Tapia-Ortiz v. Doe

• Citation: 171 F.3d 150
• Decision Date: 26 March 1999
• Docket Number: Docket No. 98-6103,TAPIA-ORTI,P
• Parties: Juan Antoniolaintiff-Appellant, v. John DOE, DEA Agents, Michael Kevin McGurk, DEA Agent, Miles Sonn, U.S. Customs Agent, Alan Bradford Payne, U.S. Customs Agent, Dominick Gerand, U.S. Customs Agent, Defendants-Appellees, United States of America, Defendant.
• Court: U.S. Court of Appeals — Second Circuit

Page 150

171 F.3d 150

Juan Antonio TAPIA-ORTIZ, Plaintiff-Appellant, v. John DOE, DEA Agents, Michael Kevin McGurk, DEA Agent, Miles

Sonn, U.S. Customs Agent, Alan Bradford Payne,

U.S. Customs Agent, Dominick Gerand,

U.S. Customs Agent, Defendants-Appellees,

United States of America, Defendant.

Docket No. 98-6103

United States Court of Appeals, Second Circuit.

Argued March 18, 1999.

Decided March 26, 1999.

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. ^*

PER CURIAM:

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 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, 109 S.Ct. 573, 102 L.Ed.2d 594 (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." Aslanidis 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, 92 S.Ct. 594, 30...