Clemmons v. Holder et al

Filing 40

For the reasons stated in the MEMORANDUM AND ORDER, Federal Defendants motion to dismiss is granted, and the court dismisses the Complaint against all Defendants in its entirety with prejudice. The Clerk of the Court is respectfully directed to enter judgment pursuant to the Memorandum and Order, serve plaintiff with a copy of the Memorandum and Order and Judgment, note service on the docket, and close this case. Ordered by Judge Kiyo A. Matsumoto on 8/17/2015. (Gong, LiJia)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
------------------------------------X
JOAN E. CLEMMONS,
Plaintiff,
- against -

MEMORANDUM AND ORDER
13-CV-7229 (KAM)

ERIC H. HOLDER, United States
Attorney General, et al.,
Defendants.
------------------------------------X
MATSUMOTO, United States District Judge:
Plaintiff Joan E. Clemmons (“plaintiff”) brought
this action against defendants Eric H. Holder, Loretta E.
Lynch, Robert L. Butler, Albert R. Mann, and Leroy C.
Clemons alleging violations of her rights under the First,
Fourth and Fifth Amendments of the United States
Constitution pursuant to Bivens v. Six Unknown Named Agents
of Federal Bureau of Narcotics, 403 U.S. 388 (1971).

(See

generally, Verified Complaint for Injunctive Relief and
Damages (“Complaint” or “Compl.”) filed 12/19/13, ECF No.
1.)1
Presently before the court is a motion to dismiss
the Complaint by Eric H. Holder, the Attorney General of
the United States at the time plaintiff’s complaint was

1

The court notes that Dr. Clemmons paid the civil filing fee upon
filing her Complaint on December 19, 2013.

filed, and Loretta E. Lynch, the United States Attorney for
the Eastern District of New York at the time plaintiff’s
complaint was filed (collectively, the “Federal
Defendants”).2
BACKGROUND3
Plaintiff resides in Nassau County and is a 1966
graduate of the State University of New York at Buffalo
School of Medicine and has been licensed to practice
medicine and surgery by the state of New York since 1967.
(Compl. at 2.)

She is also certified as a specialist in

internal medicine and nephrology.

(Id.)

Dr. Clemmons alleges that she has been subject to
a federal investigation that commenced in April 1976 when
she was attending a meeting in Philadelphia, Pennsylvania
of the American College of Physicians.

(Id. at 4.)

At the

Philadelphia meeting, Dr. Clemmons first encountered Mr.
Roy Butler, and they maintained a romantic relationship
until 1981.

(Id. at 4-5.)

Plaintiff alleges that “[a]

2

Since plaintiff commenced this action, Loretta Lynch was nominated and
confirmed as the Attorney General of the United States, and Kelly
Currie is the current acting United States Attorney for the Eastern
District of New York. The changes in the defendants’ official
positions have no bearing on the issues in this case, because
plaintiff’s claim are brought against the Federal Defendants in their
“individual capacit[ies].” (Compl. at 1.)
3 The facts described in the Background are taken from plaintiff’s
Complaint. The court accepts these factual allegations as true and
draws from them all reasonable inferences, but the court is “not
required to credit conclusory allegations or legal conclusions couched
as factual allegations.” Rothstein v. UBS AG, 708 F.3d 82, 94 (2d Cir.
2013).

2

subsequent attempt to re-introduce Mr. Butler in 1987
failed” and Mr. Albert R. Mann “was sent to replace him.”
(Id. at 5.)
Dr. Clemmons states that Mr. Butler was an
undercover federal agent who was sent to seduce the
plaintiff, thus granting Mr. Butler “limitless access to
the plaintiff in order to conduct extensive warrantless
searches.”

(Id. at 5.)

Mr. Butler searched plaintiff’s

“papers and effects in order to gather leads to be used to
make a case against her, having insufficient probable cause
for a search warrant.”

(Id.)

Mr. Butler disseminated false information about
plaintiff (i.e., that plaintiff is not a physician, that
she is not a citizen of the United States, that she suffers
from mental illness) to the United States Attorney for the
Eastern District of New York, who subsequently commenced a
grand jury investigation that continues to the present day.
(Id. at 6.)

Plaintiff alleges that this grand jury

investigation involves the “continuous impaneling of
successive grand juries.”

(Id.)

As part of this

investigation, plaintiff alleges that she is the subject of
a program of surveillance, where electronic and mail
surveillance, inter alia, are used for the purpose of
monitoring and disrupting her interactions.
3

(Id. at 17.)

The Complaint alleges that “[i]n the early
1990’s, plaintiff began to seek out explanations for what
was happening to her and why.”

(Id. at 10.)

Plaintiff

sent letters dated November 5, 1993 and March 14, 1994 to
the United States Attorney for the Eastern District of New
York at the time, Zachary W. Carter, describing the
office’s alleged investigation and intrusion into her
affairs and asking whether she has been subject of any
investigation.

(Id. at 10-11; see also id. Exhs. C, D.)

Plaintiff also sent letters to the Executive Office of the
United States Attorneys and the Department of Justice
Office of Professional Responsibility (“OPR”) in 2000 and
2001 to protest her federal investigation and surveillance.
(Id. at Exhs. F, H, J.)

The OPR responded to Dr. Clemmons’

letter on January 31, 2001, stating that its review of her
complaint “found no basis on which action by th[e] office
would be warranted.”

(Id. at Exh. I.)

The Complaint also alleges that in connection
with plaintiff’s employment as a physician at the Veterans’
Administration Hospital (“VA”) in Northport, New York,
plaintiff brought a civil suit against the VA and the
Office of Personnel Management (“OPM”).

(Id. at 7.)

Plaintiff alleges that members of the grand jury intervened
in her civil suit and “were allowed to play the roles of
4

adversary and judicial officials.”

(Id. at 7.)

In 1990,

plaintiff appealed an administrative decision of the State
University of New York to the Supreme Court of New York.
(Id. at 9.)

Dr. Clemmons asserts that this case “was a

replica” of her prior experience in federal court and
alleges that “[g]rand jurors were acting as court
officials” and “her adversary was a juror.”

(Id.)

In connection with her employment application to
the La Guardia Medical Group in 1989, Dr. Clemmons was
required to submit letters of recommendation.

(Id. at 9.)

The Complaint alleged that the letters implied that
plaintiff had not completed some training that she claimed
to have completed in her application.

(Id.)

Consequently,

Dr. Clemmons “was able to deduce from this experience that
not only was her mail being intercepted, but that its text
was being altered.”

(Id. at 9-10.)

Plaintiff also

suspected that her interview was being monitored “and that
her interviewer had been primed to follow certain lines of
questioning.”

(Id. at 10.)

Dr. Clemmons ultimately was

not hired by La Guardia Medical Group.

(Id.)

On March 6, 2002, the building in which
plaintiff’s residence and office were located was auctioned
off at a foreclosure sale which was the “result of the
oppressive and tyrannical invasion of her privacy by this
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fruitless investigation by the” United States Attorney for
the Eastern District of New York.

(Id. at 13.)

Dr.

Clemmons wrote letters to the OPR in 2000 on March 25th,
July 26th and September 17th, regarding her foreclosure and
she received no response.

(Id.)

Plaintiff “had the

distinct impression that her mailings were intercepted and
never reached their destination.”

(Id.)

In her efforts to

avoid eviction from her residence “in all venues she was
shadowed by the ubiquitous grand jury which would intervene
in her affairs.”

(Id. at 14)

From 2002 to 2009, plaintiff’s mother was
hospitalized at the Nassau University Medical Center.
at 15.)

(Id.

Plaintiff alleges that the grand jury was

conspiring with her sibling and named defendant, Leroy
Clemons, to “undermine and sabotage her efforts to secure
the most appropriate hospital care for her mother.”

(Id.)

When plaintiff was residing with her mother, she allegedly
found that grand jurors were masquerading as her mother’s
home health aides, and they were “snooping” on plaintiff.
(Id.)
Plaintiff’s mother died on May 8, 2009.

(Id.)

Plaintiff states that the United States Attorney of the
Eastern District of New York obstructed plaintiff’s claim

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to property to which she was entitled pursuant to her
mother’s will.

(Id. at 16.)

Plaintiff also alleges that the grand jury is
currently interfering in her disputes with the Long Island
Power Authority and the Nassau County Department of
Assessment.

(Id.)

The “USa [sic] presumes to dictate the

terms of plaintiff’s relationship with her energy provider”
and “presumes again to intervene in the assessment of taxes
on her real property and to arbitrarily assign to her a
school tax exemption she never applied for while denying
her the exemption for which she did apply.”

(Id. at 16-

17.)
Plaintiff alleges that the foregoing actions by
the Federal Defendants have violated her First, Fourth and
Fifth Amendment rights and seeks injunctive relief, $11.7
million in compensatory damages, $22.3 million in punitive
damages, and attorney’s fees.

(Id. at 25-26.)

The Federal Defendants move to dismiss
plaintiff’s Complaint on the grounds that her claim is
barred by the applicable statute of limitations, plaintiff
has not adequately alleged personal involvement by the
Federal Defendants and the Federal Defendants are immune
from suit.

(See Mem. of Law in Support of Fed. Defs. Mot.

to Dismiss (“Def. Mem.”), ECF No. 33.)
7

DISCUSSION
I.

Standard of Review
In reviewing plaintiff’s complaint, the court is

mindful that the submissions of a pro se litigant must be
construed liberally and interpreted “to raise the strongest
arguments that they suggest.”

Triestman v. Fed. Bureau of

Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (internal
quotations and citations omitted).

Nonetheless, a court

“should not hesitate to dismiss a pro se complaint if it
fails altogether to satisfy the pleading standard.”

Henry

v. Davis, No. 10 Civ. 7575, 2011 WL 3295986, at *2 n.5
(S.D.N.Y. Aug. 1, 2011).
Under Federal Rule of Civil Procedure 12(b)(6),
to survive a motion to dismiss, a complaint “must contain
sufficient factual matter, accepted as true, to state a
claim to relief that is plausible on its face.”

Ashcroft

v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotations
omitted); Fed. R. Civ. P. 12(b)(6).

This plausibility

standard is guided by “[t]wo working principles.”

Id.

First, although “a court must accept as true all of the
allegations contained in a complaint,” that “tenet” “is
inapplicable to legal conclusions,” and “[t]hreadbare
recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice.”
8

Id.

“Second,

only a complaint that states a plausible claim for relief
survives a motion to dismiss,” and “[d]etermining whether a
complaint states a plausible claim for relief will . . . be
a context-specific task that requires the reviewing court
to draw on its judicial experience and common sense.”

Id.

at 679.
II.

Plaintiff’s Claim is Time-Barred
The statute of limitations for a Bivens action

arising in New York is three years.

Tapia-Ortiz v. Dole,

171 F.3d 150, 151 (2d Cir. 1999); Chin v. Bowen, 833 F.2d
21, 23-24 (2d Cir. 1987).

The limitations period begins to

run from the date a plaintiff “knows or has reason to know”
of the harm that forms the basis for her claim.

Eagleston

v. Guido, 41 F.3d 865, 871 (2d Cir. 1994))(quoting Cullen
v. Margiotta, 811 F.2d 698, 725 (2d Cir.), cert. denied,
483 U.S. 1021 (1987)).

The Second Circuit, in Singleton v.

City of New York, 632 F.2d 185, 192 (2d Cir. 1980), cert.
denied, 450 U.S. 920 (1981), explains:
The crucial time for accrual purposes is
when the plaintiff becomes aware that he is
suffering from a wrong for which damages may
be recovered in a civil action.
To permit
him to wait and toll the running of the
statute simply by asserting that a series of
separate wrongs were committed pursuant to a
conspiracy would be to enable him to defeat
the purpose of the time-bar, which is to
preclude the resuscitation of stale claims.

9

According to the Complaint, plaintiff was aware
that she was suffering the alleged harms since the early
1990s.

Plaintiff alleges that “[t]he investigation

relevant to this complaint commenced in April of 1976,”
(Compl. at 4) and that “[i]n the early 1990’s, plaintiff
began to seek out explanations for what was happening to
her and why.”

(Id. at 10.)

As previously discussed,

plaintiff sent letters in the early 1990s and early 2000s
to the United States Attorney for the Eastern District of
New York, the EOUSA and OPR protesting her federal
investigation and surveillance.

(Id. at 10-12.)

For

instance, in her April 17, 2001 letter to the OPR,
plaintiff stated that the government was intercepting her
conversations via a “roving wire-tap” in violation of her
Fourth Amendment rights, exactly the same harms she alleges
in the instant Complaint.

(Compare id. at Exh. J to id. at

20 (alleging the use of a “roving wiretap” in plaintiff’s
investigation).)

The alleged obstruction of plaintiff’s

claim to her mother’s estate occurred in 2009.
Consequently, the statute of limitations on plaintiff’s
claim began to run in the early 1990s, continued into, in
the early 2000s, when the alleged “interception and
diversion of [plaintiff’s] telephone calls became more
noticeable” and at the latest until 2009.
10

(Id. at 12, 16.)

Plaintiff opposes the government’s argument that
her claim is time-barred by arguing that her claim is
subject to the equitable tolling doctrine for fraudulent
concealment.

(See Mem. of Law in Opp. to Defs.’ Mot. to

Dismiss and in Supp. of Pl.’s Cross Mot. for J. (“Pl.
Opp.”) at 12.) (“Plaintiff still has no appreciation of the
nature and full extent of all the injuries she may have
sustained . . . in large part because information has been
kept from her.”)
“Equitable tolling is a rare remedy to be applied
in unusual circumstances.”
396 (2007).

Wallace v. Kato, 549 U.S. 384,

The equitable tolling doctrine applies in the

context of Bivens or § 1983 actions when a “defendant
fraudulently conceals the wrong, the time limit of the
statute of limitations does not begin running until the
plaintiff discovers, or by the exercise of reasonable
diligence should have discovered, the cause of action.”
Pinaud v. Cty. of Suffolk, 52 F.3d 1139, 1157 (2d Cir.
1995) (quoting Keating v. Carey, 706 F.2d 377 (2d Cir.
1983)).4

“To take advantage of this doctrine, however, a

plaintiff must submit non-conclusory evidence of a

4

Although the cited cases involve actions pursuant to § 1983, it is
well settled that a Bivens action is the federal analog to suits
brought against state officials under § 1983, and “federal courts have
typically incorporated § 1983 law into Bivens actions.” Tavarez v.
Reno, 54 F.3d 109, 110 (2d Cir. 1995).

11

conspiracy or other fraudulent wrong which precluded his
possible discovery of the harms that he suffered.”

Pinaud,

52 F.3d at 1157-58 (emphasis in original) (citations
omitted).
The court finds plaintiff’s argument unavailing.
Here, plaintiff has not alleged any facts indicating that
either Federal Defendant took any steps to conceal the
nature of his or her activities toward her.

Mere

conclusory allegations that “information has been kept
from” plaintiff is insufficient to trigger the equitable
tolling doctrine for fraudulent concealment.

(Pl. Opp. at

12.)
In her opposition, plaintiff also contends that
her claim is not time-barred pursuant to the continuing
violation doctrine, because the alleged conduct is “in
progress.”

(Pl. Opp. at 13.)

The continuing violation

doctrine is “largely a creature of Title VII employment
discrimination law,” Jackson v. New York State, 381 F.
Supp. 2d 80, 87 (N.D.N.Y. 2005), although the Second
Circuit has also applied the doctrine to § 1983 actions
involving allegations of discrimination.

See, e.g., Harris

v. City of New York (applying continuing-violation doctrine
to § 1983 claim involving allegations of employment
discrimination based on disability).
12

The Second Circuit,

however, has yet to squarely address whether the continuing
violation doctrine applies to civil rights actions pursuant
to § 1983 or Bivens that do not involve allegations of
discrimination.

See, e.g., Sanusi v. Dep't of Homeland

Sec., No. 06 CV 2929, 2014 WL 1310344, at *5 (E.D.N.Y. Mar.
31, 2014).
Courts in the Second Circuit generally disfavor
the continuing violation doctrine and have declined to
extend its applicability absent compelling circumstances.
See Cotz v. Matroeni, 476 F. Supp. 2d 332, 356 (S.D.N.Y.
2007) (“Courts in the Second Circuit view continuing
violation arguments with disfavor, and the doctrine's
applicability outside of the Title VII or discrimination
context is uncertain.”); Trinidad v. New York City Dep't of
Corr., 423 F. Supp. 2d 151, 165 n.11 (S.D.N.Y. 2006) (“As a
general matter, the continuing violation doctrine is
heavily disfavored in the Second Circuit and courts have
been loath to apply it absent a showing of compelling
circumstances.”)

Such compelling circumstances include

“unlawful conduct tak[ing] place over a period of time,
making it difficult to pinpoint the exact day the violation
occurred; where there is an express, openly espoused policy
that is alleged to be discriminatory; or where there is a
pattern of covert conduct such that the plaintiff only
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belatedly recognizes its unlawfulness.”

Koehl v. Greene,

No. 06–cv–0478, 2007 WL 2846905, at *7–9 (N.D.N.Y. Sept.
26, 2007) (quoting Yip v. Bd. Of Tr. of SUNY, 03-CV-0959,
*4 (W.D.N.Y. Sept. 29, 2004)).
Here, Dr. Clemmons has not alleged any facts of
compelling circumstances to otherwise merit application of
the continuing violation doctrine, and the court declines
to do so.

Plaintiff has pinpointed exact dates for the

alleged violations of her rights dating back to her first
encounter with Mr. Butler in 1976, and she has failed to
allege any discriminatory policy.

Consequently, the court

finds that plaintiff’s claim against Federal Defendants is
time-barred and grants Federal Defendants’ motion to
dismiss.5
III.

Plaintiff’s Request for Judgment
In her opposition, plaintiff seeks sanctions

pursuant to Federal Rule of Civil Procedure 11, default
judgment pursuant to Federal Rule of Civil Procedure 55 and
summary judgment pursuant to Federal Rule of Civil

5

Moreover, plaintiff alleges no plausible facts that the Federal
Defendants were personally involved in the alleged violations. Her
claims are thus dismissed on this ground as well. See Arar v.
Ashcroft, 585 F.3d 559, 569 (“[A] plaintiff in a Bivens action is
required to allege facts indicating that the defendants are personally
involved in the claimed constitutional violation.”); Thomas v.
Ashcroft, 470 F.3d 491, 496 (2d Cir. 2006) (“Because the doctrine of
respondeat superior does not apply in Bivens actions, a plaintiff must
allege that the individual defendant was personally involved in the
constitutional violation.”).

14

Procedure 56.

(Pl. Opp. at 13-14.)

Plaintiff cites a

letter dated October 27, 2014 wherein she lists the
deficiencies of Federal Defendants’ motion to dismiss,
including that (1) Federal Defendants failed to submit an
affidavit in support of their factual representations; (2)
the docket shows that counsel for Federal Defendants
represents all defendants and not just Federal Defendants;
and (3) Federal Defendants erred in referencing an Amended
Complaint when there was none.
10/27/14, ECF No. 27.)

(See Pl. Letter dated

Plaintiff also contends that

Federal Defendants’ motion is “designed to administer a
mental status examination of the pro se litigant.”

(Pl.

Opp. at 13.)
Plaintiff’s arguments are unavailing.

An

affidavit is not required to consider and grant a motion to
dismiss a complaint for failure to state a claim under
Federal Rule of Civil Procedure 12(b)(6).

See generally

Chambers v. Time Warner, 282 F.3d 147, 152-54 (2d Cir.
2002).

The other two deficiencies on which plaintiff

relies are merely administrative and typographical and do
not present a legal basis for judgment in plaintiff’s favor
nor sanctions.

For example, although the docket entry text

for Notice of Appearance states that counsel for Federal
Defendants, Ms. Apicella, represents “All Defendants,” the
15

filed document clearly specifies that Ms. Apicella entered
her appearance only for defendants Eric Holder and Loretta
Lynch.

(See Notice of Appearance dated 9/4/14, ECF No.

22.)
IV.

The Remaining Defendants
The court sua sponte dismisses plaintiff’s claims

against the remaining defendants on the same ground that
they are also barred by the statute of limitations.

See,

e.g., Walters v. Indus. & Commercial Bank of China, Ltd.
651 F.3d 280, 293 (2d Cir. 2011) (listing statute of
limitations grounds among acceptable bases for sua sponte
dismissal by district courts).

As previously discussed,

plaintiff’s Complaint alleges that she met Mr. Butler in
1976 and suspected his involvement in the 1990s.

The only

mention of Mr. Mann found in plaintiff’s Complaint alleges
that he was introduced as an undercover agent in 1987.

The

allegations against Mr. Leroy Clemons relate to the
hospitalization of her mother, which ended in 2009.
Additionally, plaintiff has failed to serve Mr.
Butler.6

The court cannot exercise personal jurisdiction

over a defendant who has not been served.

Omni Capital

Int’l, Ltd. v. Rudolf Wolff & Co., Ltd., 484 U.S. 97, 104

6

In her Affidavit in support of her Opposition, plaintiff admits that
Mr. Butler “could not be served.” (Aff. in Opp. to Defs’ Mot. to
Dismiss and in Support of Pl.’s Cross-Mot. for J., filed 11/21/14, ECF
No. 29, at 2.)

16

(1987).

Where, as here, a court does not have personal

jurisdiction over Mr. Butler due to lack of service (and
the time for service has expired and has not been
extended), the court cannot hear the claim against Mr.
Butler and must also dismiss the claim against him pursuant
to Federal Rule of Civil Procedure 12(b)(2).

See, e.g.,

Amnay v. Del Labs, 117 F. Supp. 2d 283, 287 (E.D.N.Y.
2000).
V. Futility of Amendment
The court declines to grant leave to plaintiff to
amend her claim, because doing so would be futile.

Ruotolo

v. City of New York, 514 F.3d 184, 191 (2d Cir. 2008)
(citing Foman v. Davis, 371 U.S. 178, 182 (1962)) (leave to
amend may properly be denied for futility of amendment);
Cuocco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (“The
problem with [plaintiff’s] causes of action is substantive;
better pleading will not cure it.
futile.”)

Repleading would thus be

Dr. Clemmons’ claim is time-barred for the

substantive reason that she became aware of her injury more
than three years before the filing of her complaint, and
repleading will thus be futile.
CONCLUSION
For the foregoing reasons, Federal Defendants’
motion to dismiss is granted, and the court dismisses the
17

Complaint against all Defendants in its entirety with
prejudice.

The Clerk of the Court is respectfully directed

to enter judgment pursuant to the foregoing, serve
plaintiff with a copy of this Memorandum and Order and
Judgment, note service on the docket, and close this case.

Dated:

August 17, 2015
Brooklyn, New York

__________/s/________________
Kiyo A. Matsumoto
United States District Judge

18