Kevin Anthony Moore v. Mike Harris , 553 F. App'x 888 ( 2014 )

Case: 13-12408 Date Filed: 01/23/2014 Page: 1 of 5
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 13-12408
Non-Argument Calendar
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D.C. Docket No. 5:10-cv-00038-MW-EMT
KEVIN ANTHONY MOORE,
Plaintiff-Appellant,
versus
FEDERAL BUREAU OF PRISONS,
Defendant,
MIKE HARRIS,
Unit Manager at FCI Marianna,
WARDEN, FCI MARIANNA,
UNITED STATES OF AMERICA,
on behalf of Mike Harris and Mark Henry,
Defendants-Appellees.
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Appeal from the United States District Court
for the Northern District of Florida
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(January 23, 2014)
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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.
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. 1 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
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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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 (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).
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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 (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
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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.
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