United States District Court, W.D. Pennsylvania
December 19, 2005.
AKHIL K. MISHRA, Plaintiff,
BARRY FOX, Defendant.
The opinion of the court was delivered by: THOMAS HARDIMAN, District Judge
Plaintiff Akhil Mishra (Mishra) filed this pro se action
against Barry Fox (Fox), alleging what appears to be a Bivens
action for fraud, intentional tort or an unspecified
constitutional violation. Defendant Fox filed a motion to dismiss
pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of
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 Fox was a government witness who 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.
The gravamen of Mishra's complaint is that Fox testified
falsely against him. Specifically, he alleges that Fox lied
regarding Mishra's ownership of the businesses in question, the
nature of the products he sold, and about other 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 in the light most favorable 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, however, 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 Fox violated.
Moreover, there has been no monetary demand and the complaint
alleges that both the Plaintiff and Defendant reside in
Pittsburgh, so there is no basis for diversity jurisdiction in
this case. Because Mishra is a pro se litigant, the Court
construes his complaint as a Bivens action, alleging that Fox, acting 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
Fox 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) (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) (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 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 constitutes
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, Fox 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 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 342-43. Absolute immunity for government witnesses 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 Fox at Mishra's criminal trial fails squarely within the
type of activity contemplated by the foregoing cases.
Accordingly, Fox enjoys absolute immunity from suit based on
testimony he gave in the June 2000 trial and Mishra's complaint
would fail to state a claim upon which relief can be granted even
if it had been filed timely.
An appropriate order follows. ORDER
AND NOW, this 19th day of December, 2005, upon
consideration of Defendant's Motion to Dismiss (Doc. No. 11), it
is hereby ORDERED that said motion is GRANTED. The clerk is
directed to mark this case CLOSED.
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