ray, 327
F.3d 1181, 1182 (11th Cir. 2003) (quoting Rozar v. Mullis, 85 F.3d 556, 561 (11th Cir.
From the face of Plaintiff’s Complaint (and the documents attached to the FCOR
Motion and Plaintiff’s Response), the Court finds that it is untimely. By August 15, 2007,
Plaintiff knew or should have known that FCOR was following the 1983 Guidelines to
suspend his PPRD, withhold his EPRD, and schedule an extraordinary interview. Yet,
Plaintiff waited until 2015, more than seven years after FCOR’s actions, to file the
Complaint. Therefore, to the extent Plaintiff attempts to assert any claims related to
FCOR’s actions up through August 15, 2007, related to the 1983 Guidelines, they are
Moreover, Plaintiff’s claims related to FCOR’s actions in 2012 are also untimely. On
August 15, 2007, FCOR suspended Plaintiff’s PPRD, withheld his EPRD, and scheduled
an extraordinary interview for March 2012. FCOR conducted the extraordinary interview
on March 27, 2012. Thereafter, on April 25, 2012, FCOR decided to continue the
suspension of Plaintiff’s PPRD, continue to withhold the establishment of an EPRD, and
schedule a subsequent extraordinary interview for January 2019. FCOR’s actions in 2012
were a continuation of its actions from 2007 with continued reliance on the 1983
Guidelines. “Our precedents draw a clear analytical distinction between continuing
violations and the continuing effects of a completed violation; the former extends the
limitations period while the other does not”. McGinley v. Mauriello, 682 F. App’x 868, 872
(11th Cir. 2017); see also Brown v. Georgia Bd. of Pardons & Paroles, 335 F.3d 1259,
1261–62 (11th Cir. 2003) (“Each time Brown's parole reconsideration hearing is set, it does
not amount to a distinct and separate injury. Rather, Brown's injury, to the extent it ever
existed, was when the Georgia Parole Board applied its new policy, eliminating the
requirement of parole review every three years for Brown, retroactively. It is the decision
in 1995 that forms a potential basis for Brown's claim. It was also at this point that Brown
could have discovered the factual predicate of his claim. The successive denials of parole
do not involve separate factual predicates and therefore do not warrant separate statuteof-limitations calculations.” (citations omitted)). In 2012, Plaintiff simply experienced the
continuing effects of an alleged completed constitutional violation that first occurred in
2007. Thus, his Complaint is barred by the statute of limitations. Accordingly, it is now
ORDERED AND ADJUDGED:
1. The Florida Commission on Offender Review’s Motion to Dismiss (Doc. 18) is
2. Plaintiff’s Motion to Substitute Parties (Doc. 24) is MOOT.
3. This case is DISMISSED with prejudice.
4. The Clerk of Court shall enter judgment dismissing this case with prejudice,
terminate any pending motions, and close this case.
DONE AND ORDERED in Jacksonville, Florida the 14th day of September, 2017.
Roger Smith, #081849
Counsel of Record
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