Kalu v. Love et al

Filing 9

ORDER ADOPTING REPORT AND RECOMMENDATIONS ; Adopting 3 Report and Recommendations. Certificate of Appealability: No Ruling Closing Case. Signed by Judge Marcia G. Cooke on 10/16/2020. See attached document for full details. (cds)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No: 18-24819-Civ-COOKE/REID
JOHN O. KALU,
Plaintiff,
vs.
DENNIS LOVE, et al.,
Defendants.
_____________________________/
ORDER ADOPTING REPORT OF MAGISTRATE JUDGE
THIS MATTER was referred to the Honorable Patrick A. White, United States
Magistrate Judge, pursuant to 28 U.S.C. § 636(b)(1)(B) and Administrative Order 2003 -19 of
this Court, for a ruling on all pre-trial, non-dispositive matters and for a Report and
Recommendation on any dispositive matters. ECF No. 2. On November 27, 2018, Judge
White issued a Report of Magistrate Judge recommending that the Court dismiss the
complaint. ECF No. 3. Plaintiff filed objections to the Report and a request for clarification on
December 26, 2018. ECF No. 4.
I have considered Judge White’s Report and Plaintiff ’s objections, reviewed the record,
and examined the relevant legal authorities. I find Judge White’s Report clear, cogent, and
compelling.
Judge White found that “liberally construing the complaint, plaintiff appears to assert a
§ 1983 claim for malicious prosecution.” ECF No. 3 at 4. In Plaintiff ’s objections, he states he
did not intend to make a claim for malicious prosecution and that this inference in the Report
was made in error. Plaintiff posits that Judge White was “conflating Plaintiff's pleadings false
arrest with the tort of malicious prosecution.” ECF No. 4 at 4. However, Judge White found
Plaintiff was also asserting a 1983 claim for false arrest, and recommended the court dismiss
that claim as time-barred. Therefore, while the Court accepts Plaintiff ’s allegation that no
malicious prosecution claim exists in the Complaint, the issue is without consequence as Judge
White also analyzed Plaintiff ’s claim for false arrest.
Next, Plaintiff objects to Judge White’s finding that Plaintiff ’s claim for malicious
prosecution should be dismissed as frivolous due to Plaintiff ’s guilty plea, which would “belie

the notion that the state prosecution in question was terminated in his favor.” ECF No. 3 at 5.
Plaintiff argues this finding was made in error because the conviction was later vacated. ECF
No. 4 at 6. However, this point is now moot because Plaintiff has clarified that he is not
intending to assert a claim for malicious prosecution.
Finally, Plaintiff objects to Judge White’s finding that Plaintiff ’s claims for false arrest,
excessive force, failure to intervene, and deliberate indifference are time-barred. ECF No. 4 at
7. Plaintiff alleges that the defendants entered his residence without probable cause, a search
warrant, or plaintiff ’s consent on August 10, 2006. Id. at 8-10. Plaintiff initiated this action on
November 16, 2018. “Where Florida is the forum state, § 1983 plaintiffs have four years to file
suit.” Moore v. Fed. Bureau of Prisons, 553 F. App'x 888, 890 (11th Cir. 2014). Therefore, Judge
White found the statute of limitations barred Plaintiff’s claims.
Plaintiff argues the limitation period should be tolled because “the earliest moment the
facts would support a cause of action against defendants would be July 2015, being the date of
receipt from Plaintiff's wife of his valid driver’s license and credit card evidence.” As the
Plaintiff filed objections on this issue, and Judge White’s report does not address Plaintiff ’s
arguments regarding tolling, the Court will address them now.
The Plaintiff does not dispute that “the accrual date of a § 1983 cause of action is a
question of federal law that is not resolved by reference to state law.” Wallace v. Kato, 549 U.S.
384, 388 (2007). Under federal law, “the statute of limitations upon a § 1983 claim seeking
damages for a false arrest in violation of the Fourth Amendment, where the arrest is followed
by criminal proceedings, begins to run at the time the claimant becomes detained pursuant to
legal process.” Id. at 397. Therefore, the statute of limitations began to run on August 10, 2006,
the date on which Plaintiff was arrested. As Plaintiff filed his complaint on November 16,
2018, more than four years later, Plaintiff claims are time-barred.
Plaintiff argues that the limitations period was tolled until July 2015, pursuant to
Florida and Federal law. ECF No. 4 at 8. Upon reviewing this issue de novo, the Court
disagrees.
The Supreme has stated that it has “generally referred to state law for tolling rules.” Id.
at 394. But Plaintiff has not presented any Florida cases providing tolling in comparable
circumstances. Nor do the Florida statutes cited support tolling under these circumstances. See
ECF No. 4 at 7. Plaintiff claims the limitations period was tolled under section 95.051(g) of the
Florida Statutes, which states the running of time under the statute is tolled during “ the
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pendency of any arbitral proceeding pertaining to a dispute that is the subject of the action.”
Fla. Stat. § 95.051(g) (2018). This statute is inapplicable to this case, as Plaintiff does not
contend any dispute that was the subject of his § 1983 claims was submitted to an arbitral
proceeding.
Federal law similarly does not provide tolling of the statute of limitations. While
Plaintiff argues the time was tolled until after the conviction was called into question, t he
Supreme Court has rejected such an argument, holding that a limitations period is not tolled
until a conviction is set aside. Wallace, 549 U.S. at 394. Plaintiff could have filed his claim for
false arrest as soon as the arrest occurred on August 10, 2006. He did not plead guilty until
October 9, 2009, and he could have filed his complaint at any point before that time. As the
Supreme Court has explained, “if a plaintiff files a false-arrest claim before he has been
convicted … 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 ended.” Id.
at 393–94. Therefore, the Court agrees that Plaintiff ’s claims raised in his complaint are timebarred.
Accordingly, it is ORDERED and ADJUDGED that Judge White’s Report (ECF No.
3) is AFFIRMED and ADOPTED. The Complaint is DISMISSED. The Clerk is directed to
CLOSE this case. All pending motions, if any, are DENIED as moot.
DONE and ORDERED in chambers, at Miami, Florida, this 16th day of October
2020.

Copies furnished to:
Patrick A. White, U.S. Magistrate Judge
Lisette Reid, U.S. Magistrate Judge
John Kalu, pro se

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