[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 22-13116

Non-Argument Calendar

____________________

DANNY FOSTER, SR., 

Plaintiff-Appellant,

versus

WILLIAM GUILLOU, 

Det., individual and official capacity, 

SEAN SANDLER, 

DUSM, individual and official capacity, 

JOHN HAMILTON, 

U.S. Marshal, individual and official capacity, 

ADAM MILTON, 

Chief of Police, individual and official capacity, 

JEREMY DUERR, 

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2 Opinion of the Court 22-13116

District Attorney, individual and official capacity, et al.,

Defendants-Appellees.

____________________

Appeal from the United States District Court

for the Middle District of Alabama

D.C. Docket No. 2:22-cv-00069-MHT-KFP

____________________

Before NEWSOM, BRANCH, and GRANT, Circuit Judges.

PER CURIAM:

Danny Foster, Sr., proceeding pro se, appeals the district 

court’s dismissal of his § 1983 and Bivens claims. Because the 

district court did not err in dismissing these claims for failure to 

state a claim, we affirm. 

I.

Foster’s appeal arises from his arrest in February 2013. 

Foster was arrested for escaping jail, where he was serving a 

sentence for a prior conviction. Foster alleges that, in connection 

with his 2013 arrest, officers arrested him and searched his cell 

phone, truck, and person, all without a warrant or his consent. 

After his 2013 arrest, Foster was immediately ordered to start 

serving his initial sentence. He was sentenced again for murder in 

November 2017. According to Foster, he wrote the circuit clerk 

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22-13116 Opinion of the Court 3

five times a month for ten years requesting a copy of the warrant 

for his 2013 arrest, searches, and subsequent imprisonment. Foster 

claims he did not receive a response until October 2020, when he 

learned that there was never a warrant. 

In February 2022, Foster brought claims against the officials 

involved with his arrest and sentencing, Detective William 

Guillou, Deputy U.S. Marshal Sean Sandler, U.S. Marshal John 

Hamilton, Chief of Police Adam Milton, District Attorney Jeremy 

Duerr, Circuit Judge Tom F. Young, Investigator Marvin Crayton, 

Lieutenant Mike Knowles, Circuit Clerk Chris May, Berry Golden, 

Sheriff David Cofield, District Attorney Amy Newsome, and five 

unknown federal agents. The magistrate judge construed Foster’s 

amended complaint as bringing the following claims under § 1983 

and Bivens1: false arrest, unlawful imprisonment, and illegal 

searches of his person, truck, and cell phone, all in violation of the 

Fourth Amendment; a First Amendment violation for denial of 

media access; and conspiracy to violate his constitutional rights.2

The magistrate judge found that Foster’s claims of false arrest, 

illegal search, and unlawful imprisonment were untimely given 

that they were brought after the statute of limitations period. She 

also found that his First Amendment claim was meritless and that 

1 This claim originates from Bivens v. Six Unknown Named Agents of Fed. Bureau 

of Narcotics, 403 U.S. 388 (1971). 

2 Foster also brought a malicious prosecution claim that was dismissed by the 

district court. Foster did not challenge this finding and stated that he never 

intended to bring this claim. Thus, it will not be reviewed on appeal. See 

Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1335 (11th Cir. 2004).

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his conspiracy allegations were vague and conclusory. The district 

court agreed and dismissed Foster’s claims for failure to state a 

claim. Foster appeals the dismissal order.3

II.

We review de novo a district court’s sua sponte dismissal for 

failure to state a claim and failure to satisfy the statute of 

limitations. Karantsalis v. City of Miami Springs, 17 F.4th 1316, 1319

(11th Cir. 2021). A complaint fails to state a claim if, after 

disregarding any conclusory allegations, no factual allegations 

remain that “plausibly give rise to an entitlement to relief.” 

McCullough v. Finley, 907 F.3d 1324, 1333 (11th Cir. 2018) (quoting 

Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009)). A complaint also fails to 

state a claim if “relief is barred by the applicable statute of 

limitations.” Jones v. Bock, 549 U.S. 199, 215 (2007). Pro se

complaints should be construed liberally butstill must comply with 

the procedural rules. McNeil v. United States, 508 U.S. 106, 113 

(1993).

III.

Section 1983 provides a federal cause of action for 

constitutional violations by state officials, and Bivens does the same 

but for federal officials. Abella v. Rubino, 63 F.3d 1063, 1065 (11th 

Cir. 1995). For both, the statute of limitations begins to run when 

3 Foster also alleges fraud and violations of his Ninth, Eighth, and Fourteenth 

Amendments for the first time on appeal. We disregard these claims as they 

are not properly before this Court. See Walker v. Jones, 10 F.3d 1569, 1572 (11th 

Cir. 1994).

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the “cause of action accrues.” Kelly v. Serna, 87 F.3d 1235, 1238–39 

(11th Cir. 1996). This is when 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.” Mullinax v. McElhenney, 

817 F.2d 711, 716 (11th Cir. 1987) (quotation omitted). State law 

governs the length of the statute of limitations for both § 1983 and 

Bivens claims. Kelly, 87 F.3d at 1238.

Foster brings claims under § 1983 and Bivens against 

Defendants, some of whom are state officials and some of whom 

are federal officials. Foster does not clarify exactly which of his 

claims apply to which Defendants or which Defendants are state 

versus federal officials, and the district court did not make this 

distinction either. But because § 1983 applies only to state officials,

and Bivens applies only to federal officials, we construe Foster’s

§ 1983 claims as applying to the state Defendants (whoever they 

may be) and his Bivens claims as applying to the federal Defendants 

(whoever they may be). This distinction, while helpful to note,

does not ultimately make a difference in the application. 

We start first with Foster’s Bivens claims. It is worth noting 

that Bivens is not an expansive doctrine. The Supreme Court itself 

has recognized the “notable change in the Court’s approach” to 

Bivens, so much so that “expanding the Bivens remedy is now a 

disfavored judicial activity.” Ziglar v. Abbasi, 582 U.S. 120, 135 

(2017) (quotation omitted). Bivens has only been applied in three 

specific contexts: a Fourth Amendment search-and-seizure case, a 

Fifth Amendment discrimination case, and an Eighth Amendment 

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cruel-and-unusual-punishment case. Id. at 130–31. And the 

Supreme Court has consistently rejected its application to First 

Amendment cases. See, e.g., Bush v. Lucas, 462 U.S. 367, 390 (1983); 

Ashcroft, 556 U.S. at 675; Reichle v. Howards, 566 U.S. 658, 663–64

n.4 (2012).

But we need not decide whether Bivens could offer a viable 

claim here because even assuming that it does, Foster’s Bivens 

claims fail. To start, Foster’s false arrest, illegal search, and 

unlawful imprisonment claims were properly dismissed as 

untimely. The applicable statute of limitations period under 

Alabama law is two years. Ala. Code § 6-2-38(l). Alabama allows 

statutory tolling for individuals suffering from certain disabilities, 

underrepresented estates, individuals absent from the state, actions 

involving nonmerchant mutual accounts, actions stayed by 

injunction or statutory prohibition, granting of letters 

testamentary or administration, and contracts during war. Id. §§ 6-

2-8 to -14. In addition to statutory tolling, equitable tolling may be 

available in rare circumstances when a plaintiff shows “(1) that he 

has been pursuing his rights diligently, and (2) that some 

extraordinary circumstance stood in his way and prevented timely 

filing.” Holland v. Florida, 560 U.S. 631, 649 (2010) (quotation 

omitted). Extraordinary circumstances exist where there is some 

affirmative misconduct, like deliberate concealment, fraud, or 

misinformation. Jackson v. Astrue, 506 F.3d 1349, 1355 (11th Cir. 

2007).

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Foster argues that his false arrest, illegal search, and 

unlawful imprisonment claims were not untimely because the 

statute of limitations should have been tolled until October 2020, 

when he discovered the lack of a warrant. But the failure to 

discover this information does not fall under any of Alabama’s

statutory tolling provisions. Nor does it constitute an 

“extraordinary circumstance” justifying equitable tolling because 

there is no evidence of affirmative misconduct by the circuit clerk;

all Foster alleges is a failure to respond to his requests for a copy of 

the warrant.

By the time he was sentenced in November 2017, Foster was 

aware of the facts sufficient for his claims. The allegedly illegal 

searches and arrest occurred in February 2013, and he was 

sentenced in November 2017. Even if he did not know with 

certainty until October 2020 that there was no warrant, Foster 

clearly suspected as much based on his continuous requests for a 

copy of the warrant and thus should have known by November 

2017. By waiting until February 2022 to file his initial complaint, 

Foster failed to meet the two-year statute of limitations period. His 

claims are thus untimely.

Foster’s First Amendment and conspiracy claims were also 

properly dismissed. For one, we are skeptical that Bivens applies to 

First Amendment claims given the Supreme Court’s treatment of 

that topic. See, e.g., Bush, 462 U.S. at 390; Ashcroft, 556 U.S. at 675; 

Reichle, 556 U.S. at 663–64 n.4. But even assuming it does, Foster 

fails to sufficiently plead a First Amendment violation because he 

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does not identify any precedent establishing that an officer 

preventing an arrestee’s media access violates the First 

Amendment; indeed, the Supreme Court has recognized the 

opposite. See Pell v. Procunier, 417 U.S. 817, 823 (1974). 

Furthermore, Foster’s conspiracy claim fails because his complaint 

broadly asserts only conclusory allegations of a conspiracy and 

lacks specific factual allegations. See McCullough, 907 F.3d at 1333.

For the same reasons that Foster’s Bivens claims against the 

federal Defendants fail, his § 1983 claims against the state 

Defendants fail. The same statute of limitations applies, and thus 

Foster’s false arrest, illegal search, and unlawful imprisonment 

claims were untimely. See Kelly, 87 F.3d at 1238. Additionally, 

Foster’s First Amendment and conspiracy claims fail because, as 

discussed, he fails to plead sufficient facts to support them. 

* * *

The district court properly dismissed Foster’s claims for 

failure to state a claim. Foster’s claims alleging illegal searches, 

false arrest, and unlawful imprisonment are untimely, and he failed 

to allege sufficient facts to support his First Amendment and 

conspiracy claims. We thus AFFIRM the district court’s dismissal.

AFFIRMED.

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