United States District Court, W.D. Pennsylvania
November 22, 2005.
AKHIL K. MISHRA, Plaintiff,
RICHARD NOLAN, Defendant.
The opinion of the court was delivered by: THOMAS HARDIMAN, District Judge
Plaintiff Akhil Mishra (Mishra) filed this pro se action
against Richard Nolan (Nolan), alleging what appears to be a
Bivens action for fraud or intentional tort. Defendant Nolan
filed a motion to dismiss pursuant to Rules 12(b)(1) and 12(b)(6)
of the Federal Rules of Civil Procedure.
I. Statement of Facts
Mishra's claims arise out of his criminal prosecution for drug
charges that resulted in a guilty verdict on June 30, 2000.
Defendant Nolan was a Drug Enforcement Administration (DEA) agent
involved in the investigation and prosecution of the case. Nolan
testified against Mishra at his criminal trial and supplied
evidence that supported the conviction. As a result of his
conviction, Mishra was sentenced to twenty-four months in prison,
one year of supervised release, and certain of his properties
were forfeited. Mishra alleges that Nolan testified falsely against him.
Specifically, he alleges that Nolan made false statements
regarding Mishra's ownership of the businesses in question, the
nature of the products he sold, and other statements about the
material facts of the case. Mishra asks the Court to "restore the
actual truth and lawfulness of material facts . . ." and "also
prays this court to grant a new jury trial. . . ."
II. Standard of Review
The Court notes initially that Mishra is representing himself
in this case. Because plaintiff is "unskilled in the law, we must
view his pleading and the applicable procedure liberally." Moore
v. Coats Co., 270 F.2d 410, 411 (3d Cir. 1959) (citing Picking
v. Pennsylvania R. Co., 151 F.2d 240, 244 (3d Cir. 1945)). "On
the other hand, a judge may not become a surrogate attorney for
the party, even one who is proceeding pro se." Taylor v.
Diznoff, 633 F. Supp. 640, 641 (W.D. Pa. 1986) (quoting Mazur
v. Pa. Dept. of Transp., 507 F. Supp. 3, 4 (E.D. Pa. 1980),
aff'd 649 F.2d 860 (3d Cir. 1981)).
Rule 12(b)(1) motions challenge the existence of subject matter
jurisdiction. In deciding a motion to dismiss for lack of subject
matter jurisdiction, the allegations of the complaint should be
construed favorably to the pleader. Scheuer v. Rhodes,
416 U.S. 232, 236 (1974). Additionally, courts should overlook a
complaint's failure to rely on the appropriate jurisdictional
statutes and instead ascertain independently whether the
complaint alleges a basis for subject matter jurisdiction. Davis
v. Ohio Barge Line, Inc., 697 F.2d 549, 552 (3d Cir. 1983)
(citations omitted). Furthermore, the Court of Appeals has held
that where the absence of subject matter jurisdiction is apparent
from the face of a complaint, any amendment would be futile, and
hence dismissal without leave to amend is proper. See Miklavic v.
USAir, 21 F.3d 551, 557-58 (3d Cir. 1994) ("[W]e find that
granting leave to amend would have been futile on [the] ground . . .
[of] lack of subject matter jurisdiction.").
Rule 12(b)(6) motions challenge the legal sufficiency of the
complaint. See Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir.
1993). Plaintiff is required to "set forth sufficient information
to outline the elements of his claim or to permit inferences to
be drawn that these elements exist." Id. "A motion to dismiss
pursuant to Rule 12(b)(6) may be granted only if, accepting all
well pleaded allegations in the complaint as true, and viewing
them in the light most favorable to plaintiff, plaintiff is not
entitled to relief.'" In re Rockefeller Center Properties Inc.,
311 F.3d 198 (3d Cir. 2002). While a court will accept
well-pleaded allegations as true for the purposes of the motion,
it will not accept legal or unsupported conclusions, unwarranted
inferences, or sweeping legal conclusions cast in the form of
factual allegations. See In re Burlington Coat Factory Sec.
Lit., 114 F.3d 1410, 1429 (3d Cir. 1997); Miree v. DeKalb
County, Ga., 433 U.S. 25, 27 n. 2 (1977).
Mishra brings this action pursuant to 18 U.S.C. § 3231, which
confers federal court jurisdiction "over all offenses against the
laws of the United States." Id. Section 3231 of the criminal
code is plainly inapposite as a jurisdictional basis for Mishra's
claim because that section is the general grant of jurisdiction
for federal crimes. Mishra does not specify any other federal
statute under which his claim allegedly arises, and gives no
indication of which laws he claims Nolan violated. There has been no monetary demand and the
complaint alleges that both the Plaintiff and Defendant reside in
Pittsburgh, thus there is no basis for diversity jurisdiction in
this case. Because Mishra is a pro se litigant, the Court
construes the content of his complaint as a Bivens action,
alleging that Nolan, as an agent of the federal government,
violated Mishra's constitutional rights by testifying falsely in
a criminal proceeding.
B. Timeliness of Plaintiff's Claim
Nolan argues that Mishra's claim is untimely regardless of how
it is construed. The Court of Appeals has held that a two year
statute of limitations applies to all Bivens actions. See
Napier v. Thirty or More Unidentified Federal Agents,
855 F.2d 1080 (3d Cir. 1988) (holding that Bivens actions, like § 1983
actions, are held to the applicable state law statute of
limitations); Kost v. Kozakiewicz, 1 F.3d 176 (3d Cir. 1993)
(holding that all § 1983 actions should be classified as claims
for personal injury for the purposes of establishing the
applicable statute of limitations, and Pennsylvania limitations
period for personal injury is two years). Mishra states in his
complaint that "the present allegations are exclusively based and
related to criminal case No. 99-57," which resulted in a guilty
verdict on June 30, 2000. The allegedly false testimony occurred
on or before June 30, 2000, rendering it the latest date from
which the statute of limitations could run in this case. This
suit was filed on May 19, 2005, nearly five full years after the
criminal trial at issue ended and three years after the statutory
period expired. Accordingly, Mishra's complaint is barred by the
applicable statute of limitations.
In his brief in opposition, Mishra argues that his claim is
timely because he is still feeling the effects of the injury that
he suffered. The Court of Appeals has stated clearly that the
"limitations period begins to run from the time the cause of
action accrued. A claim arising under Pennsylvania law accrues at the occurrence of the final
significant event necessary to make the claim suable." Ross v.
Johns-Manville Corp., 766 F.2d 823, 826 (3d Cir. 1985) (internal
citations omitted). The activity that allegedly caused Mishra's
injury occurred, at the latest, in June 2000 and was the final
significant event that makes up his claim. In addition, Mishra
has not alleged any facts that support a potential continuing
violation, nor has he offered grounds that would support the
application of the equitable tolling doctrine. Thus, the statute
of limitations began to run in June 2000, and Mishra's complaint
was filed well after the statutory period had elapsed.
C. Absolute Immunity
Even assuming, arguendo, that Mishra's claim was timely
filed, Nolan argues that he is subject to absolute immunity from
suit for testimony given in court. In Briscoe v. LaHue,
460 U.S. 325 (1983), the Supreme Court recognized in a case brought
under § 1983 that "the common law provided absolute immunity from
subsequent damages liability for all persons governmental or
otherwise who were integral parts of the judicial process."
Id. at 335. This immunity includes witnesses who testify during
trial, and the Court in Briscoe specifically refused to create
an exception for police officers testifying at criminal trials:
[O]ur cases clearly indicate that immunity analysis
rests on functional categories, not on the status of
the defendant. A police officer on the witness stand
performs the same functions as any other witness; he
is subject to compulsory process, takes an oath,
responds to questions on direct examination and
cross-examination, and may be prosecuted subsequently
for perjury . . . Moreover, to the extent that
traditional reasons for witness immunity are less
applicable to governmental witnesses, other
considerations of public policy support absolute
immunity more emphatically for such persons than for
Id. at 342-3. This conclusion that absolute immunity existed for government
witnesses, even in § 1983 actions, was extended to Bivens
actions in Drum v. Nasuti, 648 F. Supp. 888 (E.D. Pa. 1986),
aff'd 831 F.2d 286
(3d Cir. 1987). The Court in Drum held
that "the public policy considerations supporting common law
witness immunity apply equally to claims brought against
witnesses under Bivens." Id. at 904.
In this case, it is clear that the allegedly false testimony
given by Nolan at Mishra's criminal trial falls squarely within
the type of activity contemplated by the foregoing cases.
Accordingly, Nolan enjoys absolute immunity from suit based on
testimony he gave in the June 2000 trial and Mishra's complaint
fails to state a claim upon which relief can be granted.
In sum, Plaintiff's claim is barred by the appropriate statute
of limitations and, even if it had been timely, Defendant is
protected by absolute immunity from civil suit.
An appropriate order follows. ORDER
AND NOW, this 22nd day of November, 2005, upon
consideration of Defendant's Motion to Dismiss (Doc. No. 9), it
is hereby ORDERED that said motion is GRANTED. The clerk is
directed to mark this case CLOSED.
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