601 F. App'x 389
6th Cir.2015Background
- On Oct. 28, 2009 FBI agents shot and killed Luqman Abdullah during a sting; FBI press release said Abdullah fired on agents. Family disputed that account and sought records and investigations.
- State and federal investigations within a year concluded the shooting was justified; public reports and some video/documents were released via FOIA settlements in 2011.
- On Oct. 25, 2012 co-conspirator Muhammad Salaam signed an affidavit saying Abdullah surrendered and never fired; the Estate filed a Bivens suit against unnamed FBI agents the next day (Oct. 26, 2012).
- In April 2013 the Estate amended to name two supervisors (Andrew Arena and George Nikolopoulos) and four identified shooter agents; the district court dismissed the action as time-barred.
- The Estate argued delayed accrual, fraudulent concealment tolling, relation-back under Fed. R. Civ. P. 15, and improper sua sponte dismissal; the Sixth Circuit affirmed dismissal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Accrual date of Bivens claim | Claim accrued when Estate learned death was wrongful (after Salaam affidavit) | Claim accrued Oct. 28, 2009 when press release disclosed injury and agent-caused death | Accrual: Oct. 28, 2009; discovery rule starts when injured and who caused it are known |
| Fraudulent-concealment tolling | FBI lied about Abdullah firing and concealed shooter identities, tolling limitations | No particularized allegations showing affirmative, wrongful concealment by Arena or Nikolopoulos | Tolling denied: Estate failed to plead affirmative, particularized concealment by the named supervisors |
| Relation back under Rule 15(c) | Amended complaint naming supervisors relates back to timely John Doe complaint | Prospective defendants did not know (and should not have known) they were targets within service period | Relation back rejected: supervisors would not have known they were intended defendants and complaint lacked supervisory-liability allegations |
| Sua sponte-dismissal procedural requirements (Tingler) | Dismissal was effectively sua sponte and violated Tingler safeguards | Either dismissal was on defendants’ motion (for named supervisors) or Tingler’s procedural steps were satisfied | No Tingler violation: supervisors moved to dismiss; where dismissal was sua sponte, court provided required notice and opportunity to respond |
Key Cases Cited
- Friedman v. Estate of Presser, 929 F.2d 1151 (6th Cir.) (accrual under discovery rule for federal claims)
- United States v. Kubrick, 444 U.S. 111 (Sup. Ct.) (claim accrues when plaintiff knows injury and who caused it)
- Rotella v. Wood, 528 U.S. 549 (Sup. Ct.) (discovery of injury, not discovery of all elements, starts limitations clock)
- Wolfe v. Perry, 412 F.3d 707 (6th Cir.) (state limitations period applies to Bivens actions)
- Zundel v. Holder, 687 F.3d 271 (6th Cir.) (state tolling rules govern absent conflict with federal law)
- Krupski v. Costa Crociere S.p.A., 560 U.S. 538 (Sup. Ct.) (relation-back inquiry focuses on what prospective defendant knew or should have known)
- Shehee v. Luttrell, 199 F.3d 295 (6th Cir.) (supervisory liability requires personal participation)
- Tingler v. Marshall, 716 F.2d 1109 (6th Cir.) (procedural prerequisites for sua sponte dismissal)
- Morrison v. Tomano, 755 F.2d 515 (6th Cir.) (service/response requirements may be relaxed in certain sua sponte dismissals)