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affirming dismissal of case as frivolous because the complaint "fails to show that the statute of limitations did not bar the action" and there was no evidence that equitable tolling applied
Summary of this case from Gonzalez v. SwearingenOpinion
No. 14-12772
07-09-2015
TERRY L. FISH, Plaintiff-Appellant, v. GEICO INSURANCE, CREDIT COLLECTION SERVICES, Defendants-Appellees.
[DO NOT PUBLISH] Non-Argument Calendar D.C. Docket No. 8:14-cv-00919-JSM-TBM Appeal from the United States District Court for the Middle District of Florida Before MARTIN, ANDERSON, and COX, Circuit Judges. PER CURIAM:
Terry L. Fish, proceeding pro se, appeals the district court's sua sponte dismissal, under 28 U.S.C. § 1915(e)(2)(B)(i), of Fish's civil complaint as time-barred.
Fish's complaint alleges violations of the Fair Debt Collection Practices Act ("the Act"), 15 U.S.C. §§ 1962, et seq. An action brought under this Act must be brought within one year from the date on which the alleged violation occurred. Fish's action was filed more than eight years after his claim accrued. We assume arguendo that Fish's claims could be subject to equitable tolling. The district court's order dismissing the action adopted and approved the Magistrate Judge's Report and Recommendation which concluded that "it appears beyond doubt from the Complaint itself that Plaintiff cannot prove any set of facts that would avoid a statute of limitations bar." (Doc. 7 at 5).
We review de novo the district court's dismissal of a plaintiff's complaint for failure to satisfy the statute of limitations. Jackson v. Astrue, 506 F.3d 1349, 1352 (11th Cir. 2007). We also review de novo whether a plaintiff is entitled to equitable tolling. Id.
Where it is clear from the face of a complaint filed in forma pauperis that the claims asserted are barred by the statute of limitations, the claims are properly dismissed pursuant to § 1915 as frivolous. Hughes v. Lott, 350 F.3d 1157, 1160 (11th Cir. 2003).
Fish's complaint fails to show that the statute of limitations did not bar the action. And, Fish failed to meet his burden of showing that equitable tolling was warranted in this case. Equitable tolling is appropriate only when a plaintiff untimely files due to "extraordinary circumstances that are both beyond his control and unavoidable even with diligence." Arce v. Garcia, 434 F.3d 1254, 1261 (11th Cir. 2006) (internal quotations omitted) (emphasis in original). The circumstances here were neither beyond Fish's control nor unavoidable with diligence.
The district court did not err in dismissing this action as frivolous.
AFFIRMED.