18

‐ 2152

‐ cv

Carpenter v. Shulman

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT

. C ITATION TO A

SUMMARY ORDER FILED ON OR AFTER J ANUARY 1, 2007 IS PERMITTED AND IS GOVERNED BY

F EDERAL R ULE OF A PPELLATE P ROCEDURE 32.1 AND THIS COURT ʹ S L OCAL R ULE 32.1.1.

W HEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT

, A PARTY MUST

CITE EITHER THE F EDERAL A PPENDIX OR AN ELECTRONIC DATABASE ( WITH THE NOTATION

ʺ SUMMARY ORDER ʺ ). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON

ANY PARTY NOT REPRESENTED BY COUNSEL

.

At a stated term of the United States Court of Appeals for the Second

Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in

the City of New York, on the 30 th day of October, two thousand nineteen.

PRESENT: JON O. NEWMAN,

DENNY CHIN,

JOSEPH F. BIANCO,

Circuit Judges

.

‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ x

DANIEL CARPENTER and

GRIST MILL CAPITAL, LLC,

Plainti ff

s

‐ Appellants,

v. 18

‐ 2152

‐ cv

DOUGLAS SHULMAN, COMMISSIONER, INTERNAL

REVENUE SERVICE, STEVEN MILLER, COMMISSIONER,

INTERNAL REVENUE SERVICE, SHAUN SCHRADER,

CRIMINAL INVESTIGATION DIVISION, INTERNAL

REVENUE SERVICE, VICTOR SONG, CHIEF

INVESTIGATIONS DIVISION, INTERNAL REVENUE

SERVICE, JOHN KOSKINEN, COMMISSIONER, INTERNAL

REVENUE SERVICE, UNKNOWN IRS AGENTS, 72,

CRIMINAL INVESTIGATION DIVISION, KATHY

ENSTROM,‐ 2

‐ Defendants

‐ Appellees,

LANNY BREUER, JANE DOE, 1 TO 72, JOHN DOE, 1 TO 72,

Defendants.

‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ x

FOR DEFENDANTS

‐ APPELLEES: GRETCHEN M. WOLFINGER, Attorney

(Deborah K. Snyder, Attorney, on the brief ), for

Richard E. Zuckerman, Principal Deputy

Assistant Attorney General, Tax Division,

Department of Justice, Washington, D.C.

FOR PLAINTIFF

‐ APPELLANT JEFFERY P. NICHOLS (David Slossberg, on

DANIEL CARPENTER: the brief ), Hurwitz, Sagarin, Slossberg & Knuff,

LLC, Milford, Connecticut.

FOR PLAINTIFF

‐ APPELLANT JONATHAN EINHORN, New Haven,

Grist Mill Capital, LLC: Connecticut.

Appeal from the United States District Court for the District of

Connecticut (Underhill, J. ).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED

.

Plaintiffs

‐ appellants Daniel Carpenter and Grist Mill Capital, LLC ( ʺ Grist

Mill ʺ and, together, ʺ Plaintiffs ʺ ) appeal a partial judgment entered by the district court

on July 23, 2018, dismissing their claims against defendants

‐ appellants Supervisory

Special Agent Kathy Enstrom and Special Agent Shaun Schrader of the Internal

Revenue Service (the ʺ IRS ʺ ). Plaintiffs sued Schrader, Enstrom, and numerous other

named and unnamed IRS agents and officials pursuant to Bivens v. Six Unknown Named

Agents of the Fed. Bureau of Narcotics

, 403 U.S. 388 (1971), alleging the violation of their‐ 3

‐ rights in the execution of a search warrant by the IRS Criminal Investigation Division

on April 20, 2010, at offices located at 100 Grist Mill Road, Simsbury, Connecticut.

In a ruling from the bench issued November 14, 2017, the district court

granted Enstrom ʹ s motion to dismiss the claims against her on statute of limitations

grounds. In a written decision entered April 20, 2018, the district court granted

Schrader ʹ s motion for summary judgment dismissing the claims against him for lack of

personal involvement and based on qualified immunity. In an order entered June 22,

2018, the district court granted Plaintiffs ʹ motion, pursuant to Fed. R. Civ. P. 54(b) for

entry of partial judgment, dismissing all claims against Enstrom and Schrader. We

assume the parties ʹ familiarity with the underlying facts, procedural history, and issues

on appeal.

We review the granting of a Rule 12(b)(6) motion to dismiss de novo. See

O ʹ Donnell v. AXA Equitable Life Ins. Co., 887 F.3d 124, 128 (2d Cir. 2018). We review the

granting of a motion for summary judgment de novo

. See Mitchell v. City of New York,

841 F.3d 72, 77 (2d Cir. 2016). For substantially the reasons set forth by the district court

in its decisions, we agree that the claims against Enstrom were time

‐ barred and that

Schrader was entitled to summary judgment. We add only the following.

1. Enstrom

Plaintiffs commenced this action on April 19, 2013, against Schrader and

ʺ 72 Unknown IRS agents, ʺ alleging the use of excessive force in the execution of the‐ 4

‐ search. The complaint did not allege a theory of supervisory liability against any of the

John Does, 1 nor was Enstrom named in the complaint at all. On June 2, 2017, Plaintiffs

filed a Third Amended Complaint, naming Enstrom as a defendant for the first time,

claiming that she violated their rights in her supervision of the search.

As the search took place on April 20, 2010, the parties agree that the

Third Amended Complaint was filed after the statute of limitations had run on the

claims against Enstrom, 2 and that therefore Plaintiffs had to demonstrate that the claims

against Enstrom related back to the original complaint under Fed. R. Civ. P. 15(c).

Under Rule 15(c)(1)(C), an amendment to a pleading relates back to the

date of the original pleading when

the amendment changes the party or the naming of the party

against whom a claim is asserted, if Rule 15(c)(1)(B) is

satisfied, and if, within the period provided by Rule 4(m) for

serving the summons and complaint, the party to be brought

in by amendment:

(i) received such notice of the action that it will not be

prejudiced in defending on the merits; and

(ii) knew or should have known that the action would have

been brought against it, but for a mistake concerning the

proper party ʹ s identity.

1 The only supervisory claims were failure

‐ to

‐ train claims against high

‐ level

agency officials.

2 For Bivens claims, federal courts generally borrow the statute of limitations that

applies to actions for personal injury in the state in which the incident occurred. See

Chin v. Bowen

, 833 F.2d 21, 23 (2d Cir. 1987). Here, the incident occurred in Connecticut,

where the statute of limitations for personal injury claims is three years. See Conn. Gen.

Stat. § 52

‐ 577.‐ 5

‐ Fed. R. Civ. P. 15(c)(1)(C).

As the district court held, the claims did not relate back to the original

complaint under Rule 15(c)(1)(C) because: (1) there was no mistake regarding Enstrom ʹ s

identity; (2) Plaintiffs did not establish that Enstrom received sufficient notice within

120 days of the filing of the original complaint such that she would not be prejudiced in

defending on the merits, see Barrow v. Wethersfield Police Dep ʹ t

, 66 F.3d 466, 468

‐ 69 (2d

Cir. 1995); and (3) Enstrom did not have constructive notice of the action, as there was

no indication in the original complaint that any of the John Does was being sued in his

(or her) supervisory capacity

‐‐ the only capacity in which Enstrom was sued.

Moreover, the record is clear that Plaintiffs were aware of Enstrom ʹ s name, title, and

role on the day of the search and that they could have easily named her within the 120

‐

day period. Thus, the claims again Enstrom were correctly dismissed as time

‐ barred.

2. Schrader

Plaintiffs contend that excessive force was used in the execution of the

search warrant as ʺ 57 armed agents raided a publicly

‐ open office building on a Tuesday

morning, ʺ ʺ descending in force

. . . and terrifying the office workers there, ʺ and

spending ʺ the next 13 hours filling 322 boxes with paper documents and taking

complete electronic mirror images of 11 servers/computers, a thumb drive and an

external hard drive. ʺ Pls.

‐ Appellants ʹ Br. at 2. We agree with the district court that

even if Schrader had engaged in the conduct alleged by Plaintiffs, the claims against‐ 6

‐ him are barred by the doctrine of qualified immunity because the alleged conduct did

not violate clearly established constitutional rights.

The doctrine of qualified immunity provides that federal and state

officials cannot be liable for money damages unless a plaintiff establishes that (1) ʺ the

official violated a statutory or constitutional right, and (2) the right was ʹ clearly

established ʹ at the time of the challenged conduct. ʺ Ashcroft v. al

‐ Kidd

, 563 U.S. 731, 735

(2011) (citing Harlow v. Fitzgerald

, 457 U.S. 800, 818 (1982)). Plaintiffs have not identified

any authority clearly establishing that the degree of force used here was excessive. See

Estate of Redd ex rel. Redd v. Love

, 848 F.3d 899, 910 (10th Cir. 2017) ( ʺ Nor has the Estate

offered any cases holding that law enforcement officers acted with excessive force by

virtue of the number of officers deployed to execute a search warrant and arrest

warrant. ʺ ).

Here, the offices were approximately 42,000 square feet in size and 30 to

40 employees were on the premises. Ten entities were identified in the search warrant.

The search took 13 hours to complete, even with 57 agents. Fewer officers, of course,

would have meant a longer disruption of the business. IRS policy required all officers

participating in the search to carry holstered semi

‐ automatic firearms and handcuffs. In

these circumstances, we are not persuaded that it was clearly established that the ʺ force ʺ

used here was unreasonable. Cf. Mountain Pure, LLC v. Roberts

, 814 F.3d 928, 933 (8th

Cir. 2016) (use of 35 agents, armed with handguns and wearing ballistic vests, to search‐ 7

‐ bottling plant and office totaling 100,000 square feet, was not unreasonable); Ruttenberg

v. Jones

, 283 F. App ʹ x 121, 135

‐ 36 (4th Cir. 2008) (per curiam) (allegations of more than 50

officers, including many heavily armed SWAT

‐ team members in full tactical gear, were

used to search billiards hall/bar were sufficient to survive motion to dismiss); Crosby v.

Paulk

, 187 F.3d 1339, 1352 (11th Cir. 1999) (reasonable for 40 officers to participate in

search of two adjoining nightclubs, when officers expected to encounter 500 to 700

customers).

* * *

We have considered Plaintiffs ʹ remaining arguments and conclude they

are without merit. Accordingly, the judgment of the district court is AFFIRMED

.

FOR THE COURT:

Catherine O ʹ Hagan Wolfe, Clerk