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Tapia-Ortiz v. Doe

United States Court of Appeals, Second Circuit
Mar 26, 1999
171 F.3d 150 (2d Cir. 1999)

Summary

holding that plaintiff, who, in his original complaint, sued "Doe" defendant officers who allegedly applied excessive force, could not "relate back" his amendment naming specific officers two years after the statute of limitations had run

Summary of this case from Malesko v. Correctional Services Corp.

Opinion

No. 98-6103

Argued: March 18, 1999

Decided: March 26, 1999

Appeal from an order of the United States District Court for the Eastern District of New York (Thomas C. Platt, District Judge) granting summary judgment for the defendants on the pro se plaintiff's Bivens action.

Affirmed in part and remanded in part.

JUAN ANTONIO TAPIA-ORTIZ, pro se, White Deer, PA.

CHARLES P. KELLY, Assistant United States Attorney, Eastern District of New York, Brooklyn, NY, for Zachary W. Carter, United States Attorney (Deborah B. Zwany, Assistant United States Attorney, on the brief), for Defendants-Appellees.

Before: McLAUGHLIN, CALABRESI, and GIBSON, Circuit Judges.

The Honorable John R. Gibson, Circuit Judge of the United States Court of Appeals for the Eighth Circuit, sitting by designation.


Plaintiff-appellant Juan Antonio Tapia-Ortiz, pro se, appeals from an order dated April 16, 1998, in the United States District Court for the Eastern District of New York (Thomas C. Platt, J.). The court granted summary judgment for the defendants-appellees — named and unnamed officers of the Drug Enforcement Administration ("DEA") — and dismissed as time-barred Tapia-Ortiz's Bivens action alleging that the officers had used excessive force while arresting him in 1991. We affirm this part of the district court's judgment. With respect to Tapia-Ortiz's claim that the district court misconstrued his motion to withdraw the United States as a party to the Bivens action as a motion to withdraw his suit against the United States under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 2671-2680, we conclude that the district court erred. Moreover, we hold that Tapia-Ortiz's FTCA claim is not time-barred. Accordingly, we remand the case to the district court with instructions to reinstate Tapia-Ortiz's FTCA action.

BACKGROUND

Tapia-Ortiz was arrested on September 7, 1991, and charged with various drug offenses of which he was eventually convicted. On September 4, 1993, less than two years after his arrest, Tapia-Ortiz mailed an administrative complaint from prison to the Drug Enforcement Administration ("DEA") alleging that the arresting officers had used excessive force against him. This administrative claim was received by the DEA on September 8, 1993, more than two years after the alleged incident, and was denied on the merits.

Tapia-Ortiz then timely filed a Bivens action in district court against "John Doe (DEA Agents)." On June 20, 1996, almost two years after the statute of limitations for Bivens actions had run, he filed an amended complaint that specifically identified some of the "John Doe" officers by name. Also in 1996, Tapia-Ortiz added the United States to the suit as a defendant in a federal "Tort Claim action." But in 1997, he changed his mind and moved the district court "to withdraw the United States as a defendant in this Bivens action," and the motion was granted. (emphasis added) Since the district court made no reference to Tapia-Ortiz's FTCA claim in its final judgment, we assume that the court construed this motion as withdrawing Tapia-Ortiz's entire FTCA action against the United States, rather than as a motion to withdraw the United States only as a party to the Bivens action (brought against the individual DEA officers).

Shortly thereafter, the district court granted summary judgment for the named and unnamed officers. The court held that Tapia-Ortiz's failure to name specifically any defendants within the three-year statute of limitations period for a Bivens action rendered the suit time-barred.

DISCUSSION

First, we address the Bivens claim. The statute of limitations for Bivens actions arising in New York is three years. See Owens v. Okure, 488 U.S. 235, 251 (1989). Although Tapia-Ortiz filed his complaint naming the defendant officers as "John Does" within the three-year statute of limitations period, "[i]t is familiar law that `John Doe' pleadings cannot be used to circumvent statutes of limitations because replacing a `John Doe' with a named party in effect constitutes a change in the party sued." Aslandis v. United States Lines, Inc., 7 F.3d 1067, 1075 (2d Cir. 1993) (citations omitted). And even when a suit is brought by pro se litigant, "an amended complaint adding new defendants [cannot] relate back if the newly-added defendants were not named originally because the plaintiff did not know their identities." Barrow v. Wethersfield Police Dept., 66 F.3d 466, 470 (2d Cir. 1995). Tapia-Ortiz's failure until two years after the expiration of the statute of limitations period to name specifically in his complaint the officers who allegedly violated his rights is therefore fatal to his Bivens claim.

We next turn to the question of whether Tapia-Ortiz actually withdrew his FTCA claim against the United States when he moved the district court "to withdraw the United States as a party to this Bivens action." It is well-established that pro se complaints are to be construed liberally in favor of the pro se litigant. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (per curiam). There are indications in the record that Tapia-Ortiz understood at the time that he added the United States as a party that it would be in his suit just as part of an FTCA claim. On that reading, Tapia-Ortiz could not have intended to withdraw the United States from the Bivens action in which it was not a part. On the other hand, his motion of withdrawal did specify that he was withdrawing the United States only in the Bivens action. Given the ambiguity of Tapia-Ortiz's filings before the district court, we believe that the court should not, without further inquiry, have construed his motion as a motion to withdraw the FTCA claim.

The government argues that even if Tapia-Ortiz did not withdraw his FTCA suit, that action is time-barred. A claim made under the FTCA must be made to the appropriate federal agency within two years of the date the claim accrued. See 28 U.S.C. § 2401(b) (1994). Tapia-Ortiz's administrative complaint was not received by the DEA until September 8, 1993, which was one day after the two-year statute of limitations period had run. But the administrative claim was mailed by Tapia-Ortiz to the DEA from prison on September 4, 1993, a few days before the two-year filing deadline.

We have held that pro se prisoner's § 1983 complaint is deemed, for statute of limitations purposes, when it is delivered to prison officials. See Dory v. Ryan, 999 F.2d 679, 682 (2d Cir. 1993) (citing Houston v. Lack, 487 U.S. 266, 270 (1988)). This rule is founded on the notion that "[u]nlike other litigants, the pro se prisoner litigant cannot personally ensure receipt of his legal documents by the court clerk." Id. at 682.

Since, with regard to the difficulties inherent in being a pro se prisoner litigant, we see no difference between the filing of a court action and the filing of an administrative claim, we hold that Dory applies to an FTCA administrative filing. It follows that Tapia-Ortiz's FTCA claim, which was mailed from prison before the statute of limitations period had run, is not time-barred.

Houston does not apply, of course, when there is a specific statutory regime to the contrary. See Fex v. Michiganse, 507 U.S. 43 (1993) (declining to apply the Houston principle to the Interstate Agreement on Detainers ("IAD") due to the explicit language of the IAD).

The judgment of the district court granting summary judgment on the Bivens action is affirmed. We remand the case to the district court for further proceedings on Tapia-Ortiz's FTCA suit.


Summaries of

Tapia-Ortiz v. Doe

United States Court of Appeals, Second Circuit
Mar 26, 1999
171 F.3d 150 (2d Cir. 1999)

holding that plaintiff, who, in his original complaint, sued "Doe" defendant officers who allegedly applied excessive force, could not "relate back" his amendment naming specific officers two years after the statute of limitations had run

Summary of this case from Malesko v. Correctional Services Corp.

holding that "even when a suit is brought by a pro se litigant, an amended complaint adding new defendants [cannot] relate back if the newly-added defendants were not named originally because the plaintiff did not know their identities"

Summary of this case from Walker v. Youman

finding no difference between the filing of a court action and the filing of an administrative claim under the Federal Tort Claims Act

Summary of this case from LAO v. SCHULT

affirming dismissal of plaintiff's excessive force claims as time-barred because the officers named in the original complaint as "John Does" were not specified until two years after the statute of limitations had run

Summary of this case from Phillips v. City of New York

affirming district court's dismissal of suit as time-barred where pro se plaintiff failed to amend complaint to specifically name any defendants within the statute of limitations period

Summary of this case from Abdell v. City of New York

reconciling mailbox rule's application to federal habeas petition filings despite Rule 3(b)'s clear language contemplating receipt, because "Rule 3(b) determines when a case is filed in the procedural sense for the purpose of being placed on the court's docket, and the mailbox rule governs when a case is filed in the substantive sense for statute of limitations purposes"

Summary of this case from Fernandez v. Artuz

In Tapia-Ortiz v. Doe, 171 F.3d 150, 152 (2d Cir. 1999), a prisoner filed an administrative claim of excessive force under the Federal Tort Claims Act. He delivered the claim to prison authorities within the Drug Enforcement Administration's two-year regulatory period, but the DEA did not receive the claim until one day beyond the permitted time.

Summary of this case from Longenette v. Krusing

construing an ambiguous motion to withdraw in favor of the pro se litigant

Summary of this case from Marmolejo v. U.S.

recounting history

Summary of this case from Tapia-Ortiz v. Winter

In Tapia-Ortiz, the Court relied on the fact that the statute did not explicitly refer to “receipt” - and conspicuously made no mention of the regulation, which does.

Summary of this case from Schulte v. United States

stating that "[i]t is familiar law that 'John Doe' pleadings cannot be used to circumvent statutes of limitations because replacing a 'John Doe' with a named party in effect constitutes a change in the party sued"

Summary of this case from Rochester v. Cnty. of Nassau

applying Barrow rule to pro se plaintiff who sought to replace "John Doe" pleading with actual names after the expiration of the limitations period

Summary of this case from Alvarez v. Strack

applying mailbox rule to FTCA claim mailed from prison before statute of limitations had run

Summary of this case from Barnes v. U.S.
Case details for

Tapia-Ortiz v. Doe

Case Details

Full title:JUAN ANTONIO TAPIA-ORTIZ, PLAINTIFF-APPELLANT, v. JOHN DOE, DEA AGENTS…

Court:United States Court of Appeals, Second Circuit

Date published: Mar 26, 1999

Citations

171 F.3d 150 (2d Cir. 1999)

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