                   NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                              File Name: 13a0880n.06

                                            No. 12-6589

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT
                                                                                           FILED
                                                                                      Oct 08, 2013
                                                                                 DEBORAH S. HUNT, Clerk
JOSHUA DYLAN HORNBACK,                                )
                                                      )
       Plaintiff    Appellant,                        )
                                                      )       ON APPEAL FROM THE UNITED
v.                                                    )       STATES DISTRICT COURT FOR THE
                                                      )       EASTERN DISTRICT OF KENTUCKY
LEXINGTON-FAYETTE URBAN                               )
COUNTY, GOVERNMENT, a Municipal                       )
Corporation, et al.,                                  )
                                                      )
       Defendants - Appellees.                        )



Before: MOORE and McKEAGUE, Circuit Judges; HELMICK, District Judge.*

       JEFFREY J. HELMICK, District Judge. Appellant Joshua Dylan Hornback appeals the district

court’s dismissal of his complaint pursuant to Rule 12(b)(6). Hornback asserts the district court

erred when it applied the Supreme Court’s ruling in Wallace v. Kato, 549 U.S. 384 (2007), to

Hornback’s § 1983 illegal search claim and dismissed Hornback’s claim as barred by the Kentucky

statute of limitations for personal injury claims. For the reasons stated below, we affirm the district

court’s ruling.

                                          I. BACKGROUND

       On August 31, 2010, Kentucky Probation and Parole Officers Alizabeth Graham and Abigail

Dillingham arrived at Hornback’s residence in Lexington, Kentucky to conduct a home visit on


*
 The Honorable Jeffrey J. Helmick, United States District Judge for the Northern District of Ohio,
sitting by designation.
Brandon Bell, one of Hornback’s roommates. On that date, Bell was under the supervision of the

Probation and Parole Division of the Kentucky Department of Corrections, though Hornback was

not. Upon their arrival, Graham and Dillingham smelled burning marijuana. They requested

assistance from Kentucky Probation and Parole Officers Monte Corbett and Paul Fulcher, as well

as Lexington, Kentucky Police Officers Ray Samuel Wilson and Katie Rhea. These defendants

conducted a warrantless search of the residence including Hornback’s private bedroom, where they

discovered and seized marijuana. As a result, Hornback was arrested later that day. He was charged

with four felonies but ultimately indicted on three misdemeanor charges, including possession of

marijuana and drug paraphernalia.

        On February 17, 2011, Hornback filed a motion to suppress the evidence seized from his

bedroom, arguing the state lacked probable cause to conduct a warrantless search of his bedroom.

The trial court agreed, and granted Hornback’s motion to suppress on May 9, 2011. On the same

day, the trial court also granted the prosecution’s motion to dismiss all charges against Hornback.

        On May 8, 2012, Hornback filed a six-count complaint, alleging, in part, Appellees violated

his constitutional protections against illegal searches and seizures in conducting the warrantless

search. The district court concluded Hornback’s claims were barred by the expiration of the statute

of limitations and dismissed those claims with prejudice as to all Appellees.

                                     II. STANDARD OF REVIEW

        We review a district court’s dismissal of a case pursuant to Rule 12(b)(6) de novo. Bloch

v. Ribar, 156 F.3d 673, 677 (6th Cir. 1998). To defeat a defendant’s motion to dismiss, the plaintiff

must allege sufficient facts “to state a claim to relief that is plausible on its face.” City of Columbus

v. Hotels.com, L.P., 693 F.3d 642, 648 (6th Cir. 2012) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.

544, 570 (2007)). Courts must accept as true all of the factual allegations contained in the complaint

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when ruling on a motion to dismiss. Erickson v. Pardus, 551 U.S. 89, 94 (2007); Thurman v. Pfizer,

Inc., 484 F.3d 855, 859 (6th Cir. 2007). A determination that a claim is barred by the applicable

statute of limitations is a legal conclusion we also review de novo. Tolbert v. State of Ohio Dep’t

of Transp., 172 F.3d 934, 938 (6th Cir. 1999).

                                           III. ANALYSIS

       Hornback claims the district court erred in applying Wallace to the facts of his case because,

he contends, the Wallace Court issued a narrow ruling that applies only to claims of false arrest or

false imprisonment. Hornback argues his cause of action did not accrue until the trial court ruled

the warrantless search of his bedroom illegal. Defendants urge us to affirm the district court’s

dismissal. They argue Hornback’s cause of action accrued on the date of the search, as Hornback

knew or should have known of his injury at that time.

       State law determines the appropriate statute of limitations for a cause of action arising under

42 U.S.C. § 1983. Roberson v. Tennessee, 399 F.3d 792, 794 (6th Cir. 2005). Under Kentucky law,

the limitations period is one year. See Collard v. Ky. Bd. of Nursing, 896 F.2d 179, 182 (6th Cir.

1990); K.R.S. 413.140(1)(a). In contrast, “federal law governs the question of when that limitations

period begins to run.” Wolfe v. Perry, 412 F.3d 707, 714 (6th Cir. 2005) (quoting Sevier v. Turner,

742 F.2d 262, 272 (6th Cir. 1984)). The statute of limitations “ordinarily does not begin to run until

the plaintiff has a ‘complete and present cause of action.’” Bay Area Laundry and Dry Cleaning

Pension Trust Fund v. Ferbar Corp. of Cal., 522 U.S. 192, 195 (1997); see also Roberson, 399 F.3d

at 794 (quoting Sevier, 742 F.2d at 273) (“The statute of limitations commences to run when the

plaintiff knows or has reason to know of the injury which is the basis of his action. A plaintiff has

reason to know of his injury when he should have discovered it through the exercise of reasonable

diligence.”).

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       The district court correctly concluded Hornback knew or had reason to know of the unlawful

search of his bedroom on the day of the search. On August 31, 2010, Hornback knew he was not

under the supervision of the Division of Probation and Parole, Appellees did not have a warrant or

his consent to search his bedroom, and that Appellees nonetheless had searched his bedroom. On

that date, Hornback had a “complete and present cause of action” and could have sued for relief.

Wallace, 549 U.S. at 388.

       Hornback fails to identify any case law in support of his contention that the Supreme Court’s

ruling in Wallace is applicable only to claims of false arrest. While the Wallace Court issued a case-

specific ruling, the driving principle behind that ruling   that the deferred accrual rule of Heck v.

Humphrey, 512 U.S. 477 (1994), does not apply to actions “which would impugn an anticipated

future conviction” is generally applicable, including to claims such as Hornback’s. Wallace, 549

U.S. at 393 (emphasis removed); see also Fox v. DeSoto, 489 F.3d 227, 233 (6th Cir. 2007) (“In no

uncertain terms . . . the Court in Wallace clarified that the Heck bar has no application in the pre-

conviction context.”).

       Hornback correctly notes Wallace distinguishes between causes of action for malicious

prosecution and those for false arrest. See Wallace, 549 U.S. at 394. The Court drew this distinction

based on the nature of the claims, however; unlike malicious prosecution, some torts redressable

under § 1983 (like false arrest) “accrue before the setting aside of indeed even before the existence

of the related criminal conviction.” Id. Claims of illegal search are analogous to claims of false

arrest, as a potential plaintiff very often has a complete cause of action even before criminal

proceedings commence. While Hornback argues he could not know his rights had been violated

until the trial judge granted his motion to suppress, he fails to identify any authority in support of



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his contention. Hornback had a colorable claim for the violation of his Fourth and Fourteenth

Amendment rights on the day of the search, and the statute of limitations began to run on that date.

       Hornback also asserts that if this court declines to apply the Wallace holding to § 1983 illegal

search claims, “orderly adjudication of illegal search claims would take place, the risk of

inconsistent legal determinations would be minimized, and the clogging of courts with unnecessary

filings would be avoided.” The Wallace Court, however, announced a procedure for lower courts

to follow when confronted with scenarios such as the one Hornback faced:

       If a plaintiff files a false-arrest claim before he has been convicted (or files any other
       claim related to rulings that will likely be made in a pending or anticipated criminal
       trial), it is within the power of the district court, and in accord with common practice,
       to stay the civil action until the criminal case or the likelihood of a criminal case is
       ended.

Wallace, 549 U.S. at 393-94 (internal citations omitted) (emphasis added). Hornback’s arguments

concerning judicial efficiency are unpersuasive and ultimately irrelevant to the question of when his

legal injury arose.

                                          IV. CONCLUSION

       For the reasons stated above, we conclude Hornback filed his claims after the limitations

period had expired and affirm the district court’s dismissal of his complaint.




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