        12-280-cv
        Rudaj v. Treanor

                         UNITED STATES COURT OF APPEALS
                             FOR THE SECOND CIRCUIT

                               SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
     SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS
     GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL
     RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS
     COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC
     DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY
     ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1           At a stated term of the United States Court of Appeals
 2      for the Second Circuit, held at the Thurgood Marshall United
 3      States Courthouse, 40 Foley Square, in the City of New York,
 4      on the 17th day of June, two thousand thirteen.
 5
 6      PRESENT:
 7                  DENNIS JACOBS,
 8                       Chief Judge,
 9                  CHRISTOPHER F. DRONEY,
10                       Circuit Judge,
11                  JOHN F. KEENAN,*
12                       District Judge.
13
14      - - - - - - - - - - - - - - - - - - - -X
15
16      ALEX RUDAJ,
17               Plaintiff-Appellant,
18
19                  v.                                 12-280-cv
20
21      TIMOTHY TREANOR, JENNIFER RODGERS,
22      BENJAMIN GRUSTEIN, DENISE L. COTE,
23      RICHARD FALSONE, MICHAEL BRESLIN,


              *
                 Judge John F. Keenan, of the United States
        District Court for the Southern District of New York,
        sitting by designation.
 1   RICHARD DERMBERGER, DENNIS GALLEGO,
 2   JAMES KOUSOUROS, MICHAEL J. GARCIA,
 3   CHRISTINA PAGLIA BISCHOFF, DAVID N.
 4   KELLEY, PREET BHARARA, JOHNATHAN
 5   KOLADNER, SHARON COHEN LEVIN, JOHN
 6   KATEHIS, and others unknown and
 7   unknown,
 8            Defendants-Appellees,
 9
10   WILFRED FEINBERG, ROGER MINER,
11   BARRINGTON PARKER,
12                 Defendants.
13
14   - - - - - - - - - - - - - - - - - - - -X
15
16   FOR APPELLANT:         Alex Rudaj, pro se, Fort Dix, New
17                          Jersey.
18
19   FOR APPELLEES:         Amy Ann Barcelo (Elizabeth M. Tulis
20                          and Sarah S. Normand, on the brief)
21                          for Richard Zabel, Acting United
22                          States Attorney for the Southern
23                          District of New York, New York.
24
25        Appeal from a judgment of the United States District
26   Court for the Southern District of New York (Preska, C.J.).
27
28        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
29   AND DECREED that the judgment of the district court is
30   AFFIRMED.
31
32        Appellant Alex Rudaj, pro se, appeals from the district
33   court’s judgment dismissing his complaint brought under
34   Bivens v. Six Unknown Named Agents of Federal Bureau of
35   Narcotics, 403 U.S. 388 (1971), for failure to state a claim
36   pursuant to 28 U.S.C. § 1915(e). In a previous order in
37   this appeal, we directed the appeal to proceed on
38   Appellant’s claim that federal and state agents, acting in
39   their individual capacities under the color of federal
40   authority, violated his Fourth Amendment rights by
41   conducting a search of his home without a warrant and
42   dismissed the appeal with respect to all of Appellant’s
43   other claims. We assume the parties’ familiarity with the
44   underlying facts, the procedural history of the case, and
45   the issues on appeal.

                                  2
 1        We review a district court’s § 1915(e)(2) dismissal of
 2   a complaint de novo. See Giano v. Goord, 250 F.3d 146, 150
 3   (2d Cir. 2001). The complaint must plead “enough facts to
 4   state a claim to relief that is plausible on its face.”
 5   Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).
 6   Although all allegations contained in the complaint are
 7   assumed to be true, this tenet is “inapplicable to legal
 8   conclusions.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
 9   A claim will have “facial plausibility when the plaintiff
10   pleads factual content that allows the court to draw the
11   reasonable inference that the defendant is liable for the
12   misconduct alleged.” Id. While pro se complaints must
13   contain sufficient factual allegations to meet the
14   plausibility standard, we look for such allegations by
15   reading pro se complaints with “special solicitude” and
16   interpreting them to raise the “strongest arguments that
17   they suggest.” Triestman v. Federal Bureau of Prisons, 470
18   F.3d 471, 474-75 (2d Cir. 2006) (per curiam) (internal
19   quotation marks omitted).
20
21        Rudaj’s Fourth Amendment claim is time-barred.1 “The
22   statute of limitations for Bivens actions arising in New
23   York is three years.” Tapia-Ortiz v. Doe, 171 F.3d 150, 151
24   (2d Cir. 1999) (citing Owens v. Okure, 488 U.S. 235, 251
25   (1989)); see also N.Y. C.P.L.R. § 214. Under federal law, a
26   Bivens action accrues “when the plaintiff knows or has
27   reason to know of the harm.” Eagleston v. Guido, 41 F.3d
28   865, 871 (2d Cir. 1994) (internal quotation marks omitted);
29   see also Dominguez v. Hendley, 545 F.3d 585, 589 (7th Cir.
30   2008) (“Fourth Amendment claims for . . . unlawful searches
31   accrue at the time of (or termination of) the violation.”).
32
33        Here, the alleged unconstitutional search took place on
34   October 26, 2004. While Rudaj argues that the proper
35   accrual date is the date that his conviction became final,
36   the harm resulting from an unconstitutional search occurs as
37   a result of the search itself, not the later use of
38   unlawfully obtained items as evidence. See Day, 909 F.2d at
39   77. As Rudaj was present when the search occurred, October
40   26, 2004, is the date that Rudaj knew of the harm, and


         1
              We “may affirm on any basis for which there is
     sufficient support in the record, including grounds not
     relied upon [by the district court].” Ferran v. Town of
     Nassau, 471 F.3d 363, 365 (2d Cir. 2006).

                                  3
 1   therefore the date the limitations period began to run.
 2   Applying the three-year statute of limitations, the
 3   limitations period expired on October 26, 2007; Rudaj’s
 4   Fourth Amendment claim, filed in October 2011, is time-
 5   barred.
 6
 7        New York Civil Practice Law and Rules § 207 did   not
 8   toll the statute of limitations because that section   tolls
 9   the statute of limitations only for claims that have   accrued
10   against a person that has been absent from the state   for
11   four months or more; it does not toll the statute of
12   limitations for claims that have accrued in favor of   an
13   absent plaintiff, such as Rudaj.
14
15        To the extent that Rudaj is claiming that he is
16   entitled to equitable tolling due to his misunderstanding,
17   until 2010, of how a Fourth Amendment violation could give
18   rise to civil liability, neither his pro se status nor his
19   professed ignorance of the law demonstrate “rare and
20   exceptional circumstance[s]” warranting equitable tolling.
21   See Smith v. McGinnis, 208 F.3d 13, 18 (2d Cir. 2000); see
22   also Arrieta v. Battaglia, 461 F.3d 861, 867 (7th Cir. 2006)
23   (“Mistakes of law or ignorance of proper legal procedures
24   are not extraordinary circumstances warranting invocation of
25   the doctrine of equitable tolling.”); Raspberry v. Garcia,
26   448 F.3d 1150, 1154 (9th Cir. 2006) (finding that “a pro se
27   petitioner’s lack of legal sophistication is not, by itself,
28   an extraordinary circumstance warranting equitable
29   tolling”).
30
31        Although we have held that district courts should
32   generally not dismiss a pro se complaint without granting
33   the plaintiff leave to amend, see Cuoco v. Moritsugu, 222
34   F.3d 99, 112 (2d Cir. 2000), leave to amend is not necessary
35   when it would be futile, as it would be here. Neither his
36   complaint nor his submissions to this Court suggest that
37   Rudaj could allege any facts giving rise to a timely Fourth
38   Amendment claim.
39
40
41
42
43
44
45
46


                                  4
 1        We have considered Appellant’s remaining arguments on
 2   appeal and find them to be without merit. For the foregoing
 3   reasons, the judgment of the district court is hereby
 4   AFFIRMED.
 5
 6                              FOR THE COURT:
 7                              Catherine O’Hagan Wolfe, Clerk
 8
 9
10




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