United States District Court, M.D. Georgia, Macon Division
ORDER GRANTING DEFENDANT GÓMEZ'S MOTION TO
E. SELF, III, JUDGE.
the Court for consideration is Defendant Gómez's
Motion to Dismiss [Doc. 43]. In her motion, she contends,
inter alia, that Plaintiff's claims are barred
by the statute of limitations. After review and careful
consideration of the parties' arguments, the Court rules
AND PROCEDURAL BACKGROUND
Amended Complaint [Doc. 4] sets forth the following facts. On
April 20, 2011, Plaintiff, while awaiting trial in the
Superior Court of Jones County on charges of child
molestation, began negotiating a potential plea agreement.
[Doc. 4, at 5]. Plaintiff avers that his counsel, Defendant
Gómez, made several disconcerting remarks during the
negotiation process and encouraged Plaintiff to accept the
proposed agreement. [Id.]. On April 25, 2011,
Plaintiff ultimately accepted a plea deal and pled guilty to
three counts of child molestation in exchange for 15
years' probation under the First Offender program.
See O.C.G.A. § 42-8-60; [Doc. 4, at 5].
March 6, 2013, the Georgia Court of Appeals held that an
individual convicted of a sex offense cannot be sentenced as
a first offender under O.C.G.A. § 42-8-60. Tew v.
State, 739 S.E.2d 423, 426-27 (Ga.Ct.App. 2013).
Tew thus invalidated Plaintiff's sentence,
rendering it illegal. See State v. Hamilton, 517
S.E.2d. 583, 584 (Ga.Ct.App. 1999) (holding that the sentence
of an individual who was improperly granted probation under
O.C.G.A. § 42-8-60 was “illegal and therefore
completely void”). Plaintiff learned of this ruling in
November 2015, at which time he sought legal representation
to no avail. [Doc. 4, at 5]. Plaintiff eventually retained
attorney Michael Katz, who submitted an Extraordinary Motion
to Withdraw Plea/Motion to Vacate Conviction/Correct
Sentence. [Doc. 1-5, at 11-13]; [Doc. 4, at 5]. The Jones
County Superior Court granted the motion on December 19,
2017, allowing Plaintiff to withdraw his plea and effectively
vacating his sentence. [Doc. 1-5, at 1-3].
the plea withdrawal, Plaintiff brought this § 1983
action against Defendant Gómez in her individual
capacity, asserting that he accepted the invalid plea deal
under duress. Plaintiff argues that Defendant Gómez,
who advised Plaintiff to accept the plea agreement, was
“complaisant [sic] in the [prosecutorial] fraud and
coercion.” [Doc. 4, at 4].
Standard of Review Applicable to Motions to Dismiss Under
Gómez filed a Motion to Dismiss Plaintiff's claims
against her pursuant to Federal Rule of Civil Procedure
12(b)(6), arguing, inter alia, that the statute of
limitations bars Plaintiff's claims. [Doc. 43, at 3-4].
In ruling on the Motion [Doc. 43], the Court accepts as true
the facts set forth in the Complaint, draws all reasonable
inferences from them, and construes them in the light most
favorable to Plaintiff. See Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 572 (2007); Gates v.
Khokhar, 884 F.3d 1290, 1296 (11th Cir. 2018). However,
the Court does not accept legal conclusions couched as
factual allegations. See Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009).
survive a motion to dismiss, a complaint must state a
plausible claim for relief, or, in other words, contain
sufficient factual content allowing the court to reasonably
infer that the defendant is liable for the alleged
wrongdoing. See Iqbal, 556 U.S. at 678. While not
akin to a “probability requirement, ” the
plausibility standard demands more than a mere possibility
that a defendant has acted unlawfully. Id; see
also Twombly, 550 U.S. at 556. Moreover, it is well
established that threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do
not constitute a sufficient claim. Iqbal, 556 U.S.
at 678; see also Twombly, 550 U.S. at 555.
unique to this case is a statute of limitations defense
embedded in a 12(b)(6) motion to dismiss. Defendant's
Motion [Doc. 43] is a proper procedural vehicle for raising a
statute of limitations defense, because “[a] complaint
is subject to dismissal when its allegations, on their face,
show that an affirmative defense bars recovery on the
claim.” Edwards v. Apple Comput., Inc., 645
Fed.Appx. 849, 850 (11th Cir. 2016). An argument premised
upon the relevant statute of limitations constitutes one such
affirmative defense. See Fed. R. Civ. P. 8(c)(1).
The Eleventh Circuit has held that a claim merits dismissal
under 12(b)(6) on statute of limitations grounds “only
if it is apparent from the face of the complaint that the
claim is time-barred.” Tello v. Dean Witter
Reynolds, 410 F.3d 1275, 1288 (11th Cir. 2005),
abrogated on other grounds by Merck & Co., Inc. v.
Reynolds, 559 U.S. 633 (2010), as recognized in
Walter v. Avellino, 565 Fed.Appx. 464 (11th Cir.
the foregoing standard in mind, the Court
GRANTS Defendant Gómez's Motion
to Dismiss [Docs. 43] for the various reasons stated below.
Defendant Gómez's Motion to Dismiss
Court agrees with Defendant Gómez's arguments
regarding the statute of limitations. Constitutional claims
brought under § 1983 are subject to the forum
state's statute of limitations governing personal injury
actions. Wood v. Kelly, 720 Fed.Appx. 532, 535 (11th
Cir. 2017). In Georgia, personal injury suits must be brought
within two years after the right of action accrues. O.C.G.A.
§ 9-3-33. A cause of action pursuant to § 1983
accrues 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 ...