Mangalvedkar v. McDonald
MEMORANDUM ADOPTING REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE for 38 Report and Recommendations, GRANTING 32 Motion to Dismiss/Lack of Jurisdiction, filed by Arthur Soule, Mark Taylor. Signed by Judge Amos L. Mazzant, III on 10/29/2015. (baf, )
United States District Court
EASTERN DISTRICT OF TEXAS
DR. MARK TAYLOR AND
DR. ARTHUR SOULE
CASE NO. 4:14-CV-493
(Judge Mazzant/Judge Nowak)
MEMORANDUM ADOPTING REPORT AND
RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Came on for consideration the report and recommendation of the United States
Magistrate Judge in this action, this matter having been heretofore referred to the Magistrate
Judge pursuant to 28 U.S.C. § 636. On October 9, 2015, the report and recommendation of the
Magistrate Judge was entered (Dkt. #38) containing proposed findings of fact and
recommendations that Defendants‟ Motion to Dismiss for Lack of Jurisdiction and for Failure to
State a Claim (Dkt. #32) be granted, and Plaintiff‟s claims be dismissed with prejudice. Having
received the report and recommendation of the Magistrate Judge (Dkt. #38), having considered
Plaintiff‟s timely filed objections (Dkt. #39), and having conducted a de novo review, the Court
is of the opinion that the findings and conclusions of the Magistrate Judge are correct and hereby
adopts the Magistrate Judge‟s report and recommendation (Dkt. #38) as the findings and
conclusions of the Court.
The facts in this case originate from Plaintiff‟s termination of employment with the
Department of Veteran‟s Affairs (“VA”). The facts are set out in further detail by the Magistrate
Judge, and need not be repeated in their entirety herein (see Dkt. #38). In summary, Plaintiff
asserts that Drs. Mark Taylor (“Dr. Taylor”) and Arthur Soule (“Dr. Soule”) (collectively
“Defendants”) violated Plaintiff‟s Fourth, Fifth, and Fourteenth Amendment rights (hereinafter
the “Bivens claims”) (Dkt. #7 at 18). Specifically, Plaintiff alleges that Dr. Taylor, without
Plaintiff‟s permission, searched Plaintiff‟s patient records – in violation of Plaintiff‟s Fourth
Amendment right to be free from unreasonable search and seizure and used such information
to fabricate charges of Plaintiff‟s professional incompetence. Id. at 10-11. Plaintiff maintains
that Dr. Taylor reported these fabricated charges to Dr. Soule, who thereafter instructed Plaintiff
Plaintiff asserts that no due inquiry was made
he was no longer allowed to see patients. Id.
into the veracity of Dr. Taylor‟s allegations of professional incompetence before terminating
Plaintiff, resulting in a violation of Plaintiff‟s Fifth Amendment due process rights.1 Id. at 10.
On July 31, 2014, Plaintiff filed his Original Complaint against Robert A. McDonald
(“McDonald”), Secretary of Veterans Affairs, alleging violations of Title VII of the Civil Rights
Act of 1964 and 42 U.S.C. § 1981 (Dkt. #1). On November 11, 2014, Plaintiff filed an Amended
Complaint adding Defendants and alleging the Bivens claims (Dkt. #7). All claims against
McDonald were dismissed by the Court with prejudice on March 3, 2015 (Dkt. #27). On May
18, 2015, Defendants filed a Motion to Dismiss for Lack of Jurisdiction and for Failure to State a
Claim (Dkt. #32). On June 15, 2015, Plaintiff filed his Response (Dkt. #35), and on June 25,
2015, Defendants filed a Reply (Dkt. #36).
The Magistrate Judge entered a report and
recommendation on October, 9, 2015, recommending dismissal of each of Plaintiff‟s remaining
claims (Dkt. #38), and Plaintiff timely filed objections on October 23, 2015 (Dkt. #39). Plaintiff
asserts two objections: (1) the Magistrate Judge improperly found Plaintiff‟s claims time-barred;
The Magistrate Judge correctly found, and Plaintiff does not dispute, that the Due Process Clause of the Fourteenth
Amendment applies only as against states (Dkt. #38 at 7). See U.S. Const. amend. XIV, § 1. Both Defendants
herein are individual, federal employees; accordingly, the Fourteenth Amendment is not applicable to Plaintiff‟s
claims and the Court will address only Plaintiff‟s Fourth and Fifth Amendment Bivens arguments. Id.
and, (2) the Magistrate Judge improperly failed to address Defendants‟ qualified immunity
argument (Dkt. #39 at 2).
Objection 1 – Plaintiff’s Bivens Claims are Barred by the Applicable Statute of Limitations
Plaintiff objects to the Magistrate Judge‟s finding that Plaintiff‟s Bivens claims are barred
by limitations (Dkt. #39 at 2). Specifically, Plaintiff asserts that since his injuries occurred in the
context of an employment contract and/or arise from contract, the applicable statute of
limitations is six (6) years, not the two (2) year limitations period applicable to a personal injury
action. Id. at 3. Plaintiff attests that Defendants‟ “injurious actions” resulted in damages
“including but not limited to those monetary in nature” and “which were owed to [Plaintiff]
based on contractual rights he had with the [VA].” Id. (emphasis in original). Plaintiff further
contends that this contractual right conferred on him certain property rights, which were then
taken away from him in violation of the due process clause of the Fifth Amendment – hence
giving rise to the instant Bivens claims.
While Plaintiff agrees that Alabama law is
applicable here, Plaintiff alleges that the Magistrate Judge failed to give due consideration to the
“essential nature” of his Bivens claims for statute of limitations purposes.2 Id. at 4.
The Magistrate Judge found that Plaintiff‟s Bivens claims are subject to Alabama‟s twoyear personal injury statute of limitations and are time-barred (Dkt. #38 at 12). The statute of
limitations for a Bivens action is the same as the statute of limitations in a personal injury action
in the state in which the claim accrues. Spotts v. U.S., 613 F.3d 559, 573 (5th Cir. 2010).
Furthermore, “[a] claim to monetary damages under Bivens accrues „when the plaintiff knows or
has reason to know of the injury which is the basis of the action.‟” Garcia v. U.S., No. EP-112
The Magistrate Judge correctly noted, and Plaintiff does not dispute, that even if Plaintiff‟s injuries took place in
Texas, the relevant limitations period would still be two (2) years, and thus the outcome remains the same (Dkt. #38
at 11 n.3).
MC-87-KC, 2013 WL 3166599, at *4 (W.D. Tex. June 20, 2013) (quoting Adrian v. Selbe, 364
F. App‟x 934, 937 (5th Cir. 2010)).
The Magistrate Judge found that Plaintiff filed his
Complaint on July 31, 2014 (Dkt. #1), but undisputedly knew or had reason to know of his injury
in February 2012, the date he received the termination letter (Dkt. #38 at 12).3 The Magistrate
Judge, after applying the two year statute of limitations, determined that Plaintiff‟s Bivens claims
are time-barred. Id. The Magistrate Judge declined to apply Alabama‟s six-year statute of
limitations (Dkt. #38 at 13). Specifically, the Magistrate Judge noted, after careful review of
Plaintiff‟s Amended Complaint, that Plaintiff‟s Bivens claims are the result of constitutional
violations (not breaches of contract), and that such claims are only cognizable if Plaintiff alleges
a violation of a constitutional right. Id.; see also Cent. Claims Serv., Inc. v. Comput. Sci. Corp.,
706 F. Supp. 463, 467-68 (E.D. La. 1989). Consequently, the Magistrate Judge found Plaintiff‟s
Bivens claims time-barred (Dkt. #38 at 12). For the following reasons, the Court agrees.
Plaintiff correctly asserts that the statute of limitations for a Bivens action is the same as
the statute of limitations for a cause of action brought under § 1983 (Dkt. #39 at 2). See Kelly v.
Serna, 87 F.3d 1235, 1238 (11th Cir. 1996). Plaintiff also correctly asserts that claims brought
under § 1983 are characterized as personal injury actions for statute of limitations purposes (Dkt.
#39 at 2). See Owens v. Okure, 488 U.S. 235, 240-42 (1989). However, Plaintiff mistakenly
contends that because his claims are purportedly contractual in nature and/or arise from a
contract a six-year limitations period should be applied rather than a two-year limitations period
(Dkt. #39 at 3). In support of this mistaken allegation, Plaintiff cites the Eleventh Circuit
opinion in Jones v. Preuit & Maudlin and argues that the “essential nature” of his claim is
analogous to a breach of contract claim. Id. at 4 (citing Jones v. Preuit & Maudlin, 763 F.2d
The Magistrate Judge correctly states, and Plaintiff does not dispute, that Plaintiff knew his injury began to accrue
on the date he received the termination letter, which is February 27, 2012 (Dkt. # 7 at 19).
1250 (11th Cir. 1985)). The Court first notes that while Jones discusses the applicable statute of
limitations for § 1983 claims, the United States Supreme Court has since explicitly rejected the
practice advocated in Jones of selecting the state statue of limitations „most analogous‟ or „most
appropriate‟ to a particular § 1983 claim. Topping v. U.S. Dept. of Educ., 510 F. App‟x. 816,
818-19 (11th Cir. 2013) (citing Owens, 488 U.S. at 248-50); see also Kendrick v. Jefferson
County Bd. Of Educ., 932 F.2d 910, 913 (11th Cir. 1991). Since Owens, the Eleventh Circuit has
consistently held that the „essential nature‟ of the § 1983 claim is no longer pertinent to the
statute of limitations question; rather, “[i]n Owens, the Supreme Court rejected the [Jones]
approach to the selection of the proper statute of limitations for section 1983 suits and held that
the proper statute of limitations for section 1983 actions is the forum state‟s general or residual
statute of limitations for personal injury actions.” Lufkin v. McCallum, 956 F.2d 1104, 1105
(11th Cir. 1992) (citing Owens, 488 U.S. at 249-50); see also Kendrick, 932 F.2d at 913 (“In
1989, the Supreme Court‟s decision in [Owens], established a two-year statute of limitations
period in Alabama for section 1983 actions.”). Eleventh Circuit opinions subsequent to Jones
have clearly held that the statute of limitations for a § 1983 cause of action is the two-year
personal injury limitations period, and as such, the Court does not find Jones persuasive
authority.4 See e.g., id.; see also McNair v. Allen, 515 F.3d 1168, 1173 (11th Cir. 2008)
Current Alabama case law clearly establishes “that a Bivens action is governed by the
same statute of limitations as would a § 1983 action” and, thus, Plaintiff‟s Bivens claims have a
two-year personal injury limitations period. Kelly, 87 F.3d at 1238. Plaintiff knew or should
have known of his injury in February 2012 (Dkt. #38 at 12), but filed his Original Complaint on
July 31, 2014 (Dkt. #1), months after the two-year limitations period expired. Accordingly,
Even if the Court were to apply the “most analogous claim” test, as Plaintiff advocates for under Jones, Plaintiff‟s
claims would remain barred because they are not, as Plaintiff advocates, a result of a breach of contract but are
constitutional violation claims (see Dkt. 11).
Plaintiff‟s Bivens claims, as governed by Alabama‟s two-year statute of limitations, are timebarred and Plaintiff‟s first objection is overruled.
Objection 2 – Failure to Address the Issue of Qualified Immunity
Plaintiff next objects to the Magistrate Judge‟s finding that the qualified immunity issue
need not be addressed (Dkt. #39 at 4). The Magistrate Judge found that “[b]ecause the Court has
concluded that Plaintiff‟s Bivens claims should be dismissed because they are barred by
limitations, the Court need not address herein whether Defendants are entitled to qualified
immunity on those claims” (Dkt. #38 at 15). The Court agrees. The qualified immunity issue is
not reached because Plaintiff‟s Bivens claims are time-barred. Plaintiff‟s second objection is
Having received the report of the United States Magistrate Judge (Dkt. #38), having
considered each of Plaintiff‟s timely filed objections (Dkt. #39), and having conducted a de novo
review, this Court is of the opinion that the findings and conclusions of the Magistrate Judge are
correct and adopts the Magistrate Judge‟s report (Dkt. #38) as the findings and conclusions of the
It is, therefore, ORDERED that Defendants Drs. Mark Taylor and Arthur Soule‟s
Motion to Dismiss for Lack of Jurisdiction and for Failure to State a Claim (Dkt. #32) is
GRANTED, and Plaintiff‟s case is DISMISSED with prejudice as barred by statute of
All relief not previously granted is DENIED. The Clerk is directed to CLOSE this civil
IT IS SO ORDERED.
SIGNED this 29th day of October, 2015.
AMOS L. MAZZANT
UNITED STATES DISTRICT JUDGE
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