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Snoussi v. Bivona

August 21, 2008

FAYSAL SNOUSSI, PLAINTIFF,
v.
JOHN BIVONA, SPECIAL AGENT, F.B.I.; JOHN AUSTIN, ASSISTANT SUPERVISOR-IN-CHARGE, D.E.A.; RALPH REYES, STAFF COORDINATOR, D.E.A.; TODD LEPKOFKER, GROUP SUPERVISOR, D.E.A.; RODNEY ARRINGTON, SPECIAL AGENT, D.E.A.; ROBERT ZACHARIASIEWICZ, SPECIAL AGENT; D.E.A; MARKGREY, SPECIAL AGENT, D.E.A.; KENNETH ROBBINS, FORMER TASK FORCE OFFICER, D.E.A.; MATTHEW CONNOLLY, FORMER SPECIAL AGENT, D.E.A.; OREST ZACHARIASEVYCH, SPECIAL AGENT, D.E.A.; MICHAEL MENZER, SPECIAL AGENT, D.E.A.; WESLEY FRITZ, SPECIAL AGENT, D.E.A.; ROBERT FAGAN, SENIOR SPECIAL AGENT, D.H.S.; KEVIN GAINES, SENIOR SPECIAL AGENT, D.H.S.; CHER IANNACCONE, SENIOR SPECIAL AGENT, D.H.S.; JASON SAMUELS, SPECIAL AGENT, D.H.S.; MICHAEL MCGARRITTY, SENIOR SPECIAL AGENT, F.B.I.; JOHN WHITE, NYPD DETECTIVE, F.B.I.; KIERAN SMITH, SPECIAL AGENT, F.B.I.; AMY SOLEK, SPECIAL AGENT, F.B.I.; WILLIAM WIKSTROM, SPECIAL AGENT, F.B.I.; MICHAEL O'BRIEN, NYPD DETECTIVE, F.B.I.; BEN LAMANA, SPECIAL AGENT, F.B.I.; SUSAN OSTROBINSKI, SENIOR SPECIAL AGENT, F.B.I.; DARRIN TURPIN, SPECIAL AGENT, F.B.I.; ERWIN RAMOS, PHYSICIAN'S ASSISTANT, B.O.P. DEFENDANTS.



The opinion of the court was delivered by: Dearie, District Judge.

MEMORANDUM & ORDER

Pro se plaintiff brings this action alleging constitutional violations during and after his arrest. Defendants move to dismiss, or in the alternative for summary judgment. For the reasons set forth below, plaintiff's claims are dismissed in part.

BACKGROUND*fn1

In the early morning hours of February 3, 2003, plaintiff was arrested by a team of law enforcement officers at his home in the Astoria neighborhood of Queens County. Plaintiff had been indicted for conspiracy to distribute narcotics. The officers obtained arrest and search warrants prior to the arrest. Plaintiff later pled guilty to conspiracy to distribute hashish and was sentenced to thirty-seven months imprisonment and three years supervised release.*fn2

Plaintiff commenced this action on June 9, 2005, pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 338 (1971), alleging abuses committed by the arresting officers, as well as officers and staff at the Metropolitan Correction Center ("MCC") in Manhattan. Specifically, plaintiff alleges that defendants: (1) violated his Fourth and Fifth Amendment rights "by lacking 'probable cause' for a 'no-knock warrant' and/or the violation of the knock and announce procedure;"*fn3 (2) "deprived plaintiff of his rights to be free from unreasonable use of excessive force during arrest under the Fourth Amendment;" (3) violated his First, Fourth, and Fifth Amendment rights "when they employed racial and religious statements (slurs) against [him];" (4) "violated his right to equal protection of the laws as guaranteed by the Fourteenth Amendment;" (5) damaged his furnishings and property in violation of his Fifth Amendment right to due process; and (6) "violated plaintiff's rights by not providing him adequate medical care . . . for [his] injuries sustained in/during the 'arrest.'" Compl. 8-10.

Plaintiff's original complaint named defendants Bivona and Ramos, together with three enumerated "John Doe" defendants and "all other unknown John Does." After receiving three extensions of time, totaling 120 days, to respond on behalf of Ramos,*fn4 the United States Attorney for the Eastern District of New York proposed a briefing schedule in order to file a motion to dismiss the complaint against Ramos for failure to state a claim upon which relief could be granted. Magistrate Judge Lois Bloom denied the request without prejudice and sought the U.S. Attorney's assistance, pursuant to Valentin v. Dinkins, 121 F.3d 72 (2d Cir. 1997), in identifying the individuals present during plaintiff's arrest and transfer to MCC. April 12, 2006 Order. The U.S. Attorney asked this Court to reconsider the order on the grounds that the three- year statute of limitations applicable to Bivens actions in New York had expired with respect to the John Doe defendants. The Court denied reconsideration. Jan. 31, 2007 Mem. & Order. The U.S. Attorney then identified twenty-five individuals "who may, or may not, be the individuals referred to as "John Doe" defendants in the above-referenced action." Defs.' Feb. 21, 2007 Letter, 1. Magistrate Judge Bloom amended the complaint accordingly and directed the United States Marshals Service to serve the newly identified defendants. Defendants, collectively represented by the U.S. Attorney's Office, now move to dismiss the complaint, or in the alternative for summary judgment.

DISCUSSION

I. Standard

In considering a Rule 12(b)(6) motion to dismiss a complaint for failure to state a claim, the Court "tak[es] as true the facts alleged in the complaint and draw[s] all reasonable inferences in the plaintiff's favor." Jackson Nat'l Life Ins. Co. v. Merrill Lynch & Co., Inc., 32 F.3d 697, 699-700 (2d Cir. 1994). Where a plaintiff proceeds pro se, "a court is obliged to construe his pleadings liberally, particularly when they allege civil rights violations." McEachin v. McGuinnis, 357 F.3d 197, 200 (2d Cir. 2004). However, "conclusory allegations or legal conclusions masquerading as factual conclusions will not suffice to prevent a motion to dismiss." Smith v. Local 819 I.B.T. Pension Plan, 291 F.3d 236, 240 (2d Cir. 2002) (internal quotation omitted).*fn5

On a Rule 12(b)(6) motion, the Court "must confine its consideration 'to facts stated on the face of the complaint, in documents appended to the complaint or incorporated in the complaint by reference, and to matters of which judicial notice may be taken.'" Leonard F. v. Israel Discount Bank of N.Y., 199 F.3d 99, 107 (2d Cir. 1999) (quoting Allen v. WestpointPepperell, Inc., 945 F.2d 40, 44 (2d Cir. 1991)). "'When matters outside the pleadings are presented in response to a 12(b)(6) motion,' a district court must either 'exclude the additional material and decide the motion on the complaint alone' or 'convert the motion to one for summary judgment under Fed. R. Civ. P. 56 and afford all parties the opportunity to present supporting material.'" Friedl v. City of New York, 210 F.3d 79, 83 (2d Cir. 2000) (quoting Fonte v. Bd. of Managers of Cont'l Towers Condo., 848 F.2d 24, 25 (2d Cir. 1988)).

By contrast, in resolving a motion to dismiss for lack of subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1), a district court may refer to evidence outside the pleadings. Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). A plaintiff asserting subject matter jurisdiction has the burden of proving that it exists by a preponderance of the evidence. Id.

II. Timeliness

A. Accrual

Because Congress has not established a time limitation for Bivens actions, courts adopt a local state time limitation as federal law. See Wilson v. Garcia, 471 U.S. 261, 266-67 (1985). The limitations period for Bivens actions arising in New York is three years. Owens v. Okure, 488 U.S. 235, 251 (1989). "While state law supplies the statute of limitations for claims under § 1983, federal law determines when a federal claim accrues." Eagleston v. Guido, 41 F.3d 865, 871 (2d Cir. 1994). A claim accrues when the plaintiff "knows or has reason to know" of the harm upon which his action is based. Cullen v. Margiotta, 811 F.2d 698, 725 (2d Cir.).

Plaintiff asserts that he has never represented himself in a lawsuit and suggests that because he only "learned about the violations of his rights from the law librarians [at MCC]. Therefore, the statute of limitations governing this action did not begin to run on February 03, 2003." Pl.'s Mem. in Opp'n. 8. Federal courts generally apply a discovery accrual rule when a statute is silent on the issue. See Rotella v. Wood, 528 U.S. 549, 555 (2000). "But in applying a discovery accrual rule, we have been at pains to explain that discovery of the injury, not discovery of the other elements of a claim, is what starts the clock." Id. Despite plaintiff's pro se ...


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