                        NOT RECOMMENDED FOR PUBLICATION
                               File Name: 15a0133n.06

                                          No. 14-1504


                         UNITED STATES COURTS OF APPEALS
                              FOR THE SIXTH CIRCUIT

ESTATE OF LUQMAN A. ABDULLAH, by its                    )                     FILED
personal representative Mujahid Carswell,               )                Feb 13, 2015
       Plaintiff-Appellant,                             )            DEBORAH S. HUNT, Clerk
                                                        )
v.                                                      )
                                                        )
                                                               ON APPEAL FROM THE
ANDREW G ARENA; GEORGE                                  )
                                                               UNITED STATES DISTRICT
NIKOLOPOLOUS; UNIDENTIFIED FBI AGENT                    )
                                                               COURT FOR THE EASTERN
NO. 1; UNIDENTIFIED FBI AGENT NO. 2;                    )
                                                               DISTRICT OF MICHIGAN
UNIDENTIFIED FBI AGENT NO. 3;                           )
UNIDENTIFIED FBI AGENT NO. 4,                           )

       Defendants-Appellees.




BEFORE:       NORRIS, ROGERS, and WHITE, Circuit Judges.

       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,
No. 14-1504
Abdullah v. Arena
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. When

1
  Arena was the special agent in charge of the Detroit Division and Nikolopoulos was the team leader of the FBI-
Detroit SWAT team.
2
  The Estate argued in the district court that it was entitled to equitable tolling of the statute of limitations because
the identities of the four shooters were fraudulently concealed. The district court disagreed, finding that because the
Estate knew of its cause of action in October 2009, it had ample time and a number of methods to learn the agents’
identities. See Smith v. City of Akron, 476 Fed. App’x. 67, 69 (6th Cir. 2012) (“Because [Plaintiff] waited until the
last day of the . . . limitations period to file his complaint [against unidentified defendants], that left no time to
discover the identity of his arresting officers within the relevant time.”) The Estate does not appeal this decision.

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Abdullah v. Arena
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 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.



3
  Salaam pleaded guilty to conspiracy to commit federal crimes and felon in possession of a firearm on October 18,
2010. He was sentenced to 27 months’ imprisonment. According to the Bureau of Prison’s website, Salaam was
released from prison on October 14, 2011.

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No. 14-1504
Abdullah v. Arena
       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 about




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No. 14-1504
Abdullah v. Arena
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 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 stated




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No. 14-1504
Abdullah v. Arena
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 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 plaintiff “knew 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 (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 responsible for determining within the limitations period whether the injury

was a Bivens violation.



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No. 14-1504
Abdullah v. Arena
       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 (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 those 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. The 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 elements: (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



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Abdullah v. Arena
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 Mich. Comp. Laws § 600.5855.

The only basis for wrongful concealment argued by the Estate on appeal is “dishonest accounts

of the shooting.”4 The Estate did not plead any statements by Nikolopoulos, dishonest or

otherwise. And the statement the Estate attributes to Arena is not wrongful concealment.

        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 Fed. R. Civ. P. 9(b);

Carrier Corp. v. Outokumpu Oyj, 673 F.3d 430, 447 (6th Cir. 2012), meaning that “[t]he acts or

misrepresentations constituting fraudulent concealment of a claim must be pled in the

complaint.” Tonegatto v. Budak, 316 N.W.2d 262, 266 (Mich. Ct. App. 1982).                                 Only a

defendant’s personal activities can trigger the fraudulent concealment tolling doctrine. See Smith

v. Sinai Hospital, 394 N.W.2d 82, 87–88 (Mich. App. 1986). Furthermore, an affirmative act or

misrepresentation by the defendant is required; “mere silence on the part of the defendant is not

enough.” Draws v. Levin, 52 N.W.2d 180, 183 (Mich. 1952). There are no statements by

Nikolopoulos—fraudulent or otherwise—pled in the amended complaint, therefore the Estate

failed to plead fraudulent concealment by Nikolopoulos.

        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


4
  Two other bases for fraudulent concealment were pled in the amended complaint, but not argued in the appellate
briefing: (1) concealment of the identities of the shooters via redaction of the publicly released reports; and
(2) removal by the FBI of evidence and witnesses from the crime scene and subsequently withholding evidence and
witnesses from local investigators. Because these bases were not argued, they were forfeited and we do not address
them.
5
  The Estate argues that Arena did not contest the sufficiency of the pleading of fraudulent concealment in the
district court, and thus Arena cannot contest it on appeal. But Arena and Nikolopoulos did contest the sufficiency of
the pleading in the district court.


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No. 14-1504
Abdullah v. Arena
an October 2010 documentary about the shooting. Such a skeletal denial is equivalent to mere

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 Lemson v. Gen.

Motors Corp., 238 N.W.2d 414, 416 (1975); Tebo v. Desai, No. 212379, 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 weapon. 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, 692 N.W.2d 398, 405 (Mich. Ct. App. 2004) (emphasis added). With an

accrual date of October 28, 2009 and 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 Fed. R. Civ. P.

15(c)(1)(C). Examining the original complaint from the perspective of Arena and Nikolopoulos,

neither defendant knew or should have known that they were targets of the lawsuit and would

have been named but for a mistake concerning the proper parties’ identities. In Krupski v. Costa

Crociere S. p. A., 560 U.S. 538 (2010), the Supreme Court instructed courts in Fed. R. Civ. P.



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No. 14-1504
Abdullah v. Arena
15(c) cases to ask “what the prospective defendant knew or should have known during the Rule

4(m) period [for service of process].” 560 U.S. at 548. There is no evidence in the record that

Arena or Nikolopoulos knew they were targets of the lawsuit when the original complaint was

filed. Nor should Arena or Nikolopoulos have known they were targets of the lawsuit. If Arena

and Nikolopoulos had read the original complaint, they would have likely concluded they were

not targets of the lawsuit. First, their identities and roles in Abdullah’s death had been made

public long before the complaint was filed, rendering it unlikely they were among the “Unknown

FBI Agents” named as defendants in the complaint. Second, the allegations in the complaint

focus on the actual shooters. Third, the complaint lacked any allegations that would have made

Arena and Nikolopoulos liable as supervisors; in individual-capacity Bivens claims, supervisors

are liable for unconstitutional acts of subordinates only if they personally participate in the

wrongdoing. See Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999).

       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.3d 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 US 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 agreed that the amended complaint with respect

to the four unidentified FBI agents is not before the court on this appeal. In any event, the



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Abdullah v. Arena
dismissal did not violate Tingler. In Tingler v. Marshall, 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 1109, 1112 (6th Cir. 1983). 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 intent

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.




                                                -11-
