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April 18, 1983

LeROY HAYES, Plaintiff,

The opinion of the court was delivered by: KNAPP



 A federal prisoner -- serving a sentence for bank robbery and assault on federal agents -- has brought a Bivens action against the Federal Bureau of Investigation (FBI), and several of its agents. The case is before us on cross-motions for summary judgment. Although the record raises issues of material fact which would preclude the granting of summary judgment were plaintiff's claim legally viable, the complaint must, nonetheless, be dismissed. We find the claim against the FBI barred by soverign immunity, and the claim against the FBI agents barred by the applicable statute of limitations.


 On April 2, 1976 plaintiff was arrested in midtown Manhattan by several FBI agents on suspicion of bank robbery, placed into an FBI car, and brought to FBI headquarters. *fn1" There, defendants contend, the agents immediately summoned a nurse employed by the FBI to treat plaintiff for a superficial wound to which they had been alerted by a small amount of blood on his shirt. Defendants further contend that the nurse suggested to the agents that, if necessary, the U.S. Marshal's office should provide additional treatment. Plaintiff was soon arraigned in federal court. At the arraignment the agents advised the Magistrate that plaintiff should receive medical treatment, which treatment the Magistrate ordered. Plaintiff was then placed in the custody of the U.S. Marshal's office; it too was advised of the need for medical attention. During the entire time plaintiff was in FBI custody -- defendants submit -- he never made any request for medical care.

 Plaintiff's version of these events is sharply at odds with the foregoing account. The plaintiff claims that on arrival at FBI headquarters he "was, intermittently, bleeding profusely." See Complaint P 4. Plaintiff's affidavit of November 1, 1982 submitted in support of the motion for summary judgment states that, upon arrival at the FBI he was "covered with blood" and that he "asked the agents . . . if [he] could be taken to the hospital," but to no avail. Thereafter, he was photographed, finger printed, and interrogated. During the interrogation he asked for medical treatment but neither received it from a nurse nor from anyone else. Plaintiff contends that after five hours at FBI headquarters he was driven to the offices of the U.S. Attorney, interviewed by an Assistant U.S. Attorney, and only then brought before a U.S. Magistrate. Plaintiff contends, finally, that the Magistrate ordered medical attention at the behest of a CJA attorney who had advised the Magistrate that plaintiff "was in desperate need of medical attention." Id. at 3. Medical care was eventually provided at the Metropolitan Correctional Facility.

 Invoking this Court's jurisdiction under 28 U.S.C. § 1331, plaintiff filed a Bivens action on February 8, 1982. *fn2" The complaint states, in relevant part, that "by their delibrate [sic] indifference to plaintiff's injuries [the defendants] did deprive plaintiff of a civil right. The . . . defendants were in direct violation of the Eighth Amendment to the Constitution of the United States of America." Complaint at para. 6. *fn3"


 "Regardless of whether or not the United States is a named defendant, a suit is considered to be against the sovereign if 'the judgment sought would expend itself on the public treasury or domain . . ..'" Clark v. United States (7th Cir. 1982) 691 F.2d 837, 839 (quoting Land v. Dollar (1947) 330 U.S. 731, 738, 91 L. Ed. 1209, 67 S. Ct. 1009). Accord Stafford v. Briggs (1980) 444 U.S. 527, 542 n. 10, 63 L. Ed. 2d 1, 100 S. Ct. 774; Blackburn v. Goodwin (2d Cir. 1979) 608 F.2d 919, 923; Doe v. Civiletti (2d Cir. 1980) 635 F.2d 88, 93 n. 13. Accordingly, the action against the FBI is a suit against the sovereign. Furthermore, "it is elementary that 'the United States, as sovereign, is immune from suit save as it consents to be sued . . ., and the terms of its consent to be sued in any court define that court's jurisdiction to entertain the suit'." United States v. Mitchell (1980) 445 U.S. 535, 538, 63 L. Ed. 2d 607, 100 S. Ct. 1349 (quoting United States v. Sherwood (1941) 312 U.S. 584, 587-88, 85 L. Ed. 1058, 61 S. Ct. 767). It is also clear that broad jurisdictional statutes like 28 U.S.C. § 1331 do not operate -- in and of themselves -- as waivers of sovereign immunity. See Carelli v. Internal Revenue Service (6th Cir. 1982) 668 F.2d 902, 904; Doe v. Civiletti, supra, 635 F.2d at 94. The plaintiff, therefore, must look beyond the jurisdictional provision -- to the statute which supplies the substantive basis of his claim -- for a waiver of sovereign immunity. United States v. Mitchell, supra, 445 U.S. at 538. In a Bivens action it is, of course, the Constitution which provides the substantive basis of the claim. It is well established, however, that "the Constitution does not waive the Government's sovereign immunity in a suit for damages," Garcia v. United States (5th Cir. 1982) 666 F.2d 960, 966 (citing cases), and, therefore, that a Bivens claim against the Government must fail. See, e.g., Contemporary Mission, Inc. v. U.S. Postal Service (2d Cir. 1981) 648 F.2d 97, 104, n. 9; Leonhard v. United States (2d Cir. 1980) 633 F.2d 599, 618 n. 27; Boyce v. United States (E.D.N.Y. 1981) 523 F. Supp. 1012, 1016; Hampton v. Hanrahan (N.D.Ill. 1981) 522 F. Supp. 140, 147-48; Ricca v. United States (E.D.N.Y. 1980) 488 F. Supp. 1317, 1325; Fayerweather v. Bell (M.D.Pa. 1978) 447 F. Supp. 913, 916-17. Cf. Birnbaum v. United States (2d Cir. 1978) 588 F.2d 319, 327-28.


 The Bivens claim against the FBI agents as private individuals is, of course, not barred by sovereign immunity. See, e.g., Sonntag v. Dooley (7th Cir. 1981) 650 F.2d 904; Hampton v. Hanrahan, supra, 522 F. Supp. at 148. We find it, however, to be precluded by the applicable statute of limitations.

 Because "Congress did not establish a statute of limitations . . . applicable to actions brought in federal court under [42 U.S.C.] § 1983 . . . [federal courts have] repeatedly 'borrowed' the state law of limitations governing an analogous cause of action." Board of Regents v. Tomanio (1980) 446 U.S. 478, 483-84, 64 L. Ed. 2d 440, 100 S. Ct. 1790. See also Johnson v. Railway Express Agency (1975) 421 U.S. 454, 462, 44 L. Ed. 2d 295, 95 S. Ct. 1716 (actions under § 1981) (citing cases). Courts have also looked to state statutes when attempting to fix the limitations period for Bivens actions. See Regan v. Sullivan (2d Cir. 1977) 557 F.2d 300, 303; Sobel v. Yeshiva University (S.D.N.Y. 1979) 477 F. Supp. 1161, 1169-70.

 Our Court of Appeals has not yet selected a specific statute of limitations for Bivens cases. Pauk v. Board of Trustees of the City University (2d Cir. 1981) 654 F.2d 856, 862, cert. denied (1982) 455 U.S. 1000, 102 S. Ct. 1631, 71 L. Ed. 2d 866; Leonhard v. United States, supra, 633 F.2d at 615; Polk v. Lewis (S.D.N.Y. 1980) 499 F. Supp. 302, 303, n. 3. In Regan v. Sullivan, supra, it limited, however, the choice of applicable state analogue to the following alternative: either the three-year limit of C.P.L.R. § 214(2) (limitation for recovery upon a statute) or the six-year limit of C.P.L.R. § 213(1) ("fall-back" provision for actions which have no prescribed statute of limitations). Id. at 307.

 The facts in Regan did not compel a choice between the foregoing provisions -- the action at issue was time-barred under either one. That is not the case here: on February 8, 1982 -- when the case was filed -- more than three, but fewer than six, years had elapsed from the time of accrual. *fn4" We find C.P.L.R. § 214(2), with its three-year limitation, to be the applicable analogue and, therefore, that the action against the individual FBI agents is stale.

 In making the choice left open by Regan we are confronted with a remarkable absence of District Court precedent precisely on point. However, we have been given substantial guidance by the welter of case law dealing with the statute of limitations for § 1983 actions. It is, by now, axiomatic that "the appropriate statute of limitations period for § 1983 actions brought in New York [federal courts] is C.P.L.R. § 214(2), which specifies a three-year limitations period for actions to recover upon a liability created or imposed by statute." Pauk v. Board of Trustees of the City University, supra, 654 F.2d at 861. *fn5" To be sure, the Court of Appeals has never squarely held the Federal Constitution to be a "statute" within the meaning of C.P.L.R. § 214(2). It has, however, strongly endorsed that view in dictum. Id. at 865. See also DeMalherbe v. International Union of Elevator Constructors (N.D.Cal. 1978) 449 F. Supp. 1335, 1350; Feidler v. Moore (W.D.N.C. 1976) 423 F. Supp. 62, 63; Ervin v. Lanier (E.D.N.Y. 1975) 404 F. Supp. 15, 20. As we are not writing on a clean slate but are merely making the limited choice left open by Regan, such endorsement would suffice as a basis for our decision. There are further grounds, however, for a holding that the limitation of C.P.L.R. § 214(2) should apply to Bivens actions.

 In reaffirming the view that C.P.L.R. § 214(2) -- rather than other provisions, particularly C.P.L.R. § 213(1) -- is the appropriate limitation for § 1983 actions, the Court of Appeals summarized its thorough analysis of New York law in terms that are equally applicable to claims brought under Bivens. It noted:


New York's highest court has characterized § 214(2) as applicable to "actions for wrongs not recognized in the common or decisional law." [Citations omitted.] While some § 1983 claims have counterparts in actions at common law, the constitutional tort remedied by § 1983 is "significantly different from" state torts [citations omitted] . . . . A § 1983 claim founded on the Constitution, even if not within the category of claims to which § 214(2) precisely applies as a matter of state law, is sufficiently analogous to such claims to make the limitations period of § 214(2) appropriate as a matter of federal law. Pauk, supra, 654 F.2d at 866 (emphasis added).

 As a matter of federal law we also note that a three-year limitation has been held sufficient to satisfy the "broad remedial purposes of § 1983." Id. at 862. The self-same limitation should suffice as well to satisfy Bivens' similar remedial objectives. See Bivens v. Six Unknown Federal Narcotics Agents (1971) 403 U.S. 388, 396-97, 29 L. Ed. 2d 619, 91 S. Ct. 1999. Furthermore, in Butz v. Economou (1978) 438 U.S. 478, 57 L. Ed. 2d 895, 98 S. Ct. 2894, the Supreme Court stated that "there is no basis for according to federal officials a higher degree of immunity from liability when sued for a constitutional infringement as authorized by Bivens than is accorded state officials when sued for the identical violation under § 1983." Id. at 500 (emphasis added). See also Barker v. Norman (5th Cir. 1981) 651 F.2d 1107, 1122; Mark v. Groff (9th Cir. 1975) 521 F.2d 1376, 1380; Iseley v. Bucks County (E.D.Pa. 1982) 549 F. Supp. 160, 167. Nor is there, we believe, a reason to subject FBI agents to a lower degree of "immunity" (i.e., such protection as is afforded by a statute of limitations) than that enjoyed by state police officers when sued for "the identical violation" under 1983. Thus, a three-year (rather than six-year) statute of limitations for Bivens actions would not raise the understandable "disapproval of selecting different limitations periods for different classes of defendants," Pauk, supra, 654 F.2d at 862, when sued on essentially similar causes of action.

 We hold, therefore, that a three-year statute of limitations applies to Bivens actions in New York federal courts. Accord Ervin v. Lanier, supra, 404 F. Supp. 15, 20 (dictum). In so holding we do no more than to follow -- as the Court of Appeals has stated in a different context -- "the general trend in the appellate courts to incorporate 1983 law into Bivens suits." Ellis v. Blum (2d Cir. 1981) 643 F.2d 68, 84.


 We dismiss the complaint against the FBI for lack of jurisdiction on grounds of sovereign immunity. The complaint against the individual FBI agents is dismissed as stale. Let the Clerk enter judgment dismissing the complaint, and let this case be closed on our docket.


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