Kevin Anthony Moore v. Mike Harris

Jan 23, 2014
13-12408
Versions:

“took copious notes when meeting with [Gilmore] to discuss his job duties,” and did not refuse to follow any of her directives. However, Gilmore had several weeks of working closely with Davis before the November 3, 2009 one-on-one meeting to determine whether he was suited to be her second-in-command. Over that time, Gilmore observed Davis to be resentful of her, difficult to work with, and unwilling to buy into her management philosophy. Therefore, the immediacy of Gilmore‘s decision to terminate Davis following the one-on-one meeting does not demonstrate pretext.

v. City‘s Failure to Follow its Own Policy

Finally, Davis argues, without any citation to the record, that the City‘s policy stated that “an employee could only be recommended for termination for poor job performance or misconduct.” That the City terminated him without citing poor job performance or misconduct, Davis argues, is evidence of pretext. However, because Davis points to no record evidence, nor could we find any support in the record for Davis‘s assertion that the City‘s policy required misconduct or poor job performance for termination, we will not consider this argument as a basis for pretext.

III. CONCLUSION

Davis made out a prima facie case of retaliation, but did not proffer sufficient evidence for a reasonable jury to find that the City‘s proffered legitimate, non-retaliatory reason for Davis‘s termination was pretextual.

AFFIRMED.

Kevin Anthony Moore, Pensacola, FL, pro se.

Peter G. Fisher, U.S. Attorney‘s Office, Tallahassee, FL, Pamela C. Marsh, U.S. Attorney‘s Office, Panama City, FL, for Defendants-Appellees.

Before CARNES, Chief Judge, WILSON and ANDERSON, Circuit Judges.

PER CURIAM:

Kevin Anthony Moore, a non-prisoner proceeding pro se, appeals the district court‘s dismissal of his Bivens suit.1

I.

Moore‘s suit arises from his time as a prisoner at the Federal Correctional Institution in Marianna, Florida. In August of 1999, Moore was reaching the end of his federal prison term for marijuana charges. One of the prison‘s correctional officers, Michael Harris, told Moore that he would not be released from prison until he signed a sex offender registration form. Harris mistakenly thought that Moore had a prior state conviction for sexual battery when Moore had actually pleaded to simple battery. Moore protested, but ultimately signed the form “under duress.” When he signed the form, he wrote “void” next to his signature and “I disagree” in three places. Moore was released from prison on September 17, 1999.

Moore thought his alterations to the form had resolved the issue. But in 2005 he applied for a contractor‘s license and was arrested for failing to register as a sex offender. While the local police department released him after they determined that his prior battery conviction was not a sex offense, the Florida Department of Law Enforcement (the Department) continued to send Moore a registration form every six months along with a warning that failure to register was a third-degree felony. The Department also put Moore‘s name on its website‘s list of sex offenders. Moore made several attempts to rectify the situation. He visited the Department and tried to explain the situation, but was told the form he signed in 1999 prevented the Department from lifting the requirement. He filed a petition in Florida state court in 2005 and a federal declaratory judgment action in 2009, but both were dismissed. Finally, in January 2010 he contacted the United States Attorney‘s Office for the Northern District of Florida. Assistant United States Attorney Nancy Hess spoke with the Department, which lifted the registration requirement and removed Moore‘s name from its registry.

Moore filed this suit in February 2010, claiming that his federal constitutional rights were violated and seeking damages under Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). The district court dismissed the complaint because Moore filed it after the four-year statute of limitations had lapsed.

II.

We review de novo the district court‘s decision applying the statute of limitations. Ctr. for Biological Diversity v. Hamilton, 453 F.3d 1331, 1334 (11th Cir.2006).

Bivens suits have the same statute of limitations as suits brought under 42 U.S.C. § 1983. Kelly v. Serna, 87 F.3d 1235, 1238 (11th Cir.1996). And where Florida is the forum state, § 1983 plaintiffs have four years to file suit. See Chappell v. Rich, 340 F.3d 1279, 1283 (11th Cir. 2003). Under Moore‘s version of events, his statute of limitations clock began to run in 2005 when he was arrested for failing to register as a sex offender. See Uboh v. Reno, 141 F.3d 1000, 1002 (11th Cir.1998) (“[U]nder our Bivens case law, an action accrued at the time the plaintiff knew or had reason to know of his claims.“). So Moore‘s four-year window closed in 2009, more than a month before he filed this suit in February 2010.

None of Moore‘s arguments justify extending his statute of limitations period. First, Moore contends that his limitations period was tolled under Heck v. Humphrey, 512 U.S. 477, 489-90, 114 S.Ct. 2364, 2374, 129 L.Ed.2d 383 (1994) (“[A] § 1983 cause of action for damages attributable to an unconstitutional conviction or sentence does not accrue until the conviction or sentence has been invalidated.“). Heck‘s rule does not apply here because it is limited to “criminal judgments.” Id. at 486, 114 S.Ct. at 2372. Sex offender registration is “a civil and non-punitive regulatory scheme,” not a criminal judgment. United States v. W.B.H., 664 F.3d 848, 860 (11th Cir.2011). Second, Moore contends that his limitations period was equitably tolled until 2010 because he took “extraordinary” measures to have the registration requirement removed. We have allowed equitable tolling where the plaintiff demonstrates that he filed his complaint late due to “extraordinary circumstances that are both beyond his control and unavoidable even with diligence.” Sandvik v. United States, 177 F.3d 1269, 1271 (11th Cir.1999). Moore‘s late filing was hardly “unavoidable.” For example, he could have brought his Bivens claim as part of the federal suit he filed in 2009. Finally, Moore claims that the doctrine of continuing violations applies here. But that doctrine is limited “to situations in which a reasonably prudent plaintiff would have been unable to determine that a violation had occurred.” Ctr. for Biological Diversity, 453 F.3d at 1335. As explained above, Moore‘s 2005 arrest put him on notice of the alleged violation, so the doctrine does not apply.

AFFIRMED.

Notes

1
Because the district court granted the defendants’ motion to dismiss, we take the facts as alleged in Moore‘s complaint. See Williams v. Bd. of Regents of Univ. Sys. of Ga., 477 F.3d 1282, 1291 (11th Cir.2007).
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