FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

JULY 06, 2010

JOHN LEY

 CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 09-16108

Non-Argument Calendar

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D. C. Docket No. 09-60421-CV-WJZ

BILLY JAMES LEWIS, JR.,

Plaintiff-Appellant,

versus

JAMES BARNICK,

FELIPE RODRIGUEZ,

STEVEN BOLGER,

HOLLYWOOD POLICE DEPT.,

CITY OF HOLLYWOOD, FLORIDA,

Defendants-Appellees.

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Appeal from the United States District Court

for the Southern District of Florida

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(July 6, 2010)
Before TJOFLAT, WILSON and KRAVITCH, Circuit Judges.

PER CURIAM:

Billy James Lewis, Jr., a Florida state prisoner, appeals the district court’s

dismissal of his pro se civil rights complaint alleging that Florida police officers

violated his constitutional rights during his arrest in 2004. For the following

reasons, we vacate and remand.

On March 13, 2009, Lewis filed a civil rights action alleging constitutional

violations and conspiracy under 42 U.S.C. §§ 1983, and 1985(3) in connection

with his arrest in April 2004. He later filed an amended complaint providing

further detail for these allegations and adding state law claims.

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The magistrate judge recommended dismissing the complaint under 28

U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim upon which relief could be

granted because the complaint was not filed within the four-year statute of

limitations. Although the magistrate judge considered Florida’s tolling provisions,

the judge concluded that Lewis’s status as a prisoner did not fall within the

provision.

Lewis filed objections to the recommendation, in which he argued that he

had filed a complaint in 2007 by placing the complaint in the prison mail system,

 On appeal, Lewis proffers no argument regarding the dismissal of these state law 1

claims.

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and eighteen months later, when he had not receive a response from the court, he

filed the instant complaint. He argued that the 2007 complaint, which raised the

same constitutional claims as the 2009 complaint, tolled the limitations period, but

he did not clearly assert that the instant complaint served as an amendment to the

2007 complaint. It does not appear from the record that the district court docketed

the 2007 complaint.

The district court adopted the recommendation of the magistrate judge and

dismissed the complaint without addressing Lewis’s claim that he filed a complaint

in 2007.

On appeal, Lewis raises two issues. First, he argues that the district court

erred in not applying the “prison mailbox rule,” and dismissing his § 1983

complaint as barred by the statute of limitations. Second, Lewis argues that the

district court erred in finding that Florida’s tolling statute, Florida Statute § 95.051,

did not toll the statutory period.

A court “shall dismiss” a case filed in forma pauperis if the court determines

that the complaint “fails to state a claim upon which relief may be granted.” 28

U.S.C. § 1915(e)(2)(B)(ii). A district court’s dismissal of a complaint for failure to

state a claim is reviewed de novo, “viewing the allegations in the complaint as

true.” Mitchell v. Farcass, 112 F.3d 1483, 1490 (11th Cir. 1997).

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“Section 1983 claims are governed by the forum state’s residual personal

injury statute of limitations, which in Florida is four years.” City of Hialeah v.

Rojas, 311 F.3d 1096, 1103 n.2 (11th Cir. 2002). Thus, “[p]laintiffs must bring a

section 1983 claim arising in Florida within four years of the alleged unlawful

[conduct].” Id. at 1103. “To dismiss a prisoner’s complaint as time-barred prior to

service, it must appear beyond a doubt from the complaint itself that the prisoner

can prove no set of facts which would avoid a statute of limitations bar.” Hughes

v. Lott, 350 F.3d 1157, 1163 (11th Cir. 2003) (internal quotations omitted). When

a pro se prisoner files a complaint under § 1983, “the date of filing shall be that of

delivery to prison officials . . . for the purpose of ascertaining timeliness.” Garvey

v. Vaughn, 993 F.2d 776, 783 (11th Cir. 1993) (emphasis omitted).

Lewis’s § 1983 complaint filed on March 13, 2009, was untimely as to the

2004 events. When it adopted the magistrate judge’s recommendation, however,

the district court failed to consider or address the status of the 2007 complaint.

The 2007 complaint would be timely under the “mailbox rule.” Although Lewis

did not explicitly argue that the 2009 complaint is an amendment of the 2007

complaint, we must consider Lewis’s pro se status and the fact that he submitted a

copy of the 2007 complaint bearing the prison mail stamp. The failure of the

district court to docket the 2007 complaint should not be held against Lewis, and

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the district court’s failure to address the status of the 2007 complaint before

dismissing the 2009 complaint is questionable. See, e.g., Mederos v. United States,

218 F.3d 1252, 1254 (11th Cir. 2000) (holding that pro se prisoner’s second

motion to vacate under 28 U.S.C. § 2255 was an amendment to the first § 2255

motion where prisoner acted diligently to correct defect in initial pleading).

2

Accordingly, we vacate and remand for the district court to (1) determine the status

of the 2007 complaint, and (2) address its impact, if any, on the current action.

3

VACATED and REMANDED.

 We note that Lewis waited eighteen months after he filed the 2007 complaint to file 2

again and he does not allege that he attempted to learn the status of his 2007 complaint during

that time. In fact, the record does not show whether the 2007 complaint was ever docketed. But

these are factual issues the district court can address on remand.

 Because we conclude remand is necessary we need not address whether Fla. Stat. 3

§ 95.051 tolled the limitations period.

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