Rudaj v. Treanor

12-280-cv
Rudaj v. Treanor
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS
GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL
RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS
COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC
DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 17th day of June, two thousand thirteen.
5
6 PRESENT:
7 DENNIS JACOBS,
8 Chief Judge,
9 CHRISTOPHER F. DRONEY,
10 Circuit Judge,
11 JOHN F. KEENAN,*
12 District Judge.
13
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15
16 ALEX RUDAJ,
17 Plaintiff-Appellant,
18
19 v. 12-280-cv
20
21 TIMOTHY TREANOR, JENNIFER RODGERS,
22 BENJAMIN GRUSTEIN, DENISE L. COTE,
23 RICHARD FALSONE, MICHAEL BRESLIN,
*
Judge John F. Keenan, of the United States
District Court for the Southern District of New York,
sitting by designation.
1 RICHARD DERMBERGER, DENNIS GALLEGO,
2 JAMES KOUSOUROS, MICHAEL J. GARCIA,
3 CHRISTINA PAGLIA BISCHOFF, DAVID N.
4 KELLEY, PREET BHARARA, JOHNATHAN
5 KOLADNER, SHARON COHEN LEVIN, JOHN
6 KATEHIS, and others unknown and
7 unknown,
8 Defendants-Appellees,
9
10 WILFRED FEINBERG, ROGER MINER,
11 BARRINGTON PARKER,
12 Defendants.
13
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15
16 FOR APPELLANT: Alex Rudaj, pro se, Fort Dix, New
17 Jersey.
18
19 FOR APPELLEES: Amy Ann Barcelo (Elizabeth M. Tulis
20 and Sarah S. Normand, on the brief)
21 for Richard Zabel, Acting United
22 States Attorney for the Southern
23 District of New York, New York.
24
25 Appeal from a judgment of the United States District
26 Court for the Southern District of New York (Preska, C.J.).
27
28 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
29 AND DECREED that the judgment of the district court is
30 AFFIRMED.
31
32 Appellant Alex Rudaj, pro se, appeals from the district
33 court’s judgment dismissing his complaint brought under
34 Bivens v. Six Unknown Named Agents of Federal Bureau of
35 Narcotics, 403 U.S. 388 (1971), for failure to state a claim
36 pursuant to 28 U.S.C. § 1915(e). In a previous order in
37 this appeal, we directed the appeal to proceed on
38 Appellant’s claim that federal and state agents, acting in
39 their individual capacities under the color of federal
40 authority, violated his Fourth Amendment rights by
41 conducting a search of his home without a warrant and
42 dismissed the appeal with respect to all of Appellant’s
43 other claims. We assume the parties’ familiarity with the
44 underlying facts, the procedural history of the case, and
45 the issues on appeal.
2
1 We review a district court’s § 1915(e)(2) dismissal of
2 a complaint de novo. See Giano v. Goord, 250 F.3d 146, 150
3 (2d Cir. 2001). The complaint must plead “enough facts to
4 state a claim to relief that is plausible on its face.”
5 Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).
6 Although all allegations contained in the complaint are
7 assumed to be true, this tenet is “inapplicable to legal
8 conclusions.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
9 A claim will have “facial plausibility when the plaintiff
10 pleads factual content that allows the court to draw the
11 reasonable inference that the defendant is liable for the
12 misconduct alleged.” Id. While pro se complaints must
13 contain sufficient factual allegations to meet the
14 plausibility standard, we look for such allegations by
15 reading pro se complaints with “special solicitude” and
16 interpreting them to raise the “strongest arguments that
17 they suggest.” Triestman v. Federal Bureau of Prisons, 470
18 F.3d 471, 474-75 (2d Cir. 2006) (per curiam) (internal
19 quotation marks omitted).
20
21 Rudaj’s Fourth Amendment claim is time-barred.1 “The
22 statute of limitations for Bivens actions arising in New
23 York is three years.” Tapia-Ortiz v. Doe, 171 F.3d 150, 151
24 (2d Cir. 1999) (citing Owens v. Okure, 488 U.S. 235, 251
25 (1989)); see also N.Y. C.P.L.R. § 214. Under federal law, a
26 Bivens action accrues “when the plaintiff knows or has
27 reason to know of the harm.” Eagleston v. Guido, 41 F.3d
28 865, 871 (2d Cir. 1994) (internal quotation marks omitted);
29 see also Dominguez v. Hendley, 545 F.3d 585, 589 (7th Cir.
30 2008) (“Fourth Amendment claims for . . . unlawful searches
31 accrue at the time of (or termination of) the violation.”).
32
33 Here, the alleged unconstitutional search took place on
34 October 26, 2004. While Rudaj argues that the proper
35 accrual date is the date that his conviction became final,
36 the harm resulting from an unconstitutional search occurs as
37 a result of the search itself, not the later use of
38 unlawfully obtained items as evidence. See Day, 909 F.2d at
39 77. As Rudaj was present when the search occurred, October
40 26, 2004, is the date that Rudaj knew of the harm, and
1
We “may affirm on any basis for which there is
sufficient support in the record, including grounds not
relied upon [by the district court].” Ferran v. Town of
Nassau, 471 F.3d 363, 365 (2d Cir. 2006).
3
1 therefore the date the limitations period began to run.
2 Applying the three-year statute of limitations, the
3 limitations period expired on October 26, 2007; Rudaj’s
4 Fourth Amendment claim, filed in October 2011, is time-
5 barred.
6
7 New York Civil Practice Law and Rules § 207 did not
8 toll the statute of limitations because that section tolls
9 the statute of limitations only for claims that have accrued
10 against a person that has been absent from the state for
11 four months or more; it does not toll the statute of
12 limitations for claims that have accrued in favor of an
13 absent plaintiff, such as Rudaj.
14
15 To the extent that Rudaj is claiming that he is
16 entitled to equitable tolling due to his misunderstanding,
17 until 2010, of how a Fourth Amendment violation could give
18 rise to civil liability, neither his pro se status nor his
19 professed ignorance of the law demonstrate “rare and
20 exceptional circumstance[s]” warranting equitable tolling.
21 See Smith v. McGinnis, 208 F.3d 13, 18 (2d Cir. 2000); see
22 also Arrieta v. Battaglia, 461 F.3d 861, 867 (7th Cir. 2006)
23 (“Mistakes of law or ignorance of proper legal procedures
24 are not extraordinary circumstances warranting invocation of
25 the doctrine of equitable tolling.”); Raspberry v. Garcia,
26 448 F.3d 1150, 1154 (9th Cir. 2006) (finding that “a pro se
27 petitioner’s lack of legal sophistication is not, by itself,
28 an extraordinary circumstance warranting equitable
29 tolling”).
30
31 Although we have held that district courts should
32 generally not dismiss a pro se complaint without granting
33 the plaintiff leave to amend, see Cuoco v. Moritsugu, 222
34 F.3d 99, 112 (2d Cir. 2000), leave to amend is not necessary
35 when it would be futile, as it would be here. Neither his
36 complaint nor his submissions to this Court suggest that
37 Rudaj could allege any facts giving rise to a timely Fourth
38 Amendment claim.
39
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42
43
44
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46
4
1 We have considered Appellant’s remaining arguments on
2 appeal and find them to be without merit. For the foregoing
3 reasons, the judgment of the district court is hereby
4 AFFIRMED.
5
6 FOR THE COURT:
7 Catherine O’Hagan Wolfe, Clerk
8
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