FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

NOVEMBER 18, 2005

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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Nos. 04-15564 & 05-10855

Non-Argument Calendar

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D. C. Docket No. 03-03386-CV-JEC-1

INYANG PETER ODUOK, 

Plaintiff-Appellant, 

versus 

SEAN PHILLIPS, Individually and In his official 

Capacity, 

DEKALB POLICE DEPARTMENT, 

DEKALB DEPARTMENT OF PUBLIC SAFETY, 

BOBBY BURGESS, 

EDDIE MOODY, et al., 

Defendants-Appellees. 

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Appeals from the United States District Court

for the Northern District of Georgia

_________________________

(November 18, 2005)
 We find no abuse of discretion in the district court’s denial of Oduok’s motion for 1

recusal. Cf. United States v. Berger, 375 F.3d 1223, 1227 (11th Cir. 2004) (reviewing district

judge’s decision on motion to recuse for abuse of discretion). We likewise find no error in the

district court’s denial of Oduok’s motion to remand. Simply put, remand was not warranted because

Oduok stated federal claims based on 42 U.S.C. § 1983 and, accordingly, the district court had

original jurisdiction over the action. See 28 U.S.C. §§ 1441(b) and 1446(b). We decline to

consider Oduok’s other arguments as they are raised for the first time on appeal and they do not fall

within any of the exceptions we have recognized to the rule that we will not consider issues not

raised in the district court first. See Access Now, Inc. v. Southwest Airlines Co., 385 F.3d 1324,

1331-32 (11th Cir. 2004).

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Before DUBINA, HULL and MARCUS, Circuit Judges.

PER CURIAM:

Inyang Peter Oduok, proceeding pro se, appeals the district court’s order

dismissing his 42 U.S.C. § 1983 civil rights suit against Sean Phillips, individually

and in his official capacity as a DeKalb County police officer; the DeKalb County

Police Department; the DeKalb County Department of Public Safety; Vernon

Jones, individually and in his official capacity as chief executive officer of DeKalb

County; Bobby Burgess, individually and in his official capacity; Eddie Moody,

individually and in his official capacity as chief of the DeKalb County Police

Department; and John Does 1-3 (collectively, “Defendants”). On appeal, Oduok

challenges (1) the district court’s dismissal based on the statute of limitations, (2)

the district court’s dismissal of Phillips based on res judicata, and (3) the district

court’s dismissal of Moody based on collateral estoppel. After thorough review, 1

we affirm.
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First, Oduok challenges the district court’s dismissal of his complaint based

on the statute of limitations. He argues that the limitations period was tolled

during the pendency of an action he filed in 2000 against Phillips individually and

certain Cobb County officers and entities, and that the instant action relates back to

the 2000 action, which was dismissed by the district court. He asserts that the

Defendants are estopped from arguing the statute of limitations as a defense

because they participated in the 2000 action.

We review a district court’s dismissal under Rule 12(b)(6) 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 plaintiff. See Hill v. White, 321 F.3d 1334,

1335 (11th Cir. 2003). A complaint should not be dismissed pursuant to Rule

12(b)(6) for failure to state a claim unless it appears beyond a doubt that the

plaintiff can prove no set of facts in support of his claim that would entitle him to

relief. See Jackam v. Hosp. Corp. of Am. Mideast, Ltd., 800 F.2d 1577, 1579

(11th Cir. 1986). Our review of a district court’s interpretation and application of a

statute of limitations is also de novo. See United States v. American States Ins.

Co., 252 F.3d 1268, 1270 (11th Cir. 2001). 

“Federal courts apply their forum state’s statute of limitations for personal

injury actions to actions brought pursuant to 42 U.S.C. § 1983[.]” Uboh v. Reno,
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141 F.3d 1000, 1002 (11th Cir. 1998). “A statute of limitations begins to run when

the cause of action accrues. The question of when the limitations period begins to

run, however, is one of federal law.” Id. (citation omitted). “[T]he statute of

limitations does not begin to run until the facts which would support a cause of

action are apparent or should be apparent to a person with a reasonably prudent

regard for his rights.” Rozar v. Mullis, 85 F.3d 556, 561-62 (11th Cir. 1996)

(quotation marks omitted). 

The statute of limitations for personal injury actions in Georgia is two years.

See O.C.G.A. § 9-3-33. The Georgia renewal statute provides:

When any case has been commenced in either a state or federal court

within the applicable statute of limitations and the plaintiff

discontinues or dismisses the same, it may be recommenced in a court

of this state or in a federal court either within the original applicable

period of limitations or within six months after the discontinuance or

dismissal, whichever is later, subject to the requirement of payment of

costs in the original action as required by subsection (d) of Code

Section 9-11-41; provided, however, if the dismissal or

discontinuance occurs after the expiration of the applicable period of

limitation, this privilege of renewal shall be exercised only once.

O.C.G.A. § 9-2-61(a) (emphasis added). Federal Rule of Civil Procedure 15(c)

provides:

(c) Relation Back of Amendments. An amendment of a pleading

relates back to the date of the original pleading when

(1) relation back is permitted by the law that provides the statute of

limitations applicable to the action, or
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(2) the claim or defense asserted in the amended pleading arose out of

the conduct, transaction, or occurrence set forth or attempted to be set

forth in the original pleading, or

(3) the amendment changes the party or the naming of the party

against whom a claim is asserted if the foregoing provision (2) is

satisfied and, within the period provided by Rule 4(m) for service of

the summons and complaint, the party to be brought in by amendment

(A) has received such notice of the institution of the action that the

party will not be prejudiced in maintaining a defense on the merits,

and (B) knew or should have known that, but for a mistake concerning

the identity of the proper party, the action would have been brought

against the party.

Fed. R. Civ. P. 15(c). “Congress intended Rule 15(c) to be used for a relatively

narrow purpose; it did not intend for the rule to be so broad to allow an amended

pleading to add an entirely new claim based on a different set of facts.” Farris v.

United States, 333 F.3d 1211, 1215 (11th Cir. 2003). “[A]n untimely claim must

have more in common with the timely filed claim than the mere fact that they arose

out of the same trial or sentencing proceeding” and “must have arisen from the

‘same set of facts’ as the timely filed claim, not from separate conduct or a separate

occurrence in ‘both time and type.’” Id. 

Here, the district court did not err by granting the Defendants’ 12(b)(6)

motion to dismiss based on the statute of limitations. Oduok’s cause of action

accrued on August 28, 1998, when he was injured while being arrested. He filed

the instant action in state court over five years later, on October 6, 2003, which was
 We are unpersuaded by Oduok’s additional argument -- that the 2000 action equitably 2

tolled the statute of limitations -- because he has not demonstrated extraordinary circumstances

beyond his control and avoidable even with diligence. See Cabello v. Fernandez-Larios, 402 F.3d

1148, 1155 (11th Cir. 2005) (“Equitable tolling is appropriate only in ‘extraordinary circumstances’

that are both beyond the plaintiff’s control and unavoidable even with diligence.” (internal quotation

marks omitted)). We observe that Odouk has demonstrated no basis, let alone extraordinary

circumstances, to explain why he could not have brought the instant claims against the Defendants

in the 2000 action. 

 Because we find the instant action barred by the statute of limitations, we need not, and 3

do not, reach the district court’s alternate grounds for dismissing Oduok’s claims against Defendant

Phillips as precluded by res judicata and against Defendant Moody as precluded by collateral

estoppel.

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beyond Georgia’s applicable two-year limitations period. Neither the Georgia

renewal statute nor the relation back doctrine renders Oduok’s complaint timely.

Simply put, by its plain terms, the Georgia renewal statute does not apply because

the federal claims in Oduok’s 2000 action were dismissed on the merits by the

district court, not Oduok as O.C.G.A. § 9-2-61(a) requires. Moreover, Oduok’s

instant complaint, which was filed in state court over three years after the dismissal

of the 2000 action and which names entirely different defendants, does not meet

the requirements of Rule 15(c). Therefore, the district court did not err by 2

granting the Defendants’ motion to dismiss based on the statute of limitations. 

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AFFIRMED.