Pisani v. McConnell et al

Filing 25

ORDER: All of the claims in this action are dismissed with prejudice. So Ordered by Judge Landya B. McCafferty, District of NH on 7/28/14. (Jackson, Ryan)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND

Carol Pisani
v.

Civil No. 14-cv-056-LM-AKJ

Judge John J. McConnell, Jr.,
and National Highway Traffic
Safety Administration

O R D E R
Before the Court is plaintiff Carol Pisani’s response to
the Court’s April 28, 2014, order (doc. no. 16).

That order

required Pisani either to amend the complaint, or to show cause
why the complaint (doc. no. 2) should not be dismissed for
failure to state a claim upon which relief can be granted.
Background
Two defendants are named in this action, Judge John J.
McConnell, Jr., and the National Highway Traffic Safety
Administration (“NHTSA”).

Judge McConnell was the presiding

judge in a 2007 case, Pisani v. Van Iderstine, No. 1:07-cv00187-M-LDA (D.R.I.) (“Pisani I”).

Pisani I was based on

allegations that NHTSA employee Richard Van Iderstine breached a
confidentiality agreement with Pisani and/or misappropriated an
invention Pisani had disclosed, by improperly disclosing that
invention.

See generally Apr. 28, 2014, Order (doc. no. 16).

On July 8, 2011, Judge McConnell issued an order in Pisani I,
approving a report and recommendation, and dismissing the case
against Van Iderstine without prejudice, pursuant to Fed. R.
Civ. P. 4(m), because of Pisani’s failure to effect service
within 120 days.
30.

See Pisani I (D.R.I. July 8, 2011), ECF No.

Pisani did not appeal the order dismissing that action

without prejudice.
Pisani filed a complaint here (doc. no. 2) in January 2014.
After granting Pisani’s motion for leave to proceed in forma
pauperis, this Court completed its review of the complaint (doc.
no. 1), pursuant to 28 U.S.C. § 1915(e)(2), and determined that
Pisani had not stated any plausible claim for relief, and that
Judge McConnell was absolutely immune from Pisani’s claims for
monetary relief.

See April 28, 2014, Order (doc. no. 26).

The

Court granted Pisani leave either to file an amended complaint
asserting plausible claims, or to show cause why the complaint
should not be dismissed, and specifically notified plaintiff
that if she failed to amend the complaint or show cause as
directed, the court would dismiss the complaint in its entirety,
pursuant to 28 U.S.C. § 1915(e)(2).
On May 7, 2014, Pisani filed a response to the April 28
order.

See Doc. No. 18.

That response is before this Court.

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Discussion
Pisani’s response to the April 28 order (doc. no. 18)
challenges this court’s finding regarding the scope of judicial
immunity.

In the amended complaint, Pisani also asserts, for

the first time, Bivens claims against NHTSA agents who allegedly
mishandled her invention and breached the confidentiality
agreement prior to 2007, and against the NHTSA agents who failed
to effect service against Van Iderstine and/or did not notify
her that Van Iderstine had not been served.
I.

Judicial Immunity
Pisani asserts that judicial immunity does not shield Judge

McConnell, insofar as she alleges that the judge erred and did
not comply with court rules and ethics rules when he dismissed
Pisani I.

Plaintiff’s arguments about judicial immunity are

unavailing.

See generally Cok v. Cosentino, 876 F.2d 1, 2 (1st

Cir. 1989) (judicial immunity from damages claims “applies no
matter how erroneous the act may have been, how injurious its
consequences, how informal the proceeding, or how malicious the
motive”).
Pisani also asserts that she is seeking injunctive relief
here, including, specifically, an order compelling Judge
McConnell to enter judgment against Van Iderstine in Pisani I.
This court does not generally have supervisory jurisdiction to
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review and/or reverse orders issued by a different district
judge in a separate, closed case.

Cf. Uzamere v. United States,

No. CA 13-505 S, 2013 WL 5781216, at *9 n.8 (D.R.I. Oct. 25,
2013) (district court lacks mandamus jurisdiction to enjoin
district judge in another circuit).
Pisani, furthermore, is collaterally estopped from
relitigating here an issue that was fully litigated in Pisani I,
namely, whether Van Iderstine was served as required by Fed. R.
Civ. P. 4(m).

See generally Latin Am. Music Co. v. Media Power

Grp., 705 F.3d 34, 42 (1st Cir. 2013).

Accordingly, as

plaintiff has failed to show any basis upon which this court
could enjoin Judge McConnell or otherwise enter judgment in
Pisani I, and she has failed to show any basis for this court to
reconsider its prior determination regarding the scope of
judicial immunity, plaintiff’s claims against Judge McConnell
are properly dismissed.
B.

Claims Against NHTSA

Nothing asserted by Pisani warrants this court’s
reconsideration of the April 28, 2014, Order, with respect to
the NHTSA claims.

Plaintiff’s claims regarding NHTSA misconduct

occurring prior to May 2007, whether asserted as Bivens claims,
Federal Tort Claims Act (“FTCA”) claims, so-called “reverse”
Freedom of Information Act (“FOIA”) claims, or as Administrative
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Procedure Act (“APA”) claims, are time-barred.

See, e.g., 28

U.S.C. § 2401 (six year statute of limitations generally applies
to claims in civil actions against United States); Uzamere, 2013
WL 5781216, at *13 (Bivens claims in Rhode Island are subject to
three-year statute of limitations); Loumiet v. United States,
968 F. Supp. 2d 142, 150 (D.D.C. 2013) (Bivens claims in
District of Columbia are subject to three-year statute of
limitations); see also Sanchez v. United States, 740 F.3d 47, 52
(1st Cir. 2014) (two-year statute of limitations applies to FTCA
claims).
Furthermore, as to plaintiff’s claims regarding the NHTSA
agents who did not help serve Van Iderstine and/or did not
notify plaintiff that Van Iderstine was not served, this Court
notes that plaintiff received notice no later than July 10,
2008, that the United States Marshal’s Service was unable to
serve Van Iderstine, and the court in Pisani I issued a show
cause order on January 7, 2009, directing plaintiff to show
cause why the case should not be dismissed for failure to effect
service under Rule 4(m).
ECF No. 17.

See Pisani I (D.R.I. Jan. 7, 2009),

The statute of limitations on any claim regarding

the failure of a federal employee to perform a duty owed to
plaintiff, arising under Bivens or the FTCA, expired before
plaintiff filed this action in January 2014.

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Therefore,

plaintiff has failed to plead any claims upon which relief can
be granted as to the NHTSA.

Pisani has also failed to show

cause why the case should not be dismissed in its entirety, for
reasons stated in this Order and in the April 28, 2014, Order
(doc. no. 16).

Conclusion
For the foregoing reasons, and for reasons stated in the
April 28, 2014, Order (doc. no. 16), all of the claims in this
action are dismissed with prejudice.

The clerk is directed to

enter judgment and close the case.
SO ORDERED.
__________________________
Landya B. McCafferty
United States District Judge
July 28, 2014
cc:

Carol Pisani, pro se
Robert J. Rabuck, Esq.

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