HENDERSON et al v. Sills et al
ORDER granting 13 Motion to Dismiss Complaint; granting 14 Motion to Dismiss Complaint. Ordered by U.S. District Judge CLAY D LAND on 04/25/2014 (jcs) ***
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
CASE NO. 3:13-CV-127 (CDL)
SHERIFF HOWARD SILLS, et al.,
O R D E R
Amendment to the United States Constitution.
Pursuant to 42
U.S.C. § 1983 (“§ 1983”), Plaintiffs sued the law enforcement
officials involved in the searches and the magistrate judge who
action over two years after their claims accrued, it is barred
by the statute of limitations.
Accordingly, Defendants’ Motions
to Dismiss (ECF Nos. 13 & 14) are granted.
MOTION TO DISMISS STANDARD
When considering a 12(b)(6) motion to dismiss, the Court
exhibits attached thereto.
Bell Atl. Corp. v. Twombly, 550 U.S.
544, 556 (2007); Wilchombe v. TeeVee Toons, Inc., 555 F.3d 949,
959 (11th Cir. 2009).
When the defendant raises the statute of
limitations as an affirmative defense in a motion to dismiss,
“is appropriate only if it is
apparent from the face of the complaint that the claim is timebarred.”
Tello v. Dean Witter Reynolds, Inc., 410 F.3d 1275,
1288 (11th Cir. 2005) (internal quotation marks omitted).
warrant, entered Plaintiffs’ home on November 20, 2009, detained
Plaintiffs’ in the living room during the search, and seized
Plaintiffs allege that a second search occurred on November 30,
They also assert that Defendants unlawfully entered their
warrant related to that second search.
the present action, pursuant to § 1983, on November 19, 2013.
search and seizure, the November 30, 2009 search and seizure,
and the third entry into their home.
“All constitutional claims brought under § 1983 are tort
personal injury actions in the state where the § 1983 action has
Crowe v. Donald, 528 F.3d 1290, 1292 (11th Cir.
Owens, 646 F.3d 1319, 1324 (11th Cir. 2011).
statute of limitations is two years.
O.C.G.A. § 9-3-33; Lovett
v. Ray, 327 F.3d 1181, 1182-83 (11th Cir. 2003) (per curiam)
(applying Georgia’s two-year statute of limitations for personal
injury actions and finding plaintiff’s § 1983 claim untimely).
The statute begins to run when “‘the facts that would support a
cause of action are apparent or should be apparent to a person
with a reasonably prudent regard for his rights.’”
Ray, 461 F.3d 1315, 1323 (11th Cir. 2006) (quoting Lovett, 327
F.3d at 1182); see also Mullinax v. McElhenney, 817 F.2d 711,
716 (11th Cir. 1987) (explaining that § 1983 claims “do not
accrue until the plaintiff knows or has reason to know that he
has been injured” and “is aware or should have been aware who
has inflicted the injury”).
It is clear on the face of the Complaint that Plaintiffs
had actual knowledge of Defendants’ first search and seizure on
November 20, 2009.
Therefore, Plaintiffs were required to file
their claims based on that search by November 20, 2011.
Plaintiffs did not file this action until November 19, 2013,
expired, these claims are clearly time-barred.
precise date that Plaintiffs became aware of the November 30,
2009 search or the third alleged entry into their home.
Plaintiffs do allege that they found the copy of the second
search warrant “several months” after the searches on November
20 and 30, 2009 and believed someone must have entered their
home a third time to leave that copy in their dining room near
the time they found it.
The Court finds that a reasonable
Plaintiffs would have been well aware of the second and third
twenty-four months after the initial search and two years before
they filed this present action.1
November 19, 2013, more than two years after Plaintiffs were
aware of the subsequent searches, was too late.
For the reasons explained above, Defendants’ motions to
dismiss (ECF Nos. 13 & 14) are granted.
IT IS SO ORDERED, this 25th day of April, 2014.
S/Clay D. Land
CLAY D. LAND
UNITED STATES DISTRICT JUDGE
The Court notes that Plaintiffs failed to respond to Defendants’
Motions to Dismiss and have made no argument that the statute of
limitations should be tolled.
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