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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-14391
Non-Argument Calendar
____________________
JOHNNIE OVERSTREET,
Administrator of the Estate of Bryan Overstreet,
deceased,
CHELSEA WELCH,
As parent and next friend of A. Overstreet, a minor,
Plaintiffs-Appellants,
versus
WORTH COUNTY GEORGIA,
JEFF HOBBY,
Former Sheriff of Worth County, Georgia,
in his official and individual capacities,
CORONOR JOHN M. JOHNSON,
Coroner of Worth County, Georgia, in his official
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2 Opinion of the Court 21-14391
and individual capacities,
JOHN SUMNER,
Deputy, Worth County Sheriff’s Office, in his official
and individual capacities,
JOHN DOES, 1 - 10,
Deputies, Worth County Sheriff’s Office in their official
and individual capacities,
Defendants-Appellees.
____________________
Appeal from the United States District Court
for the Middle District of Georgia
D.C. Docket No. 1:20-cv-00095-LAG
____________________
Before WILSON, JORDAN, and ANDERSON, Circuit Judges.
PER CURIAM:
Johnnie Overstreet—the father of decedent Bryan Over-
street and the administrator of Bryan’s estate—and Chelsea
Welch—the mother of Bryan Overstreet’s minor child, A.O.—ap-
peal the district court’s order dismissing their complaint. The ap-
pellants challenge the district court’s rulings that the two-year stat-
ute of limitations barred their federal claims and that the statute of
limitations should not be tolled due to fraud, misrepresentation, or
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21-14391 Opinion of the Court 3
the discovery rule. After review of the parties’ briefs and the rec-
ord, we affirm.
I
A1
On April 28, 2015, between 3:35 a.m. and 3:47 a.m., Bryan
Overstreet was walking along Georgia Highway 33 in Sylvester,
Worth County, Georgia. At that same time, Deputy Sheriff John
Sumner was driving on Georgia Highway 33 in his police cruiser.
At 3:45 a.m. Bryan received a phone call from his cousin and stood
on the shoulder of the roadway to take that call. During that phone
conversation, Deputy Sumner struck Bryan with his car.
After striking Bryan, Deputy Sumner made a 911 call and
stated, “I just run [sic] over something in the road here . . . . Unsure
of what it was.” D.E. 1 at 7, ¶ 26. Sometime thereafter, then-Sheriff
Jeff Hobby and Coroner John M. Johnson arrived at the scene.
Deputy Sumner, Sheriff Hobby, and Coroner Johnson all failed to
render aid to Bryan or check for signs of life.
Once local and state investigators and EMS personnel ar-
rived at the scene, Deputy Sumner misrepresented to them that
Bryan had already been lying on the roadway and was dead prior
to when he struck him. Deputy Sumner’s misstatements
1Because this appeal is from the district court’s dismissal of the appellants’
complaint, we set forth the facts as alleged in the complaint.
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prevented investigators from “adequately investigating the cause
and circumstances of [Bryan’s] injuries and death.” Id. at 9, ¶¶ 33–
36.
Coroner Johnson spoke with Sheriff Hobby, who instructed
him to “run over [Bryan] so that they could avoid liability on the
part of Worth County and [Deputy] Sumner.” Id. at 9, ¶ 38. In
front of everyone who was at the scene, Coroner Johnson drove
his van over Bryan’s body and then reversed, running him over a
second time. See id. at 9–10, ¶¶ 40–41. Coroner Johnson ran over
Bryan’s body despite the fact that a Worth County Deputy had pro-
vided specific instructions on where to locate Bryan. See id. at 9,
¶ 39.
In contradiction of the statement Deputy Sumner gave to
the 911 operator, in a report later given to Georgia State Patrol Of-
ficer David Joiner Deputy Sumner alleged that he had in fact seen
that it was a pedestrian on the road but that he had been unsuccess-
ful in attempting to avoid a collision with Bryan. Because he was
unable to avoid the crash, Deputy Sumner stated in the report that
his vehicle “struck [Bryan] and dragged him until his final rest in
the northbound lane of Georgia 33 face down.” Id. at 7, ¶ 27.
B
On May 22, 2020, the appellants filed the underlying com-
plaint in federal court. They asserted five claims against Worth
County, former Sheriff Hobby, Coroner Johnson, and Deputy
Sumner. Counts I and II were claims under
42 U.S.C. § 1983,
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alleging violations of the Fifth and Fourteenth Amendments.
Count III asserted state law claims for fraud and misrepresentation.
Count IV pled entitlement to the tolling of the statute of limitations
due to the defendants’ fraud and misrepresentation. Count V was
a claim for attorney’s fees and costs. The complaint alleged that
(1) the defendants knew or had reason to know that Bryan was still
alive after being struck by Deputy Sumner; (2) the defendants acted
in concert to kill Bryan to prevent him from ruining the reputation
of the police department; and (3) the defendants deliberately lied to
investigators about the circumstances of Bryan’s death, thereby
preventing a proper investigation.
The appellants contended that although the complaint had
been filed outside of Georgia’s two-year statute of limitations for
personal injury claims, they were entitled to tolling for at least two
reasons. First, the defendants had fraudulently concealed, through
affirmative misrepresentations and omissions, the cause and man-
ner of Bryan’s injuries. See
id. at 16, ¶ 74. Second, the appellants
could not have discovered the true cause of Bryan’s injuries and
death through reasonable care and due diligence before November
of 2019. See
id. at ¶ 73.
The defendants filed a motion to dismiss, arguing that the
claims were barred by Georgia’s two-year statute of limitations for
personal injury claims. The motion asserted that the statute of lim-
itations on the appellants’ claims had not been tolled. The
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defendants attached seven exhibits to the motion to dismiss, only
three of which the district court considered—Exhibits A, C, and G. 2
Exhibit A was a complaint that the appellants had filed on
December 12, 2016, in the Superior Court of Worth County, Geor-
gia (Overstreet I). In that complaint, they asserted the following
claims: (1) negligence against Worth County, the Worth County
Sheriff’s Office, and Deputy Sumner; (2) respondeat superior
against Worth County and the Worth County Sheriff’s Office;
(3) trespass against Worth County, the Worth County medical ex-
aminer, and Coroner Johnson; (4) respondeat superior against
Worth County, the Worth County medical examiner, and Coroner
Johnson; and (5) damages. See D.E. 8-1. The appellants voluntarily
dismissed Overstreet I in June of 2018, but later renewed it pursu-
ant to O.C.G.A. § 9-2-61 on December 19, 2018 (Overstreet II). Ex-
hibit C was the renewed complaint in Overstreet II. See D.E. 8-3.
Exhibit G was a motion to file an amended renewal complaint. See
D.E. 8-7.
The complaints in Overstreet I and Overstreet II alleged that
Deputy Sumner had struck Bryan with his police cruiser, called 911
to report the incident, and was later “disingenuous” about what
had happened to Bryan. See D.E. 8-1 at 4–7, ¶¶ 13–25; D.E. 8-3 at
2 Although the defendants attached other exhibits to their motion to dismiss,
the district court declined to consider them because the appellants objected
and, in any event, they would not have altered its decision. See D.E. 19 at 7
n.2.
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5–8, ¶¶ 18–30. As to Coroner Johnson, the complaints alleged that
he had “carelessly and negligently rolled over the deceased body of
[Bryan], then backed up over the body a second time.” D.E. 8-1 at
7, ¶ 28; D.E. 8-3 at 8, ¶ 33. The complaints further stated that “[t]he
facts of Coroner Johnson’s mutilation and desecration of [Bryan’s]
body were omitted from the original crash reports.” D.E. 8-1 at 7,
¶ 29; D.E. 8-3 at 8, ¶ 34.
In response to the defendants’ motion to dismiss, the appel-
lants argued that they could not have discovered the true cause of
Bryan’s injuries and death before November 22, 2019—the date on
which they received their experts’ opinions. The experts con-
cluded that Bryan had not been killed by Deputy Sumner, but, ra-
ther, that he had died after being run over by Coroner Johnson.
The district court granted the motion to dismiss and entered
judgment for the defendants, dismissing the federal claims with
prejudice due to the running of the statute of limitations and dis-
missing the state law claims without prejudice. The court held that
the appellants were not entitled to equitable tolling because their
failure to diligently prosecute their case could not “be attributed to
[the d]efendants,” and because they had “not established the exist-
ence of fraud that would act to toll the statute of limitations.” D.E.
19 at 16.
The appellants then filed a motion for reconsideration, ask-
ing the district court to revisit its holding that their claims were not
tolled due to fraud. The court denied that motion, and this appeal
followed.
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II
The appellants argue that the district court erroneously dis-
missed their complaint because the statute of limitations on their
claims was tolled as a result of the defendants’ fraudulent conceal-
ment. See Appellants’ Initial Br. at 11–15. More particularly, they
allege that Coroner Johnson, former Sheriff Hobby, and Deputy
Sumner conspired to conceal the facts that led to the injury and
death of Bryan—something they contend they could not have
known until they received their experts’ opinions in late 2019.
They further argue that the court improperly considered docu-
ments outside the pleadings. Finally, they contend that the court
abused its discretion in denying them an opportunity to amend
their complaint. 3
The defendants respond that the district court did not err in
granting their motion to dismiss because the appellants failed to
allege specific acts of fraud that would have tolled the limitations
period. They further argue that the district court did not err in
considering three of the exhibits attached to their motion because
they were court documents from prior proceedings, which were
properly the subject of judicial notice.
3 The appellants do not dispute that, absent tolling, their claims are barred by
Georgia’s personal injury statute of limitations. See Appellants’ Initial Br. at
11–12.
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III
A
We review the district court’s decision to grant a defendant’s
motion to dismiss for failure to state a claim de novo, accepting the
allegations in the complaint as true and construing them in the light
most favorable to the appellants. See Leib v. Hillsborough Cnty.
Pub. Transp. Comm’n,
558 F.3d 1301, 1305 (11th Cir. 2009). This
construction, however, does not apply to legal conclusions. See
Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009).
We also review the district court’s “interpretation and appli-
cation of statutes of limitations” de novo. See Ctr. for Biological
Diversity v. Hamilton,
453 F.3d 1331, 1334 (11th Cir. 2006). Be-
cause the statute of limitations bar is an affirmative defense, dismis-
sal for failure to state a claim on statute of limitation grounds is
proper only if it is apparent from the face of the complaint that the
claim is time barred. See La Grasta v. First Union Sec., Inc.,
358
F.3d 840, 845 (11th Cir. 2004).
B
We first address the appellants’ argument that the district
court erred in considering their pleadings from the state-court ac-
tion. They argue that the district court could not have considered
these documents without converting the motion to dismiss to a
motion for summary judgment. See Fed. R. Civ. P. 12(d).
There are two exceptions to the conversion provision in
Rule 12(d). The first is the “incorporation by reference” doctrine,
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which allows for documents attached to a motion to dismiss to be
considered by the court if they are: (1) central to the plaintiff’s claim
and (2) undisputed (authenticity of the document is not chal-
lenged). See, e.g., Horsley v. Feldt,
304 F.3d 1125, 1134 (11th Cir.
2007). The second exception occurs where the court takes judicial
notice of documents, such as matters of public record and prior
court records. That exception was initially limited to judicial no-
tice of S.E.C. filings in a securities fraud action, see Bryant v. Avado
Brands, Inc.,
187 F.3d 1271, 1276–78 (11th Cir. 1999), but it has since
been expanded to other contexts. See Lozman v. City of Riviera
Beach, Fla.,
713 F.3d 1066, 1075 n.9 (11th Cir. 2013) (taking judicial
notice, at the motion to dismiss stage, of “court documents from
[a] state eviction action”).
Given our application of the second exception, the district
court correctly determined that it did not need to convert the de-
fendants’ motion to dismiss to a motion for summary judgment.
The district court considered only certain exhibits filed with the
motion to dismiss—all of which were prior filings by the appellants
in related state-court proceedings. Irrespective of whether these
state-court documents satisfied the “incorporation by reference”
exception, the district court properly took judicial notice of them.
See Tellabs, Inc. v. Makor Issues & Rts., Ltd.,
551 U.S. 308, 322
(2007) (explaining that, in addressing a motion to dismiss, courts
consider not only “the complaint in its entirety” but also “other
sources courts ordinarily examine when ruling on Rule 12(b)(6)
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motions to dismiss, . . . [such as] matters of which a court may take
judicial notice”).
C
“All constitutional claims brought under § 1983 are tort ac-
tions, subject to the statute of limitations governing personal injury
actions in the state where the § 1983 action has been brought.”
McNair v. Allen,
515 F.3d 1168, 1173 (11th Cir. 2008). Typically, in
a statute of limitations case we would begin by addressing the dis-
trict court’s holding that the appellants’ constitutional claims,
brought under § 1983, are barred by the Georgia statute of limita-
tions. See generally id. In this case, however, the appellants recog-
nize that their § 1983 claims are barred by the state of limitations
unless there is equitable tolling. See Appellants’ Initial Br. at 11–12
(stating that the applicable statute of limitations is two years with-
out contesting its applicability to this case). So we merely recount
what is necessary to explain why equitable tolling does not apply.
Generally speaking, a federal cause of action under § 1983
accrues when the plaintiff “knows or has reason to know of the in-
jury which is the basis of the action.” Rubin v. O’Koren,
621 F.2d
114, 116 (5th Cir. 1980) (internal quotation marks and citation omit-
ted). At the latest, the appellants’ § 1983 claims accrued on Decem-
ber 8, 2016—the date Overstreet I was filed. Under that later date,
the limitations period for the appellants’ causes of action would
have expired on December 8, 2018.
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Filed shortly after Bryan’s death, the complaint in Over-
street I shows that the appellants knew or should have known in
late 2016 (1) that Bryan had been deprived of his constitutionally
protected interests at the hands of the state, (2) that he was struck
and/or run over by two state actors (Deputy Sumner and Coroner
Johnson), and (3) that Coroner Johnson has not been truthful about
his actions. Although they would not necessarily have been able
to determine which of the two state actors caused Bryan’s death,
the appellants had sufficient information at that time to know that
it was caused by one of the two—an identifiable state actor.
The appellants did not file their federal complaint until May
22, 2020. Because the § 1983 claims are subject to a two-year stat-
ute of limitations, and the complaint was filed after the running of
that limitations period, the appellants were only entitled to proceed
on their federal claims if equitable tolling was applicable.
The Supreme Court has said that it has “generally referred
to state law for tolling rules.” Wallace v. Kato,
549 U.S. 384, 394
(2007). It has also stated, however, that tolling is not “appropriate
to avoid the risk of concurrent litigation.”
Id. at 396. To invoke
tolling based on fraud under Georgia law, which pauses the statute
of limitations until a plaintiff discovers the fraud, a plaintiff must
plausibly allege three elements. See Anthony v. Am. Gen. Fin.
Servs., Inc.,
626 F.3d 1318, 1321 (11th Cir. 2010); O.C.G.A. § 9-3-96.
First, a plaintiff must allege that a defendant committed “ac-
tual fraud.” McClung Surveying, Inc. v. Worl,
541 S.E.2d 703, 706
(Ga. Ct. App. 2000). Second, the plaintiff must show that the
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“actual fraud” concealed the cause of action. See
id. Third, the
plaintiff must exercise reasonable diligence to discover the cause of
action despite his failure to do so within the statute of limitations.
See
id.
“Actual fraud” under Georgia law consists of five elements:
(1) false representation or omission of a material fact, (2) scienter,
(3) intention to induce the party claiming fraud to act or refrain
from acting, (4) justifiable reliance, and (5) damages. See Fin. Sec.
Assur., Inc. v. Stephens, Inc.,
500 F.3d 1276, 1288 (11th Cir. 2007).
“[W]here the gravamen of the action is other than actual fraud, . . .
there must be a separate independent actual fraud involving moral
turpitude which debars and deters the plaintiff from bringing his
action.” Shipman v. Horizon Corp.,
267 S.E.2d 244, 246 (Ga. 1980).
Under this circumstance, however, “silence concerning the under-
lying action cannot be a continuation of an original actual fraud
because there is none.”
Id. The Georgia Court of Appeals has held
that “[t]o toll the statute of limitations, concealment of a cause of
action must be by positive affirmative act and not by mere silence.”
Comerford v. Hurley,
268 S.E.2d 358, 360 (Ga. Ct. App. 1980).
Therefore, ‘“mere silence’ is not sufficient to toll the statute [of lim-
itations] unless there is a duty to make a disclosure because of a
relationship of trust and confidence between the parties.” Ship-
man,
267 S.E.2d at 246.
The appellants’ § 1983 claims are not predicated on fraud.
So to satisfy the actual fraud requirement for equitable tolling they
must allege the existence of a “separate independent actual fraud
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14 Opinion of the Court 21-14391
involving moral turpitude which debar[ed] and deter[ed] [them]
from bringing [their] action.” Id. In their complaint, the appellants
plausibly alleged at least some actual and continuing fraud. See,
e.g., D.E. 1 at 10, 15–16, ¶¶ 43–44, 71–75. The appellants’ allega-
tions as to the second element—that the defendants’ actual fraud
concealed the causes of action—are more questionable. See
McClung,
541 S.E.2d at 706. Assuming without deciding that the
appellants satisfied the first two elements, they nevertheless have
failed to show that they exercised reasonable diligence to discover
their causes of action. See
id.
The appellants argue that the district court erred in finding,
as a matter of law, that they did not exercise reasonable diligence
in discovering and bringing their federal claims. They contend that
this is a question of fact that must be determined by a jury. Alt-
hough the appellants are correct that due diligence is typically a
question of fact, “a party may fail to exercise due diligence as a mat-
ter of law.”
Id.
Reasonable diligence under Georgia law is measured by a
“prudent man” standard, which is objective. See Doe v. St. Joseph’s
Cath. Church,
870 S.E.2d 365, 376 (Ga. 2022). The appellants
needed to plausibly allege facts indicating their due diligence in
conducting an adequate investigation. See Ashcroft,
556 U.S. at
678. Instead, they merely made conclusory statements that they
engaged in due diligence to discover the true cause of Bryan’s death
and that it was not possible to have discovered the cause due to the
defendants’ concealment. See D.E. 1 at 15–16, ¶¶ 72–73. Such a
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21-14391 Opinion of the Court 15
legal conclusion need not be taken as true by the district court or
by us. See Ashcroft,
556 U.S. at 678.
Further, contrary to the appellants’ contention that they ex-
ercised reasonable diligence in bringing their federal causes of ac-
tion, the complaints filed in Overstreet I and Overstreet II demon-
strate otherwise. These pleadings show that the appellants were
on notice of the potential fraud on December 8, 2016, and did not
fully investigate until years later when they received their experts’
opinions on November 22, 2019.
At the time of the filing of the 2016 complaint in Overstreet
I, the appellants had essentially the same knowledge regarding the
defendants’ alleged actions and misrepresentations as they did at
the time of the filing of the federal complaint. The fraudulent ac-
tions they alleged in Overstreet I were (1) that Coroner Johnson
ran over Bryan and lied about and failed to report his actions, (2)
that Deputy Sumner was “disingenuous” about what happened to
Bryan, and (3) that Deputy Sumner and Coroner Johnson had a pri-
vate conversation prior to Coroner Johnson running over Bryan in
which they conspired to hide the true cause of his death. As to
these facts, the appellants were on notice years prior to the receipt
of their expert opinions. These facts, then, could not have operated
to conceal possible causes of action or bar the appellants from
bringing suit for purposes of tolling the statute of limitations. See
Shipman,
267 S.E.2d at 246. The appellants simply did not exercise
reasonable diligence.
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D
Finally, the appellants argue that the district court abused its
discretion in dismissing their complaint without allowing them an
opportunity to amend. Because the appellants’ § 1983 claims are
barred by the statute of limitations, however, amendment would
be futile. See, e.g., Bryant v. Dupree,
252 F.3d 1161, 1163 (11th Cir.
2001). As such, the court did not abuse its discretion in denying
them leave to amend.
IV
We affirm the district court’s order dismissing the appel-
lants’ complaint.
AFFIRMED.
