HENDERSON et al v. Sills et al

Filing 23

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
ATHENS DIVISION
JAMES
al.,

C.

HENDERSON,

SR.,

et *
*

Plaintiffs,
*
vs.

CASE NO. 3:13-CV-127 (CDL)
*

SHERIFF HOWARD SILLS, et al.,
*
Defendants.
*
O R D E R
This

action

Plaintiffs’

home

arises
which

from
they

three
contend

alleged

searches

violated

Amendment to the United States Constitution.

the

of

Fourth

Pursuant to 42

U.S.C. § 1983 (“§ 1983”), Plaintiffs sued the law enforcement
officials involved in the searches and the magistrate judge who
signed

the

search

warrants.

Because

Plaintiffs

filed

this

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
must

accept

complaint

as

and

true

all

facts

limit

its

consideration

exhibits attached thereto.

set

forth
to

in
the

the

plaintiff’s

pleadings

and

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,
dismissal under

Rule

12(b)(6)

“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).
FACTUAL ALLEGATIONS
Plaintiffs

allege

that

Defendants,

pursuant

to

a

search

warrant, entered Plaintiffs’ home on November 20, 2009, detained
Plaintiffs’ in the living room during the search, and seized
some

of

Plaintiffs’

property.

Compl.

¶

4,

ECF

No.

1.

Plaintiffs allege that a second search occurred on November 30,
2009.
home

They also assert that Defendants unlawfully entered their
after

“several

months”

to

leave

warrant related to that second search.

a

copy
Id.

of

the

search

Plaintiffs filed

the present action, pursuant to § 1983, on November 19, 2013.
Plaintiffs

seek

damages

arising

from

the

November

20,

2009

search and seizure, the November 30, 2009 search and seizure,
and the third entry into their home.
DISCUSSION
“All constitutional claims brought under § 1983 are tort
actions,

subject

to

the

statute

of

limitations

governing

personal injury actions in the state where the § 1983 action has
been brought.”

Crowe v. Donald, 528 F.3d 1290, 1292 (11th Cir.

2

2008)

(internal

quotation

marks

omitted);

accord

Owens, 646 F.3d 1319, 1324 (11th Cir. 2011).
statute of limitations is two years.

DeYoung

v.

The applicable

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.’”

Porter v.

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.

Because

Plaintiffs did not file this action until November 19, 2013,
almost

two

years

after

the

two-year

statute

of

limitations

expired, these claims are clearly time-barred.
The

present

Complaint

does

not

specifically

allege

the

precise date that Plaintiffs became aware of the November 30,

3

2009 search or the third alleged entry into their home.

But

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.
construction

of

The Court finds that a reasonable

Plaintiffs’

Complaint

establishes

that

Plaintiffs would have been well aware of the second and third
searches

prior

to

November

19,

2011,

which

would

have

been

twenty-four months after the initial search and two years before
they filed this present action.1
Accordingly,

the

present

action,

which

was

filed

on

November 19, 2013, more than two years after Plaintiffs were
aware of the subsequent searches, was too late.
CONCLUSION
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

1

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.

4