ESTATE OF Luqmаn A. ABDULLAH, by its personal representative Mujahid CARSWELL, Plaintiff-Appellant, v. Andrew G. ARENA; George Nikolopoulos; Unidentified FBI Agent No. 1; Unidentified FBI Agent No. 2; Unidentified FBI Agent No. 3; Unidentified FBI Agent No. 4, Defendants-Appellees.
No. 14-1504
United States Court of Appeals, Sixth Circuit.
Feb. 13, 2015.
At most, Willard showed that her coworkers circulated unkind emails about her behind her back, and that her boss once yelled at her for reasons unrelated to her age or disability. On that evidence alone, a reasonable juror could not find for Willard on her claim for hostile work environment. Thus, the district court correctly granted summary judgment to Mariеmont.
Fourth, Willard argues that there was a genuine issue as to whether Imhoff intentionally inflicted emotional distress upon her. She says he did so on two occasions: when he transferred her to the middle school, and when he yelled and lunged at her during the December 18 meeting. The question here is whether a reasonable juror could find that such conduct “was so extreme and outrageous as to go beyond all possible bounds of decenсy and was such that it can be considered as utterly intolerable in a civilized community.” Burkes v. Stidham, 107 Ohio App.3d 363, 668 N.E.2d 982, 988 (1995). As for the decision to transfer Willard, Imhoff did not know that she feared teaching at the middle school, which means that his decision to transfer her there was not “extreme and outrageous.” As for the incident on December 18, Willard alleges conduct that was surely unprofessional, but not “utterly intolerable in a civilized community.” Hence this claim fails as well.
B.
We also review de novo the distriсt court‘s dismissal of Willard‘s claim for breach of contract. Bassett v. Nat‘l Collegiate Athletic Ass‘n, 528 F.3d 426, 430 (6th Cir. 2008). To allege a breach of contract, a plaintiff must first allege that there was, in fact, a contract. Under Ohio law, a contract with a governmental entity must be ratified by its governing body. See Wright v. City of Dayton, 158 Ohio App.3d 152, 814 N.E.2d 514, 520 (2004). Here, Willard contends that her correspondence with several unidentified school officials created a contract that required Mariemont to keep her at the high school. But the Mariemont School Board undisputedly never ratified such a contract, which means for our purposes that there was not one. Id. Thus, the district court correctly dismissed Willard‘s claim.
The district court‘s judgment is affirmed.
ROGERS, Circuit Judge.
This case is about whether a Bivens action for wrongful death was timely filed within the three-year statute of limitations. On October 28, 2009, Luqman Abdullah was shot and killed by FBI agents during a sting operation intended to apprehend Abdullah and several co-conspirators. According to an FBI press release issued the
On appeal, the Estate argues that the claims against Arena and Nikolopoulos were timely, arguing in the alternative that (1) the claims did not accrue until the Estate learned or had the ability to learn Abdullah‘s death was wrongful; (2) the statute of limitations was tolled because the defendants fraudulently concealed the claim by lying about Abdullah resisting arrest; and (3) the amended complaint relates back to the original complaint under
On October 28, 2009, FBI agents raided a warehouse in Dearborn, Michigan to arrest Luqman Abdullah and four co-conspirators in connection with a consрiracy to receive and sell stolen property. Abdullah‘s Estate alleges that Abdullah was unarmed and had surrendered by lying on the ground, but that FBI agents deployed an FBI dog, which attacked Abdullah. When Abdullah attempted to fight off the dog, four FBI agents shot Abdullah a combined 20 times, killing him. The four co-conspirators, including Muhammad Salaam, surrendered and were arrested.
Later that day, the Detroit Division of the FBI issued a press release stating that Abdullah had firеd on the FBI agents and was shot as a result:
[D]uring the arrests today, the suspects were ordered to surrender. At one location, four suspects surrendered and were arrested without incident. Luqman Ameen Abdullah did not surrender and fired his weapon. An exchange of gun fire followed and Abdullah was killed. An FBI canine was also killed during the exchange.
On October 25, 2012—nearly three years after the shooting—Muhammad Salaam3 signed an affidavit stating that Abdullah had surrendered to the FBI agents and never drew or shot a gun at the agents.
The next day, on October 26, Abdullah‘s Estate filed a Bivens action in the Eastern District of Michigan against “Unidentified FBI Agents, in their individual capacities; jointly and severally.” The agents were described as “employed by the [FBI]” and “involved in the tactical operation that resulted in the shooting death of Abdullah.” The complaint was served on the United States Attorney‘s Office in Detroit, the United States Attorney General‘s office in Washington, DC, аnd FBI headquarters in Washington, DC. No individual agent was personally served. No defendants responded to the suit and a default judgment was entered.
After the Estate withdrew the default judgment, the district court ordered “the government” to file an appearance of counsel and an answer to the complaint. An Assistant United States Attorney filed an entry of appearance “as counsel on behalf of the United States of America, аn interested party in the above entitled action.” The United States observed that the complaint named no real defendants and that the statute of limitations had expired, and accordingly “suggested” dismissal of the complaint.
Following the United States‘s suggestion, the district court ordered the Estate to show cause why the complaint should not be dismissed as time-barred. Two days later, on April 18, 2013, the Estate filed an amended complaint, nаming Andrew Arena and George Nikolopoulos, in their individual capacities, as well as four defendants who had shot at Abdullah, named as “Unidentified FBI Agent No. 1, [FBI] Hostage Team Leader“; “Unidentified FBI Agent No. 2, [FBI] Hostage Rescue Team K-9 Handler“; “Unidentified FBI Agent No. 3, [FBI] Hostage Rescue Team K-9 Cover“; “Unidentified FBI Agent No. 4, [FBI] Hostage Rescue Team, Special Weapons and Tactics Team Special Agent.” In its amended complaint, the Estatе pled that the FBI had fraudulently concealed the existence of a cause of action from the Estate by lying about whether Abdullah fired on FBI agents and concealing the identities of the FBI agents involved in the operation.
Arena and Nikolopoulos filed a motion to dismiss for failure to state a claim under
The district court dismissed the entire case with prejudice. The district court found that the claim accrued on October 29, 2009, the day after the FBI issued the press release about the shooting. The press release stated that Abdullah had been killed by FBI agents in an exchange of gunfire. Documents accompanying the press release identified Abdullah‘s alleged co-conspirators, including four who were witnesses to the shooting and thus potential sources of an alternative account of Abdullah‘s death. According to the district court, these facts put the Estate on notice of a possible claim and triggered the running of the statute of limitations. Because the statute of limitations for a Bivens action in Michigan was three years, and the amended complaint was not filed until three-and-a-half years after the claim accrued, the action was time-barred.
Next, the district court concluded that the Estate was not entitled to tolling based on fraudulent concealment because the press release revealed—not concealed—a possible cause of action against the shooters. The court noted that the shooting was “well publicized and much criticized” and that the Estate‘s filings did not indicate whether the Estate was diligent in contacting eyewitnesses before it interviewed Salaam on October 25, 2012. In response to the Estate‘s argument that the defendants lied about Abdullah‘s having a gun, the district court stated that such exculpatory stories are present in “virtually every case,” and that exculpatory stories were not fraudulent concealment under Michigan law.
The district court also concluded that the amended complaint did not relate back to the original complaint. Although the original complaint was filed within the statute of limitations, it named John Doe defendants only. The district court concluded that the substitution of real defendants in place of John Doe defendants could nоt relate back under Cox v. Treadway, 75 F.3d 230, 240 (6th Cir. 1996).
In response to the Estate‘s argument that a sua sponte dismissal of the case would be contrary to Tingler v. Marshall, 716 F.2d 1109 (6th Cir. 1983) and Morrison v. Tomano, 755 F.2d 515 (6th Cir. 1985), the court concluded that the dismissal substantially met the Tingler requirements because the court had issued an Order to Show Cause, the Estate had submitted multiple briefs concerning dismissal, and the court had issued a reasoned decision dismissing the case on procedural grounds. The Estate appeals.
Abdullah‘s claims accrued the day he was killed: October 28, 2009. Under the discovery rule, Bivens claims accrue when the plaintiff “knеw or should have known of the injury which is the basis of his Bivens claim.” Friedman v. Estate of Presser, 929 F.2d 1151, 1159 (6th Cir. 1991). Once the plaintiff knows “he has been hurt and who has inflicted the injury,” the claim accrues. United States v. Kubrick, 444 U.S. 111, 122, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979). Because this information was disclosed in an FBI press release issued the day of the shooting, Abdullah‘s Estate knew that Abdullah had been injured and that FBI agents had caused the injury. Abdullah‘s Estate also knew the identities of the co-conspirator eyewitnesses. This knowledge started the clock, rendering the Estate resрonsible for
The Estate urges the court to find a later accrual date, on the theory that the Estate could not or did not learn until later that Abdullah‘s death was wrongful and in violation of his constitutional rights. The Supreme Court has rejected that theory of claim accrual in the context of “medical malpractice, where the cry for a discovery rule is loudest.” Rotella v. Wood, 528 U.S. 549, 555, 120 S.Ct. 1075, 145 L.Ed.2d 1047 (2000). The “discovery of the injury, not discovery of the other elements of a claim, is what starts the clock.” Id. So long as the plaintiff knows he has been injured and who has caused the injury, he has the ability to investigate the remaining elements of his cause of action and prosecute the claim. Id. at 555-56. Abdullah‘s Estate knew these facts on October 28, 2009. This is not a case where the identity of the defendants and at least the possibility that the shooting was wrongful were not known. Thе Estate delayed in interviewing eyewitnesses for nearly three years, but that does not delay the accrual of the claim.
An October 28, 2009 accrual date renders the amended complaint untimely—unless tolling applies or the amended complaint relates back—because the amended complaint was filed more than three years after the claim accrued. Three years is the applicable limitations period for personal injury actions in Michigan and hence for Bivens actions. See Wolfe v. Perry, 412 F.3d 707, 714 (6th Cir. 2005). While federal law governs Bivens claim accrual, courts adopt the state statute of limitations and tolling provisions unless they are inconsistent with federal law or policy. Zundel v. Holder, 687 F.3d 271, 281 (6th Cir. 2012); Harris v. United States, 422 F.3d 322, 331 (6th Cir. 2005).
The Estate is not entitled to tolling based on fraudulent concealment because the Estate did not plead wrongful concealment by Arena and Nikolopoulos. Fraudulent concealment has three elemеnts: (1) wrongful concealment, i.e. a fraudulent act or statement by the defendant intended to conceal the existence of a cause of action from the plaintiff; (2) lack of knowledge of the cause of action by the plaintiff; and (3) due diligence by the plaintiff. Lutz v. Chesapeake Appalachia, L.L.C., 717 F.3d 459, 475 (6th Cir. 2013); see also
Because the Estate did not plead any fraudulent statement by Nikolopoulos in the amended complaint, the Estate has not pled fraudulent concealment by Nikolopoulos with particularity.5 Fraudulent concealment must be pled with particularity, see
The Estate also failed to plead wrongful concealment by Arena. The only statement pled in the amended complaint expressly attributed to Arena was a vague denial of wrongdoing from an October 2010 documentary about the shooting. Such a skeletal denial is equivalent to more silence and is not wrongful concealment. As the Ninth Circuit has reasoned, “a denial of an accusation of wrongdoing (where such an answer was in practical effect no more than a failure to disclose the existence of a cause of action) [is] not a fraudulent concealment.” Suckow Borax Mines Consol. v. Borax Consol., 185 F.2d 196, 209 n. 10 (9th Cir. 1950); see also Lamsen v. Gen. Motors Corp., 66 Mich.App. 94, 238 N.W.2d 414, 416 (1975); Tebo v. Desai, No. 212373, 2000 WL 33391101, at *2 (Mich.Ct.App. Dec. 15, 2000).
The only other statement pled with particularity in the amended complaint is from the FBI-Detroit Division press release issued on the day of the shooting. The press release stated that “Abdullah did not surrender and fired his weapоn. An exchange of gun fire followed and Abdullah was killed.” This is not a statement by the defendant: the press release was issued by the FBI-Detroit Division, not Arena or Nikolopoulos. The Estate, in the amended complaint, did not allege that the press release was issued at Arena‘s behest. And the level of Arena‘s involvement matters because fraudulent concealment requires ”an affirmative act or misrepresentation“; silence or passivity is not enough. Doe v. Roman Catholic Archbishop of Archdiocese of Detroit, 264 Mich.App. 632, 692 N.W.2d 398, 405 (2004) (emphasis added). With an accrual date of October 28, 2009 аnd no tolling, the Estate‘s amended complaint is timely only if it relates back to the timely-filed original complaint.
The Estate‘s Amended Complaint also does not relate back under
Finally, the district court‘s dismissal of the Estate‘s complaint did not violate the rules for sua sponte dismissal established by Tingler v. Marshall, 716 F.2d 1109 (6th Cir. 1983). Tingler does not apply to the dismissal of the claims against Arena and Nikolopoulos because the dismissal was not sua sponte; Arena and Nikolopoulos filed a motion to dismiss, which the district court granted. In its opening brief, the Estate argued that the U.S. Attorney‘s Office could not represent Arena and Nikolopoulos, therefore the USAO‘s motion to dismiss was not properly submitted and the district court‘s dismissal was thus sua sponte. But it abandoned the argument that the USAO could not represent Arena and Nikolopoulos in its reply brief.
The dismissal of the claims against the four unidentified FBI agents was sua sponte. However, at oral argument, counsel for plaintiff аgreed that the amended complaint with respect to the four unidentified FBI agents is not before the court on this appeal. In any event, the dismissal did not violate Tingler. In Tingler, the Sixth Circuit held that before dismissing a case sua sponte, a district court must “(1) allow service of the complaint upon the defendant; (2) notify all parties of its intent to dismiss the complaint; (3) give the plaintiff a chance to either amend his complaint or respond to the reasons stated by the district court in its notice of intended sua sponte dismissal; (4) give the defendant a chance to respond or file an answer or motions; and (5) if the claim is dismissed, state its reasons for the dismissal.” 716 F.2d at 1112. In dismissals for failure to state a claim, the Sixth Circuit has held that it is not necessary to allow service of every defendant or give every defendant an opportunity to respond to the complaint. See Morrison v. Tomano, 755 F.2d 515, 516 (6th Cir. 1985). Arena and Nikolopoulos (1) were served. The district court (2) gave notice of its intеnt to dismiss the claims with its show cause order. The Estate (3) filed an amended complaint, responses to the show cause order, and a motion opposing dismissal. Arena and Nikolopoulos (4) responded to the Estate‘s motions. And the district court (5) entered a lengthy opinion and order dismissing the claims. The Estate‘s argument that it did not have notice of the district court‘s intent to dismiss the claims is belied by its multiple filings opposing dismissal.
For the foregoing reasons, we AFFIRM the judgment of the district court.
UNITED STATES OF AMERICA, Plaintiff-Appellee, v. Regis BELL, Defendant-Appellant.
No. 14-5454.
United States Court of Appeals, Sixth Circuit.
Feb. 20, 2015.