Petition for Writ of Certiorari — Woods v. Candela

Supreme Cort, us.

br j i i. D

No 98189 6 APR 6 1994

IN THE OFFICE OF THE CLERK

Supreme Court of the United States

October Term, 1993

DARRYL J. WOODS,

Petitioner,

against

JOSEPH CANDELA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SECOND CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

ROBERT N. ISSEKS

40 Park Place lL; Or

P. O. Box 247 S! Wainy

Goshen, NY {0924 COUP?

(914) 294-7292 .

ALEX SMITH

41 Dolson Avenue

P. O. Box 578

Middletowa, NY 10940

(914) 343-2101

Attorneys for Petitioner

THe Reporter Company, Inc. Walton, NY 1 3856—800-252-7181

Syracuse Office, University Building, Syracuse, NY | 3202—315-426- 1235

NYC Office—30 Vesey St, New York, NY 10007 —212-732.6978—2800-800-4264

(3895—1994)

Printed on Recycled Paper

Question Presented

In order to avoid being barred by the statute of limita-

tions, does an inmate have to file his civil rights claims,

while his state criminal proceedings are pending, when the

issues raised in his claims were fully litigated and decided

adversely by the criminal trial court in a pre-trial suppres-

sion hearing and the inmate would therefore have been

collaterally estopped from litigating his civil rights claims

until after his conviction was reversed on appeal?

The Court of Appeals for the Second Circuit answered

this question in the affirmative, holding that, in order to

avoid the running of the statute of limitations, petitioner was

required to commence his civil rights action while his crimi-

nal appeal was pending. This is in direct conflict with the

Seventh Circuit’s holding in Heck v Humphrey, 997 F.2d

355 (7th Cir. 1993), which held that the proper procedure is

to permit the inmate plaintiff to exhaust his state criminal

remedies and, if successful on his appeal from the judgment

of conviction, allow him to file his civil rights claims under

the federal doctrine of equitable tolling of the statute of

limitations.

This Court granted certiorari in Heck v Humphrey, ——

US . Since the Second Circuit has rendered a decision

directly contrary to the ruling by the Seventh Circuit on an

identical issue, petitioner respectfully submits that the in-

stant petition should be granted and that this case be consol-

idated for argument with Heck.

Table of Contents

Page

Question Presented. ........: eee ee rere cere ee eeees i

Table of Authorities........ccccccccvcecssecscess iii

Opinions Delivered in this Case........-0.+eeeeees l

JurieGheeeh occ ccc cckevnvessonesseeuucstsuwsetes 2

Statement of the Case ........ccccccccevscrvscees 2

Reasons for Granting Writ .......-0eeeee eee enes 4

Comchaslee 2c cccsccccvecccencsesesesssdeanennes 10

Appendix A: Opinion of the Circuit Court.......... 1A

Appendix B: Opinion of the District Court ......... 10A

ili.

TABLE OF AUTHORITIES

Page

CASES:

Board of Regents v Tomanio, 446 US 488 (1980).... 4

Central States, Southeast & Southwest Areas Pension

Fund v Slotky, 956 F.2d 1369, 1376 (7th Cir.

hn RETRIAL Gi yo Me a rc Se eC 9

Heck v Humphrey, 997 F.2d 357 (7th Cir. 1993)... 9, 10

Mack v Varelas, 835 F.2d 995 (2nd Cir. 1987)....... 4

Triplett v Azordegan, 478 F.Supp. 872 (ND Iowa

0 SS re Tre 5, 6, 8, 9

No.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1993.

e

DARRYL J. Woops,

Petitioner,

against

JOSEPH CANDELA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

PETITION FOR WRIT OF CERTIORARI

Opinions Delivered in this Case

Woods v Candela, 825 F.Supp. 43 (S.D.N.Y. 1993)

Woods v Candela, 13 F.3d 574 (1994)

2

Jurisdiction

The jurisdiction of the Supreme Court is invoked under

28 U.S.C. 1254.

Statement of the Case

On September 25, 1989, while on patrol in the City of

Newburgh, New York, respondent, a New York state

trooper, stopped petitioner’s vehicle. A vehicle with a simi-

lar description had been seen near the scene of two recent

robberies and a recent larceny. Other than tinted windows,

there was nothing wrong with petitioner’s vehicle and re-

spondent had no reason to believe that either petitioner or

his passenger had committed or were about to commit a

crime.

Respondent asked petitioner if there were any weapons in

the vehicle and petitioner replied that he had a nightstick

under the seat. Respondent searched the vehicle and found

several items that matched the description of articles used in

the robberies, an air rifle, a green cap, and a black cloth with

two holes cut in it. Respondent arrested petitioner and

shortly thereafter the items seized were offered to an Or-

ange County Grand Jury and an indictment was handed up

charging petitioner with the crimes of robbery in the first

degree and criminal possession of a weapon in the fourth

degree.

Petitioner filed an omnibus motion which sought an order

suppressing the physical evidence found in petitioner’s ve-

hicle as well as petitioner’s statements made to the police.

The Orange County Court held a hearing on the motion and

3

determined that petitioner’s constitutional rights had not

been violated and denied suppression. The items and peti-

tioner’s statement were subsequently received in evidence

at petitioner’s jury trial and petitioner was found guilty as

charged. On November 15, 1990, petitioner was sentenced

to an indeterminate term of imprisonment of 12!/2 to 25

years.

Petitioner appealed from the judgment of his conviction

to the Supreme Court of the State of New York, Appellate

Division, Second Department, and on January 19, 1993, the

court reversed the judgment of conviction and dismissed the

indictment. The Appellate Division found that respondent

did not have reasonable suspicion that the occupants of

petitioner’s vehicle were involved in criminal activity, that

the intrusiveness of respondent’s conduct exceeded that

which is permissible during a normal traffic stop, that re-

spondent had no justification for detaining petitioner to

question him about matters unrelated to the traffic violation,

and that the People failed to meet their burden of proving

the voluntariness of petitioner’s statement and purported

oral consent to the search of the vehicle.

In his complaint against respondent filed in the District

Court on May 6, 1993, petitioner claimed, inter alia, that

respondent violated his Fourth Amendment right to be free

from unreasonable searches and seizures without probable

cause and his Fifth Amendment right to remain silent. Re-

spondent moved to dismiss the claims pursuant to F.R.C.P.

Rule 12(b)(6) on the ground that they were untimely and

barred by the three-year statute of limitations. In opposition

to the motion, petitioner argued that although the police

conduct which gave rise to the Fourth and Fifth Amendment

violations occurred in September, 1989, his civil rights

4

claims should not be barred since the criminal court’s denial

of suppression was not reversed until January, 1993. The

District Court granted respondent’s motion in an opinion

dated June 25, 1993, which cited as controlling the Court of

Appeals for the Second Circuit’s decision in Mack v Varelas,

835 F.2d 995 (2nd Cir. 1987). By Decision dated January 6,

1994, the Court of Appeals affirmed.

REASONS FOR GRANTING WRIT

Petitioner’s Fourth and Fifth Amendment Claims are

not Barred by the Statute of Limitations

In both the District Court and the Court of Appeals,

petitioner argued that the application of the three-year stat-

ute of limitations from the date of respondent’s illegal

search and seizure would frustrate the policies underlying

42 U.S.C. 1983. Petitioner argued that the statute should be

tolled to further the two principle policies of deterrence and

compensation. See Board of Regents v Tomanio, 446 US 488

(1980). In rejecting this argument the Second Circuit held

that ‘“‘neither deterrence nor compensation is ‘significantly

affected by this rule of limitations since plaintiffs can still

readily enforce their claims, thereby recovering compensa-

tion and fostering deterrence, simply by commencing their

actions within three years.’ ’’ Woods, 13 F.3rd at 577, quot-

ing Board of Regents, supra.

Although it is well settled that under federal law a cause

of action accrues when the plaintiff obtains knowledge of

the facts of his claims, a difficulty arises when, as in the

instant case, a court of competent jurisdiction conducts a

full hearing upon the identical issues raised in the civil

5

rights claims and determines that no constitutional viola-

tions ever occurred. The opinion in Triplett v Azordegan,

478 F.Supp. 872 (ND Iowa 1977) dealt directly with this

problem. The plaintiff Triplett alleged that he was deprived

of his constitutional rights by virtue of his being drugged

before confessing to a 1954 murder. Triplett was convicted

and served 17 years in prison. In 1972 the state district court

ordered that Triplett be released on the ground that his

confession was involuntary and that all the charges be dis-

missed. Only then, the federal district court noted, “was

there a determination that Triplett’s rights had been vio-

lated”’, and it was not until this point in time that Triplett’s

action “ripened.”’ Triplett, 478 F.Supp. at 875.

In Triplett, as in the case at bar, the defendant argued that

the plaintiff knew all the operative facts [of his civil rights

claim] in 1955 and should have sued then. In rejecting this

argument the Triplett court stated, ‘It is almost too evident

to warrant comment that petitioner, having been convicted

of murder by virtue of a confession which in 1955 was

deemed legal and admissible, could not have, at that time,

pursued a Section 1983 claim.” 478 F.Supp. at 875. This is

because, the Triplett court pointed out, the prior criminal

proceeding would work an estoppel in the subsequent civil

proceeding, “‘so long as the question involved was ‘dis-

tinctly put in issue and directly determined’ in the criminal

action.”’ Id.

Petitioner’s situation is identical. In Triplett, the state

district court found that the conviction was based upon the

involuntary confession. 478 F.Supp. at 875. In the case at

bar, the conviction was ultimately found to have been based

upon unconstitutionally obtained evidence and statement. In

Triplett, the federal district court found that “‘the issue of

6

voluntariness was sufficiently raised at the original trial to

warrant estoppel until the court reversed the conviction in

1972.” In the case at bar, the Fourth and Fifth Amendment

issues were sufficiently raised in petitioner’s omnibus mo-

tion and pre-trial suppression hearing to warrant estoppel!

until the Appellate Division reversed the conviction in

1993.

Petitioner submitted to the courts below that when collat-

eral estoppel comes into play, the Triplett court’s observa-

tion is the correct one:

To hold that a petitioner needed to ignore the crimi-

nal proceedings and immediately sue under Section

1983 would mean that petitioner would have had to

pursue a technically possible, but at the time frivo-

lous suit. To so argue is to read Kafka into law.

478 F.Supp. at 875.

The Triplett decision suggests that two of the three princi-

ple policies embodied in 42 U.S.C. 1983—deterrence and

compensation—would be frustrated if the statute of limita-

tions was not judicially tolled in these situations. Contrary

to the conclusion reached by the courts below, petitioner

submits that on the instant record both deterrence and com-

pensation are “significantly affected” by not tolling the

statute of limitations. Although incarcerated plaintiffs may,

in theory, be able to enforce their claims by commencing

their actions within three years from the accrual date, the

practicalities are such that these inmates, who will have no

one to commence their actions for them and who will be left

to file their claims by themselves, will either not know that

7

they should file them or will be deterred from doing so by

the exigencies of their criminal proceedings.

The Second Circuit imposes a fictitious legal sophistica-

tion upon the inmate. The inmate in many instances will be

represented by an assigned attorney during both his trial and

appellate criminal proceedings. His assigned attorney will

have had experience primarily in defending the charges and/

or seeking a reversal of the conviction. For the most part,

the attorney will not be familiar with the various holdings

on statutes of limitation in civil rights actions, since the de

facto practice in the field of criminal defense does not

include advising a client about his potential civil causes of

action. A criminal defense attorney, particularly one who is

assigned and, more particularly still, an assigned attorney

working in a large legal aid office who has virtually no civil

experience, is simply not expected to advise a defendant to

commence an action predicated upon a violation of his civil

rights while the criminal action is pending.

But even if the criminal defense attorney is familiar with

the statute of limitations issues, he may be reluctant to

advise his client, who is then awaiting trial and/or possible

sentencing, to file a complaint, which more than likely

would be pro se, as this might very well compromise his

client’s Fifth Amendment right to remain silent. Perhaps

this would not be a problem if the plaintiff (criminal defend-

ant) was being represented by a retained attorney who was

prepared to assist his client in the drafting of his complaint.

But most of the time the plaintiff (criminal defendant)

would be left to his own resources, setting forth in writing

allegations pertaining to his criminal proceedings that may

prejudice him down the road. This would most certainly

occur when, as in the case at bar, one of the civil rights

8

claims arises out of a violation of the plaintiff’s (criminal

defendant’s) rights under the Fifth Amendment and he is

testifying before his criminal jury about the manner in

which the police obtained his statement(s). The prosecutor

surely would confront the plaintiff (criminal defendant)

with whatever the plaintiff may have written in his pro se

complaint filed in the District Court, thereby bringing to the

jury’s attention the fact that he, the defendant on the stand,

is seeking money damages from the police officer who had

testified against him earlier in the same trial. Such a sce-

nario forces an untenable choice upon the criminal

defendant. !

The Triplett court was correct to recognize that the pur-

suit of “‘a technically possible, but at the time frivolous

suit” is an untenable requirement to foist upon an inmate

who is in the process of litigating state criminal charges

against him. Triplett, 478 F.Supp. at 875. The Second Cir-

cuit requires such a pursuit and places the incarcerated

'This concern is not ameliorated by the fact that most criminal trial

proceedings are completed in less than three years from the date of the

constitutional violation. The right to remain silent is still compromised

during the appellate stage, since a retrial may be ordered (perhaps on

unrelated grounds) therefor placing the plaintiff (criminal defendant) in

the same predicament he would have been in if he had filed his pro se

complaint before trial. What is more, as the District Court here points

out:

The current backlog in the New York Appellate Divisions,

most notable in the Second Department, exacerbates this prob-

lem as it occurs in New York. Most state appellate decisions,

like the one in the present case, are not rendered until the

Statute of limitations period of 1983 actions has expired.

Woods, 825 F. Supp. at 48.

9

potential plaintiff in a situation which frustrates the policies

of deterrence and compensation of 42 U.S.C. 1983.

Without explicit reference to the Triplett decision, the

Seventh Circuit in Heck v Humphrey adopted the Triplett

court’s reasoning and resolved the problem in the same

manner:

If instead of being stayed, the civil rights suit is

dismissed, this sets the stage for confronting the

issue of staleness head-on at a time when all the facts

bearing on the issue will be known-—when the plain-

tiff, having finally exhausted his state remedies,

wishes to resume the civil rights case. When the

defendants plead the statute of limitations to a refiled

suit, the plaintiff can riposte with the doctrine of

equitable tolling—a defense to the defense of statute

of limitations. The doctrine is straightforward: ‘“‘a

person is not required to sue within the statutory

period if he cannot in the circumstances reasonably

be expected to do so.”

Heck, 997 F.2d at 357, quoting Central States, Southeast &

Southwest Areas Pension Fund v Slotky, 956 F.2d 1369,

1376 (7th Cir. 1992).

The Heck court recognized that its opinion directly con-

flicted with decisions from other circuits, including the

Second Circuit. Jd. at 357, 359. This Court granted cer-

tiorari in Heck, and petitioner respectfully requests that

certiorari be granted in his case as well because the resolu-

tion by this Court of the inter-circuit conflict will certainly

impact petitioner’s case.

10

Conclusion

For the foregoing reasons this petition for a writ of cer-

tiorari should be granted and consolidated with Heck v

Humphrey.

Dated: Goshen, New York

April 4, 1994

Respectfully submitted

ROBERT N. ISSEKS,

ALEX SMITH

By s/ROBERT N. ISSEKS

ROBERT N. ISSEKS (RNI 0241)

Attorney for Petitioner

40 Park Place

P.O. Box 247

Goshen, New York 10924

(914) 294-9255/7292

G. OLIVER KOPPELL

Attorney General of the State of New York

120 Broadway

New York, New York 10271

(212) 416-8622

1A

APPENDIX A—Opinion of the Circuit Court.

Darryl J. WOODS, Plaintiff-Appellant,

Joseph CANDELA, Defendant-Appellee.

No. 653, Docket 93-7664.

United States Court of Appeals,

Second Circuit.

Argued Dec. 2, 1993.

Decided Jan. 6, 1994.

Arrestee brought civil rights action against police officer

based on officer’s alleged violations of arrestee’s Fourth

and Fifth Amendment rights. The United States District

Court for the Southern District of New York, Gerald L.

Goettel, J., 825 F.Supp. 48, dismissed action, and arrestee

appealed. The Court of Appeals, Lumbard, Circuit Judge,

held that arrestee’s civil rights cause of action accrued when

he was arrested and not when New York appellate court

vacated his conviction.

Affirmed.

1. Limitation of Actions 95(1)

Generally, cause of action accrues when plaintiff kaows

or should know of injury that is basis of cause of action.

2A

2. Limitation of Actions 95(15).

Arrestee’s cause of action under civil rights statute based

upon police officer’s alleged violation of arrestee’s Fourth

and Fifth Amendment rights accrued on day of arrest; ar-

restee’s alleged injuries occurred and arrestee gained

knowledge of them when police officer conducted search,

arrest and questioning. 42 U.S.C.A. § 1983; U.S.C.A.

Const. Amends. 4, 5.

3. Limitation of Actions 58(1)

Arrestee’s civil rights cause of action based on constitu-

tional violations accrued on date of his arrest and not on

date that New York appellate court vacated his conviction;

New York trial court’s adverse ruling against arrestee did

not present obstacle to arrestee’s civil rights claim because,

had arrestee timely filed his action, it would have been

stayed by federal court while relevant state proceedings

were pending. 42 U.S.C.A. § 1983.

4. Federal Courts 427

New York’s tolling provisions governed tolling of New

York’s three-year statute of limitations which governed ar-

restee’s civil rights action, 42 U.S.C.A. § 1983;

N.Y.McKinney’s CPLR 214, subd. 5.

3A

5. Federal Courts 424

In determining application of state limitations period to

federal cause of action, considerations of state law may be

displaced where their application would be inconsistent

with federal policy underlying cause of action under

consideration.

6. Limitation of Actions 58(1)

Arrestee’s civil rights cause of action based on constitu-

tional violations would not be tolled to further goals of

deterrence and compensation. 42 U.S.C.A. § 1983.

Robert N. Isseks, Goshen, NY (Alex Smith, Goshen, NY,

of counsel), for plaintiff-appellant.

Frederic L. Lieberman, Asst. Atty. Gen. of the State of

New York, New York City (Robert Abrams, Atty. Gen. of

the State of New York, Albany, NY, of counsel), for defen-

dant-appellee.

Before: LUMBARD, KEARSE and JACOBS, Circuit

Judges.

LUMBARD, Circuit Judge:

Plaintiff-appellant Darryl J. Woods appeals from a judg-

ment of the District Court for the Southern District of New

York, Goettel, Judge, dismissing his complaint as barred by

the statute of limitations. 825 F.Supp. 43. On appeal, Woods

argues that the district court improperly (1) determined the

date his cause of action accrued and (2) failed to toll the

statute of limitations. We affirm.

We assume the facts to be as set forth in the complaint.

On September 25, 1989, defendant-appellee Joseph Can-

4A

dela, a New York State trooper, saw Woods driving a blue

vehicle with tinted windows on South William street in

Newburgh, New York. A vehicle with a similar description

had been seen near the scene of two recent robberies and a

recent larceny. Candela stopped Wood’s car and asked

Woods if he had any weapons in the car. Woods replied that

he kept a nightstick under the seat. Candela then searched

the vehicle, finding several items that matched the descrip-

tion of articles used in the robberies: an air rifle, a green

cap, and a black cloth with two holes cut in it. Candela

arrested Woods, searched him, handcuffed him, and advised

him of his Miranda rights.

Shortly after Wood’s arrest in 1989, the Orange County

Grand Jury indicted him for first degree robbery and crimi-

nal possession of a weapon. Woods filed an omnibus motion

seeking, inter alia, an order suppressing the evidence found

in the vehicle and the statements made to the police on the

day of his arrest. The county court denied these motions,

and the prosecution used the seized evidence at trial. A jury

found Woods guilty, and on November 15, 1990 the court

sentenced him to 12'/2 to 25 years imprisonment.

Woods appealed his conviction to the Appellate Division,

Second Department. On January 19, 1993 that court re-

versed the conviction and dismissed the indictment, holding

that the county court erred in denying Wood’s motion to

suppress. The Appellate Division found that Candela’s stop

of Wood’s car was justifiable because of Wood’s traffic

violation (driving with excessively tinted windows), but

that Candela did not have reasonable suspicion to detain and

question Woods.

On May 6, 1993, Woods commenced this action under

42 U.S.C. § 1983 against Candela in the District Court for

the Southern District of New York. Woods alleged that

Candela violated his Fourth Amendment rights to be free

SA

from unreasonable searches and arrests without probable

cause; his Fifth Amendment right to remain silent; and his

Fourteenth Amendment rights to due process, equal protec-

tion, and substantive due process. Candela moved to dismiss

on the grounds that: (1) the Fourth and Fifth Amendment

claims were barred by the applicable statute of limitations,

(2) the Fourteenth Amendment claims were barred by Can-

dela’s absolute immunity, and (3) the complaint failed to

state a cause of action for malicious prosecution. Woods

conceded the second and third points, and agreed to drop all

claims except for those based on Candela’s alleged violation

of his Fourth and Fifth Amendment rights. The district

court then dismissed those claims as barred by the statute of

limitations.

New York’s three year statute of limitations governs this

action. See Owens v. Okure, 488 U.S. 235, 251, 109 S.Ct.

573, 582, 102 L.Ed.2d 594 (1989); New York Civ. Prac.L. &

R. 214(5) (McKinney 1990). Since Woods commenced this

action on May 6, 1993, it is time barred unless (!) it accrued

after May 5, 1990, or (2) the statute of limitations was

tolled.

Accrual of the Cause of Action

[1, 2] Federal law governs the question of when this

claim accrued. Morse v. University of Vt., 973 F.2d 122, 125

(2d Cir.1992). Generally, a cause of action accrues when the

plaintiff knows or should know of the injury that is the basis

of the cause of action. Singleton v. City of New York, 632

F.2d 185, 191 (2d Cir.1980), cert. denied, 450 U.S. 920, 101

S.Ct. 1368, 67 L.Ed.2d 347 (1981). Woods’s alleged injuries

occurred, and Woods gained knowledge of them, when Can-

dela conducted the search, arrest and questioning; therefore,

the cause of action accrued on September 25, 1989. Day v.

6A

Morgenthau, 909 F.2d 75, 79 (2d Cir.1990) (opinion on

petition for rehearing).

[3] Woods argues that the cause of action did not accrue

until the state appellate court vacated his conviction. The

county court had previously found that Candela did not

violate Woods’s constitutional rights. Under the doctrine of

collateral estoppel, this ruling barred Woods from claiming

in another action that his rights had been violated. There-

fore, Woods argues, he ‘‘could first have successfully main-

tained a suit based on that cause of action’’ when the Appel-

late Division reversed his conviction on January 19, 1993,

and the cause of action accrued on that date. Santos v.

District Council, 619 F.2d 963, 968-69 (2d Cir.1980) (quot-

ing Bell v. Aerodex, Inc., 473 F.2d 869, 873 [Sth Cir. 1973])

(emphasis added).

Woods relies on Triplett v. Azordegan, 478 F.Supp. 872

(N.D. Iowa 1977), in support of his position. In that case,

the plaintiff, Triplett, was tried in state court for murder. At

trial, he argued that his confession was inadmissible be-

cause he was drugged when he confessed. The trial court

disagreed, and Triplett was convicted. He spent the next 17

years in prison until the state court ordered him released on

the ground that his confession was involuntary. Triplett then

brought a § 1983 action in federal court, alleging that his

constitutional rights had been violated.

The District Court for the Northern District of lowa held

that the plaintiff’s cause of action was not time barred

because it did not “ripen” until the state court overturned

the conviction. The court noted that the state trial court’s

decision would have a preclusive effect in a § 1983 action,

and the plaintiff was not required to “pursue a technically

possible, but at the time frivolous suit.’’ 478 F.Supp. at 875.

7A

Wood’s reliance on Triplett is misplaced, as that case is at

odds with the established law of this circuit, as expressed in

Mack vy. Varelas, 835 F.2d 995 (2d Cir. 1987). In that case,

the plaintiff, Mack, was tried for robbery in state court. At

trial, Mack asked the state to produce a witness who was

incarcerated. When the sheriff’s office failed to produce the

witness, the court refused a continuance, holding that

Mack’s request was untimely and the witness’s testimony

was unlikely to be helpful. Mack appealed his conviction to

the state appellate court, and also filed a § 1983 action in

federal court. The federal district court dismissed the

§ 1983 action, holding that it could not hear the case until

the state proceedings were complete.

On appeal, we agreed that the district could not adjudicate

the claim while the state proceedings were pending because

of their potential outcome-determinative effect. Jd. at 999.

However, we reversed because the district court should

have stayed, not dismissed, the action. We reasoned that

dismissal would have been appropriate if the claim had not

accrued; however, the claim accrued on the date of the

alleged violation of the plaintiff’s rights. Moreover, we

noted that the statute of limitation had begun to run, imply-

ing that if the dismissal were upheld, the statute of limita-

tions could have prevented Mack from re-commencing the

action after the criminal proceedings were complete.

Woods argues that Mack is not controlling. The question

of whether Mack’s rights were violated was not litigated in

the state trial court; therefore, when Mack initiated his

§ 1983 action, there was no state court decision that would

have collaterally estopped him from claiming a constitu-

tional violation. In contrast, until January 19, 1993, there

was an adverse state court decision that would have es-

topped Woods from asserting that his rights had been vio-

lated. Woods therefore submits that unlike Mack he should

8A

not have been required to commence his action until the

state appeal was decided. We disagree.

Woods’s fear of the preclusive effect of the state trial

court decision is unfounded. Mack requires federal courts to

stay rather than dismiss § 1983 actions while relevant state

proceedings are pending. Therefore, had Woods timely filed

his action, it would have been treated that same as Mack’s

action; neither could have been dismissed while the appeal

was pending, but both could have been dismissed later if the

State appellate court ultimately found that there was no

constitutional violation. Consequently, the adverse ruling in

the state court did not present an obstacle to Wood’s claim,

and does not provide a basis for departing from Mack.

We therefore held that the cause of action accrued on

September 25, 1989, and was time barred unless the statute

of limitations was tolled.

Tolling the Statute of Limitations

(4, 5] New York’s tolling provisions govern the tolling of

the statute of limitations. See Johnson v. Railway Express

Agency, Inc., 421 U.S. 454, 463-64, 95 S.Ct. 1716, 1721-22,

44 L.Ed2d 295 (1975). However, “‘consideration of state

law may be displaced where their application would be

inconsistent with the federal policy underlying the cause of

action under consideration.”” Jd. at 465, 95 S.Ct. at 1722.

Woods concedes that no New York tolling provision applies

here, but argues that application of the statute of limitations

would frustrate the policies underlying § 1983.

[6] The Supreme Court has identified deterrence and

compensation as two of the principal pclicies underlying

42 U.S.C. § 1983. Board of Regents v. Tomanio, 446 U.S.

478, 100 S.Ct. 1790, 64 L.Ed2d 440 (1980). Woods con-

tends that the cause of action should be tolled to further

9A

these goals. However, neither deterrence nor compensation

is “significantly affected by this rule of limitations since

plaintiffs can still readily enforce their claims, thereby re-

covering compensation and fostering deterrence, simply by

commencing their actions within three years.”’ Jd. The Mack

requirement that federal courts stay § 1983 actions until the

completion of state proceedings protects plaintiffs by allow-

ing them to commence their actions without fearing that the

lower state court decision will bar recovery; at the same

time, the requirement that plaintiffs file within three years

protects defendants by putting them on notice of the claim

and allowing them to preserve evidence for their defense.

Affirmed.

10A

APPENDIX B—Opinion of the District Court.

Darryl J. WOODS, Plaintiff,

v.

Joseph CANDELA, Defendant.

No. 93 Civ. 3051 (GLG).

United States District Court,

S.D. New York,

June 25, 1993.

After reversal of conviction, plaintiff brought § 1983

action for false arrest. Defendant moved to dismiss. The

District Court, Goettel, J., held that statute of limitations

barred claim.

Motion granted

1. Federal Courts 427

Accrual of § 1983 claims is matter of federal law.

42 U.S.C.A. § 1983.

2. Limitation of Actions 58(1)

Section 1983 action for false arrest accrued, and New

York’s three-year statute of limitations began to run, on date

of arrest, rather than reversal of conviction. 42 U.S.C.A.

§ 1983; U.S.C.A. Const.Amend. 4; N.Y. McKinney’s

CPLR 214, subd. 5.

11A

3. Federal Courts 427

Federal courts have power to toll statutes of limitations

borrowed from state law, but only where application of

statute of limitations would frustrate policy underlying fed-

eral cause of action.

4. Limitation of Actions 58(1)

Court lacked power to toll state statute of limitations in

order to allow § 1983 claim; neither deterrence nor compen-

sation was significantly affected by rule of limitation since

plaintiff could still readily enforce claims simply by com-

mencing action within three years. 42 U.S.C.A. § 1983.

5. Federal Courts 427

Federal court in § 1983 action recognizes any state provi-

sions for tolling limitations period. 42 U.S.C.A. § 1983.

6. Limitations of Actions 75

New York’s three-year statute of limitations appiicable to

§ 1983 action was not tolled during period of incarceration

until reversal of conviction. 42 U.S.C.A. § 1983;

N.Y.McKinney’s CPLR 214, subd. 5; N.Y.McKinney’s Civil

Rights Law § 79.

12A

Robert N. Isseks, Goshen, NY, for plaintiff.

Robert Abrams, Atty. Gen. of State of NY (by

Frederick Lieberman), for defendant.

OPINION

GOETTEL, District Judge.

I. STATEMENT OF FACTS

This is a motion to dismiss pursuant to Rule 12(b)(6) of

the Federal Rules of Civil Procedure. Defendant Joseph

Candela moves to dismiss this action, brought under

42 U.S.C. § 1983 by Plaintiff Darryl J. Woods on the

grounds that Plaintiff’s claims are untimely and barred by

the statute of limitations.

For the purposes of a motion to dismiss, the facts are

assured to be as set forth in the complaint.

On September 25, 1989, Defendant, who is a New York

State trooper, stopped Plaintitf’s vehicle because it matched

a general description of a vehicle that had been spotted at

the scene of several recent robberies. Defendant asked

Plaintiff if there were any weapons in the car and Plaintiff

replied that he had a nightstick under the driver’s seat.

Defendant testified during the subsequent criminal trial that

he asked if there were any other weapons in the car and

Plaintiff replied that there were none and offered to allow

Defendant to search the entire vehicle.

Defendant testified that Plaintiff agreed to allow him to

search the trunk and opened the trunk for him.

Defendant then looked again at the rear seat area, where

he observed an air rifle, a green cap and a black piece of

es i ee

13A

cloth with two holes. Defendant testified the Plaintiff

claimed ownership of the rifle. These articles matched a

description of articles used by a perpetrator of recent armed

robberies in the area.

De‘zndant advised Plaintiff that he was under arrest for

criminal possession of the nightstick. Plaintiff denied his

involvement in any robberies. At the police station, Plaintiff

signed a form consenting to the previous search of his

vehicle and to an additional search of the vehicle at the

police station. Plaintiff was issued summonses for driving

without a license and for having excessively tinted windows

in his vehicle.

The evidence seized by Defendant was presented at a

Grand Jury hearing in September or October of 1989 in

which the Grand Jury charged Plaintiff with the crimes of

robbery in the first degree and criminal possession of a

weapon in the fourth degree.

After Plaintiff’s arraignment, Plaintiff sought to suppress

the evidence found in Plaintiff's vehicle as well as Plain-

tiff’s statement to the police. The County Court denied

these motions.

Plaintiff was tried by a jury. During the trial, the evidence

seized from Plaintiff's vehicle by Defendant as well as

Plaintiff’s statements to the police were received in evi-

dence. Plaintiff was found guilty and sentenced on Novem-

ber 15, 1990 to 12! to 25 years imprisonment.

Plaintiff appealed and on January 19, 1993, the Appellate

Division, Second Department reversed, dismissing the in-

dictment against Plaintiff. 592 N.Y.S.2d 748. In its decision,

the Appellate Division found that Plaintiff's motion to sup-

press the evidence found in his vehicle should have been

granted. Although the stop was justifiable, the Appellate

Division found that the circumstance did not provide De-

fendant with reasonable suspicion to detain and question

14A

Plaintiff and, therefore, Defendant’s inquiry as to whether

Plaintiff had any weapons in the vehicle was impermissible.

Furthermore, they held that the items recovered during the

search should have been suppressed since a stop for a traffic

offense will not justify a search of the motorist or of the

vehicle unless there are reasonable grounds for believing the

motorist guilty of a crime or if the officer has a reasonable,

articulable basis to fear for his own safety. The Appellate

Division found that Defendant had no such reasonable sus-

picion nor did he express any basis to fear for his safety.

Plaintiff was incarcerated for a period of two years and

nine months.

On May 6, 1993, Plaintiff brought claims in federal court

under the Fourth, Fifth and Fourteenth Amendments for

false arrest and malicious prosecution. Upon Defendant’s

motion to dismiss. Plaintiff has dropped all claims except

for violations of his rights under the Fourth and Fifth

Amendments.

li. DISCUSSION

Defendant contends that Plaintiff’s claims are barred by

the governing statute of limitations. The statute of limita-

tions applicable to civil rights claims under 42 U.S.C.

§ 1983 is that provided by the forum state for general or

residual personal injury claims, Owens v. Okure, 488 U.S.

235, 251, 109 S.Ct. 578, 582, 102 L.E.2d 594 (1989). New

York Civil Practice Law and Rules states that such claims

are subject to a three year statute of limitations. New York

Civil Practice Law and Rules § 214(5).

In order to decide whether the statute of limitations has

run prior to the commencement of an action, the court must

determine when the cause of action accrued and whether the

running of the statute was subject to any toll.

ISA

A. Accrual of the Claim

{1, 2] Accrual with respect to claims brought pursuant to

§ 1983 is a matter of federal law. Morse y. University of

Vermont, 973 F.2d 122, 125 (2d Cir. 1992). The general rule

in the Second Circuit is that a cause of action accrues when

the plaintiff knows or has reason to know of the injury that

is the basis of his action. Singleton v. City of New York, 632

F.2d 185, 192 (2d Cir. 1980), cert. denied, 450 U.S. 920, 101

S.Ct. 1368, 67 L.Ed.2d 347 (1981). Defendant contends that

the claim accrued on September 25, 1989. He notes that all

his actions with respect to the alleged unreasonable search

and seizure, the alleged arrest without probable cause, and

the alleged denial of Plaintiff’s right to remain silent oc-

curred on that day. According to Defendant, Plaintiff’s con-

tinuing incarceration does not imply a continuing tort. ‘“‘The

continuing violation doctrine may not be based on the con-

tinuing effects of earlier unlawful conduct.”’ Day v. Mo-

scow, 769 F.Supp. 472 (S.D.N.Y. 1991). See also, Delaware

State College v. Ricks, 449 U.S. 260, 257-58, 101 S.Ct. 498,

503-04, 66 L.Ed.2 431 (1980). Plaintiff alleges no continu-

ing unlawful acts, only continual ill effects from the original

Fourth and Fifth Amendment violations which occurred on

September 25, 1989.

The Second Circuit dealt with a similar situation in Mack

v. Varelas, 836 F.2d 995 (2nd Cir. 1987). In that case,

Plaintiff Mack was not allowed to produce an incarcerated

witness for his defense, allegedly in violation of his Sixth

Amendment rights. Mack’s motion for a continuance was

denied and Mack was convicted of first and second degree

robbery. Mack’s appeal was pending when he filed his

§ 1983 claim. His claim was deemed to have accrued on the

date he was incarcerated allegedly in violation of his rights.

Applying this reasoning to the current case, Plaintiff’s

16A

action accrued on the date when his Fourth and Fifth

Amendment rights were allegedly violated, September 25,

1989, the date of his arrest. If this action accrued on Sep-

tember 25, 1989, the three year statute of limitations would

have run and Plaintiff’s claims would be untimely and

therefore barred.

A case more favorable to Plaintiff is Triplett v. Azor-

degan, 478 F.Supp. 872 (N.D. Iowa 1977). In that case,

Plaintiff Triplett had been convicted for murder in 1954 and

served 17 years in jail before a judicial determination that

Plaintiff was drugged when he made the confession upon

which the conviction had been based—an issue raised both

at trial and in post-trial motions. Upon his release in 1972,

Plaintiff brought a § 1983 suit which the defendants sought

to dismiss as time-barred. In that case, as in this one, the

movant claimed that plaintiff knew all the operative facts at

the time of the original incident and should have sued then.

Id. at 874. The Triplett court, however, rejected that reason-

ing, noting that:

In a § 1983 action it is necessary to first define the

constitutional wrong on which the claim is based.

Here the Plymouth County District Court did just

that in October of 1972.

Id. at 875.

Despite the Triplett court’s reasoning, the Second Cir-

cuit’s analysis of the accrual of the claim in Mack, fore-

closes the similar argument in this case that the claim ac-

crued on the date of the Appellate Division’s :eversal.

17A

B. Preclusion of Plaintiff's § 1983 Claim Due to the First

Criminal Conviction and its Effect on the Running of

the Statue of Limitations

At the initial criminal trial, when the county court denied

Plaintiff’s motion to suppress the evidence from the search

at trial as a violation of his Fourth and Fifth Amendment

Rights, Plaintiff no longer had any legal ground on which to

bring his § 1983 claim based on the alleged Fourth and Fifth

Amendment violations. “There is no question that state

court judgments can have collateral estoppel effect in subse-

quent section 1983 proceedings.’’ Anderson v. City of New

York, 611 F.Supp. 481, 486 (S.D.N.Y. 1985) (citing Migra v.

Warren City School District Board, 465 U.S. 75, 104 S.Ct.

892, 79 L.Ed.2d 56 [1984]). See also, Liner v. Ward, 754

F.Supp. 32 (S.D.N.Y. 1991). ‘‘The standard for determining

if litigation of a question in a civil suit is barred by a prior

criminal trial is whether the question was ‘distinctly put in

issue and directly determined’ in the criminal prosecution.”

Kauffman v. Moss, 420 F.2d 1270, 1274 (3d Cir. 1970); See

also, McNally v. Pulitzer Publishing Co., 582 F.2d 69, 76

(8th Cir. 1976). “In the case of a criminal conviction based

on a jury verdict of guilty, issues which were essential to the

verdict must be regarded as having been determined by the

judgment” Emich Motors Corp. v. General Motors Corp.,

340 U.S. 558, 569, 71 S.Ct. 408, 414, 95 L.Ed. 584; Kauff-

man, 420 F.2d at 1274. In the present case, Plaintiff raised

the issue that the police action was improper in a motion to

suppress. The motion was denied. The seized evidence must

be considered essential to the verdict as it was the basis for

the entire case against Plaintiff. A § 1983 claim based on the

issue of suppression of the disputed evidence would have

been governed by claim preclusion and, for all practical

18A

purposes, foreclosed by Plaintiff’s criminal conviction

pending the outcome of the appeal.

While the Second Circuit held in Mack v. Varelas that

Plaintiff needed to bring his § 1983 claim within the statute

of limitations period accruing from the original constitu-

tional violation, they noted that final disposition of the

claim would have to wait until the conclusion of state court

proceedings. “‘Our determination that the adjudication

should not proceed until the state court criminal proceed-

ings have been concluded is based on the prudential consid-

eration that those proceedings may suffice to establish that

Mack’s incarceration does not constitute injury.’” Mack, 835

F.2d at 999. They concluded that “‘the action should be

stayed, rather than dismissed, pending termination of the

state court criminal proceedings against Mack.” /d. at

1000.' This was true even though the issue on appeal in

Mack was not identical to the issue underlying the § 1983

claim. The Mack court commented: “‘Nor would an affirm-

ance of Mack’s conviction necessarily negate the basis for

his claim for damages, for. . . it is likely that the state

appellate court will not reach the question of the propriety

of the action or inaction by the sheriffs.”’ Jd. at 998.

In the present case, the issues on appeal in the Appellate

Division were identical to the issues which underlie Plain-

tiff’s § 1983 claim. The resolution of the criminal proceed-

ings would certainly provide an answer as to whether or not

Plaintiff’s Fourth and/or Fifth Amendment rights had been

violated. If the county court’s determination of the propriety

of the police action were allowed to stand, Plaintiff’s claim

was precluded. Only if the Appellate Division determined

that a constitutional violation had indeed taken place would

Plaintiff’s claim be legally viable.

'This reasoning has been expressly followed by the Ninth Circuit

in Young v. Konny, 907 F.2d 874, 878 (9th Cir. 1989).

any

19A

The Triplett court, facing the same issue, noted that “‘It is

almost too evident to warrant comment that plaintiff, having

been convicted of murder by virtue of a confession which in

1955 was deemed legal and admissible, could not have, at

that time, pursued a § 1983 claim.” Triplett, 478 F.Supp. at

875. That court recognized that “‘[t]o hold that a plaintiff

needed to ignore the criminal proceedings and immediately

sue under § 1983 would mean that plaintiff would have had

to pursue a technically possible, but at the time frivolous

suit. To so argue is to read Kafka into law.” /d.

In circumstances in which the state appellate proceedings

will definitely decide the issue underlying a possible § 1983

suit, the policy outlined in Mack of requiring the federal

court to stay the pending § 1983 suit does not apply with the

same force. To require the criminal defendant to bring a

civil § 1983 suit before a definitive determination of the

issue in state court in order to meet statute of limitations

requirements and then require the federal court to stay the

action pending the outcome of the state criminal proceed-

ings will lead to a lot of unnecessary filing of claims. Alert

criminal defense lawyers will file § 1983 claims as a matter

of course, to preserve future § 1983 actions on the chance

that the appeals process eventually last longer than the

pertinent statute of limitations period. Many of these claims

may eventually prove groundless where a conviction is

upheld on appeal. Following Mack, federal courts would not

be able to dispose of these claims until the end of all

criminal proceedings in state court and many stayed,

20A

groundless § 1983 claims would ferment in federal court

awaiting state appellate outcomes.”

Although the persuasive reasoning of the Triplett court

would avoid these problems, decisions of the Second Circuit

and the weight of case law from other circuits require us to

decide differently.

C. Tolling of the Statute of Limitations.

If, in similar situations, the statute of limitations tolled

during plaintiff’s incarceration, plaintiffs would be able to

maintain potentially valid § 1983 claims without forcing

criminal defendants and federal courts to go through the

elaborate dance described above in order to keep them alive.

Tolling of the statute of limitations can occur as a result of

2As a solution to this problem, we suggest tolling the statute of

limitations for § 1983 claims from the date of a criminal conviction to

the date of completion of appellate proceedings if the criminal defend-

ant’s § 1983 claim would be collaterally estopped by the original state

court conviction. Of course, if the issue in the state appellate court is

not one that would, if successful, allow the criminal defendant to pursue

an otherwise collaterally estopped § 1983 claim, then the current dis-

cussion would not be applicable and no reason would exist to toll the

statue of limitations.

3See Strung v. Anderson, 452 F.2d 632 (9th Cir. 1971) which

rejected the appellants’ argument that their § 1983 action did not accrue

until the validity of the contested search and seizure had been adjudi-

cated in the state court criminal proceeding because the § 1983 claim is

unaffected by the availability of remedies in a state court to test a

constitutional right. /d. at 633. See also, Emory v. Logan, 801 F.Supp.

899 (D.Mass. 1992) which assumed, without deciding, that even if

“plaintiff's criminal conviction would have precluded him from chal-

lenging the unlawfulness of the arrest in a subsequent civil rights

action, the fact of such estoppel does not operate to toll the statute of

limitations for the § 1983 action.” Jd. at 902.

21A

the federal court tolling the limitations period or as a result

of a state provision for tolling the limitations period.

1. Power of Federal Courts to toll state statutes of

limitations

[3, 4]. Federal courts do have the power to toll statutes of

limitations borrowed from state law, but only where appli-

cation of the statute of limitations would frustrate the policy

underlying the federal cause of action. Johnson v. Railway

Express Agency, Inc. 421 U.S. 454, 465, 95 S.Ct. 1716,

1722, 44 L.Ed2d 295 (1975); Jewell v. County of Nassau,

917 F.2d 738, 740, (2d Cir. 1990). The Supreme Court has

identified the principal policies embodied in § 1983 at

deterrence, compensation and uniformity. Board of Regents

v. Tomanio, 446 U.S. 478 488-89, 100 S.Ct. 1790, 1797-98,

64 L.Ed.2d 440 (1980). In the present case, neither deter-

rence nor compensation is ‘significantly affected by this

rule of limitations since plaintiffs can still readily enforce

their claims, thereby recovering compensation and fostering

deterrence, simply by commencing their actions within

three years.” /d. at 488, 100 S.Ct. at 1797. Furthermore, the

need for uniformity has not been held to warrant the dis-

placement of state statutes of limitations for civil rights

actions. /d. at 489, 100 S.Ct. at 1797. As a result, this court

does not have the power to toll the statute of limitations in

order to allow Plaintiff’s § 1983 claim.

2. Pendent state proceedings not recognized as a reason to

toll the statute of limitations.

The exclusive method to maintain a federal claim that

may be affected by pending New York State proceedings is

22A

to file within the limitations period whereupon the federal

court will be required to stay it. ‘Where a plaintiff wishes

or is required to pursue his claims in succession, rather than

concurrently, in the absence of the parties’ agreement made

to waive the limitary period before it had expired, a judicial

stay of the pending suit, rather than dismissal, albeit ex-

pressed to be without prejudice, is the only means by which

the bar of limitations may be avoided.’’ Tomanio, 446 U.S.

at 486-87, 100 S.Ct. at 1796; Jewell, 917 F.2d at 740-41.

In Tomanio, the Court went on to note that:

[T]here is no question that respondent’s § 1983

action was ‘“‘separate and independent” from the

State judicial remedy pursued in state court. This

Court has not interpreted § 1983 to require a litigant

to pursue state judicial remedies prior to commenc-

ing an action under this section...Thus the very inde-

pendence of § 1983 reveals that the New York rule

precluding tolling in the circumstances of this case is

not “‘inconsistent’’ with the provisions of § 1983.

(footnote omitted)

Tomanio, 466 U.S. at 491, 100 S.Ct. at 1798-99. The Court

treats a claim under § 1983 as an independent federal rem-

edy and any state policy of repose which does not allow a

plaintiff to litigate such alternative claims in succession,

without risk of a time bar, is not “‘inconsistent.”’ Jd. at 489,

100 S.Ct. at 1797.

3. New York state provisions for tolling the statute of

limitations

[5] If New York law provides for tolling in this circum-

stance, then such a toll would be recognized by the federal

23A

court which recognizes not only the state limitations period,

but also any state provisions for tolling of the limitations

period. See, e.g., Railway Express, 421 U.S. at 463-464, 95

S.Ct. at 1721-22.

[6] In Roldan v. Allstate Insurance Co., 149 A.D.2d 20,

544 N.Y.S.2d 359 (2d Dep’t 1989), the plaintiff sued the

defendant insurance company to pay for a default judgment

that was entered against plaintiff in a 1979 tort claim. The

defendant contended the suit was time-barred because it was

filed in 1986 more than a year past the governing statute of

limitations. However, in that case, the original judgment

that was the basis of the suit had been vacated in 1982 and

then reinstated in 1986. The court in Roldan held that under

the facts of the case:

the running of the Statute of Limitations with respect

to the plaintiff’s cause of action...was suspended as

soon as the Supreme Court, by erroneously granting

Allstate’s motion to vacate the judgment in the un-

derlying action, in effect extinguished the plaintiff's

causes of action at Allstate’s behest. The running of

the Statute of Limitations remained suspended until

this court, in February 1986 reversed the order vacat-

ing the judgment in the underlying action, thereby

reviving the plaintiff’s causes of action. Because of

this toll, we conclude that the plaintiff” s causes of

action...are not time-barred.

Roldan, 544 N.Y.S.2d at 368. Similarly, in the present case,

the county court’s holding in 1990 that the police conduct

was proper effectively extinguished Plaintiff’s § 1983 claim

based on damages suffered as a result of the improper police

conduct. The Roldan court emphasized, however, that the

earlier judgment had been vacated on the defendant’s mo-

24a

tion and that the defendant “must bear the responsibility

exclusively for the order which deprived the plaintiff of her

ability to assert her assigned’s case.”’

Furthermore, the Fourth Department has clearly stated

that a “subsequent court decision which affects a party’s

legal rights does not revive a cause of action which is not

timely instituted, or extend the time within which to bring

the action or proceeding.” Williamson vy. Fermoile, 31

A.D.2d 438, 298 N.Y.S.2d 557, 560 (4th Dep’t 1969).

The current backlog in the New York Appellate Divi-

sions, most notably in the Second Department, exacerbates

this problem as it occurs in New York. Many state appellate

decisions, like the one in the present case, are not rendered

until the statute of limitations period for § 1983 actions has

expired.

Nonetheless, the reasoning of the Third Circuit in San-

dutch v. Muroski, 684 F.2d 252 (3d Cir. 1982), is compatible

with the reasoning employed by this circuit. In that case, the

plaintiff was wrongly convicted on the basis of fraudulent

testimony secured via a conspiracy by public officials. His

conviction was reversed approximately three years later,

whereupon he brought a civil rights claim under 28 U.S.C.

§ 1291.

This court held that the statute of limitations began run-

ning from the point at which plaintiff had reason to know of

the alleged conspiracy to secure false testimony. Applied to

the present case, Plaintiff's cause of action accrued on the

date he had reason to know he was subject to the improper

police conduct, September 25, 1989, the date of his arrest.

The Sandutch court also held, contrary to the holding in

Triplett, 478 F.supp. at 875-76, that continuing incarceration

is not a continuing tort because the plaintiff did not allege

any unlawful acts within the limitations period, only contin-

ued ill effects from the initial violation of his rights. San-

25A

dutch, 684 F.2d at 254. This is identical to the present case

where the only alleged unlawful conduct occurred before

the conviction.

Lastly, the Sandutch court held that the limitation period

had not been tolled by Sandutch’s incarceration. /d. Al-

though this is a question of Pennsylvania law and therefore

not instructive in the present case, New York law leads us to

the same result. New York Civil Rights Law § 79 states that

“A sentence of imprisonment in a state correctional institu-

tion for any term less than for life...shall not be deemed to

suspend the right, or capacity of any person so sentenced to

commence and prosecute an action or proceeding in any

court...””.4

The weight of case law, including the Second Circuit's

decision in Mack, leads us to only one conclusion: Plain-

tiff’s § 1983 claims for false arrest and malicious prosecu-

tion accrued at his arrest on September 25, 1989 when the

evidence was improperly seized and the statute of limita-

tions did not toll.

III]. CONCLUSION

The statute of limitations governing claims pursuant to

42 U.S.C. § 1983 in New York is three years. Because the

claim accrued on September 25, 1989 but was not filed until

May 1993, and no federal or New York State provision for

tolling the statute of limitations pertaining to § 1983 claims

applies to the circumstances of this case, Plaintiff’s claim

for relief is time-barred and defendant's motion to dismiss

under Rule 12(b)(6) is granted in its entirety. The Clerk

shall enter judgment for the Defendant.

SO ORDERED.

*Until 1973, imprisonment was a disability which would toll the

statute of limitations under NY CRL § 79 and under New York Civil

Practice Law and Rules § 208, but the state legislature specifically

amended both rules to erase that provision.