Appeal by plaintiffs from an order of the Southern District of New York entered pursuant to the decision of Chief Judge Constance Baker Motley granting summary judgment dismissing their action against the federal government and certain agencies and individual agents thereof for damages based on the agents' alleged unlawful search of plaintiffs' premises and belongings.
Mansfield, Kearse and Pratt, Circuit Judges.
MANSFIELD, Circuit Judge:
In this action for damages based on entries by Drug Enforcement Administration (DEA) agents and others into plaintiffs' apartment in New York and leased property in Florida, and search of their belongings in a California warehouse, all allegedly in violation of the Fourth Amendment, various federal civil right statutes, the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 2671-2680, and common law, plaintiffs appeal from an order of the Southern District of New York entered pursuant to a decision of Chief Judge Constance Baker Motley granting summary judgment dismissing their complaint. The complaint in shotgun fashion alleges in general terms a catchall compendium of wrongful acts in Florida (Counts I and III), New York (Count II) and California (Count IV). It names as defendants the United States Government, the Department of Justice, various federal law enforcement agencies, the Oakland Park City Police Department, two sheriffs of Broward County, Florida, various individual federal law enforcement agents and a few non-government persons and corporations. With the exception of Counts III and IV each count indiscriminately alleges in vague and conclusory fashion that all defendants participated in the alleged misconduct. The district court dismissed the claims based on the Florida and California searches as barred by the statute of limitations and plaintiffs' brief advises that they appeal only with respect to the entry into their New York apartment (Count II).*fn1 We affirm.
The present action was commenced in June 1982. On February 1, 1983, the federal defendants moved to dismiss the complaint pursuant to F.R.Civ.P. 12(b) (2) and 12(b) (6) or in the alternative for summary judgment under F.R.Civ.P. 56. The motion was supported by a statement pursuant to Local Civil Rule 3(g) of the Southern District of New York and the affidavits of FBI Agents Paul L. Andrews and Christopher Mattiace, DEA Agents James Harris, Alvah M. Henley, William D. Oakes, Dwight S. Rabb, John R. Schuller, DEA Associate Chief Counsel Craig E. Richardson, Assistant U.S. Attorney Cathy R. Silak, and William R. Schuchter. These affidavits set forth specific facts which would, unless factually controverted, entitle the defendants to dismissal. The sole opposition affidavit was that of plaintiffs' attorney, Bruce G. Cassidy, which was limited to general conclusory averments, including the contention that the affidavits of the federal agents "are self-serving and not credible." Plaintiffs did not file any opposition statement as required by Local Rule 3(g), which provides:
"The papers opposing a motion for summary judgment shall include a separate, short and concise statement of the material facts as to which it is contended that there exists a genuine issue to be tried.
"All material facts set forth in the statement required to be served by the moving party will be deemed to be admitted unless controverted by the statement required to be served by the opposing party."
The pertinent facts revealed by the moving papers, which must be deemed admitted, Gatling v. Atlantic Richfield Co., 577 F.2d 185, 187 (2d Cir.), cert. denied, 439 U.S. 861, 58 L. Ed. 2d 169, 99 S. Ct. 181 (1978), are as follows. On July 2, 1980, a group of government agents, including FBI agents and defendants William Oakes, Alvah M. Henley and Dwight Rabb, armed with a warrant issued by Judge Robert L. Carter of the Southern District of New York for the arrest of Wyler, a fugitive, arrested him in his New York City apartment. Wyler had been convicted of serious federal felonies, see United States v. Wyler, 639 F.2d 770 (2d Cir. 1980), cert. denied, 454 U.S. 829, 70 L. Ed. 2d 105, 102 S. Ct. 123 (1981).
In the course of a security check of the apartment at the time of arrest Agent Rabb saw a quantity of marijuana in plain view on a kitchen counter but did not seize it. After Agent Rabb departed to obtain a search warrant and Oakes left the premises with Wyler in custody, Henley and other agents remained to guard the apartment pending issuance of the search warrant. Henley alleged in his affidavit that no search was conducted until Oakes returned with the search warrant. When Oakes returned he and Henley searched the apartment, seizing the marijuana and other contraband, including two pistols and a silencer. Later they arrested Becker as she was returning to the apartment. Wyler pleaded guilty to bail-jumping and unlawful possession of firearms, United States v. Wyler, 661 F.2d 912 (2d Cir.), cert. denied, 454 U.S. 898, 70 L. Ed. 2d 214, 102 S. Ct. 399 (1981).
Becker and Wyler were later convicted with two others of attempting to enable Wyler to escape from the Metropolitan Correction Center by means of a hijacked helicopter. United States v. Wyler, 661 F.2d 912 (2d Cir.), cert. denied, 454 U.S. 898, 70 L. Ed. 2d 214, 102 S. Ct. 399 (1981).
On May 12, 1983, Judge Motley heard oral argument on defendants' motion. She dismissed the claims based on the Florida and California searches as barred by the applicable statute of limitations and lack of personal jurisdiction over some defendants, which is not challenged. She also dismissed the claims against the federal defendants based on the search of the New York apartment on the ground that the plaintiffs failed to file any supporting affidavits. From this latter dismissal plaintiffs appeal.
Plaintiffs' claims, insofar as they are based on 42 U.S.C. § 1983, were properly dismissed for lack of any state action. Their reliance on the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-2680, is also misplaced because of their failure to make a timely filing of an administrative claim with the appropriate government agency pursuant to 28 U.S.C. § 2675(a). Absent compliance with the statute's requirements the action is barred by sovereign immunity and the district court had no subject matter jurisdiction. Keene Corp. v. United States, 700 F.2d 836, 841 (2d Cir. 1983). The claims alleging common law tort liability are likewise barred by the absolute immunity of the defendants for acts allegedly done in the course of their official duties. Barr v. Matteo, 360 U.S. 564, 574-75, 3 L. Ed. 2d 1434, 79 S. Ct. 1335 (1959); Huntington Towers, Ltd. v. Franklin National Bank, 559 F.2d 863, 870 (2d Cir. 1977), cert. denied, 434 U.S. 1012, 98 S. Ct. 726, 54 L. Ed. 2d 756 (1978); Gregoire v. Biddle, 177 F.2d 579, 581 (2d Cir. 1949), cert. denied, 339 U.S. 949, 94 L. Ed. 1363, 70 S. Ct. 803 (1950).
Thus the only claim that cannot be dismissed on its face is plaintiffs' direct Fourth Amendment claim derived from Bivens v. Six Unknown Named Agents, 403 U.S. 388, 29 L. Ed. 2d 619, 91 S. Ct. 1999 (1971). However, this claim would be dismissible on grounds of immunity if the defendants could show that "their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known," i.e., that it is ...