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UNITED STATES COURT OF
APPEALS FOR THE SECOND CIRCUIT
JONAH NWAOKOCHA A/K/A JOHNSON MBA, Plaintiff-Appellee,
v.
KATHLEEN M. HAGGE, et al., Defendants-Appellants.
No. 02-0057
47 Fed. Appx. 55
September 26, 2002, Decided
NOTICE:
RULES OF THE SECOND CIRCUIT
COURT OF APPEALS MAY LIMIT CITATION TO UNPUBLISHED OPINIONS. PLEASE REFER TO
THE RULES OF THE UNITED STATES COURT OF APPEALS FOR THIS CIRCUIT.
SUMMARY ORDER
ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the District Court be and it hereby is AFFIRMED.
Jonah Nwaokocha ("Nwaokocha"), pro se, in forma pauperis,
appeals the District Court's grant of the defendants' motion, filed pursuant to
Fed. R. Civ. P. 12(b)(6), to dismiss Nwaokocha's civil rights claims, raised
pursuant to 42 U.S.C. § 1983, and grant of the defendants' motion for summary
[*56] judgment, filed pursuant to Fed. R. Civ. P. 56, as to the rest of
Nwaokocha's claims.
We
review de novo decisions both on motions to dismiss and for summary judgment,
drawing all factual inferences and resolving all ambiguities in favor of the
nonmoving party. Manning v. Utilities
Mut. Ins. Co., 254 F.3d 387, 391 (2d Cir. 2001). Summary judgment is
appropriate if there are no genuine issues of material fact and the movant is
entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Tri-State
Employment Services, Inc. v. Mountbatten Sur. Co., 295 F.3d 256, 260 (2d Cir.
2002).
Nwaokocha's complaint, filed on
January 29, 2001, arises out of the incidents following Nwaokocha's arrest on
December 6, 1997, for drug smuggling. According to the facts alleged in
Nwaokocha's complaint, Nwaokocha arrived in the United States on December 6,
1997, internally transporting eighty balloons of heroin. Nwaokocha was arrested
upon his arrival at John F. Kennedy Airport, and transported to Mary Immaculate
Hospital in Queens ("MIH"), New York, where doctors performed
emergency surgery to remove the leaking balloons from Nwaokocha's abdomen.
Nwaokocha now brings constitutional claims against Kathleen Haage, Area
Director, New York and New Jersey, U.S. Customs Service, Rosanna Licitra,
Special Agent of the U.S. Customs Service, and John Marshall, former Director
of the United States Marshals Service ("the federal defendants"), and
medical malpractice claims against "Doctors et al. of Mary Immaculate
Hospital" ("the MIH defendants").
Nwaokocha styled his complaint
against the federal defendants as arising under 42 U.S.C. § 1983 for violations
of his Fourth, Fifth, Eight, Thirteenth, and Fourteenth Amendment rights.
Section 1983 is not a claim available against federal defendants, and so we
construe Nwaokocha's claim liberally as arising under Bivens v. Six Unknown
Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 29 L. Ed. 2d
619, 91 S. Ct. 1999 (1971). See
Daloia v. Rose, 849 F.2d 74, 75 (2d Cir. 1988) (construing a pro se §
1983 complaint against federal defendants as arising under Bivens).
However, Nwaokocha has failed to state a
claim under Bivens. Liability may not be established under Bivens on a pure
respondeat superior theory. Ellis v.
Blum, 643 F.2d 68, 85 (2d Cir. 1981). Nwaokocha has admitted that he was aware of
no direct involvement whatsoever by the named federal defendants but that he
sued them purely in their supervisory capacity. He thus failed to state a claim
under Bivens, and the District Court's dismissal of these claims against the
federal defendants was correct.
The
District Court also did not err in granting summary judgment to the MIH
defendants. We construe Nwaokocha's claims against the MIH defendants as a
claim for medical malpractice. In New York State, the statute of limitations
for medical malpractice is two years and six months from the date of the act or
omission complained of. N.Y. C.P.L.R. 214-a. Here, Nwaokocha was discharged
from MIH on December 12, 1997. He filed his complaint three years and
forty-five days after his date of discharge, outside of the limitations period.
Nwaokocha's arguments are unavailing that the statute of limitations should be tolled because of his incarceration and insanity. Incarceration does not toll the statute of limitations, N.Y. C.P.L.R. 208, and Nwaokocha's alleged insanity commenced [*57] after the end of the limitations period.
The judgment of the District Court is AFFIRMED.