FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

JULY 23, 2007

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 06-12840

Non-Argument Calendar

________________________

D. C. Docket No. 06-60128-CV-UUB

CHARLES WESLEY O’BERRY, 

Plaintiff-Appellant, 

versus 

STATE ATTORNEYS OFFICE, BROWARD COUNTY, 

FT. LAUDERDALE POLICE DEPT., 

Defendants-Appellees. 

________________________

No. 06-13562

Non-Argument Calendar

________________________

D. C. Docket No. 06-60268-CV-KMM

CHARLES WESLEY O’BERRY, 

Plaintiff-Appellant, 

versus 

CITY OF FORT LAUDERDALE, 

THE RISK MANAGEMENT DIVISION, 

CITY COUNCIL, 
2

CITY CIVIL SERVICE BOARD, 

OZZIE DAVENPORT, 

JERRY MELTZER, 

BILL CAPKO, 

EDWARD G. STEPHENS, 

RONALD HANKS, in their 

Official and Individual capacities, 

Defendants-Appellees. 

________________________

Appeals from the United States District Court

for the Southern District of Florida

_________________________

(July 23, 2007)

Before ANDERSON, BIRCH and BARKETT, Circuit Judges.

PER CURIAM:

Charles Wesley O’Berry, a Florida prisoner who is serving a 150-year

sentence after being convicted of two counts of rape in 1969, appeals the district

court’s dismissals–for failure to state a claim upon which relief could be

granted–of his two, separately filed civil rights complaints, which we consolidated

on appeal. Upon review, we AFFIRM. 

I. BACKGROUND

In his first complaint, No. 06-60128-UUB (S.D. Fla., Jan. 30, 2006)

(hereinafter “Complaint #1”), O’Berry claimed that the Office of the State

Attorney in Broward County, Florida, and the Ft. Lauderdale Police Department
 28 U.S.C. § 1915A requires that a court review “a complaint in a civil action in which a 1

prisoner seeks redress from a governmental entity or officer,” and states that upon such review,

the court shall identify the cognizable claims or dismiss the complaint, if the court finds that the

complaint “is frivolous, malicious, or fails to state a claim upon which relief may be granted.” 

28 U.S.C. § 1915A (a), (b).

3

conspired to violate his civil rights by using false evidence to indict and convict

him in 1969 for a rape that he did not commit. O’Berry alleged that this conduct

constituted a criminal act; he invoked 18 U.S.C. §§ 241 and 242 as the statutory

basis for his complaint. O’Berry moved to amend his complaint to allege

additional facts, but the magistrate judge declined to permit an amendment. The

magistrate judge construed O’Berry’s complaint as being a claim brought under 42

U.S.C. § 1983 (“ § 1983”) rather than 18 U.S.C. §§ 241 and 242. The magistrate

judge then recommended a sua sponte dismissal of O’Berry’s complaint, because

the complaint was time-barred. The district court then dismissed O’Berry’s

complaint, pursuant to its authority under 28 U.S.C. § 1915A, based on the 1

magistrate judge’s finding that the complaint was barred by Florida’s four-year

statute of limitations for claims of false arrest or malicious prosecution. The court

concluded that all other pending motions should be dismissed as moot.

O’Berry’s second complaint, No. 06-60268-KMM (S.D. Fla., Feb. 16, 2006)

(hereinafter “Complaint #2”) was filed approximately a month after Complaint #1. 

This time O’Berry lodged claims against against the City of Ft. Lauderdale; the
4

Risk Management Division; the City Council; the City Civil Service Board;

Detectives Ozzie Davenport, Jerry Meltzer, and Bill Capko; Officer Ronald Hanks;

and Assistant State Attorney Edward Stephens. O’Berry again claimed that the

defendants had conspired to violate his constitutional rights in convicting him in

1969, in violation of 42 U.S.C. §§ 1983, 1985(3), and 1986. Complaint #2 was

based on the same facts that O’Berry had alleged in Complaint #1. The magistrate

judge recommended a sua sponte dismissal of Complaint #2. The magistrate judge

first concluded that the earlier dismissal of Complaint #1 should have a res judicata

effect on Complaint #2, as O’Berry’s new complaint was “seek[ing] to relitigate

the identical claims that were already litigated in this Court.” R1-7 at 6. 

Furthermore, even if res judicata were not to apply Complaint #2, the magistrate

judge concluded that Complaint #2 was well beyond the four-year statute of

limitations applicable to claims of false arrest. The district court agreed and

dismissed Complaint #2, pursuant to 28 U.S.C. § 1915A.

O’Berry has separately appealed the court’s dismissals, filing one appeal for

Complaint #1 and a separate one for Complaint #2. For ease of reference, we

consolidated the two cases. We now discuss each in turn. 

II. DISCUSSION

A. Arguments On Appeal Concerning Complaint #1
5

We first address O’Berry’s appeal of the dismissal of Complaint #1. We

review de novo a dismissal for failure to state a claim under § 1915A. Leal v.

Georgia Dep’t of Corr., 254 F.3d 1276, 1279 (11th Cir. 2001) (per curiam). A civil

complaint filed by a prisoner seeking redress from an employee or officer of a

governmental entity is reviewed under § 1915A, and may be dismissed if the

complaint “is frivolous, malicious, or fails to state a claim upon which relief may

be granted.” 28 U.S.C. § 1915A(a), (b). “[P]ro se pleadings are held to a less

stringent standard than pleadings drafted by attorneys and will, therefore, be

liberally construed.” Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th

Cir. 1998) (per curiam) (citation omitted). However, “this leniency does not give a

court license to serve as de facto counsel for a party, or to rewrite an otherwise

deficient pleading in order to sustain an action.” GJR Inv., Inc. v. County of

Escambia, Fla., 132 F.3d 1359, 1369 (11th Cir. 1998) (internal citations and

quotations omitted). 

O’Berry’s first argument with respect to Complaint #1 is that the district

court improperly construed that complaint as one based on § 1983, rather than an

action based on 18 U.S.C. §§ 241 and 242. The district court accepted the

magistrate judge’s finding that O’Berry could not bring an individual action under

18 U.S.C. §§ 241 and 242, as it was a criminal statute and the power to prosecute
 It should be noted that O’Berry’s main argument as to the unreasonableness of the 2

district court’s re-characterizing his claim in Complaint #1 as a § 1983 action is that 18 U.S.C. §

242 imposes a “willfulness” requirement on the officer’s conduct, whereas § 1983 does not

impose any such mens rea. He claims that the notion of willfulness is “incognizable” to the

statutory scheme set forth in § 1983. Br. of Appellant, 06-12840, at 14. If anything, this fact

would seem to inure to O’Berry’s benefit, since the threshold for establishing a constitutional

violation under § 1983 would be substantially lower than the threshold for establishing a

criminal constitutional violation under 18 U.S.C. § 242. 

6

criminal cases is vested exclusively in the Executive Branch. Thus the court

construed O’Berry’s action in Complaint #1 as being civil in nature, and treated it

as being brought under § 1983. O’Berry contends that this re-characterization of

his action was in error.2

Under 18 U.S.C. § 241, individuals who conspire to “injure, oppress,

threaten, or intimidate” another person’s “free exercise or enjoyment of any right

or privilege secured to him by the Constitution” shall be fined, or imprisoned, or

both. In addition, under 18 U.S.C. § 242, any individual, who, while acting under

color of any law, willfully deprives a person of his constitutional rights based upon

that person’s race shall be fined, or imprisoned, or both. The statute’s civil

counterpart, § 1983, provides that any individual, who, under the color of law,

deprives a person of constitutional rights or privileges, “shall be liable to the party

injured in an action at law, suit in equity, or other proper proceeding for redress.”

42 U.S.C. § 1983. Thus, § 1983 “provides for private relief in civil actions from

the deprivation of rights secured by the Constitution and its laws,” whereas §§ 241
7

and 242 “provide for criminal penalties for the deprivation of such rights.” In re

Estelle, 516 F.2d 480, 486 (5th Cir. 1975); see also Lewis v. Brautigam, 227 F.2d

124, 128 (5th Cir. 1955) (characterizing 18 U.S.C. § 242 as “the criminal

counterpart of § 1983”). 

Here, O’Berry attempted to file his complaint pursuant to §§ 241 and 242. 

However, as the magistrate judge and the district court surmised, O’Berry could

not force the U.S. Attorney General to bring a criminal prosecution against the

defendants. Moreover, under 28 U.S.C. § 1915A, the court was obligated, as part

of its screening protocol, to seek out and identify any and all cognizable claims of

the plaintiff. The court’s decision to construe O’Berry’s claim as a § 1983 action

was an attempt to adhere to this statutory obligation. Thus, we conclude that the

magistrate judge and the district court acted properly in construing O’Berry’s

complaint as being civil in nature, and in thereby treating his claim–for § 28 U.S.C.

1915A screening purposes– as sounding in § 1983 rather than its criminal

counterpart.

O’Berry next argues on appeal that he should have been permitted to amend

Complaint #1, so that he could have included facts demonstrating that the statute of

limitations should be subject to equitable tolling. O’Berry argues that he didn’t

learn of his constitutional injury until 2004–and that, had he been permitted to
8

amend his complaint to address this fact, the statute of limitations bar would have

been subject to equitable tolling in his case.

We review the denial of a motion to amend a complaint for an abuse of

discretion. Steger v. Gen. Elec. Co., 318 F.3d 1066, 1080 (11th Cir. 2003). A

district court’s discretion to dismiss a complaint without granting leave to amend is

restricted by Fed. R. Civ. P. 15(a), which directs that leave to amend “shall be

freely given when justice so requires.” The district court, however, does not need

to “allow an amendment . . . where amendment would be futile.” Bryant v.

Dupree, 252 F.3d 1161, 1163 (11th Cir. 2001) (per curiam) (internal citations and

quotations omitted). The underlying legal conclusion of whether a particular

amendment to a complaint is futile is reviewed de novo. Harris v. Ivax Corp., 182

F.3d 799, 802 (11th Cir. 1999) (citation omitted). A court’s denial of leave to

amend is justified on futility grounds “when the complaint as amended [would]

still [be] subject to dismissal.” Hall v. United Ins. Co. of Am., 367 F.3d 1255,

1263 (11th Cir. 2004) (internal citation and quotations omitted). 

In Florida, § 1983 claims are subject to a four year statute of limitations. See

Burton v. City of Belle Glade, 178 F.3d 1175, 1188 (11th Cir. 1999) (citation

omitted). “Federal law determines when a federal civil rights claim accrues.” 

Rozar v. Mullis, 85 F.3d 556, 561 (11th Cir. 1996) (citation omitted). “The
9

general federal rule is that the 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.” Id. at 561-62 (internal

citations and quotations omitted). “Plaintiffs must know or have reason to know

that they were injured, and must be aware or should be aware of who inflicted the

injury.” Id. at 562 (citation omitted). 

This case, however, is governed by Heck v. Humphrey, 512 U.S. 477, 114 S.

Ct. 2346 (1994), where the Supreme Court held: 

[I]n order to recover [monetary] damages for allegedly

unconstitutional conviction or imprisonment, or for other harm caused

by actions whose unlawfulness would render a conviction or sentence

invalid, a § 1983 plaintiff must prove that the conviction or sentence

has been reversed on direct appeal. . . . A claim of damages bearing

that relationship to a conviction or sentence that has not been so

invalidated is not cognizable under § 1983.

Id. at 486-87, 114 S. Ct. at 2372. The district court must, therefore, determine

“whether a judgment in favor of the plaintiff would necessarily imply the invalidity

of his conviction or sentence; if it would, the complaint must be dismissed . . .” Id.

at 487, 114 S. Ct. at 2372. 

We discern no error in the district court’s action. First, because O’Berry’s

claim was barred by Heck, the court’s granting leave to amend his complaint

would have been “futile,” because, under the holding of Heck, “the complaint as
 O’Berry also argues on appeal that the district court improperly refused to refund the 3

allegedly excessive filing fees that he paid when he filed Complaint #1. The fee filing provision

of the Prisoner Litigation Reform Act requires that a prisoner bringing a pro se civil action “pay

the full amount of a filing fee,” whether or not he proceeds in forma pauperis, but provides that a

court may not collect a filling fee in excess of “the amount of fees permitted by statute for the

commencement of a civil action.” 28 U.S.C. § 1915(b)(1), (3). Here, however, O’Berry has

presented no evidence that he paid excessive filing fees to the district court. Thus, the court did

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amended [would] still be subject to dismissal.” Hall, 367 F.3d at 1263; see id.

(finding an amendment to a complaint to be futile, because the amended complaint

would still contain “no potentially meritorious claims”). In addition, we are

unpersuaded by O’Berry’s argument in favor of equitable tolling. O’Berry’s claim

was plainly time-barred, as the pertinent facts occurred in 1969, over 30 years

before he filed Complaint #1. Moreover, as the magistrate judge observed in his

report, equitable tolling would not have been warranted, since: (1) O’Berry failed

to demonstrate that the newly discovered evidence was necessary to inform him

that he had been subject to constitutional violations in 1969; and (2) O’Berry

arguably could have discovered the facts giving rise to his complaint earlier, had he

exercised “reasonably prudent regard for his rights.” Rozar, 85 F.3d at 561-62. 

We agree that O’Berry’s Complaint #1 was properly framed as a § 1983 claim, and

that it was plainly time-barred. Moreover, we discern no error in the magistrate

judge’s and the district court’s refusal to grant O’Berry leave to amend Complaint

#1, as permitting an amendment in this case would have been futile. Accordingly,

we affirm the district court’s dismissal of Complaint #1.3
not err in refusing to refund any (allegedly) excessive filing fees.

 As noted previously, section 1983 “provides a cause of action for constitutional 4

violations committed under color of state law. To prevail, plaintiffs must demonstrate both that

the defendants deprived them of a right secured under the Constitution or federal law and that

the deprivation occurred under color of state law.” Burton, 178 F.3d at 1187-88. Section 1985

addressees conspiracies to interfere with civil rights. Childree v. UAP/GA Chem. Inc., 92 F.3d

1140, 1146 (11th Cir. 1996). Section 1986 provides that if a person has knowledge of a

conspiracy in violation of § 1985 and has the power to prevent the violation, but refuses or

neglects to do so, he may be liable under § 1986.

11

B. Arguments On Appeal Concerning Complaint #2

With respect to Complaint #2, O’Berry’s argues that the district court erred

in dismissing Complaint #2 on res judicata grounds, without allowing him an

opportunity to join his two complaints. He also argues that the court improperly

construed his complaint as being brought entirely pursuant to § 1983, rather than

treating it as based in §§ 1983, 1985(3), and 1986. 

4

As noted previously, we review de novo a dismissal for failure to state a

claim under § 1915A. Leal, 254 F.3d at 1278-79. The determination that res

judicata applies is a pure question of law that is reviewed de novo. Norfolk

Southern Corp. v. Chevron, U.S.A., Inc., 371 F.3d 1285, 1288 (11th Cir. 2004).

The doctrine of res judicata bars a subsequent action if: (1) the prior decision

was rendered by a court of competent jurisdiction; (2) there was a final judgment

on the merits; (3) the parties are the same in both suits; and (4) the prior and

present causes of action are the same. See Davila v. Delta Air Lines, Inc., 326 F.3d
12

1183, 1187 (11th Cir. 2003) (internal citations and quotations omitted). The bar

“pertains not only to claims that were raised in the prior action . . . but also to

claims that could have been raised previously.” Id. (citation omitted) In

determining if “prior and present causes of action are the same, we must decide

whether the actions arise out of the same nucleus of operative fact, or are based

upon the same factual predicate.” Id. (internal citations and quotations omitted). 

Here, the district court correctly determined that O’Berry’s claim in

Complaint #2 was barred by res judicata. The district court had jurisdiction over

O’Berry’s complaint in Complaint #1, and the court’s determination in Complaint

#1 that O’Berry had failed to state a claim upon which relief could be granted

constituted a final judgment on the merits. Moreover, Complaint #2 alleged that

the same defendants committed the same wrongdoings that O’Berry had alleged in

Complaint #1, thereby supporting the district court’s ultimate conclusion that res

judicata was applicable.

While it is true that in Complaint #2 O’Berry named as defendants the City

of Ft. Lauderdale, an individual Assistant State Attorney, and individual police

officers, whereas in Complaint #1 O’Berry named as defendants the Office of the

State Attorney and the Ft. Lauderdale Police Department, the essence of both

complaints was that both the State Attorney’s office and the Police Department
 We also note, as the district court did, that even if res judicata was not a bar to

5

O’Berry’s claim in Complaint #2, the action would nevertheless would be plainly time-barred–

just as Complaint #1 was–due to the four-year statute of limitations applicable to § 1983 actions

under Florida law.

13

falsified evidence to improperly indict, arrest, convict, and sentence him. In other

words, these two claims, which arose “out of the same nucleus of operative fact”

and are “based on the same factual predicate,” involved essentially the same

defendants and the same causes of action. Thus, the district court acted properly in

concluding that res judicata applies, and O’Berry has offered no evidence to the

contrary.5

Furthermore, although the district court did not explain why it considered

O’Berry’s claim in Complaint #2 as being based entirely under § 1983, rather than

including §§ 1985(3) and 1986, any action brought under §§ 1985(3) and 1986

would also have been barred by res judicata, because O’Berry could have raised

those claims in Complaint #1. See Davila, 326 F.3d at 1187. Accordingly, we

affirm the district court’s dismissal of Complaint #2.

III. CONCLUSION

O’Berry, a pro se prisoner, has appealed the district court’s dismissal of

Complaints #1and #2, both of which alleged constitutional violations on the part

the Florida State Attorney’s Office and the Ft. Lauderdale Police Department in
14

connection with his indictment and conviction for rape in 1969. After reviewing

the record, we discern no error in the district court’s dismissal of these complaints,

since Complaint #1 was plainly time-barred and Complaint #2 was barred by the

res judicata effect of Complaint #1. Accordingly, we AFFIRM.