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Awan v. Ashcroft

September 28, 2010

KHALID AWAN, PLAINTIFF,
v.
JOHN ASHCROFT, ET AL., DEFENDANTS.



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

MEMORANDUM AND ORDER

On March 6, 2009, Khalin Awan, pro se, a frequent filer in this Court, commenced this action alleging various civil rights violations in connection with his 2001 arrest and successful prosecution. On September 17, 2009, Mr. Awan filed an Amended Complaint. For reasons that are not entirely clear, the Court neglected to docket Mr. Awan's Amended Complaint for several weeks. In the meantime, the Court received two motions to dismiss, one filed by Fairfield Port Jeff Gardens LLC (hereafter, "Fairfield," but incorrectly named as "Fairfield Gardens Management Co." in the Complaint and Amended Complaint), and the other filed by the remaining defendants, who are all current and former employees of the FBI or the U.S. Department of Justice (hereafter, "Government Defendants"). On December 23, 2009, the Government Defendants wrote the Court to ask the Court to consider their motion to dismiss as being against the Amended Complaint, noting that the two Complaints appear to be substantively indistinguishable. Fairfield has not formally sought this relief. However, the Court, in the interests of justice and in light of both the two Complaints' substantive similarities, has decided to also construe Fairfield's motion as being against the Amended Complaint.

In response to the Defendants' motions, Mr. Awan has sought leave to file a Second Amended Complaint that, among other things, drops Fairfield as a defendant but adds several new defendants and claims. It is unclear from Mr. Awan's pleadings whether he opposes the Defendants' motions to dismiss the Amended Complaint.

For the foregoing reasons, the Court: (1) GRANTS Fairfield's motion to dismiss (Docket No. 22); (2) GRANTS the Governments' motion to dismiss (Docket No. 38), (3) DENIES Mr. Awan's motion for leave to file a Second Amended Complaint (Docket No. 55); and (4) DENIES all other pending motions (Docket Nos. 34, 36, 37, 43, 48) as MOOT.

DISCUSSION

I. Fairfield's Motion to Dismis

Fairfield premises its motion on the grounds that it did not own or operate the subject property during the relevant time period, and has supplied a sales contract and title deed documenting their position. (Docket No. 22). In response, Mr. Awan has demanded a "Certified Copy" of the sales contract and title deed but added that, if this "Certified Copy" supports Fairfield's position, he does not oppose Fairfield's motion to dismiss. In reply, Fairfield sets forth that it has supplied copies of the original relevant documents and an affidavit attesting to their validity. Thus, Fairfield contends, there is no need for additional "verification."

As an initial matter, the Court notes that Fairfield's motion is procedurally defective. Fairfield's motion indisputably relies on documents outside the pleadings. But Fairfield, in filing this motion, did not comply with Local Rule 12.1, which requires that pro se litigants, such as Mr. Awan, be afforded notice that the Court might construe Fairfield's motion as one for summary judgment. In light of Fairfield's failure to comply with Local Rule 12.1, the Court cannot in good conscience consider Fairfield's motion as one for summary judgment. See generally Smalls v. Jummonte, 08-CV-4637, 2010 WL 3291587, at *3 (S.D.N.Y. Aug. 13, 2010).

The question thus turns to whether the Court can consider the documents Fairfield has submitted in the context of a motion to dismiss. The Court finds that it can. On a motion to dismiss, courts may take judicial notice of public records, such as properly recorded deeds. See Contempo Acquisition, LLC v. U.S. Dept. of Housing and Urban Development, 06-CV-3654, 2007 WL 3254916, at *2 (S.D.N.Y. 2007); see also Tardd v. Brookhaven Nat. Laboratory, 407 F. Supp. 2d 404, 418 (E.D.N.Y. 2006) (recognizing that courts could take judicial notice of deed, but declining to do so). Here, Fairfield has submitted a deed demonstrating that it acquired the property in 2005 from Port Jefferson Realty LLC, and that Port Jefferson Realty, in turn, had acquired the property by deed dated December 12, 1998 and recorded January 28, 1999. See Broxmeyer Aff. Ex. C. It follows then that the Court can take judicial notice that Port Jefferson Realty, and not Fairfield, owned the property during the relevant time period. So Fairfield could not have engaged in the conduct the Amended Complaint alleges. Consequently, Fairfield's motion to dismiss is GRANTED.

II. The Government Defendants' Motion to Dismiss

The Government Defendants have also moved to dismiss.

The Government Defendants argue that Mr. Awan's claims fail on numerous grounds, including timeliness, the inability to hold federal officials liable under respondeat superior, and Mr. Awan's failure to plead enough facts to facts to state a claim for constitutional violations.

The Court does not reach most of the Government's arguments, because it agrees with the Government that Mr. Awan's Complaint, in its entirety, is time-barred.

Mr. Awan's First, Second, and Third Causes of Action assert claims against the Government Defendants for violations of his constitutional rights (i.e., "Bivens claims"). In New York, however, Bivens claims are subject to a three year limitations period. See Tapia-Ortiz v. Doe, 171 F.3d 150, 151 (2d Cir. 1999); see generally Higazy v. Templeton, 505 F.3d 161, 169 (2d Cir. 2007) ("A Bivens action is a judicially-created remedy designed to provide individuals with a cause of action against federal officials who have violated their constitutional rights"). And the ...


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