Lewis v. Bayh

• Decision Date: 09 September 2008
• Docket Number: Civil Action No. 07-0939 (RMU).
• Citation: 577 F.Supp.2d 47
• Parties: George M. LEWIS, Plaintiff, v. Evan BAYH, Defendant.
• Court: U.S. District Court — District of Columbia

577 F.Supp.2d 47

George M. LEWIS, Plaintiff, v. Evan BAYH, Defendant.

Civil Action No. 07-0939 (RMU).

United States District Court, District of Columbia.

September 9, 2008.

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George M. Lewis, Hollywood, CA, pro se.

Grant Raymond Vinik, Morgan John Frankel, Patricia M. Bryan, Thomas Edward Caballero, Office of Senate Legal Counsel, United States Senate, Washington, DC, for Defendant.

MEMORANDUM OPINION

RICARDO M. URBINA, District Judge.

GRANTING THE DEFENDANT'S MOTION TO DISMISS

I. INTRODUCTION

This case comes before the court on the defendant's motion to dismiss the plaintiff's amended complaint. The pro se plaintiff, George M. Lewis, brings suit against Senator Evan Bayh, cataloguing and attributing ten years of personal difficulties to the defendant's involvement in a civil conspiracy to violate his Fourth, Fifth and Fourteenth Amendment rights pursuant to 42 U.S.C. § 1983, 42 U.S.C. § 1985(3), 42 U.S.C. § 1986 and Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). The defendant moves to dismiss the plaintiff's complaint, contending that the claims fall outside the statute of limitations or alternatively that the complaint fails to state a claim on which relief can be granted. Because all but six of the alleged conspiratorial acts occurred outside the statute of limitations period, the court dismisses these claims. The court dismisses four of the remaining six claims as frivolous. Because the remaining two claims fail to state a claim, the court dismisses them as well.

II. FACTUAL & PROCEDURAL BACKGROUND

The plaintiff, a medical doctor filed this action alleging that he was evicted from his home in Hamilton County, Indiana, on July 9, 1998 in violation of his constitutional rights. Am. Compl. at 25. In January 2001, the plaintiff contacted Senator Charles Grassley, who forwarded the plaintiff's request for an inquiry to the Department of the Treasury three months later. Id. at 8. The Department of the Treasury subsequently had the Treasury Inspector General for Tax Administration ("TIGTA") investigate the allegations. Id. The TIGTA produced seven investigative reports addressing the plaintiff's numerous complaints. Id.

In August 2001, the plaintiff submitted Freedom of Information Act ("FOIA") requests in an effort to obtain copies of these reports. Id. The Department of the Treasury released 509 of the 714 pages of the reports and withheld the remaining pages under applicable FOIA exemptions. Id. Thereafter, the plaintiff filed suit under FOIA in the Central District of California challenging the Department of the Treasury's decision to withhold portions of the reports, but that court upheld the claimed exemptions. Id.

The plaintiff alleges that before the decision was made to withhold the 205 pages, the defendant reviewed the documents and instructed the Department of the Treasury to block those portions of the reports from the plaintiff, thus violating his constitutional rights. Id. at 9. The plaintiff contends that the defendant blocked the pages that "pertained to the alleged official misconduct of the public officials, private citizens, business, law enforcement officer, members of the bar, and other Indiana constituents," who were all involved in a conspiracy to deprive the plaintiff of his constitutional rights. Id. After becoming aware of the conspiracy in July 2003, the plaintiff allegedly suffered numerous other harms, all in continuance of the conspiracy. See generally Am. Compl.

In 2004, the plaintiff filed a complaint in the Central District of California against Senator Bayh and various federal, state and local officials, as well as private citizens and companies alleging civil and constitutional rights violations. Id. at 2. That court dismissed without prejudice the claims against Senator Bayh for improper venue and dismissed the claims against the other defendants for failing to bring them within the statute of limitations and failing to state a cognizable claim. Id. On appeal, the Ninth Circuit affirmed the dismissal of the plaintiff's complaint. Id. at 3.

Shortly thereafter, on May 21, 2007, the plaintiff filed a complaint in this court, making similar allegations but naming only Senator Bayh as a defendant. Id. at 1. On August 3, 2007, the defendant moved to dismiss the original complaint. On September 10, 2007, prior to the court ruling on the defendant's motion to dismiss, the plaintiff filed an amended complaint. The defendant then filed a motion to dismiss the amended complaint. Fully briefed, the court now turns to resolve this motion.

III. ANALYSIS

A. Statute of Limitations

1. Legal Standard for Rule 12(b)(6) and Statute of Limitations

A defendant may raise the affirmative defense of statute of limitations via a Rule 12(b)(6) motion when the facts that give rise to the defense are clear from the face of the complaint. Smith-Haynie v. District of Columbia, 155 F.3d 575, 578 (D.C.Cir.1998). Because statute of limitations issues often depend on contested questions of fact, however, the court should hesitate to dismiss a complaint on statute of limitations grounds based solely on the face of the complaint. Firestone v. Firestone, 76 F.3d 1205, 1209 (D.C.Cir. 1996). Rather, the court should grant a motion to dismiss only if the complaint on its face is conclusively time barred. Id.; Doe v. Dep't of Justice, 753 F.2d 1092, 1115 (D.C.Cir.1985). If "no reasonable person could disagree on the date" on which the cause of action accrued, the court may dismiss a claim on statute of limitations grounds. Smith v. Brown & Williamson Tobacco Corp., 3 F.Supp.2d 1473, 1475 (D.D.C.1998) (citing Kuwait Airways Corp. v. Am. Sec. Bank, N.A., 890 F.2d 456, 463 n. 11 (D.C.Cir.1989)).

2. The Plaintiff's § 1983, § 1985 and Bivens Claims Arising Before May 21, 2004 are Time Barred

"[C]laims under § 1983 are governed by the residual or general personal injury statute of limitations." Carney v. Am. Univ., 151 F.3d 1090, 1096 (D.C.Cir. 1998). In the District of Columbia, D.C.Code § 12-301(8) governs such claims and provides a three-year statute of limitations. D.C.Code § 12-301(8); see Carney, 151 F.3d at 1096 (stating that D.C.Code § 12-301(8) provides the statute of limitations for § 1983 claims). In addition "[t]he same three year statute of limitations [that applies to § 1983 claims] applies to claims brought pursuant to 42 U.S.C. § 1985," Savage v. District of Columbia, 2003 WL 843326, at *1 (D.C.Cir. May 7, 2003); accord Hall v. Clinton, 285 F.3d 74, 82 (D.C.Cir.2002), and to most Bivens actions, Banks v. Chesapeake & Potomac Tel. Co., 802 F.2d 1416, 1429 (D.C.Cir.1986) (citing Hobson v. Wilson, 737 F.2d 1, 32 (D.C.Cir.1984)). The one-year limitations period set out in D.C.Code § 12-301(4) applies "only for Bivens actions analogous to [those] common law actions mentioned in [D.C.Code § 12-301(4)]." Id. (citing Hobson, 737 F.2d at 32 n. 99). The common law actions listed in D.C.Code § 12-301(4) are "libel, slander, assault, battery, mayhem, wounding, malicious prosecution, false arrest or false imprisonment." D.C.Code § 12-301(4).

The plaintiff filed his original complaint on May 21, 2007. Even applying the more generous three-year statute of limitations to all the plaintiff's claims, the plaintiff alleges only six overt acts that occurred after May 21, 2004—i.e., within the limitations period—in furtherance of the conspiracy.¹ But the plaintiff argues that the court should entertain all his claims because 28 U.S.C. § 1658 provides a four-year statute of limitations.² The defendant challenges this argument, contending that (1) D.C. Circuit law provides statutes of limitations for § 1983, § 1985 and Bivens claims; (2) § 1658 cannot apply to Bivens claims because it is not an action "arising under an Act of Congress"; and (3) § 1658 applies only to actions based on acts of law enacted after its own enactment date, December 1, 1990. Def.'s Reply at 1-2.

The defendant is correct on all accounts. As discussed supra, D.C. Circuit law clearly provides one-year or three-year statutes of limitations for § 1983, § 1985 and Bivens claims. See Savage, 2003 WL 843326, at *1; Banks, 802 F.2d at 1429. Second, a Bivens claim does not arise under an Act of Congress but, instead, is a judicially-created remedy for violations by federal officials. See Bivens, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619. Thus, § 1658 does not apply to Bivens claims. Kurinsky v. United States, 33 F.3d 594, 599 (6th Cir.1994) (stating that § 1658 does not apply to Bivens claims because they "do not arise under `an Act of Congress'"), abrogated on other grounds, Ali v. Fed. Bureau of Prisons, ___ U.S. ___, 128 S.Ct. 831, 169 L.Ed.2d 680 (2008). Finally, § 1658 does not apply to causes of action that were not "made possible by a post-1990 enactment." Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369, 382, 124 S.Ct. 1836, 158 L.Ed.2d 645 (2004). The lone post-1990 amendment to either § 1983 or § 1985 is a 1996 amendment to § 1983 adding language regarding the immunity of judicial officers from injunctive relief. Pub.L. 104-317 § 309(c). Because the plaintiff's claims do not "arise under" this amendment to § 1983, the four-year statute of limitations provided by § 1658 does not apply to the plaintiff's § 1983 or § 1985 claims. But cf. Jones, 541 U.S. at 383, 124 S.Ct. 1836 (applying § 1658 to § 1981 claims because the "causes of action were made possible" by the 1991 Amendments to § 1981). For these reasons, § 1658 does not provide the appropriate statute of limitations for the plaintiff's § 1983, § 1985 or Bivens claims.

In the alternative, the plaintiff argues that the court should consider his pre-May 21, 2004 claims timely under the continuing torts doctrine. Pl.'s Opp'n at 6. But this district has rejected the continuous tort doctrine in civil conspiracy cases "absent special circumstances ... such...