                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-29-2006

Mishra v. Fox
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-1211




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Recommended Citation
"Mishra v. Fox" (2006). 2006 Decisions. Paper 550.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/550


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                                                                            BPS-232
                                                                  NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      NO. 06-1211


                              AKHIL KUMAR MISHRA,
                                          Appellant

                                            v.

                                   BARRY W. FOX,
                                 Government Witness
                             __________________________

                    On Appeal From the United States District Court
                       For the Western District of Pennsylvania
                               (D.C. Civ. No. 05-cv-00692)
                    District Judge: Honorable Thomas M. Hardiman
                             __________________________

                Submitted Under Third Circuit LAR 27.4 and I.O.P. 10.6
                                       June 2, 2006

                Before: RENDELL, AMBRO and ROTH, Circuit Judges.

                                 (Filed: August 29, 2006)
                                   _________________

                               OPINION OF THE COURT
                                  _________________

PER CURIAM

       Appellant, Akhil Mishra, appeals the District Court’s order granting Appellee

Fox’s motion to dismiss his complaint, liberally construed as an action filed in accordance
with Bivens v. Six Unknown Agents of the Federal Bureau of Narcotics, 403 U.S. 388

(1971), pursuant to Fed. R. Civ. P. 12(b)(6).

          We have jurisdiction pursuant to 28 U.S.C. § 1291, and exercise plenary review

over a District Court ’s order dismissing a complaint under Rule 12(b)(6). We will affirm

a dismissal for failure to state a claim if we can “say with assurance that under the

allegations of the pro se complaint, which we hold to less stringent standards than formal

pleadings drafted by lawyers, it appears ‘beyond doubt that the plaintiff can prove no set

of facts in support of his claim which would entitle him to relief.’” McDowell v.

Delaware State Police, 88 F.3d 188, 189 (3d Cir. 1996)(quoting Haines v. Kerner, 404

U.S. 519, 520 (1972)). For essentially the reasons set forth by the District Court, we will

affirm.

          In his complaint, Mishra alleged that Fox testified falsely at appellant’s criminal

trial and that, as a result of Fox’s testimony, Mishra was convicted on June 30, 2000, of

offering drug paraphernalia for sale. The District Court properly concluded that Mishra’s

complaint failed to state a claim insofar as Appellee Fox is entitled to absolute immunity

from suit in connection with his testimony at Mishra’s criminal trial, see Brisco v. LaHue,

460 U.S. 325, 345-46 (1983), and, moreover, that Mishra’s claims are barred by the

applicable limitations period. See Napier v. Thirty or More Unidentified Federal Agents,

855 F.2d 1080, 1087 (3d Cir. 1988); Kost v. Kozakiewicz, 1 F3d 176, 190 (3d Cir. 1993)

(citing Wilson v. Garcia, 471 U.S. 261 (1985)). See also King v. One Unknown Fed.

Correctional Officer, 201 F.3d 910, 913 (7th Cir.2000) (noting that same state statute of

                                                2
limitations applies to all Bivens and § 1983 claims). These conclusions hold true despite

Mishra’s contentions that Appellee Fox’s fabricated trial testimony was based on various

“investigative periods,” and regardless of Mishra’s assertion that he has recently suffered

immigration-related consequences from his 2000 conviction. See Hughes v. Long, 242

F.3d 121, 125 (3d Cir. 2001), citing Briscoe, 460 U.S. at 341, 345-46 (noting that

witnesses, including public officials and private citizens, are protected by immunity from

civil actions based upon their testimony); Sameric Corp. of Del. v. City of Phila., 142

F.3d 582, 599 (3d Cir.1998) (claim accrues when the plaintiff knows, or has reason to

know, of the injury that forms the basis of the action).

       Accordingly, because the District Court properly dismissed Mishra’s complaint

and no substantial question is presented by this appeal, we will grant appellee’s motion

and summarily affirm the order of dismissal. See Third Circuit LAR 27.4 and I.O.P. 10.6.




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