Mishra v. Fox

Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
8-29-2006
Mishra v. Fox
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-1211
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006
Recommended Citation
"Mishra v. Fox" (2006). 2006 Decisions. Paper 550.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/550
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2006 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
BPS-232
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 06-1211
AKHIL KUMAR MISHRA,
Appellant
v.
BARRY W. FOX,
Government Witness
__________________________
On Appeal From the United States District Court
For the Western District of Pennsylvania
(D.C. Civ. No. 05-cv-00692)
District Judge: Honorable Thomas M. Hardiman
__________________________
Submitted Under Third Circuit LAR 27.4 and I.O.P. 10.6
June 2, 2006
Before: RENDELL, AMBRO and ROTH, Circuit Judges.
(Filed: August 29, 2006)
_________________
OPINION OF THE COURT
_________________
PER CURIAM
Appellant, Akhil Mishra, appeals the District Court’s order granting Appellee
Fox’s motion to dismiss his complaint, liberally construed as an action filed in accordance
with Bivens v. Six Unknown Agents of the Federal Bureau of Narcotics, 403 U.S. 388(1971), pursuant to Fed. R. Civ. P. 12(b)(6).
We have jurisdiction pursuant to 28 U.S.C. § 1291, and exercise plenary review
over a District Court ’s order dismissing a complaint under Rule 12(b)(6). We will affirm
a dismissal for failure to state a claim if we can “say with assurance that under the
allegations of the pro se complaint, which we hold to less stringent standards than formal
pleadings drafted by lawyers, it appears ‘beyond doubt that the plaintiff can prove no set
of facts in support of his claim which would entitle him to relief.’” McDowell v.
Delaware State Police, 88 F.3d 188, 189 (3d Cir. 1996)(quoting Haines v. Kerner, 404
U.S. 519, 520 (1972)). For essentially the reasons set forth by the District Court, we will
affirm.
In his complaint, Mishra alleged that Fox testified falsely at appellant’s criminal
trial and that, as a result of Fox’s testimony, Mishra was convicted on June 30, 2000, of
offering drug paraphernalia for sale. The District Court properly concluded that Mishra’s
complaint failed to state a claim insofar as Appellee Fox is entitled to absolute immunity
from suit in connection with his testimony at Mishra’s criminal trial, see Brisco v. LaHue,
460 U.S. 325, 345-46 (1983), and, moreover, that Mishra’s claims are barred by the
applicable limitations period. See Napier v. Thirty or More Unidentified Federal Agents,
855 F.2d 1080, 1087 (3d Cir. 1988); Kost v. Kozakiewicz, 1 F3d 176, 190 (3d Cir. 1993)
(citing Wilson v. Garcia, 471 U.S. 261 (1985)). See also King v. One Unknown Fed.
Correctional Officer, 201 F.3d 910, 913 (7th Cir.2000) (noting that same state statute of
2
limitations applies to all Bivens and § 1983 claims). These conclusions hold true despite
Mishra’s contentions that Appellee Fox’s fabricated trial testimony was based on various
“investigative periods,” and regardless of Mishra’s assertion that he has recently suffered
immigration-related consequences from his 2000 conviction. See Hughes v. Long, 242
F.3d 121, 125 (3d Cir. 2001), citing Briscoe, 460 U.S. at 341, 345-46 (noting that
witnesses, including public officials and private citizens, are protected by immunity from
civil actions based upon their testimony); Sameric Corp. of Del. v. City of Phila., 142
F.3d 582, 599 (3d Cir.1998) (claim accrues when the plaintiff knows, or has reason to
know, of the injury that forms the basis of the action).
Accordingly, because the District Court properly dismissed Mishra’s complaint
and no substantial question is presented by this appeal, we will grant appellee’s motion
and summarily affirm the order of dismissal. See Third Circuit LAR 27.4 and I.O.P. 10.6.
3