Abdullah v. Arena
| Decision Date | 13 February 2015 |
| Docket Number | No. 14-1504,14-1504 |
| Parties | ESTATE OF LUQMAN A. ABDULLAH, by its personal representative Mujahid Carswell, Plaintiff-Appellant, v. ANDREW G ARENA; GEORGE NIKOLOPOLOUS; UNIDENTIFIED FBI AGENT NO. 1; UNIDENTIFIED FBI AGENT NO. 2; UNIDENTIFIED FBI AGENT NO. 3; UNIDENTIFIED FBI AGENT NO. 4, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Sixth Circuit |
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 day of the shooting, Abdullah had resisted arrest by firing on FBI agents. Suspicious of the FBI's account, Abdullah's friends, relatives, and political representatives called for an investigation into the circumstances of the shooting. Federal and state investigations followed and within a year of Abdullah's death, reports concluding the shooting was justified were issued by the United States Department of Justice and the Michigan Attorney General. Nearly three years after the shooting,Abdullah's Estate spoke to Muhammad Salaam, a co-conspirator who claimed that Abdullah did not have a gun and never fired on the agents. Abdullah's Estate filed a Bivens action against unidentified FBI agents the following day, barely within three years of the shooting. Six months later, in April 2013, the Estate amended the complaint to name two FBI supervisors, Andrew Arena and George Nikolopoulos,1 along with four unidentified FBI agents revealed in the investigative reports to have been the shooters. The district court dismissed the Bivens action as time-barred.2
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 Fed. R. Civ. P. 15 because the Estate made a mistake about the identities of the parties. The Estate also argues that the district court improperly dismissed the complaint sua sponte, in violation of the prerequisites for sua sponte dismissal established by Tingler v. Marshall, 716 F.3d 1109 (6th Cir. 1983). Each of these arguments fails.
On October 28, 2009, FBI agents raided a warehouse in Dearborn, Michigan to arrest Luqman Abdullah and four co-conspirators in connection with a conspiracy 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. WhenAbdullah 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 fired 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.
Dissatisfied with the FBI's account, Abdullah's family filed numerous public records requests and pressed federal and state authorities to investigate the shooting. The public records requests were all denied, but two FOIA lawsuits against state agencies produced evidence relating to Abdullah's death: a January 31, 2011 settlement with the Michigan State Police yielded "video footage and other documents concerning the death of Abdullah," and a June 14, 2011 settlement with the City of Dearborn yielded "over one thousand pages of documents, including photographs, video footage, police camera footage and audio concerning the death of Abdullah." Within a year of the shooting, both the Michigan Attorney General and the Civil Rights Division of the United States Department of Justice publicly released incident reports reviewing evidence and concluding that the shooting was justified.
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, and 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, an 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, naming 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 Estate pled that the FBI had fraudulently concealed the existence of a cause of action from the Estate by lying aboutwhether 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 Fed. R. Civ. P. 12(b)(6), arguing that the amended complaint was filed outside the three-year statute of limitations, that neither the facts surrounding a widely-publicized shooting nor their identities had been fraudulently concealed, and that the amended complaint did not relate back to the timely-filed original complaint. No one appeared on behalf of the four unidentified FBI agents.
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 statedthat 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 not 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.3d 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...
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