-AKT Awan v. Ashcroft et al, No. 2:2009cv01653 - Document 62 (E.D.N.Y. 2010)

Court Description: MEMORANDUM AND ORDER denying as moot 34 Motion to Amend/Correct/Supplement; denying as moot 36 Motion to Appoint Counsel; denying as moot 37 Motion for Leave to Proceed in forma pauperis; granting 38 Motion to Dismiss; denying as moot 43 Mo tion for Extension of Time to File Response/Reply; denying as moot 48 Motion for Extension of Time to File; denying 55 Motion for Leave to File; granting 22 Motion to Dismiss. The Clerk of Court is ordered to mark this matter as CLOSED. C/M; C/ECF (Valle, Christine)

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-AKT Awan v. Ashcroft et al Doc. 62 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK -----------------------------------x KHALID AWAN, Plaintiff, MEMORANDUM AND ORDER 09-CV-1653 (JS)(AKT) -againstJOHN ASHCROFT, ET AL., Defendants. -----------------------------------x APPEARANCES: For Plaintiffs: Khalid Awan, pro se Prisoner No. 50959-54 FCI/CMU Marion PO Box 1000 Marion, IL 62959 For Defendants: Government Defendants Scott R. Landau, Esq. United States Attorneys Office Eastern District of New York 271 Cadman Plaza East Brooklyn, NY 11201 Fairfield Gardens Michael Cardello, III, Esq. Moritt, Hock, Hamroff & Horowitz, LLP 400 Garden City Plaza, Suite 202 Garden City, NY 11530 SEYBERT, District Judge: On March 6, 2009, Khalin Awan, pro filer in this Court, commenced this action se, a frequent alleging various civil rights violations in connection with his 2001 arrest and successful prosecution. an Amended Complaint. On September 17, 2009, Mr. Awan filed For reasons that are not entirely clear, the Court neglected to docket Mr. Awan’s Amended Complaint for several weeks. In the meantime, the Court received two motions Dockets.Justia.com to dismiss, (hereafter, one filed “Fairfield,” by but Fairfield Port incorrectly Jeff named Gardens as LLC “Fairfield Gardens Management Co.” in the Complaint and Amended Complaint), and the other filed by the remaining defendants, who are all current and former employees of the FBI or the U.S. Department of Justice (hereafter, “Government Defendants”). On December 23, 2009, the Government Defendants wrote the Court to ask the Court to consider their motion to dismiss as being against the Amended Complaint, noting that the two Complaints appear to be substantively indistinguishable. sought this relief. Fairfield has not formally However, the Court, in the interests of justice and in light of both the two Complaints’ substantive similarities, has decided to also construe Fairfield’s motion as being against the Amended Complaint. In response to the Defendants’ motions, Mr. Awan has sought leave to file a Second Amended Complaint that, among other things, drops Fairfield as a defendant but adds several new defendants and claims. It is unclear from Mr. Awan’s pleadings whether he opposes the Defendants’ motions to dismiss the Amended Complaint. For the foregoing reasons, the Court: (1) GRANTS Fairfield’s motion to dismiss (Docket No. 22); (2) GRANTS the Governments’ motion to dismiss (Docket No. 38), (3) DENIES Mr. 2 Awan’s motion (Docket No. for 55); leave and to (4) file DENIES a Second all Amended other Complaint pending motions (Docket Nos. 34, 36, 37, 43, 48) as MOOT. DISCUSSION I. Fairfield’s Motion to Dismis Fairfield premises its motion on the grounds that it did not own or operate the subject property during the relevant time period, and has supplied a sales contract and title deed documenting their position. (Docket No. 22). In response, Mr. Awan has demanded a “Certified Copy” of the sales contract and title deed but added that, if this “Certified Copy” supports Fairfield’s position, he does not oppose Fairfield’s motion to dismiss. copies In reply, Fairfield sets forth that it has supplied of the original relevant attesting to their validity. documents and an affidavit Thus, Fairfield contends, there is no need for additional “verification.” As an initial matter, the Court notes that Fairfield’s motion is procedurally defective. Fairfield’s indisputably relies on documents outside the pleadings. motion But Fairfield, in filing this motion, did not comply with Local Rule 12.1, which requires that pro se litigants, such as Mr. Awan, be afforded notice that the Court might construe Fairfield’s motion as one for summary judgment. In light of Fairfield’s failure to 3 comply with Local Rule 12.1, the Court cannot in good conscience consider Fairfield’s motion as one for summary judgment. See generally Smalls v. Jummonte, 08-CV-4637, 2010 WL 3291587, at *3 (S.D.N.Y. Aug. 13, 2010). The question thus turns to whether the Court can consider the documents Fairfield has submitted in the context of a motion to dismiss. The Court finds that it can. On a motion to dismiss, courts may take judicial notice of public records, such as properly recorded deeds. See Contempo Acquisition, LLC v. U.S. Dept. of Housing and Urban Development, 06-CV-3654, 2007 WL 3254916, at *2 (S.D.N.Y. 2007); see also Tardd v. Brookhaven Nat. Laboratory, 407 F. Supp. 2d 404, 418 (E.D.N.Y. 2006) (recognizing that courts could take judicial notice of deed, but declining to do so). Here, Fairfield has submitted a deed demonstrating that it acquired the property in 2005 from Port Jefferson Realty LLC, and that Port Jefferson Realty, in turn, had acquired the property by deed dated December 12, 1998 and recorded January 28, 1999. See Broxmeyer Aff. Ex. C. It follows then that the Court can take judicial notice that Port Jefferson Realty, and not Fairfield, owned the property during the relevant time period. So Fairfield could not have engaged in the conduct the Amended Complaint alleges. Fairfield’s motion to dismiss is GRANTED. 4 Consequently, II. The Government Defendants’ Motion to Dismiss The Government Defendants have also moved to dismiss. The Government Defendants argue that Mr. Awan’s claims fail on numerous grounds, including timeliness, the inability to hold federal officials liable under respondeat superior, and Mr. Awan’s failure to plead enough facts to facts to state a claim for constitutional violations. The Court does not reach most of the Government’s arguments, because it agrees with the Government that Mr. Awan’s Complaint, in its entirety, is time-barred. Mr. Awan’s First, Second, and Third Causes of Action assert claims against the Government Defendants for violations of his constitutional rights (i.e., “Bivens claims”). York, however, Bivens limitations period. claims are subject to a In New three year See Tapia-Ortiz v. Doe, 171 F.3d 150, 151 (2d Cir. 1999); see generally Higazy v. Templeton, 505 F.3d 161, 169 (2d Cir. 2007) (“A Bivens action is a judicially-created remedy designed to provide individuals with a cause of action against federal officials who have violated their constitutional rights”). And the limitations period begins to run when the victim knew of the alleged constitutional violations. v. Geraci, 23 F.3d 722, 724 (2d Cir. 1994). 5 See Veal Here, the events that form the basis of Mr. Awan’s alleged constitutional claims occurred on or before November 6, 2001.1 And Mr. Awan indisputably learned the alleged violations at that time (i.e., the search of his home, seizure of his property, coercive questioning, and unlawful imprisonment). It is irrelevant that Mr. Awan argues did not obtain “pro[of]” of his claims until 2008. See Amend. Compl. ¶ 23. After all, he knew of the alleged violations, and could have commenced suit in a timely fashion and obtained the “proof” he needed through discovery. allowing More a to Bivens the point, plaintiff to “federal “marshal policy” his precludes evidence while waiting for the memories of the potential defendant and his witnesses to fade and for [government] records to be routinely destroyed.” 1985) Hawthorne v. Wells, 761 F.2d 1514, 1517 (11th Cir. (internal citations and quotations omitted). So Mr. Awan’s First, Second, and Third Causes of Action are all timebarred. Mr. Awan’s remaining causes of action Government Defendants allege common law torts. against the Because they are alleged against individuals, not the United States, they are improper under the Federal Tort Claims Act (“FTCA”). See 28 1 Mr. Awan does allege, in wholly conclusory fashion, that violations occurred “on or after 6 November 2001,” but provides no facts to support violations that occurred “after” that date. Amend. Compl. ¶ 28. 6 U.S.C. § 2679(a); Williams v. Metropolitan Detention Center, 418 F. Supp. 2d 96, 102 (E.D.N.Y. 2005) (FTCA authorizes suit only against the United States, and not its employees). But, even if construed as being pled against the United States, these claims are also time-barred. Mr. Awan’s tort claims, like his Bivens claims, arise from events that took place in 2001. And the FTCA provides for only a two-year limitations period. 28 U.S.C. § 2401(b). So, just as Mr. Awan’s Bivens claims are time-barred, his tort claims are also untimely. It follows then that Mr. against the Government Defendants because the Court already has Awan’s must be dismissed remaining claims dismissed. And, the claims against Fairfield, this means that Mr. Awan’s Amended Complaint must be dismissed in its entirety. II. Mr. Awan’s Motion to Amend Mr. Awan has also moved for leave to file a Second Amended Complaint. Mr. Awan’s proposed Second Amended Complaint contains 67 pages, 188 paragraphs, and 20 causes of action. Among other things, the proposed Second Amended Complaint: (1) drops Fairfield as a Defendant and substitutes the property’s actual owner, Port Jefferson Realty; (2) goes into significantly greater detail concerning his allegations against the Government 7 Defendants; and (3) contains numerous new allegations against his former attorney, Stephen J. Frankel. Generally, leave to amend should be freely granted. Kropelnicki v. Siegel, 290 F.3d 118, 130 (2d Cir. 2002). However, the Court may deny leave to amend “when there is a good reason to do so, such as futility, bad faith, or undue delay.” Id. Here, because Mr. the Court Awan’s finds that proposed amendment claims are would all be futile, time-barred or otherwise do not state cognizable causes of action. Like his Amended Complaint, Mr. Awan’s Second Amended Complaint principally concerns conduct that took place in 2001, though he adds some new allegations concerning subsequent criminal proceedings in 2003, 2004, and January-February 2006. See, e.g., Second Amend. Compl. ¶¶ 106, 120, 135, 139-141. But Mr. Awan did not commence this action until January 20, 2009, at the latest. See Compl. ¶ 19. So his Bivens claims predating January 20, 2006, and his FTCA claims predating January 20, 2007 are time-barred. And Mr. Awan’s remaining claims against the Government Defendants, even if not time-barred, relate to his criminal support conviction and in resources 06-CR-0154, to a for terrorist providing organization. material That conviction remains valid, and cannot be collaterally attacked though a non-habeas civil suit. See Heck v. Humphrey, 512 U.S. 8 477, 486, 114 S. Ct. 2364, 129 L. Ed. 2d 383 (1994) (“civil tort actions are not appropriate vehicles for challenging the validity of outstanding criminal judgments”). Mr. Awan’s claims against Port Jefferson Realty and Mr. Frankel fair no better. Mr. Awan’s claims against Port Jefferson stem from conduct that allegedly took place in 2001, while his claims against Mr. Frankel date from 2003 and 2004. Thus, under nearly every theory pled, Mr. Awan’s claims are time-barred.2 The only claims that are not obviously time-barred are Mr. Awan’s contract and fraud claims against Mr. Frankel. But 2 See, e.g., Cornwell v. Robinson, 23 F.3d 694, 703 (2d Cir. 1994) (three year limitations period for 42 U.S.C. §§ 1983, 1985 claims); 42 U.S.C.A. § 1986 (one year limitations period for § 1986 claims); Patterson v. County of Oneida, N.Y., 375 F.3d 206, 225 (2d Cir. 2004) (three year limitations period under 42 U.S.C. § 1981); Board of Managers of Chelsea 19 Condominium v. Chelsea 19 Associates, 905 N.Y.S.2d 8, 11 (1st Dep’t 2010) (three year limitations period for conversion); Monaghan v. Ford Motor Co., 897 N.Y.S.2d 482, 484 (2d Dep’t 2010) (three year limitations period for breach of fiduciary duty claims seeking money damages); Lincoln Place, LLC v. RVP Consulting, Inc., 70 A.D.3d 594, 594-595, 896 N.Y.S.2d 47, 48 (1st Dep’t 2010) (three year limitations period for legal malpractice); Pike v. New York Life Ins. Co., 901 N.Y.S.2d 76, 81 (2d Dep’t 2010) (N.Y. GEN. BUS. § 349 claims subject to three year limitations period); Schrank v. Lederman, 52 A.D.3d 494, 496, 860 N.Y.S.2d 556, 559 (2d Dep’t 2008) (three year limitations period for negligent hiring); Eves v. Ray, 42 A.D.3d 481, 482, 840 N.Y.S.2d 105, 106 (2d Dep’t 2007) (one year limitations period for intentional infliction of emotional distress); Jorgensen v. Silverman, 224 A.D.2d 665, 666, 638 N.Y.S.2d 482, 483 (2d Dep’t 1996) (three year legal malpractice limitations period applies to violations of the N.Y. Judiciary Law). 9 these claims premises his also do fraud not survive. claim on Mr. To the Frankel’s extent Mr. Awan allegedly poor representation of him, that claim is barred as being duplicative of Mr. Awan’s time-barred malpractice cause of action. See Financial Services Vehicle Trust v. Saad, 900 N.Y.S.2d 353, 354 (2d Dep’t 2010). And Mr. Awan’s remaining state law fraud and contract claims concern a matter $14,400 or, at most, $34,000 (including Mr. Frankel’s legal fees). 89, 90, 101, 106, 107, 108, 116, 120. do not satisfy the $75,000 Second Amend. Compl. ¶¶ So these causes of action amount-in-controversy necessary to plead diversity jurisdiction. And, at this early stage, the Court requirement 28 U.S.C. § 1332(a). declines to exercise supplemental jurisdiction over these state law claims, in the absence of any federal causes of action. See Valencia v. Lee, 316 F.3d 299 (2d Cir. 2003). It follows then that Mr. Awan’s proposed Second Amended Complaint is futile, in its entirety. CONCLUSION Fairfield’s GRANTED. motion to dismiss (Docket No. 22) is The Government Defendants’ motion to dismiss (Docket No. 38) is GRANTED. Mr. Awan’s motion for leave to file a Second Amended Complaint (Docket No. 55) is DENIED. All other pending motions (Docket Nos. 34, 36, 37, 43, 48) are DENIED AS 10 MOOT. The Clerk of the Court is ordered to mark this matter as CLOSED. SO ORDERED /s/ JOANNA SEYBERT Joanna Seybert, U.S.D.J. Dated: Central Islip, New York September 28 , 2010 11

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