# Nicholson v. Smoots (INMATE 3)

> District Court, M.D. Alabama · September 20, 2021

URL: https://www.frixlaw.com/law-library/cases/10630409

## Case

- **Court:** District Court, M.D. Alabama
- **Decided:** September 20, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION

BRUCE MITCHELL NICHOLSON, )
Reg. No. 33750-001, )
)
Plaintiff, )
) CASE NO. 2:18-cv-681-WKW-JTA
v. ) (WO)
)
NATHAN SMOOTS, et al., )
)
Defendants. )

RECOMMENDATION OF THE MAGISTRATE JUDGE
I. INTRODUCTION
On July 5, 2018, Bruce Mitchell Nicholson filed this complaint asserting claims
under Bivens v. Six Unknown Federal Agents, 403 U.S. 388 (1971), and 42 U.S.C. § 1983,1
relating to his detention by law enforcement officers in March 2015 and the collection of
DNA samples from him later used in his criminal prosecution. Doc. 1. Nicholson names
as Defendants FBI Special Agents Nathan Smoots and Andres Durango; Assistant United
States Attorney (“AUSA”) John J. Geer III; and an unnamed Chilton County Deputy
Sheriff. Doc. 1 at 8–9; Doc. 17. He alleges that his Fourth, Fifth, and Sixth Amendment
rights were violated when the Deputy Sheriff stopped and detained him, and Agents
Smoots and Durango collected DNA samples from him pursuant to a court order obtained

1 Bivens actions involve claims against federal actors acting under color of law, while § 1983 actions involve
claims against state actors. The legal principles applicable to Bivens actions are generally applicable to
actions under § 1983. Bivens actions, although not precisely parallel, are the analog to § 1983 actions and
the constitutional standard of review is the same for either type of action. See Butz v. Economou, 438 U.S.
478, 500 (1978). Thus, federal courts have “typically incorporated § 1983 law into Bivens actions.” Tavarez
v. Reno, 54 F.3d 109, 110 (2d Cir. 1995).
by AUSA Geer. He seeks declaratory relief, return of the DNA samples, expungement

from state and federal databases of the information obtained from the DNA samples, and
$1 in damages. Doc. 1 at 9.
II. BACKGROUND
A. Nicholson’s Factual Allegations
Nicholson alleges that on March 17, 2015, a Chilton County Deputy Sheriff stopped

him as he was walking along a road near his residence in Jemison, Alabama and asked for
and obtained his name and identification. Doc. 1 at 3. The Deputy Sheriff told Nicholson
he was wanted for questioning. Doc. 1 at 3. After conducting a pat-down search, the
Deputy Sheriff placed Nicholson in restraints and drove him back to his residence. Doc. 1
at 3. Upon arriving at the residence, Nicholson learned that law enforcement officers had

obtained his father’s consent to search the residence. Doc. 1 at 3. FBI Special Agents
Nathan Smoots and Andres Durango questioned Nicholson in the driveway of the residence
while Nicholson remained in restraints. Doc. 1 at 3.
According to Nicholson, he was not read his Miranda rights2 before he was
questioned by Agents Smoots and Durango. Doc. 1 at 4–5. Nicholson states that he asked

to contact his attorney but was told by the Agents that “it would be futile” to do so and that,
if he insisted on doing so, he “could do it from the County Jail where [he] would be taken
for [his] failure to comply.” Doc. 1 at 4.

2 Miranda v. Arizona, 384 U.S. 436 (1966).
According to Nicholson, he was compelled “under duress, by threat and coercion,”

to provide DNA samples by way of a buccal (i.e., oral) swabbing procedure performed by
Agents Smoots and Durango in his driveway. Doc. 1 at 5–6. Nicholson asserts that his
DNA samples were taken for use in paternity testing “where there was no legitimate state
interest,” and that the seizure of the samples was “unwarranted and unreasonable in scope”
and intruded upon constitutionally protected “areas of personal information, medical

information and matters relating to procreation.” Doc. 1 at 6.
The DNA samples from Nicholson were obtained under a warrant issued by a
federal magistrate judge in the Middle District of Alabama on March 4, 2015. Doc. 1 at 6.
According to Nicholson, the warrant was “wrongfully initiated” by Agent Smoots and
AUSA Geer and was “improperly used after its issuance.’” Doc. 1 at 6. Nicholson

maintains that issuance of the warrant “was not preceded by any notice, hearing, summons,
subpoena, opportunity to be heard, opportunity to quash or modify in any grand jury
proceeding or any other legitimate procedure prior to the deprivation of property.” Doc. 1
at 6. Nicholson argues that the warrant application should have been initiated by the United
States Attorney in the Northern District of Alabama, where a criminal investigation of

Nicholson was being conducted at the time. Doc. 1 at 6–7.
B. Facts from Nicholson’s Criminal Case in the Northern District of Alabama
Nicholson’s complaint arises from events related to his criminal case charging him
with various federal sex offenses in the United States District Court for the Northern
District of Alabama. His complaint was filed when those criminal proceedings were

underway. The following facts appear in the record from those criminal proceedings.3
In March 2015, during the investigation of Nicholson that led to his prosecution in
the Northern District of Alabama, the government sought a warrant to compel Nicholson
to provide DNA samples. Criminal Case, Doc. 91 at 1–2. Because Nicholson was living
in Jemison, within the Middle District of Alabama, the government filed its warrant

application in the United States District Court for the Middle District of Alabama. Id. at
2.
In its warrant application, the government explained that a grand jury in the
Northern District of Alabama was investigating allegations that Nicholson had transported
a minor female in interstate commerce with the intent to engage in unlawful sexual activity,

in violation of 18 U.S.C. § 2423(a). Criminal Case, Doc. 91 at 2. The warrant application
described evidence that Nicholson had engaged in sexual intercourse with the minor, that
he impregnated the minor prior to transporting her across state lines, that he fled the State
of Alabama with the minor, and that the minor subsequently gave birth to twin children.
Id. To establish Nicholson’s paternity, which would corroborate evidence of his sexual

acts with the minor, the government requested issuance of a warrant to compel Nicholson
to provide DNA samples by a buccal swab. Id.

3 The Court takes judicial notice of the criminal proceedings against Nicholson in the United States District
Court for the Northern District of Alabama, United States v. Nicholson, Case No. 2:15cr418-MHH-JHE.
The facts can be accurately and readily determined from the Northern District Court’s docket, the accuracy
of which cannot reasonably be questioned. Fed. R. Evid. 201(b)(2).
On March 4, 2015, a federal magistrate judge in the Middle District of Alabama

granted the government’s warrant application. Criminal Case, Doc. 91 at 2. Under the
warrant, the magistrate judge ordered Nicholson “to submit to and thereafter provide DNA
samples pursuant to a buccal (oral) swabbing procedure that shall be performed in
accordance with standard protocol by an agent of the United States no later than March 21,
2015.” Id.

On March 17, 2015, a Chilton County Deputy Sheriff observed Nicholson walking
down a road near his father’s residence in Jemison. Criminal Case, Doc. 91 at 2. The
Deputy Sheriff stopped Nicholson, placed him in restraints, and transported him to his
father’s residence, where FBI Special Agent Smoots and Durango informed him they had
a warrant to obtain a sample of his DNA. Id. The Agents used a buccal swab to collect

the DNA, which an FBI lab later analyzed to determine that Nicholson was the father of
the minor victim’s two children. Id.
In December 2015, Nicholson was indicted by a federal grand jury in the Northern
District of Alabama for two counts of transportation of a minor with intent to engage in
criminal sexual activity, in violation of 18 U.S.C. § 2423(a) (Count 1 and 2); one count of

transportation of a minor to engage in illicit sexual activity, in violation of 18 U.S.C. §
2423(b) (Count 3); one count of transportation of child pornography, in violation of 18
U.S.C. § 2252A(a)(1), (b)(1) (Count 4); one count of possession of child pornography, in
violation of 18 U.S.C. § 2252A(a)(5)(B), (b)(2) (Count 5); and one count of production of
child pornography, in violation of 18 U.S.C. § 2251(a), (e) (Count 6). Criminal Case, Doc.

1.
In September 2018, Nicholson, through counsel, moved to suppress DNA evidence
in the criminal case on the theory that he had been “coerced,” “threatened,” and
“intimidated” into providing the DNA samples to Agents Smoots and Durango on March
17, 2015, and therefore all evidence pertaining to the DNA samples collected by the FBI

agents should be suppressed. Criminal Case, Doc. 85 at 1–2. The district court denied
Nicholson’s motion to suppress the DNA evidence. Id., Doc. 127.
The jury found Nicholson guilty of all six counts in the indictment. Criminal Case
Docs. 114–19. On April 19, 2019, the district court sentenced Nicholson to life in prison
on Counts 1 and 2; 360 months on Count 3; 120 months on Counts 4 and 5; and 360 months

on Count 6, with all counts to be served concurrently with the others. Id., Doc. 139 at 2.
Nicholson appealed his convictions and sentence to the Eleventh Circuit. Id., Doc. 141.
His appeal is now pending. United States v. Nicholson, No. 19-11669 (11th Cir.).
III. DISCUSSION
A. Nicholson’s Claims for Relief

Nicholson claims that: (1) his detention by the unnamed Chilton County Deputy
Sheriff on March 17, 2015, violated his Fourth Amendment right to protection against
unlawful seizures; (2) the failure of FBI Special Agents Smoots and Durango to read him
his Miranda rights and grant him access to counsel when he was detained violated his Fifth
Amendment privilege against compelled self-incrimination and his Sixth Amendment right
to counsel; (3) the seizure of DNA evidence from him through the buccal swabbing by

Agents Smoots and Durango violated his Fourth Amendment right to privacy and his Fifth
Amendment right to due process; and (4) the application by Agent Smoots and AUSA
Greer for a warrant authorizing the collection of the DNA samples constituted an abuse of
process and a violation of the Due Process Clause. Doc. 1 at 2–7.
B. Statute of Limitations

Constitutional claims under Bivens and 42 U.S.C. § 1983 are governed by the state
personal injury statute of limitations. Uboh v. Reno, 141 F.3d 1000, 1002 (11th Cir. 1998);
Kelly v. Serna, 87 F.3d 1235, 1238 (11th Cir. 1996). Personal injury actions in Alabama
must be commenced within two years after the cause of action accrues. ALA. CODE § 6-
2-38(l); Jones v. Preuitt & Mauldin, 876 F.2d 1480, 1482 (11th Cir. 1989).

Although the statute of limitation is determined by state law, the date on which the
statute of limitations begins is determined by federal law. Wallace v. Kato, 549 U.S. 384,
388 (2007). Under federal law, a Bivens or § 1983 claim begins to run “from the date the
facts that would support a cause of action are apparent, or should be apparent to a person
with a reasonably prudent regard for his rights.” Brown v. Ga. Bd. of Pardons & Paroles,

335 F.3d 1259, 1261 (11th Cir. 2003) (internal citations omitted). A Bivens or § 1983
cause of action accrues when a plaintiff knows, or has reason to know, of his injury and
who inflicted it. Chappell v. Rich, 340 F.3d 1279, 1283 (11th Cir. 2003); Sameric Corp.
of Del. v. City of Phila., 142 F.3d 582, 599 (3d Cir.1998).
In the context of an allegedly unlawful search and seizure, a plaintiff knows of his

injury and who inflicted it when his property is searched or seized by law officers. Rice v.
Sixteen Unknown Fed. Agents, 658 F. App’x 959, 962 (11th Cir. 2016). See Giddens v.
Lawson, 734 F. App’x 706, 710 n.4 (11th Cir. 2003) (“The claims against the officers who
executed the search warrant accrued when the search occurred.”).
Here, accepting as true the facts pled by Nicholson, all of Nicholson’s claims arise

from events that occurred on or before March 17, 2015, when the unnamed Deputy Sheriff
stopped and detained him, and Agents Smoots and Durango collected DNA samples from
him pursuant to the court order obtained by AUSA Geer. Indeed, Nicholson specifically
states in his complaint that the alleged constitutional violations occurred on March 17,
2015. Doc. 1 at 2. Given this date, Nicholson had to assert his claims no later than March

17, 2017. Because Nicholson did not file his lawsuit until July 5, 2018, his claims are
barred by the two-year statute of limitations and must therefore be dismissed.4
Based on the facts alleged in Nicholson’s complaint, Nicholson has no legal basis
on which to proceed on his claims. He filed this cause of action over two years after the
occurrence of the alleged unconstitutional actions forming the basis of his claims.

Therefore, his complaint is subject to dismissal. As such, the Court finds it unnecessary to
address the other grounds for dismissal argued by Defendants.

4 Nicholson’s claims are time-barred even if the accrual date is pushed forward to the date of his January 7,
2016 arrest, based on his December 2015 criminal indictment.
IV. CONCLUSION
Accordingly, it is the RECOMMENDATION of the Magistrate Judge that
Nicholson’s complaint presenting claims under Bivens v. Six Unknown Federal Agents,
403 U.S. 388 (1971), and 42 U.S.C. § 1983 be DISMISSED WITH PREJUDICE.
It is further
ORDERED that on or before October 5, 2021., the parties may file objections to
the Recommendation. The parties must specifically identify the factual findings and legal
conclusions in the Recommendation to which objection is made; frivolous, conclusive, or
general objections will not be considered. Failure to file written objections to the
Magistrate Judge’s findings and recommendations under the provisions of 28 U.S.C. §
636(b)(1) shall bar a de novo determination by the District Court of legal and factual issues
covered in the Recommendation and waives the right of the plaintiff to challenge on appeal
the District Court’s order based on unobjected-to factual and legal conclusions accepted or
adopted by the District Court except upon grounds of plain error or manifest injustice.
11TH Cir. R. 3-1; see Resolution Trust Co. v. Hallmark Builders, Inc., 996 F.2d 1144, 1149
(11th Cir. 1993).
DONE this 20th day of September, 2021.

JHRUSHA T. ADAMS
IMTED STATES MAGISTRATE JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10630409. Public record. Not legal advice.