Petition for Writ of Certiorari — Day v. Moscow

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91-1899

FILED

No. MAY 26 i999

QFriCE OF THE CLERK

Goprems Coon, UE |

IN THE

Supreme Court of the United States

OctToBeR TERM, 199]

CHRISTOPHER C. DAY, PH.D..

Petitioner,

— against —

JOHN W. MOSCOW; JOSEPH B. MURRAY, Individually

and as Senior Court Officer of the State of New York; “JANE

DOE” MARSHALL, Individually and as Captain of the New

York City Department of Correction; JOHN DOE, 1-10,

Unknown named Officers of the New York City Police

Department and the New York City Department of Correction,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

PETITION FOR WRIT OF CERTIORARI

BERNARD FROMARTZ, Esq.

Attorney for Petitioner

188 Montague Street, Suite 600

Brooklyn, New York 11201

(718) 855-7675

QUESTIONS PRESENTED

1. Whether established state rules

of accrual are to be applied in civil

rights actions brought under 42 U.S.c.

Section 1983, pursuant to 42 U.S.C. Sec-

tion 1988, or whether a "general federal

rule of accrual" is to be applied.

2. Whether the claim preclusion can

be applied to bar assertion of claims not

addressed by the Court of Appeals in a

prior decision in the same case, which

reversed in part and affirmed in part a

judgment of the District Court, or whether

the prior decision of the Court of Appeals

is the law of the case or collateral

estoppel.

TABLE OF CONTENTS

QUESTIONS PRESENTED .............

Zama OF AUTHORITIES ....cccccccs

PRED GEEEMOM wecececesecececces

WEEE eodeeseeveccecerseves

STATUTORY PROVISIONS INVOLVED ...

STATEMENT OF THE CASE ..........

REASONS FOR GRANTING THE WRIT....

ARGUMENT

SECTION 1988 MANDATES

APPLICATION OF STATE RULES

OF ACCRUAL IN CIVIL RIGHTS

ACTIONS ..... Cee eeeececeres

THIS COURT'S PRIOR

DECISIONS INTERPRET

42 U.S.C. 1988 WOULD

REQUIRE APPLICATION

OF STATE RULES OF

ACCRUAL IN CIVIL

RIGHTS ACTIONS ......

REFUSAL TO GIVE

DEFERENCE TO STATE

RULES OF ACCRUAL VIO-

LATES THE STATE'S CHO-

Be PWC Ecce ccccccecs

Cc.

ade

siz.

THERE IS NO GENERAL

FEDERAL RULE OF AC-

eee she Tree 15

THE 'FEDERAL RULE!

DOES NOT EXIST ....... 18

THE CIRCUIT couRT'sS

UNPRECEDENTED EXTENSION

OF THE DOCTRINE OF CLAIM

PRECLUSION TO PRIOR

DECISIONS OF A COURT

OF APPEALS REVERSING

IN PART AND AFFIRMING IN

PART VIOLATES ESTABLISHED

PRINCIPLES OF FINALITY .23

CONCLUSION ............ 30

OTM $4566 onde ian ck cs, A~1

iii

TABLE OF AUTHORITIES

CASES

Bireline _v. Seagondollar, 567 F.2d 260

(4th Cir., 1977) 48, 21

Board of Regents v. Tomanio, 446 U.S. 478,

100 S. Ct. 1890, 64 L. Ed. 2d 440 (1980)

7, 42, 13, 38, 23

Braderman v. Pa. Housing Finance Agency,

620 F. Supp. 1069 (E.D. Pa., 1985) 9

Buford v. Tremayne, 747 F.2d 445 (8th

Cir., 1984) 8

Burnett v. Grattan, 468 U.S. 2, 32 L. Ba.

2d 36, 104 S. Ct. 2924 (1984) 13

c j v. United es, 324 U.S. 229

(1945) 27

Chapman Vv. Houston Welfare Rights

Organization, 441 U.S. 600, 60 L. Ed. 2a

508, 99 S. Ct. 1905 (1979) 16

Chardon v. Fumero Soto, 462 U.S. 658, 77

L. Ed. 2d 74, 103 S. Ct. 2611 (1983)

co Pe &

Collins v., Miller, 212 U.S. 365 (1920)

Cowgill v. Raymark Industries, Inc., 832

F.2d 798 (3d Cir., 1987) 10, 25

Day_v. Morgenthau, 909 F.2d 75 (2d Cars.

1990) 2

Day v. Moscow, 769 F. Supp. 972 (S.D.N.Y.,

1991) 2

Day v. Moscow, 955 F.2d 807 (2d Cir.,

1992) 2

Erie Railroad Co. wv. Tompkins, 304 7.8.

64, 82 L. Ed. 1188, 58 Ss. ct, 817 (1938)

Gaus v. City o Wells, 620 F. Supp. 1461

(N.D. ing., 1985) 9

Hardin v. Stray , 490 U.S. 536, 109 B. Ge.

1998, 104 L. Ed. 2d 582 (1989) 7, i2

International Union T.U.A. & A. W. v.

Hoosier Cardinal Corp., 383 U.S. 696, 86

S. Ct. 1107, 16 L. Ed. 24 199 (1966)

Onnson vy, Llw ss Cy, 421

U.8. 454, 95 s, ce. 1716, 44 L, Ed. 2d 295

(1975) S, 11, 12

Kirwan v. State, 320 A.2q 837 (Super. a

Conn., 1974) 21

Madruga v, Superior Court of California,

346 U.S. 2a6, $8 ZL. Ed. 290, 74S. Ct. 298

(1958) 17

Milwaukee vy. [ inois, 451 U.S. 304, 68 L.

Ed. 2d 114, 101 s. Ct. 1784 (1981) 16

Monroe v. Ppa » 863 U.S. 267, 62 &. Crs

473, 5 L. Ed. 2d 492 (1961) 20

Quinton y. United States, 304 F.2q 234

(Sth Cir., 1962)

14,22

OOOO

Quitmeyer Vv. Southeast Pa. Transit

Authority, 740 F. Supp. 363 (E.D. Pa.,

1990) 10

Rawlings v. Ray, 312 U.S. 76, 61 8. Ct.

473, 85 L. Ed. 605 (1941) 18, 21

Raysor v. Port Authority of New York and

New Jersey, 768 F.2d 34 (2d Cir., 1985),

cert. den., 475 U.S. 1027, 106 S. Ct.

1227, 89 L. Ed. 2d 337 fee Cari, 1986)

Robertson v. Wegmann, 436 U.S. 584, 98 S.

Ct. 1991, 56 S. Ct. 554 (1972) 7, 20

Singleton v. New York, 632 F. 2d 185 (2d

Cir., 1980), cert. den., 450 U.S. 920

(1981) 18

sone vv. 2.2.6... Inc., 637 F.2d 154 (3d

Cir., 1980) a0, 23, 26

United States v. Yazell, 382 U.S. 341, 15

L. Ed. 2d 404, 86 S. Ct. 500 (1966) 17

Urie v. Thompson, 337 U.S. 163, 69 S. ct...

1018, 93 L. Ed. 1282 (1949) 22

Wheeldin v, Wheeler, 373 U.S. 647, 10 L.

Ed. 2d 605, 83 S. Ct. 1441 (1963) 16

White v. Bloom, 621 F.2d 276 (8th Car...

1980), cert. den., 449 U.S. 995 8

Williams v. Dothan, 745 F.2d 1406 (11th

Cir., 1984) 9

Wilson v. Garcia, 471 U.S. 261, 105 S. Ct.

1038, 85 L. Ed. 2d 254 (1985)

9, 12, 20

STATUTES

28 U.S.C. Section 1254(1) 2

42 U.S.C. Section 1983 a a

42 U.S.C. 1988 9, ad

F.R.C.P. 6

TREATISES

Am. Jur. 2d, False Imprisonment, Section

84 21

49 A.L.R. 2d 922 21

35 C.J.S., False Imprisonment, Section 49

54 C.J.S., Limitation of Actions, Section

175 21

Restatement, 2d, Judgments, Section 13

Say a6, at

Vll

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1991

CHRISTOPHER C. DAY, Ph. D.,

Petitioner

- against -

JOHN W. MOSCOW, et al.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Petitioner Christopher C. Day, Ph. D.

(Day) .respectfully petitions for a writ of

certiorari to review the judgment of the

United States Court of Appeals for the

Second Circuit, entered in this case on

January 24, 1992.

OPINIONS BELOW

The opinion of the Court of Appeals

(Day II) is reported at 955 F. 2d 807 (2d

Cir., 1992). The opinion of the District

Court for the Southern District of New

York is reported at 769 F. Supp. 972 (S.

D.N.Y., 1991). The prior opinion of the

Court of Appeals (Day I) is reported at

909 F. 2a 75 (2d Cir., 1990).

JURISDICTION

The judgment of the Court of Appeals

was entered on January 24, 1992. Petiti-

oner timely filed a petition for rehearing

with the Court of Appeals. The petition

was denied on February 25, 1992. This

Court has jurisdiction to review the judg-

ment of the Court of Appeals by writ of

certiorari pursuant to 28 U.S.C. Section

1254(1).

STATUTORY PROVISIONS INVOLVED

42 United States Code, Section 1988

(reproduced in full at Appendix, A-69).

STATEMENT OF THE CASE

This petition arises from the Second

Circuit's affirmance of a judgment of dis-

missal of petitioner's civil rights ac-

tion, brought under 42 U.S.C.

statute of limitations grounds.

1983,

The underlying facts as summarized by

the Court of Appeals are as follows:

At the pertinent times, Day was

serving as a paralegal for a New

York City law firm. Defendant

John W. Moscow was an Assistant

District Attorney for New York

County; defendant Joseph B.

Murray was a senior court offi-

cer in the criminal courts

building ("courthouse") at 111

Centre Street in New York Coun-

ty.

On December 11, 1985, Day accom-

panied one of the firm's attor-

neys to an area of the court-

house known as the "holding

pens," in which prisoners were

detained. Day waited outside

the holding pens while the at-

torney went inside to deliver a

message to a prisoner. On the

following day, December 12,

1985, while sitting in a

courtroom in the same court-

house, Day was arrested, without

a warrant, and charged with

criminal trespass in connection

with his presence outside the

holding pens the day before.

Murray arrested Day on the in-

struction of Moscow, and

searched Day's briefcase and

billfold. Day was incarcerated

for some 31 hours while awaiting

his arraignment. The charge

against him was. eventually

dismissed.

Plaintiff's pro se 1983 false airest

and malicious prosecution complaint was

filed December 13, 1988. In an Opinion

and Memorandum dated October 23, 1989, the

District Court for the Southern District

of New York, Duffy, J., dismissed the

action against Moscow on grounds of abso-

lute immunity and against Murray on the

grounds of failure to state a claim be-

cause there was no causal nexus between

damages alleged and the arrest/search

claims. Plaintiff moved to reargue and

for leave to amend, which was denied De-

cember 13, 1989.

In Day I, the Court of Appeals

reversed the dismissal of the arrest/

search and seizure claims against both

respondents, and affirmed the dismissal of

the malicious prosecution claims on abso-

lute immunity grounds. The Court also

ruled that as three year statute of limi-

tations applied, that under federal law

the arrest/search claims accrued at the

time of the arrest, but under FRCP 6 did

not begin to run until the next day, De-

cember 13, 1985. The Court reversed in

part, affirmed in part, granted leave to

replead, and remanded for further proceed-

ings consistent with the opinion.

Respondent Murray then filed a peti-

tion for rehearing and the Court amended

its opinion (see Day I at A-21) without

permitting petitioner to respond, rever-

Sing its ruling that FRCP 6 extended the

commencement of the limitations period and

affirming the dismissal of the arrest and

search and seizure claims against Murray.

On remand, on May 14, 1991, the Dis-

trict Court dismissed the amended conm-

plaint on statute of limitations grounds,

ruling that the false arrest and search

and seizure claims against Moscow were un-

timely since they accrued on the date of

arrest, under the "general federal rule of

accrual", and that no "tolling" provision

of New York law applied.

The District Court also ruled the

malicious prosecution claim against Murray

was barred because it was not addressed by

the Court of Appeals (although briefed by

Petitioner) the remand was limited to

granting petitioner leave to replead the

false arrest and search and seizure

claims.

On appeal, the Second Circuit af-

firmed.

REASONS FOR GRANTING THE WRIT

1. The Court of Appeals, in finding

that the date of accrual of Plaintiff's

Section 1983 false arrest claim applied a

"general federal rule of accrual", ruling

that Plaintiff's Section 1983 claim for

false arrest accrued at the time of his

arrest and not at the time of his release,

contrary to New York rules of accrual for

false arrest claims.

In doing so, the Court of Appeals de-

cided an important question of federal law

in conflict with the holding of the Eighth

Circuit Court of Appeals in White v.

Bloon, 621 F. 2d 276, 281 (8th Cit.

1980), cert. den. 449 U.S. 995, and Buford

v. Tremayne, 747 F. 2d 445 (8th Cit...

1984)) in a way in conflict with the ‘ap-

plicable decisions of this Court in John-

son_v. Railway Express Agency, 421 U.S.

454, 463, 95 S. Ct. 1716, 44 L. Ed. 2d 295

(1975); Board of Regents v. Tomanio, 446

U.S. 478, 484-85, 100 S. Ct. 1890, 64 L.

Ed. 2d 440 (1980); Wilson v. Garcia, 471

U.S. 261, 267, 105 S. Ct. 1038, 85 L. Ed.

2d 254 (1985) and Hardin v. Straub, 490

usS. $36, 109 8. Ct. 1998, 104 L. Ed. 2a

582 (1989); and the express mandate of 42

U.S.C. 1988.

The application of the "general fed-

eral rule of accrual" has also caused con-

siderable confusion among the lower fede-

ral courts, which have continued to apply

state rules of accrual to Section 1983

actions even in Circuits which have adop-

ted the "general federal rule of accrual."

See, e.g., Williams v. Dothan, 745 F. 2a

1406 (11th Cir., 1984); Braderman v. Pa.

Housing Finance Agency, 620 F. Supp. 1069

(E.D. Pa., 1985); Gaus v. City of Wells,

620 F. Supp. 1461 (N.D. Ind., 1985);

Quitmeyer v. Southeast Pa. Transit Author-

ity, 740 F. Supp. 363 (E.D. Pa., 1990).

2. In applying the doctrine of claim

preclusion to a prior decision of the

Court in the same case, reversing in part

and affirming in part a judgment of the

District Court, the Court of Appeals de-

cided an important issue of federal law in

conflict with the holding of the Third

Circuit Court in Todd v. S.E.c., ine... €37

F. 2d 154, 156 (3d Cir., 1980) and Cowgill

v. Raymark Industries, Inc., 832 F. 24d

798, 802 (3d Cir., 1987), and in going so

far as to apply claim preclusion to a

decision not final under traditional stan-

dards for appealability (Restatement of

the Law, Judgments, Sec. 13, Reporter's

Note to Comments (a) and (b)) when as an

authoritative commentator has stated

"there are few reasons to apply it there"

(Wright, Miller, Cooper, Federal Practice

and Procedure (1981 ed.), Jurisdiction and

Related Matters, Vol. 18, Sec. 4434), the

Court of Appeals so far departed from the

accepted course of judicial procee‘iings as

to call for the exercise of thi.: Court's

power of supervision.

ARGUMENT

I. SECTION 1988 MANDATES

APPLICATION OF STATE RULES

OF ACCRUAL IN CIVIL RIGHTS

ACTIONS

A. THIS COURT'S PRIOR DECISIONS INTERP-

RETING 42 U.S.C. 1988 WOULD REQUIRE AP-

PLICATION OF STATE RULES OF ACCRUAL

In Johnson v. Railway Express Agency,

Supra, this Court, in holding that state

statutes of limitations were applicable to

civil rights claims stated:

“ In virtually all statutes of

limitations, the chronological

length of the limitations period

is interrelated with provisions

regarding tolling, revival and

questions of application. In

borrowing a state period of lim-

itation for application to a

federal cause of action, a fed-

eral court is relying on the

state's wisdom in setting a lim-

it, and exceptions thereto, on

the prosecution of a Closely

analogous claim.

Id, at 463. See also, Board of Regents v.

Tomanio, supra, at 488.

This Court has since applied state

tolling rules even where a federal rule

existed in another area of federal law

(Chardon v. Fumero Soto, 462 U.S. 658, 77

L. Ed. 2d 74. 103 S. Ct. 2611 (1983)) ana

reversed a ruling of the Sixth Circuit

Court of Appeals holding a state tolling

rule claimed during imprisonment not in-

consistent with federal policy (Hardin v.

Straub, 490 U.S. 536, 109 S. Ct. 1998, 104

L. Ed. 2d 582 (1989)).

In this Court's decision in Wilson v.

Garcia, Supra, the Court affirmed that not

only were the length of the limitations

period, but also "Closely related ques-

tions of tolling and application" to be

governed by state law.

It would be unreasonable and illogi-

cal to apply state tolling rules, but not

apply state rules of accrual for closely

analogous claims. The purpose of relying

on a state's rules of limitation and tol-

ling is to give force to the state's pol-

icies in adopting the rule. See, Board of

Regents v. Tomanio, supra, at 487; Bur-

nett v. Grattan, 468 U.S. 42, 82 L. Ed. 2d

36, 104 S. Ct. 2924 (1984) (Rehnquist, J.,

concurring), at 60.

B. REFUSAL TO GIVE DEFERENCE TO

TO STATE RULES OF ACCRUAL VIOLATES A

STATE'S CHOSEN POLICY

Although giving full force toc state

"tolling" rules, the lower court's deci-

Sion here arrived at a result at odds with

State "policy." Then-Chief Judge Tuttle

of the Fifth Circuit court of Appeals, in

Quinton v. United States, 304 F. 2a 234

(Sth Cir., 1962), rejected a hard and fast

distinction between "accrual" and "toll-

ing" rules for this very reason. Id, at

238.

Concluding that "either the entire

state scheme of limitations must be ap-

plied (..) or the scheme must be ignored

completely." Id., at 238, Judge Tuttle,

faced with a federal statute of limita-

tions, concluded that state law must be

disregarded completely.

Here, where this Court has affirmed

that Section 1988 requires application of

state statutes of limitations, the same

reasoning compels, not adoption of a part

of the state scheme -- the limitations

period and "coordinate tolling rules" --

but the entirety of a "complete limita-

Hi ciaciemenlemaieseaaalaa aii

tions policy." Board of Regents v. To-

manio, supra, at 488.

C. THERE IS NO GENERAL

FEDERAL RULE OF ACCRUAL

The lower court's reliance on "fe-

deral law" to establish a different time

of accrual for 1983 claims than for analo-

gous state law claims is erroneous. Under

Section 1988 a court should apply federal

common law, as part of the laws and sta-

tutes of the United States, if "adapted to

the object" of the civil rights laws. The

court should not, however, create it out

of thin air when there exists substantial

state law, based in common law tradition.

There is, of course, no general fe-

deral common law. Erie Railroad Co. v.

Tompkins, 304 U.S. 64, 78, 82 L.Ed. 1188,

58 S. Ct. 817 (1938). The instances where

courts recognized "in some limited areas"

the need to formulate "federal common law"

are “few and restricted." Milwaukee v.

Illinois, 451 U.S. 304, 312, 68 L. Ed. 2a

114, 101 S. Ct. 1784 (1981), quoting

Wheeldin v, Wheeler, 373 U.S. 647, 651, 10

L. Ed. 2d 605, 83 S. Ct. 1441 (1963).

Section 1983, as this Court has

affirmatively stated, is a federal sta-

tute, but it is only provides a remedy and

does not itself create any substantive

rights. Vv S We e Rights

Organization, 441 U.S. 600, 617-618, 60 L.

Ed. 2d 508, 99 S. Ct. 1905 (1979).

Nor do the civil rights acts provide

an instance where the uniquely federal in-

terests require protection or where con-

flicting rights of the states are in-

volved.

Typically, federal common law is de-

veloped with respect to federal programs

and actions which by their nature must be

uniform throughout the nation. United

States v. Yazell, 382 U.S. 341, 15 L. Ed.

2d 404, 86 S. Ct. 500 (1966). Absence of

such a need is a ground for not fashioning

federal common law. Madruga _v. Superior

Court of California, 346 U.S. 556, 98 L.

Ed. 290, 74 S. Ct. 298 (1958). Howev-

er, Section 1988 itself precludes such a

need. See, Robertson v. Weqmann, 436 U.S.

S84, 98 S. Ct. 1991, 56 S. Ct. 554 (1972).

This Court has refused to import fed-

eral common law developed in another area

of federal law to areas in which Section

1988 applies. See, Chardon _v. Fumero

Soto, supra. If the purported source of

this federal law of accrual is not

"adapted to the object of the civil rights

laws" there is no reason to apply it here.

D. THE FEDERAL RULE

DOES NOT EXIST

Singleton v. New York, 632 F. 2a 185

(2d Cir., 1980), cert. den., 450 U.S. 920

(1981), cited as source by the District

Court (A-40) and relied upon by the Re-

spondents, seeks a source for a general

federal common law rule of accrual in two

cases, one decided by this Court -- Raw-

lings v. Ray, 312 U.S. 96, 61 S. Ct. 473,

85 L. Ed. 605 (1941) -- and one decided by

the Fourth Circuit Court of Appeals --

Bireline v. Seagondollar, 567 F. 2d 260

(4th Cir., 1977).

The Second Circuit in Singleton re-

lies upon Rawlings for the proposition

that "the time of accrual is a federal

question", and a matter of "federal law".

However, the this does not require cre-

ation of federal law or even application

of federal law created in another area of

‘ee

law. There is no reason to reject the rule

that state law would impose unless that

rule is unreasonable or otherwise incon-

sistent with national policy. Interna-

tional Union I.U.A. &. A. W. v. Hoosier

Cardinal Corp., 383 U.S. 696, 706, 86 S.

Ct. 1107, 16 L. Ed. 2d 292 (1966).

The question addressed there was whe-

ther a state rule of accrual should apply

to a federal statute which, unlike 1983,

did create substantive rights. Interpre-

ting the Arkansas limitations statute the

Court ruled that the accrual

turn[ed] upon the construction

of the assessment and the autho-

rity of the Comptroller to make

it under the applicable federal

legislation.

Id, at 98.

The Court in Rawlings did not turn to

some ephemeral "general rule of accrual"

but to the federal statute which created

the liability.

In Rawlings, the Court turned to the

statute to determine when the Cause of

action was complete because it provided

the content of the remedial rule itself.

However, it is Clearly established by this

Court that state law provides the content.

Cf, Robertson v. Wegmann, supra.

As this Court noted in Wilson v. Gar-

cia, supra, at 277, state tort law has

been turned to establish the element of

causes of action under 1983 and to iden-

tify immunities. If the elements of the

cause of action are given by state tort

law of false arrest (Cf. Monroe v. Pape,

365 U.S. 167, 81S. ct. 473, 5 L. Ed. 2a

492 (1961); Raysor v. Port Authority of

New York and New Jersey, 768 F. 2a 34, 40

(2d Cir., 1985), cert. den., 475 U.S.

1027, 106 S. ct. 1227, 89 L. Ed. 2a 337

(2d Cir., 1986)), what reason is there for

refusing to follow state law in determin-

ing when the cause of action is "Ccom-

plete"?

Under the common law tort of false

arrest that the cause of action "accrues"

at the time of arrest, but is "not con-

plete" until the detention terminates. At

common law there was no right of action

until the detention had terminated. See,

32 Am. Jur. 2d, False Imprisonment, Sec-

tion 84; 54 C.J.S., Limitation of Actions,

Section 175, p. 145; note, 49 A.L.R. 2a

922; 35 C.J.S., False Imprisonment, Sec-

tion 49, p. 714. See also, Kirwan v.

State, 320 A. 2d 837, 840 (Super. Ce.,

Conn., 1974).

Reliance upon Bireline v. Seaqon-

dollar is equally erroneous. In Bireline,

supra, the Fourth Circuit, relying on Raw-

lings, supra, turned to federal court

decisions in other areas for a "rule of

accrual," and concluded, relying on this

Court's decision in Urie v. Thompson, 337

U.S. 163, 170, 69 S. ct. 1018, 93 L. Ed.

1282 (1949) that the "general federal"

rule was that any cause of action accrued

when the plaintiff knew or should have

known of the injury.

Urie v. Thompson is particularly

inappropriate where Section 1988 is appli-

cable for the very reasons stated in Quin-

ton v. United States, supra. In Urie v.

Thompson, this Court construed a Single

federal statute of limitations as in Quin-

ton. See, e.g., the discussion of Urie in

Quinton, supra, at 239.

Nor does Urie purport to establish a

general federal rule of accrual, but sim-

Ply to construe the meaning of "accrue"

Pie Oe,

for causes of action accruing under the

Federal Employers' Liability Act. Indeed,

the chief purpose of the rule of Urie --

uniformity has been rejected in civil

rights claims by the language of 1988

itself. See, Board of Regents v. Tomanio,

Supra, at 489.

PART VIOLATES ESTABLISHED

NC OF FINALITY

It is well established that the rule

of res judicata applies only to a final

decision. Restatement, Judgments, Section

13. Here, however, the court below exten-

ded the doctrine to a decision that would

have been considered under prevailing law,

subject merely to the law of the case or,

at best, collateral estoppel (issue pre-

clusion).

The Circuit Court held that Day's ma-

licious prosecution claim against Murray,

which was raised in Day's proposed amended

complaint and in his Brief in Day I but

not ruled on in the Circuit Court's deci-

Sion in Day I could not be asserted on

remand by res judicata (claim preclusion),

because the decision in Day I, reversing a

judgment of dismissal in part and affirm-

ing it in part (the malicious prosecution

claim against Moscow, and-on rehearing the

false arrest and search and seizure claims

against Murray) and remanding for further

proceedings barred not only the claims

addressed in Day I "but any other claim

that Day could have asserted (against

Murray) arising out of the same events"

(Day II, Appendix at A-59).

The Third Circuit has held that when

an appellate court affirms in part and re-

verses in part, all issues necessarily

disposed of in the affirmance become the

law of the case when the case is remanded

for proceedings on other issues. Cowgill

v. Reynolds Industries, Inc., 832 F. 2a

798, 802 (3d Cir., 1987), citing Todd &

Co. v. S.E.C., 637 F. 2d 154, 156-57 (3d

Cir., 1980). Issues which are not ne-

cessarily disposed of are not subject to

either the law of the case or collateral

estoppel (issue preclusion).

As the Third Circuit stated in Todd,

Supra

a subsequent appellate panel

must determine whether the ar-

guments presented to it were not

considered or left open by the

prior panel; if the arguments

were not considered, it must

determine whether they were

fairly presented and thus pre-

served for later consideration.

Id, at 156-57. Here, the Second Circuit

applied a different rule to a decision

affirming in part and reversing in part,

inconsistent with the Third Circuit's

rulings in Todd and Cowgill and with es-

tablished law of res judicata.

The rules of res judicata are appli-

cable only to a final decision. Re-

statement of the Law, 2d, Judgments, Sec.

13. A decision of a Court of Appeals

affirming in part and reversing in part

and remanding for further proceedings,

even on other issues, is not 'final' in

this sense. Noting that some confusion

has been caused because of the liberties

taken with the concept of finality in the

context of appeal, the Restatement af-

firms: "A general working description of

finality in the field of former adjudi-

cation will (...) resemble the (...) tra-

ditional, strict formulation of the con-

cept for appellate review." id, Sec. 13,

Comment (b), p. 132.

The Reporter's Note to Comments (a)

and (b) of Section 13 clarifies that the

general formulation of finality for pur-

poses of res judicata set forth in Con-

ments (a) and (b) is the traditional de-

finition of finality in regard to appel-

late review which appears in such cases as

tlin v. ited St , 324 U.S. 229, 233

(1945), that it "ends the litigation

and leaves nothing for the court to do but

to execute the judgment." iG, P- 138.

This requirement, the Restatement tells

us, is to be "interpreted strictly", "as

indicated in Comment (a)," when bar (ap-

plied here by the Circuit Court) or merger

is at stake, since the effect is to "ex-

tinguish" a claim. id, Comment (g), Pp.

135-36.

The "strictness" of the definition of

finality for purposes of claim preclusion,

as distinct from issue preclusion, has not

only been emphasized by the Restatement

but by commentators, as well. Wright,

Miller, Cooper, Federal Practice and Pro-

cedure (1981 ed.), Jurisdiction and Relat-

ed Matters, Vol. 18, Sec. 4434).

Nor is there any basis in the tra-

ditional doctrine of appellate finality,

relied upon by the Restatement, for giving

a partial reversal -- remanding the case

for further proceedings even if on other

issues -- finality.

The Circuit Court, apparently consi-

dered their decision in Day I on rehearing

"final as to Murray" because it affirmed

the dismissal of other claims against him.

However, as this Court has emphasized

the rule requires that the judg-

ment, to be appealable, should

be final not only as to all the

parties, but as to the whole

subject matter and as to all the

causes of action involved.

Collins v., Miller, 212 U.S. 365, 370-71

(1920).

Had the Circuit Court applied the law

of the case or issue preclusion to its

decision in Day I, the malicious prosecu-

tion claim against Murray would have been

allowed. The Circuit Court clearly did

not believe it had ruled on the claim

explicitly or implicitly in Day I by its

very treatment of the claim as one which

"might have been litigated".

For the court below, by so few words,

to have extended the doctrine of claim

preclusion where no court has ventured Ga,

and where "there are few reasons to extend

it" (Wright, Miller, Cooper, Op. Cle.) in

conflict with the holdings of another

Court of Appeals, refusing to apply it,

cails for this Court's power of supervi-

sion.

CONCLUSION

WHEREFORE, Petitioner respectfully

requests that this Court grant certiorari

to review the judgment of the Court of

Appeals for the Second Circuit, entered

herein January 24, 1992.

Dated: May 26, 1992

Brooklyn, New York

BERNARD FROMARTZ

Attorney for

Petitioner

188 Montague Street

Suite 600

Brooklyn, NY 11201

(718) 855-7675

APPENDIX

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

= ee ee ee ee ee ee ee ee ee ee ee ee ee ee ee ee ee ee ee ee ee ee ee ee ee ee ee xX

CHRISTOPHER C. DAY, 88 Civ. 8788

(KTD)

Plaintiff,

MEMORANDUM

& ORDER

-against-

ROBERT B. MORGENTHAU, in his

official capacity a District

Attorney for the County of

New York; JOHN W. MOSCOW,

individually and in his

official capacity as

Assistant District Attorney

for the County of

New York, et al.

Defendants.

eee eee eee >.<

APPEARANCES:

CHRISTOPHER C. DAY

Plaintiff Pro Se

145 West 55th Street, Suite 15A

New York, N.Y. i0019

HON. PETER L. ZIMROTH

Corporation Counsel

100 Church Street

New York, N.Y. 10007

9f Counsel: Elaine Rothenberg, Esq.

Assistant Corporation Counsel

HON. ROBERT ABRAMS

Attorney General of the State of New York

120 Broadway

New York, N.Y. 10271

Of Counsel: Stephen Mendelsohn, Esq.

Assistant Attorney General

HON. ROBERT MORGENTHAU

District Attorney

New York County

One Hogan Place

New York, N.Y. 10018

Of Counsel: Marc Frazier, Esq.

Howard L. Perzan, Esq.

Assistant District Attorneys

KEVIN THOMAS DUFFY, D.J.:

Piaintif£e, Christopher Day,

proceeding pro se brings this Section 1983

action for monetary and declaratory relief

against Robert Morgenthau, the District

Attorney for the County of New York; John

Moscow, an Assistant District Attorney for

the County of New York; Hon. Edward

McLaughlin, a Judge of the New York City

Criminal Court; Joseph Murray, a Senior

Court Officer; "Jane Doe" Marshall, an

employee of the Department of Corrections

(*DOC*) 3 and Richard Koehler, the

Commissioner of the New York City

A-2

Department of Corrections.’ Day is a

retired anthropology professor, who, at

least in 1986-87, worked for a law firm as

a paralegal. Day is suing all of the

above named defendants in their official

capacities and some of them individually

for various civil rights and

constitutional violations. All of the

named defendants move, pursuant to Fed. R.

Civ. P. 12(b) (6), to dismiss the

complaint.

FACTS

’ The Attorney General's office

requested that the motion to dismiss

brought by Defendant McLaughlin and Murray

be converted to a motion for summary

judgment because the plaintiff submitted

papers outside the pleadgins. This is not

necessary, however, because plaintiff's

response to the defendant's 12(b) (6)

motion will not be considered by the court

on this motion. Even in the event it was

considered, nothing of substance is added

to the complaint thereby.

A-3

Day claims that he was present and

authorized to wait outside some holding

pens at one of the state court buildings

for a reason which remains undisclosed in

his complaint, and that thereafter, he was

arrested, searched and charged with

criminal trespass in the third degree.

Complaint paragraphs 10-13. Day further

alleges that in addition to illegally

seizing documents, court personnel

detained him for 31 hours prior to being

arraigned. Complaint paragraph 14. Day

also contends that his sixth amendment

right to counsel was violated as a result

of the order of Hon. Edward McLaughlin,

New York Supreme Court, which "refused

without authority or justification to

permit Plaintiff's retained counsel access

to him." Complaint paragraph 16. But see

People v. Day, 499 N.Y.S. 24 1003 (Sup.

Ct. N.Y. Co. 1986). Additionally, Day

alleges a policy of discriminatory actions

A-4

on the part of court personnel and the

District Attorney's office. Finally, Day

alleges that false rumors’ about him

regarding the commission of uncharged

crimes were spread at the direction of

defendant Moscow, causing Day to be

segregated from the rest of the prison

population, in violation of his first

amendment rights to freely associate.

Complaint paragraph 17.

DISCUSSION

Affording Day the broadest reading of

his pleadings and assuming the allegations

as set forth in the complaint are true,

Day fails to state a claim upon which

relief may be granted.

A. The Prosecutor

The allegations against defendants

Morgenthau and Moscow involve actions

within their jurisdiction as prosecutors.

A-5

"A prosecutor enjoys absolute immunity

from Section 1983 suits for damages when

he acts within the scope of his

prosecutorial duties." Imbler v. Pachtman,

424 U.S. 409, 420 (1976). Absolute

immunity adheres even in cases of

malicious prosecution and false arrest, on

the basis that the community is better

served by prosecutors who are unhindered

in exercising their best judgment for fear

of recrimination and harassment. Id. at

427-29. Additionally, violation of the

right- to prompt arraignment does not

warrant dismissal of the underlying

criminal action where there has been no

exploitation of process or prejudice to

rights of the defendant. Garstein v.

Pugh, 420 U.S. 103 (1975). Although Day

aiiudes to hardship and harassment

experienced during his detainment, he

himself never specifies in what way he

suffered undue hardship and prejudice.

A-6

;

Therefore, the actions taken by Morgenthau

and Moscow that resulted in Day's arrest

and detainment are protected under Imbler,

and the complaint must be dismissed as to

them.

B. The Judge

Likewise, the actions of Hon. Edward

McLaughlin about which Day complains are

absolutely protected by judicial immunity.

"The immunity of a judge for acts within

his jurisdiction has roots extending to

the earliest days of the common law."

Imbler, at 423, n.20. Furthermore, Judge

McLaughlin denial of Day's counsel of

choice was grounded on a basic conflict of

interest. Day's chosen counsel, a member

of the law firm where Day was a paralegal,

was herself a defendant in a criminal

proceeding for which Day's testimony was

being subpoenaed. In addition, the merits

of Day's claims against Judge McLaughlin

A-7

were fully and fairly litigated in state

court and Day is collaterally estopped

from asserting them anew here. See People

V. Day, 499 N.Y.S.2d 1003 (Sup. Ct. N.Y.

Co. 1986). Day's allegations thus fail to

state a claim upon which relief may be

granted against Judge McLaughlin.

C. The Other Defendants

Finally Day's allegations against

Murray, a senior court officer who

allegedly undertook an illegal search of

Day's briefcase, do not make out a case

for either damages or declaratory relief.

Day himself admits that the evidence

seized was suppressed and never used

against hin. Complaint paragraph 21.

Indeed, the only damages claimed by Day

deal with attorney's fees and mental

anguish oc sasioned by the four-month

defense of the charges brought against

him. It cannot be said that this damage

A-8

has any logical nexus with the search

conducted by Murray after Day's arrest.

Similarly, the allegations against

"Jane Doe" Marshall, the DOC officer who

Supposedly held Day in segregation during

his time in jail, do not rise to the level

of a constitutional tort or deprivation.

Thus, the complaint must be dismissed as

to her.

The inclusion of the defendant

Koehler or Commissioner of Corrections

seems at best posited on the theory of

respondeat superior for the actions of

"Jane Doe" Marshall. However, because her

actions do not amount to a constitutional

tort, no liability could thus’ accrue

against Koehler. In addition, respondeat

Superior standing alone is insufficient to

maintain an action such as this against a

municipal department chief. See Kentucky

A-9

Vv. Graham, 473 U.S. 159, 168 (1985);

Accord, Monell et al. y. Department of

Social Services of the City of New York,

436 U.S. 658 (1978).

In conclusion, Day can prove no facts

sufficient to entitle him to relief. The

motion to dismiss is therefore granted and

the complaint is dismissed.

SO ORDERED.

DATED: New York, New York

October 23, 1989

KEVIN THOMAS DUFFY, U.S.D.J.

A-10

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

No. 1237—August Term, 1989

(Argued May 31, 1990 Decided July 19, 1990)

Docket No. 90-7040

CHRISTOPHER C. DAY, Ph.D.,

Plaintiff-A ppellant,

—against—

ROBERT M. MORGENTHAU, in his official capacity as

District Attorney for the County of New York,

JOHN W. MOSCOW, Individually and in his official

capacity as Assistant District Attorney for

the County of New York, Hon. EDWARD

MCLAUGHLIN, Individually and in his official capac-

ity as Judge of the Criminal Court of the City of

New York, JOSEPH B. MURRAY, Individually and in

his official capacity as Senior Court Officer, ‘‘JANE

DOE’’ MARSHALL, individually and in her official

capacity as an officer of the New York City Depart-

ment of Correction, RICHARD KOEHLER, in his offi-

cial capacity as Commissioner of the New York City

Department of Correction,

Defendants-Appellees.

Before:

KAUFMAN, KEARSE and MINER,

Circuit Judges.

Appeal from judgment and order of United States

District Court for the Southern District of New York

(Duffy, J.) dismissing civil rights complaint for failure

to state a claim and denying leave to file amended com-

plaint.

Affirmed in part, reversed in part and remanded.

_—______...

BERNARD FROMARTZ, Brooklyn, NY, for

Plaintiff-Appellant.

HOWARD L. PERZAN, Assistant District

Attorney, New York, NY (Robert M.

Morgenthau, District Attorney, Marc

Frazier Scholl, Assistant District Attor-

ney, New York, NY, of counsel), for

Defendants-A ppellees Morgenthau and

Moscow.

STEPHEN MENDELSOHN, Assistant Attorney

General, New York, NY (Robert

Abrams, Attorney General of the State

of New York, Lawrence S. Kahn, Dep-

uty Solicitor General, New York, NY,

of counsel), for Defendant-A ppellee

Murray.

A-12

5660

HELENA LEE, New York, NY (Victor A.

Kovner, Corporation Counsel, Stephen

J. McGrath, New York, NY, of coun-

sel), for Defendants-Appeliees Marshall

and Koehler.

MINER, Circuit Judge:

Plaintiff-appellant Christopher C. Day appeals from a

judgment of the United States District Court for the

Southern District of New York (Duffy, J.) dated Octo-

ber 30, 1989, dismissing his complaint for failure to

state a claim upon which relief may be granted, see Fed.

R. Civ. P. 12(b)(6), and from a December 13 order of

that court denying leave to file an amended complaint,

see Fed. R. Civ. P. 15(a). Day alleged in his initial com-

plaint that defendants-appellees, acting under color of

State law, deprived him of his constitutional rights in

violation of 42 U.S.C. § 1983 (1982) when they arrested,

searched, detained and prosecuted him on a charge of

criminal trespass.

On appeal, Day contends that the district court erred

in dismissing the claims against defendants-appellees

John W. Moscow and Joseph B. Murray. He also con-

tends that the district court abused its discretion in

denying his post-judgment motion for leave to file an

amended complaint amplifying his claims against Mos-

cow and Murray. Day does not address the claims

pleaded against the other defendants, and we therefore

have no reason to do so. See Kletschka vy. Driver, 411

F.2d 436, 446-47 (2d Cir. 1969); Fed. R. App. P.

28(a)(4).

For the reasons that follow, we affirm the dismissal

of the claim of malicious Prosecution against Moscow,

reverse the dismissal of the claims of false arrest and

illegal search and seizure against Moscow and Murray,

and remand the case for further proceedings consistent

with this opinion.

BACKGROUND

Day made the following allegations in his complaint,

which we accept as true for Purposes of reviewing this

motion to dismiss. On December 11, 1985, Day and an

attorney for whom he worked as a paralegal went to the

ninth floor of the criminal courts building at 111 Centre

Street in Manhattan. After receiving verbal authority

from a Correction Officer, Day-waited outside the pris-

oner ‘‘holding pens’’ while the attorney went inside to

consult with a client. The following day, defendant-

appellee John W. Moscow, an Assistant District Attor-

ney for New York County, observed Day in a

courtroom gallery and ‘‘directed’’ defendant-appellee

Joseph B. Murray, a Senior Court Officer, to arrest

him. Murray arrested Day without a warrant on a

charge of criminal trespass in the third degree, alleging

that Day’s presence outside the “‘holding pens’’ the day

before was unauthorized. At the time of arrest, Murray

searched and seized the contents of Day’s briefcase.

Although initially informed that he would be released on

an ‘‘appearance ticket,’ Day was incarcerated for

thirty-one hours prior to his arraignment on the criminal

trespass charge because of Moscow’s intervention.

On April 13, 1986, Day’s motion to Suppress the con-

tents of his briefcase was granted by a judge of the New

York City Criminal Court. Following three adjourn-

A-14

5662

ments of trial at the prosecution’s request and the

expiration of the time for a speedy trial, the Criminal

Court dismissed the charge on the prosecution’s motion.

Day then commenced this action under section 1983 for

false arrest, illegal search and seizure, and malicious

prosecution.

The district court dismissed all claims against Moscow

on the ground that his actions were within the scope of

his prosecutorial duties and therefore protected by abso-

lute immunity. The court also dismissed the claim

against Murray for illegal search and seizure, because

the only damages alleged—attorney’s fees and mental

anguish caused by the four-month prosecution of the

charge against Day—had no causal nexus with the

search. The order dismissing the complaint was entered

on October 24, 1989, and final judgment was entered on

October 31.

On November 13, Day moved in the district court for

reconsideration and leave to file an amended complaint

pursuant to Federal Rules of Civil Procedure 15(a),

59(a) and 60(b). In the proposed amended complaint,

Day alleged that Moscow ‘‘ordered’’ Murray to detain

and arrest him without a warrant or probable cause and

to have him incarcerated on a misdemeanor complaint.

He also alleged that Moscow ‘‘conspired with and

instructed’? Murray in both the search of Day’s brief-

case and the prosecution of the charge against him.

Finally, he alleged that Moscow instructed Murray not

to allow Day’s release on an ‘‘appearance ticket.’’ The

district court denied the motion for leave to file an

amended complaint on December 13. Day filed a timely

notice of appeal from the judgment and order on Janu-

ary 2, 1990. See Fed. R. App. P. 4(a)(4).

A-15

5663

DISCUSSION

Section 1983 provides a civil claim for damages and

injunctive relief against any person who acts under color

of state law to deprive another of a constitutional right.

42 U.S.C. § 1983. Allegations of facts constituting an

arrest without probable cause, an unreasonable search

and seizure, or malicious prosecution state Claims under

section 1983. See, e.g., Monroe vy. Pape, 365 U.S. 167,

171 (1961). When subjected to an illegal search and sei-

zure, special damages need not be alleged because ‘‘the

victim is harmed by the invasion of his zone of privacy,

whether or not the evidence unlawfully obtained is intro-

duced at trial.’’ Lee y. Willins, 617 F.2d 320, 322 (2d

Cir.), cert. denied, 449 U.S. 861 (1980). The allegations

that Day was arrested, searched and prosecuted without

probable cause therefore set forth the essential elements

of a section 1983 claim.

Although section 1983 imposes liability upon “every

person’’ who deprives another of a constitutional right

under color of state law, the doctrines of absolute and

qualified immunity shield prosecutors and law enforce-

ment officers from liability related to their Official acts.

Imbler v. Pachtman, 424 U.S. 409, 417-19 (1976). Assis-

tant District Attorney Moscow is absolutely immune

from liability under section 1983 for acts ‘‘within the

scope of his duties in initiating and pursuing a criminal

Prosecution.’’ Jd. at 410. ‘The granting or denial of

absolute immunity depends more, however, on the func-

tion being performed than on the office of the defen-

dant, and the absolute immunity accorded a Prosecuting

attorney is extended only so far as is necessary to the

effective functioning of the judicial process.’ Robison

v. Via, 821 F.2d 913, 918 (2d Cir. 1987); see also Taylor

A-16

5664

v. Kavanagh, 640 F.2d 450, 452 (2d Cir. 1981). The test

is whether the prosecutor is engaged in activities that are

“intimately associated with the judicial phase of the

criminal process.’’ Imbler, 424 U.S. at 430; see, e.g.,

Barr v. Abrams, 810 F.2d 358, 362 (2d Cir. 1987) (filing

criminal information and obtaining arrest warrant); Tay-

lor, 640 F.2d at 453 (plea bargaining); Lee, 617 F.2d at

322 (alleged falsification of evidence and coercion of

perjured testimony). When a prosecutor is engaged in

administrative or investigative activities, he is entitled

only to qualified immunity, which requires a showing

that his acts were objectively reasonable. See, e.g.,

Robison, 821 F.2d at 920 (seizure of allegedly abused

child).

While there are no ‘“‘bright lines between quasi-

judicial absolutely immune conduct, on the one hand,

and investigative and administrative qualifiedly immune

behavior, on the other,’’ Powers v. Coe, 728 F.2d 97,

104 (2d Cir. 1984), the allegation that Moscow engaged

in malicious prosecution of the charge against Day is

clearly within the ‘‘judicial phase of the criminal pro-

cess,’’ Imbler, 424 U.S. at 430, and we therefore affirm

the dismissal of that claim on absolute immunity

grounds.

Arrests and searches, however, ‘‘are normally police

functions, and they do not become prosecutorial func-

tions merely because a prosecutor has chosen to partici-

pate.’” Robison, 821 F.2d at 918; see also Barr, 810

F.2d at 362 (recognizing a ‘‘meaningful’’ distinction

“between filing the criminal information and procuring

an arrest warrant, on the one hand, and executing the

arrest warrant, on the other’’). The origina! complaint

alleges that Moscow ‘‘directed’’ Murray to arrest Day

A-17

5665

without a warrant and without probable cause, while all

three men were in the same courtroom. Since this allega-

tion suggests that Moscow may have participated in

“executing the arrest,” it cannot be found “*beyond

doubt that the plaintiff can prove no set of facts in sup-

port of his claim which would entitle him to relief.’’

Conley v. Gibson, 355 U.S. 41, 45-46 (1957).

Defendants-appellees assert that the claims of false

arrest and illegal search and seizure nevertheless are

barred by the doctrine of qualified immunity. Qualified

immunity will preclude a trial on Day’s claims if, based

on the facts known to Moscow, it was objectively rea-

sonable for Moscow to believe that probable cause

existed for the arrest. See Krause v. Bennett, 887 F.2d

362, 368 (2d Cir. 1989). Murray also may be entitled to

qualified immunity if it was objectively reasonable for

him to rely on the information he received from Mos-

cow. See Calamia v. City of New York, 879 F.2d 1025,

1033 (2d Cir. 1989); see also United States v. Ventresca,

380 U.S. 102, 110 (1965). The qualified immunity issue

cannot be resolved on the face of the present complaint,

however, because the complaint does not identify what

facts were known to Moscow and Murray at the time of

the arrest and search.

Murray also contends that the district court’s dis-

missal of the complaint may be affirmed on the ground

that Day’s claims are time barred. Day’s section 1983

claims are governed by the three-year statute of limita-

tions prescribed by New York law. See Owens v. Okure,

488 U.S. 235 (1989). Murray asserts that since the arrest

and search occurred on December 12, 1985, and the

action was commenced on December 13, 1988, the com-

plaint was filed one day late. However, ‘‘only the length

A-18

5666

of the limitation period is governed by state law.’’

Okure v. Owens, 816 F.2d 45, 47 (2d Cir. 1987) (citing

Wilson v. Garcia, 471 U.S. 261, 269 (1985)), aff’d, 488

U.S. 235 (1989). Under federal law, “‘fi]Jn computing

any period of time prescribed or allowed by ... any

applicable statute, the day of the act, event, or default

from which the designated period of time begins to run

shall not be included.’’ Fed. R. Civ. P. 6(a). The result

is the same under New York law. See N.Y. Gen. Constr.

Law § 20 (McKinney Supp. 1990). Thus, the three-year

period prescribed by the applicable New York Statute

did not begin to run until the day after the arrest and

search. Day’s claims therefore are timely.

Finally, we turn briefly to the district court’s order

denying Day’s motion to amend his complaint. Under

Federal Rule of Civil Procedure 15(a), ‘‘leave [to

amend] shall be freely given when justice so requires.”’

See Foman v. Davis, 371 U.S. 178, 182 (1962); Ronzani

v. Sanofi S.A., 899 F.2d 195, 198 (2d Cir. 1990). While

the district court is vested with discretion to deny leave

to amend, “‘outright refusal to grant the leave without

any justifying reason appearing for the denial is not an

exercise of discretion.’’ Ronzani, 899 F.2d at 198 (quot-

ing Foman, 371 U.S. at 182). Since it is apparent that

Day cannot allege any facts to state a claim for mali-

cious prosecution, allowing leave to amend the com-

plaint as to that claim would serve no purpose. See id.

However, Day has stated claims for false arrest and ille-

gal search and seizure against Moscow and Murray.

Accordingly, we direct the district court on remand to

permit Day to file an amended complaint amplifying

those claims.

A-19

5667

CONCLUSION

The judgment of the district court is affirmed insofar

as it dismissed the claim for malicious prosecution. The

portion of the judgment dismissing the claims for false

arrest and illegal search and seizure against Moscow and

Murray is reversed, and the case is remanded for further

Proceedings consistent with this Opinion.

A-20

5668

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

No. 1237 - August Tern,

On Petition for Rehearing

Decided August 29, 1990

Docket No. 90-7040

CHRISTOPHER C. DAY, Ph.D.,

Plaintiff-Appellant

-against-

ROBERT M. MORGENTHAU, in his

official capacity as District

1989

Attorney for the County of New York,

JOHN W. MOSCOW, Individually and

in his official capacity as

Assistant District Attorney for

the County of New York, Hon.

EDWARD MCLAUGHLIN, Individually

and in his official capacity as

Judge of the Criminal Court of

the City of New York, JOSEPH

B. MURRAY, Individually and in

his official capacity as

Senior Court Officer, "JANE

DOE" MARSHALL, individually and

in her official capacity as an

officer of the New York City

Department of Correction, RICHARD

KOEHLER, in his official capacity

as Commissioner of the New York

City Department of Correction.

Defendant-Appellees

Before: KAUFMAN, KEARSE and MINER,

A-21

Circuit Judges.

Petition for rehearing of appeal

following decision filed July 19, 1990.

Petition granted and opinion amended.

MINER, Circuit Judge:

Defendant-appellee Joseph 8B. Murray

petitions for rehearing of this appeal

following our decision filed on July 19,

1990. The petition is granted and we now

affirm the dismissal of the complaint

against Murray on the ground that the

claims pleaded therein are time barred.

It follows that leave to replead the

claims asserted against Murray also must

be denied. We deem our prior opinion

amended accordingly.

Murray allegedly conducted an

unlawful arrest and search of plaintiff-

appellant Christopher c. Day on December

12, 1985. December 12 was the day of

accrual of Day's claims, contrary to his

A-22

Fe one oars

contention that his claims accrued on

December 13, 1985, the day of his

arraignment. We determined that Day's

claims, pleaded under 42 U.S.C. Section

1983 (1982), were subject to a three-year

statute of limitations, see Owens v.

Okure, 488 U.S. 235 (1989); N.Y. Civ.

Prac. L. & R. 214(5) (McKinney 1990), and

that the first day of that three-year

period was December 13, 1985, the day

following the date the claims accrued, see

Fed. R. Civ. P. 6(a). This much of our

prior opinion rested on well-settled law,

but our determination that the three-year

period ended on December 13, 1988 involved

a more muddled area of the law, compare

Bledsoe v. Department of Housing and Urban

Development, 398 F. Supp. 315, 318-21

(E.D. Pa. 1975) and Rodriquez v. United

States, 382 F. Supp. 1, 2 (D.P.R. 1974)

with Morton v. City of Little Rock, 728 F.

Supp. 543, 546 (E.D. Ark. 1989) and Murray

A-23

v. United States Postal Serv., 569 F.

Supp. 794, 796 (N.D.N.Y. 1983), and the

one that never has been addressed directly

by this court, cf. United States v.

Guerro, 694 F.2d 898, 903 (2d Cir. 1982)

(day of offense is excluded when

calculating statute of limitations for

violation of 18 U.S.C. Section 371), cert.

denied, 459 U.S. 1222 (1983).

Federal Rule of Civil Procedure 6(a)

provides that "the day of the act ... from

which the designated period of time begins

to run shall not be included" in

calculating the statute of limitations.

On rehearing, we are persuaded that this

rule should have the same result as New

York General Construction Law Section 20,

which also provides that the first day to

be counted in this reckoning is the day

after the date of accrual. The New York

provision has been interpreted to mean

that "[w]jhen the applicable limitations

A-24

— =

mA lle

period is measured in years, ... the

anniversary date [of the date of accrual

is] the last day for instituting an

action." vans ev awker-Siddele

Aviation, Ltd., 482 F. Supp. 547, 550

(S.D.N.¥. 1979); see also D. Siegel, New

York Practice Section 34 (1978).

Day's complaint was not filed until

December 13, 1988, one day after the third

anniversary date of the date of accrual,

and is therefore time barred.

CONCLUSION

The petition is granted and the

opinion is amended to affirm the district

court's judgment dismissing the complaint

against defendant-appellee Murray and the

order denying leave to amend the complaint

against hin. The opinion otherwise is

unchanged.

A-25

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

CHRISTOPHER C. DAY, Ph.D.,

88 Civ. 8788 (KTD)

Plaintiff,

MEMORANDUM

: & ORDER

-against-

JOHN W. MOSCOW; JOSEPH B. MURRAY,

individually and as Senior Court

Officer.of the State of New York;

"JANE DOE" MARSHALL, individually and

as Captain of the New York City

Department of Correction; JOHN DOES

1-10, unknown named officers of the

New York City Police Department and

the New York City Department of

Correction.

Defendants.

APPEARANCES:

BERNARD FROMARTZ, ESQ.

Attorney for Plaintiff

188 Montague Street - Suite 600

Brooklyn, NY 11201

A-26

HON. ROBERT ABRAMS

Attorney General of the

State of New York

Attorney for Defendant Joseph B. Murray

120 Broadway

New York, NY 10271

Of Counsel: Stephen Mendelsohn, Esq.

Assistant Attorney General

HON. ROBERT M. MORGENTHAU

District Attorney, New York County

Attorney for Defendant John W. Moscow

One Hogan Place

New York, Ny 10013

Of Counsel: Thomas B. Litsky, Esq.

Marc Frazier Scholl, Esq.

Assistant District Attorneys

KEVIN THOMAS DUFFY, D.J.;

Plaintiff, Christopher C. Day, Ph.D.,

proceeding pro se, commenced this action

pursuant to 42 U.S.C. Section 1983,

seeking a declaratory judgment and money

damages against defendants Robert M.

Morgenthau, District Attorney for New York

County, John W. Moscow, Assistant District

Attorney, Joseph B. Murray, a= court

officer who purportedly arrested Day, and

other individuals.

A-27

On March 29, 1989, Moscow moved

pursuant to Fed. R. Civ. P. 12(b)(6) to

dismiss the complaint, which I granted on

October 23, 1989, dismissing all claims

against Moscow, on prosecutorial immunity

grounds. In addition, the complaint was

dismissed against all remaining defendants

for various reasons. A final judgment was

entered on October 24, 1989. On November

13, ~989, Day moved for reconsideration

and leave to file an amended complaint.

This request was denied on December 13,

1989. Day thereafter appealed the

decision a against defendants Moscow and

Joseph B. Murray, a court officer who

purportedly arrested Day.

on August 2°, 1990, the Second

Circuit affirmed the dismissal of the

complaint, concluding that the malicious

prosecution claim against Moscow was

barred by principles of prosecutorial

A-28

immunity. With regard to Day's false

arrest and illegal search and seizure

claims, the Court held that Day should be

permitted an opportunity to file an

amended complaint. The panel rejected

Murray's argument that false arrest and

illegal search and seizure were barred by

the statute of limitations. See Day v.

Morgenthau, 909 F.2d 75, 77-78 (2d Cir.,

1990).

Murray petitioned the Second Circuit

for rehearing of the appeal, which was

granted on August 29, 1990. After

reconsidering Murray's application, the

Second Circuit reversed its prior decision

and affirmed my dismissal of the complaint

against Murray, stating that unlawful

arrest and search claims as to Murray were

barred because the complaint was untimely.

Day _v. Morgenthau, 909 F.2d at 78. On

November 19, 1990, Day filed an amended

A-29

complaint against Moscow, Murray and other

individuals pursuant to 42 U.S.C. Sections

1983 and 1985(2), seeking equitable relief

as well as compensatory and punitive

damages. It alleges numerous’ claims

including conspiracy to: (1) prevent Day

from testifying in court; (2) injure him

for attempting to enforce a Black person's

right to equal protection of the laws;

(3) chill Day's first amendment rights;

(4) arrest Day unlawfully; (5) conduct an

illegal search and seizure; and (6)

prosecute maliciously. In addition, Day

claims that he was not timely arraigned,

nor was his post-arrest fingerprint cards,

photographs, and property seized returned

to him. Murray now moves pursuant to Fed.

R. Civ. P. 12(f) to strike the Amended

Complaint as against him. Additionally,

Moscow moves pursuant to Fed. R. Civ. P.

12(b) (6) for failure to state a claim upon

which relief can be granted.

A-30

FACTS

On December 11, 1985, Day, with

written authorization from the New York

City Department of Correction (*"DOC*) ,

accompanied an attorney to the 9th floor

at a New York State Courthouse located at

111 Centre Street in the borough of

Manhattan. Amended Complaint paragraphs

18-19. They were "delivering a message to

a prisoner, a Black man, regarding legal

counsel Ses ” Amended Complaint

paragraph 18. Almost twenty four hours

later, Day returned to that same courtroom

"taking notes on the arraignment of the

aforesaid prisoner, a Black person, at

which [sic] Defendant MOSCOW was the

prosecutor." Amended Complaint paragraph

20.

While observing and waiting in the

gallery of the courtroon, Day was

arrested. The arrest, apparently

A-31

undertaken by Murray on Moscow's

direction, was warrantless and not in

response to a misdemeanor’ complaint.

Following the arrest, Murray searched a

briefcase and billfold in Day's

possession. Amended Complaint paragraph

22. After various papers were removed

from Day's briefcase, Moscow allegedly

instructed Murray to swear out a complaint

for Criminal Trespass in the Third Degree.

Amended Complaint paragraphs 26, 37.

Day was then handcuffed and removed to

the Fifth Precinct. At the precinct

house, Day was allegedly given a desk

"appearance ticket," released and told to

return at a future time. Amended

Complaint paragraph 23. Instead, Dayu

alleges that he was held at Central

Booking, photographed, and twice

fingerprinted. Amended Complaint

paragraphs 24, 25. Moscow then swore out

a criminal complaint against Day,

A-32

a i i i a

aaa

initiating a case for Criminal Trespass in

the Third Degree. Amended Complaint

paragraph 26. On December 13, 1985,

thirty one hours after Day's arrest, he

was arraigned and bail was set,' Amended

Complaint paragraph 28. The prosecution

against Day was dismissed on May 14, 1986.

Amended Complaint paragraph 36. After

prosecution was terminated, Day demanded

that his photographs and fingerprints be

returned to hin. Amended Complaint

paragraph 41.

DISCUSSION

Murray maintains that an amended

complaint was filed against him in an

attempt to have a second bit at the apple,

despite the Second Circuit's opinion of

1 Day asserts that his rights were

violated when he was not timely arraigned.

However, failure to arraign a defendant

within 72 hours does not state a federal

cause of action for a fourth amendment

violation.

A-33

rehearing. Thus, Murray claims

entitlement to an order striking the

amended complaint as against hin. I

agree, he is so entitled to have the

amended complaint stricken. In moving to

dismiss the original complaint, Murray

alleged that it failed to state a claim

upon which relief may be granted and that

in any event it was barred by the

applicable three year statute of

limitations. See Owens v. Okure, 488 U.S.

235 (1989) (three year statute of

limitations applies as to false arrest

Claims as prescribed by New York law.) I

held that the complaint alleged only two

claims against Murray -- false arrest and

unlawful search and seizure -- and that

Day failed to state sufficient elements

for any cognizable Section 1983 clains.

On appeal, the Second Circuit agreed

that those were the only two claims as

A-34

ener rein cine ee a cee Coie neu ar ee

against Murray, and on rehearing the court

determined that the false arrest and

search and seizure claims were time-barred

as against Murray. Affirming my dismissal

of the complaint against Murray, the court

stated: "The petition is granted and we

now affirm the dismissal of the complaint

against Murray on the ground that the

Claims pleaded therein are time barred

-++- [i]t follows that leave to replead

the claims asserted against Murray also

must be denied." In light of the Second

Circuit's mandate denying the plaintiff

leave to amend. Day has not succeeded in

convincing me that he has pleaded any non-

time-barred cognizable claims sufficient

to withstand Murray's motion to strike.

Claims brought against Assistant

District Attorney Moscow for false arrest

and illegal search and seizure were deemed

viable and the Second Circuit has allowed

A-35

Day to replead only those claims. The

implication being that Moscow’ acted

outside his prosecutorial function,

choosing to involve himself in extra-

judicial, law-enforcement activities.

However, Day's first complaint, which

asserted claims for malicious prosecution,

was dismissed outright by me and later

unequivocally affirmed. See Day Vv.

Morgenthau, 909 F.2d 75, 77 (2d Cir.

1990). ("While there are no 'bright lines

between quasi-judicial absolutely immune

conduct, on the one hand, and

investigative and administrative qualified

immune behavior on the other,' Powers v.

Coe, 728 F.2d 97, 104 (2d Cir. 1984), the

allegations that Moscow engaged in

malicious prosecution of the’ charge

against Day is clearly within’ the

‘judicial phase of the criminal process, '

Imbler, 424 U.S. at 430, and we therefore

affirm [its] dismissal.") The Second

A-36

Circuit allowed Day to amplify only the

two surviving claims by amended complaint.

Thus, any claims arising from allegedly

malicious prosecution, or conspiracy to do

the same, must be rejected outright.

The Second Circuit was clear in

limiting Day's amended complaint to

"amplifying" only those claims for false

arrest and illegal search and seizure.

Day, however, "amplifies" his pleading by

reasserting claims for inter alia,

malicious prosecution. By asserting that

a conspiracy arising out of the false

arrest and illegal search, he attempts to

revive the false arrest and illegal

search, he attempts to revive the

malicious prosecution clain. Alleging a

conspiracy at this juncture does not serve

to resurrect dead claims. I further

disagree with Day's assertion that any

matters left open by the Second Circuit's

A-37

mandate are thus fair ground and

appropriate to explored in an amended

complaint. This remand does not give Day

the unfettered right to file a wholly new

complaint reasserting claims already

dismissed on appeal, in the name of

amplifying the very harrow claims which

survive. All claims that do not

constitute or arise from the alleged

unlawful arrest or the search and seizure

are improper and cannot withstand this

motion for dismiss. Likewise, all claims

asserted against persons other than Moscow

also must fall.

Regarding Day's claims for unlawful

arrest and search, Moscow asserts that

these claims are time barred. Day averts

that on December 12, 1985, Moscow ordered

Murray to arrest Day without a warrant or

probable cause. Amended Complaint

paragraph 4. Furthermore Day, asserts

A-38

that Moscow "instructed Defendant Murray

ees to search f[his] briefcase and

billfold, from which various papers were

removed under Moscow's supervision without

{a] warrant or probable Cause to believe

that such contained evidence with regard

to the charge alleged." Amended Complaint

paragraph 22. Moscow maintains that these

false arrest and illegal search Claims are

time barred in that the action was

commenced one day beyond the three year

statute of limitations. See Day v.

Morgenthau, 909 F.2q 75, 78 (2d Cir.

1990); Owens Vv. Okure, 488 U.S. 235

(1989).

As the Second Circuit concluded on

rehearing, Day's challenge to Murray's

arrest and search of him was untimely. If

untimely as to Murray, it necessarily

follows that these claims were untimely as

to Moscow. The accrual date was December

A-39

12, 1985, the date that the "decisive

events," namely the arrest and search,

occurred and the date on which Day gained

knowledge of the wrong. This is so

especially in light of the allegation that

Moscow called for and authorized Day's

arrest on December 12, 1990. See

Singleton v. New York, 632 F.2d 185, 191

(2d Cir. 1980), cert. denied, 450 U.S. 920

(1981) (federal law which governs the date

of accrual of federal claims such as those

asserted under 42 U.S.C. Sections 1983 and

1985(2), "“‘establishes as the time of

accrual that point in time when he

plaintiff knows or has reason to know of

the injury which is the basis of his

action. '") (quoting Bireline Vv.

Seagondollar, 567 F.2d 260, 263 (4th Cir.

1977). As determined on rehearing, in

order for Day to have met the three year

statute of limitations, the complaint had

to have been filed on December 12, 1988.

A-40

It was not.

Day, however, asserts that certain

events tolled the accrual of the statute.

Specifically, he contends that the

unlawful arrest and search Claims are not

time-barred because: (1) Moscow waived

his affirmative defense of statute of

limitations; (2) his actions were part of

a conspiracy and the Statute accrued at

the time of the last Over act in

furtherance thereof; (3) his actions are

part of a continuing violation of Day's

first amendment rights; (4) Day was under

duress, thus tolling the statute; and (5)

Moscow should be estopped from raising the

limitations defense by virtue of New

York's General Municipal Law Section 50

(McKinney 1986).

Day's assertion that Moscow waived

the statute of limitations defense with

A-41

respect to unlawful arrest, search and

seizure claims (because it was not

asserted in his first pre-answer motion to

dismiss the first complaint) is without

merit. The statute of limitations defense

need not be raised in a pre-answer motion.

Santos v. District Council of New York

City and Vicinity of United Brotherhood of

Carpenters and Joiners, 619 F.2d 963, 967

(28. Gie., 2900). Moreover, it is

incongruous to deny Moscow the chance to

raise a viable defense when Day is

afforded the opportunity amend . his

complaint, thus getting a second bite at

the apple. There was neither excessive

delay on Moscow's part in raising the

defense, nor substantial prejudice

suffered by Day thereby. That Day may

lose the motion does not’ constitute

prejudice. Indeed, had Day sought to

bring analogous claims of false arrest and

unlawful search in a New York State Court,

A-42

the claims would have been time barred

under the state's lesser one year statute

Of limitations. see N.Y. Civ. Prac. L. R.

Section 215(3) (McKinney 1990).

Similarly, any contention that the

complaint is not time barred because Day

is the victim of a purported comprehensive

conspiracy is frivolous and must be

rejected out of hand. There is nothing in

the pleadings to Suggest surreptitious or

covert actions by Moscow after Dayu's

arrest that would justify tolling the

statute. The complaint wholly fails to

Plead adequate, non-illusory allegations

to make out a conspiracy claim. Indeed,

allegations of conspiracy are newly raised

in the amended complaint apparently in

order disguise that the case is otherwise

Clearly time-barred. Under the

circumstances, allegations of conspiracy

are inadequate to initiate a toll of the

A-43

statute of limitations sufficient to

withstand motions to dismiss. Likewise,

any claims for false arrest and unlawful

search and seizure bootstrapped to the

purported conspiracy must fall as well.

Moreover, merely alleging a series of

interlocking violative events is not

enough to constitute a conspiracy

sufficient to postpone accrual of claims.

Si v. New York, 632 F.2d 185, 192

(2d Cir. 1980), cert. denied, 450 U.S.

920 (1981) ("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"). The operative date for

accrual of Day's claims is December 12,

1985, the day that he was arrested. Day

failed to file suit within three years

from that date. None of the post-arrest

events elevate Day's claims to a

A-44

conspiracy. Although Day alleges

subsequent "interlocking" violative

events, no viable conspiracy can be

gleaned therefron.

Day, however, attempts to circumvent

the rule, as delineated in Singleton, by

asserting the "continuing violation"

doctrine. This doctrine is usually

employed in connection with employment

discrimination suits and functions to toll

the time to file an action "(wjhere the

defendant has engaged in a continuous

policy of discrimination." Association

CS Aliihteh- tn aes is

Vv. Bridgeport, 647 F.2d 256, 274 (2a Cir.)

cert. denied, 455 U.S. 256 (1981). In

order to show a continuing violation,

plaintiff must show "a series of related

acts, one or more of which falls within

the limitations period." La Beach v.

Nestle Co., 658 F. Supp. 676, 687

A-45

(S.D.N.Y. 1987). Day has wholly failed to

allege facts sufficient to give rise to a

reasonable inference of a continuous

"policy of discrimination."

Specifically, Day claims that the

unlawful prosecution against his squelched

his first amendment rights, hindering him

from lawfully conversing with and helping

a black prisoner. At the outset, a case

involving false arrest/unlawful search

charges do not present a situation where

the continuing violation doctrine appears

applicable or appropriate. Even if Day,

as he avers, was unlawfully arrested and

prosecuted, thereby chilling his first

amendment rights, this is insufficient to

warrant application of the doctrine. The

continuing violation doctrine may not be

based on the continuing effects of earlier

unlawful conduct. elaw ege

v. Ricks, 449 U.S. 250, 257 (1980). As

A-46

Such, Day's use of this doctrine is no

more than a ploy to resurrect his time-

barred claims. Furthermore, any reliance

on duress in order to affect a toll of the

Statute is misplaced. Any purported

duress experienced by Day did not alter

the limitations period here. See Cullen

Vv: Margiotta, 811 F.2q 698, 722 (2a Civ},

cert. denied, 483 U.s. 1021 (1987) (only

where duress is "part" of the Cause of

actio itself, or an element thereof, does

it have any possible tolling impact. )

Day next asserts that Moscow "is

equitably estopped from raising the

defense of statute of limitations in

virtue [sic] of another tolling provision

of New York State law." Plaintiff's

Memorandum at re Apparently, Day is

Suggesting that New York's General

Municipal Law constitutes a tolling

Provision. It does not. Section 50-i is

A-47

no more than a condition precedent that

must be met, regarding the filing of a

notice of claim before commencing an

action against a municipality. Rapf v.

Suffolk County of New York, 755 F.2d 282,

288 (2d Cir. 1985) (discussing Gen.

’

Munic. L. Sections 50-3 and 50-i).

Finally, Day's amended complaint

raises an additional two claims pursuant

to 42 -U.S.C. Sections 1985(2), which were

never asserted in his first complaint.

The first Section 1985(2) claim asserts

that Moscow and Murray "both or either of

them conspired with others" to deter Day

"by force, intimidation and threat" rom

attending a federal proceeding . and

testifying in The Law Firm of Daniel P.

Foster, P.c. et al. v. John Does 1-200, et

al., 84 Civ. 1337 (CES). Amended

Compiaint Paragraphs 9, 15. The second

section 1985(2) claim asserts that during

A-48

the same time period Moscow "conspired

with others for the purpose of impeding,

hindering, obstructing or defeating the

due course of justice in the State of New

York" as a result of being "arrested and

prosecuted because [Day] assisted a Black

prisoner with his equal right to counsel."

Amended Complaint paragraph 10;

Plaintiff's Memorandum at 8.

Although the amended complaint fails

to set forth with any reasonable certainty

facts showing what Moscow did to carry the

conspiracy into effect, Day apparently

ties the purported misconduct to his own

criminal prosecution. Indeed, these

Claims cannot fairly be viewed as a

foreseeable outgrowth of the original

complaint. Additionally, Day concedes

that the prosecution ended on May 14,

1986. Thus, if Day was intimidated as a

result of that prosecution from testifying

' A-49

in federal court or from assisting a Black

prisoner in a separate state prosecution,

any intimidation clearly ended after

Dayu's prosecution was dismissed on May

14, 1986. Accordingly, Day had three

years to amend the original complaint

incorporating his Section 1985(2) claims.

Since these claims were not part of the

original complaint, and raised for the

first time on November 15, 1990 in the

amended complaint, both Section 1985(2)

claims are time barred under’ the

applicable statute of limitations period.

Indeed, all claims asserted in the amended

complaint apparently arise from the same

basic events, dating from the arrest and

search, thus all other claims, in addition

to those appended to the Section 1983 and

1985(2) must fall as well.

A-50

For the foregoing reasons, motions to

strike and dismiss brought by defendants

Murray and Moscow are granted in whole ana

Day's amended complaint is dismissed in

its entirety as against all defendants.

This decision close this case and

hopefully will write "FINIS" to the entire

matter.

SO ORDERED.

DATED: New York, New York

May 14, 1991

KEVIN THOMAS DUFFY, U.S.D.d.

A-51

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

—

No. 539—August Term, 1991

(Argued: November 21, 1991 Decided: January 24, 1992)

Docket No. 91-7536

CHRISTOPHER C. DAY, PH.D.,

Plaintiff-Appellant,

—

JOHN W. MOSCOW and JOSEPH B. MURRAY, individually

and as Senior Court Officer of the State of New York,

JANE DOE MARSHALL, individually and as Captain of

the New York City Department of Correction and

JOHN DOE, 1-10, unknown named officers of the New

York City Police Department and the New York City

Department of Correction,

Defendants-Appellees.

Before:

OAKES, Chief Judge,

and MESKILL and KEARSE, Circuit Judges.

Appeal from a judgment of the United States District

Court for the Southern District of New York, Kevin

Thomas Duffy, Judge, dismissing amended complaint

brought under 42 U.S.C. §§ 1983 and 1985(2) as barred

by prior proceedings and by the statute of limitations.

Affirmed.

BERNARD FROMARTZ, Brooklyn, New York,

for Plaintiff-Appellant.

THOMAS B. LITSky, Assistant District Attor-

ney, New York County, New York, New

York (Robert M. Morgenthau, District

Attorney, New York County, Marc Fra-

zier Scholl, Assistant District Attorney,

New York, New York, on the brief), for

Defendant-Appellee John W. Moscow.

STEPHEN MENDELSOHN, Assistant Attorney

General of the State of New York, New

York, New York (Robert Abrams, Attor-

ney General of the State of New York,

New York, New York, on the brief), for

Defendant-Appellee Joseph B. Murray.

KEARSE, Circuit Judge:

Plaintiff Christopher C. Day appeals from a final judg-

ment of the United States District Court for the Southern

District of New York, Kevin Thomas Duffy, Judge,

entered after proceedings on remand from our prior deci-

A-53

1374

sion, Day v. Morgenthau, 909 F.2d 75 (2d Cir. 1990)

(“Day I’), dismissing his post-remand amended complaint

brought under 42 U.S.C. §§ 1983 and 1985(2) (1988) for

damages in connection with claims of, inter alia, false

arrest, unlawful search and seizure, malicious prosecu-

tion, and conspiracy. The district court dismissed the com-

plaint pursuant to Fed. R. Civ. P. 12(b)(6) and 12(f) on the

grounds that the claims asserted were barred by Day /

and/or by the 3-year statute of limitations. On appeal, Day

contends principally (1) that his new claims were not

foreclosed by the prior proceedings, and (2) that the

statute Of limitations had been tolled. For the reasons

below, we reject these contentions and affirm the judg-

ment of dismissal.

I. BACKGROUND

The events leading to this litigation, as alleged in the

complaint and reiterated in the amended complaint, are set

forth in Day /, familiarity with which is assumed, and will

be but briefly summarized here. At the pertinent times,

Day was serving as a paralegal for a New York City law

firm. Defendant John W. Moscow was an Assistant Dis-

trict Attorney for New York County; defendant Joseph B.

Murray was a senior court officer in the criminal courts

building (“courthouse”) at 111 Centre Street in New York

County.

On December 11, 1985, Day accompanied one of the

firm’s attorneys to an area of the courthouse known as the

“holding pens,” in which prisoners were detained. Day

waited outside the holding pens while the attorney went

inside to deliver a message “9 a prisoner. On the follow-

ing day, December 12, 1985, while sitting in a courtroom

in the same courthouse, Day was arrested, without a war-

A-54

1375

rant, and charged with criminal trespass in connection

with his presence outside the holding pens the day before.

Murray arrested Day on the instruction of Moscow, and

searched Day’s briefcase and billfold. Day was incarcer-

ated for some 31 hours while awaiting his arraignment.

The charge against him was eventually dismissed.

A. The Dismissal of the Complaint and the Decision in

Day I

On December 13, 1988, Day commenced the present

action against Moscow, Murray, “Jane Doe” Marshall, and

several other defendants under § 1983, seeking $500,000

in compensatory damages and $1 million in punitive dam-

ages. Day asserted various claims, including claims

against Moscow and Murray for false arrest and unlawful

search and seizure (sometimes referred here to as the

“arrest/search” claims), and against Moscow for malicious

Prosecution as well. All defendants moved to dismiss the

complaint pursuant to Rule 12(b)(6). Moscow argued that

he was entitled to prosecutorial immunity; Murray argued

that the complaint failed to state a claim against him and

that, in any event, the claims asserted against him were

barred by the statute of limitations.

In a Memorandum and Order dated October 23, 1989,

the district court dismissed the complaint in its entirety.

To the extent pertinent here, the court dismissed the

claims asserted against Moscow on the ground that his

actions were within the scope of his prosecutorial duties

and that he therefore enjoyed absolute immunity from

Day’s claims. The court dismissed the complaint against

Murray on the ground that it failed to state a claim against

him on which relief could be granted. Day moved for

leave to file an amended complaint elaborating on his

A-55

1376

claims against Moscow and Murray. The district court

denied the motion, and Day appealed.

In Day I, this Court vacated the dismissal of the

arrest/search claims against Moscow, remanding for the

filing of an amended complaint containing those claims,

and in all other respects we affirmed the judgment. Since

Day did not present any argument as to the dismissals of

the defendants other than Moscow and Murray, we dis-

cussed only the claims against those two defendants.

With respect to Murray, who argued that the complaint

failed to state a claim against him and, alternatively, that

the statute of limitations had run, we affirmed the dis-

missal on the latter ground. Ruling that the three-year lim-

itations period provided by N.Y. Civ. Prac. L. & R.

(“CPLR”) § 214(5) (McKinney 1990), governed the

action, and ruling on reargument that the action had been

commenced three years and one day after the claims’

accrual, we concluded that the action against Murray was

time-barred. With respect to the claims against Murray,

we also affirmed the district court’s denial of leave to

amend. Day /, 909 F.2d at 79.

With respect to Moscow, we agreed with the district

court that Moscow enjoyed absolute immunity from the

claim of malicious prosecution. We ruled that the

arrest/search claims, however, alleged acts that are not

normally considered prosecutorial functions. As to those

claims, therefore, Moscow could claim only qualified, not

absolute, immunity. Since his entitlement to qualified

immunity could not be determined from the face of Day’s

complaint, we vacated the dismissal of the arrest/search

claims. We remanded and directed the district court “to

permit Day to file an amended complaint amplifying those

claims.” /d. at 78.

A_56

1377

B. The Proceedings on Remand

On remand, Day filed an amended complaint that not

only amplified his arrest/search claims against Moscow

but also repleaded other claims that had been dismissed

and asserted new claims under § 1983 and under 42

U.S.C. § 1985(2) against Murray, Moscow, and “Jane

Doe” Marshall, and against 10 “John Doe” defendants

who had not been named in the Original complaint. The

amended complaint, demanding $1 million in compen-

Satory damages and $3 million in Punitive damages,

asserted, inter alia, claims against Murray and Moscow

for false arrest, search and seizure, malicious prosecution,

unlawful delay of Day’s arraignment, and conspiracy to

prevent Day from testifying in a court proceeding.

Murray moved pursuant to Rule 12(f) to strike the

amended complaint as to him on the ground that the dis-

missal of the original complaint against him, without

leave to replead, had been affirmed on appeal. Moscow

moved pursuant to Rule 12(b)(6) to dismiss most of the

Claims against himself on similar grounds, i.e., that all

Claims other than the arrest/search claims had been dis-

missed without leave to replead, that the dismissal had

been affirmed on appeal, and that this Court had ordered

that Day be allowed to file an amended complaint only

with respect to the arrest/search claims. He moved to dis-

miss the arrest/search claims on the ground that they were

barred by the statute of limitations. ;

In a Memorandum and Order dated May 14, 199]

(“May 199] Order”), the district court granted Murray’s

motion to strike the amended complaint as against him.

Noting that this Court had affirmed the dismissal of the

Original complaint as against Murray on the ground that

the claims were barred by the statute of limitations, the

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district court concluded that the claims Day attempted to

assert against Murray in the amended complaint were

likewise barred.

As to Moscow, the district court concluded that this

Court’s remand to permit Day to replead had been limited

to the arrest/search claims and that Day’s new claims were

thus improperly asserted. As to the arrest/search claims,

the court concluded that they were barred by the statute of

limitations. The district court noted that this Court had

found those claims untimely as to Murray, and it con-

cluded that, “[i]f untimely as to Murray, it necessarily fol-

lows that these claims were untimely as to Moscow.” /d.

at 9. Though Day contended that the statute of limitations

had been tolled for a number of reasons, the court rejected

all of his arguments.

As to the “John Doe” defendants, the district court

ruled that this Court’s limited grant of leave to replead

against Moscow did not allow Day to bring in new par-

ties, and it apparently concluded that the claims against

these parties, which arose from the same series of events,

were barred by the statute of limitations.

Accordingly, the court dismissed the amended com-

plaint in its entirety. This appeal followed.

II. DISCUSSION

On appeal, Day argues principally (1) that the mandate

in Day / did not foreclose his assertion of any claims, and

(2) that his arrest/search claims against Moscow are not

time-barred because the running of the statute of limita-

tions had been tolled. For the reasons below, we conclude

that most of Day’s new claims were foreclosed by Day /,

that the statute of limitations on Day’s arrest/search

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1379

Claims against Moscow was not tolled, and that the com-

plaint was therefore properly dismissed.

A. Day’s Claims Against Defendants Other Than

Moscow

Day’s challenges to the district court’s dismissal of the

amended complaint’s claims against defendants other than

Moscow do not require lengthy discussion. Most of those

claims are foreclosed by our decision in Day /.

1. Murray

As against Murray, the original complaint asserted only

claims of false arrest and unlawful search and seizure.

The district court dismissed the complaint against him and

denied Day’s request for permission to file an amended

complaint. This Court affirmed the dismissal and affirmed

the denial of leave to replead against Murray. Accord-

ingly, Day J confirmed the entry of a final judgment in

Murray’s favor.

Principles of res judicata bar Day’s attempt to relitigate

not Only the arrest/search claims that had already been

asserted against Murray, the dismissal of which became

final in Day J, but also any other claim that Day could

have asserted against him arising out of the same series of

events. See, e.g., Commissioner v. Sunnen, 333 U.S. 591,

597 (1948); Balderman v. United States Veterans Admin-

istration, 870°F.2d 57, 62 (2d Cir. 1989); Tucker v. Arthur

Andersen &-Co., 646 F.2d 721, 727 (2d Cir. 1981);

Restatement (Second) of Judgments § 24 (1982). Gener-

ally res judicata is an affirmative defense to be pleaded in

the defendant’s answer. See Fed. R. Civ. P. 8(c). However,

when all relevant facts are shown by the court’s own

records, of which the court takes notice, the defense may

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be upheld on a Rule 12(6)(6) motion without requiring an

answer. See, e.g., W.E. Hedger Transp. Corp. v. Ira S.

Bushey & Sons, 186 F.2d 236, 237 (2d Cir. 1951). Thus,

though Rule 12(f), which permits the court to strike from

a pleading any matter that constitutes an “insufficient

defense” or that is “redundant, immaterial, impertinent, or

scandalous,” Fed. R. Civ. P. 12(f), was not the appropri-

ate procedural vehicle for Murray’s motion, see 5A C.

Wright & A. Miller, Federal Practice and Procedure

§ 1380, at 644 (1990) (Rule 12(f) designed for excision of

material from a pleading, not for dismissal of claims in

their entirety), dismissal of the amended complaint

against Murray was plainly proper. ;

2. “Jane Doe” Marshall

The original complaint asserted claims against several

individuals other than Murray and Moscow. All such

claims were dismissed, and, as stated above, the claims

against those other defendants were not pursued on Day’s

first appeal. Consequently, the dismissals as to defendants

other than Murray and Moscow were not disturbed in Day

] and became final as to them. Thus, as to those defen-

dants, as with respect to Murray, principles of res judicata

foreclosed any further assertion by Day of claims with

respect to the events described in the original complaint.

In his amended complaint, Day attempted to assert such

claims against “Jane Doe” Marshall. Since “Jane Doe”

Marshall was an original defendant as to whom the judg-

ment dismissing the complaint had become final, the dis-

trict court properly dismissed the amended complaint

against her since those claims are barred by res judicata.

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1381

3. The “John Doe” Defendants

Day’s amended complaint also brought in ten new

defendants, denominated “John Doe[s] 1-10” and

described as officers of the New York City Police Depart-

ment or Department of Correction. The arrest of Day at

the courthouse on December 12, 1985, and the ensuing

treatment of him were alleged to be the result of a con-

spiracy in which the “John Doe[s]” were alleged to have

Participated. .

The district court apparently dismissed these claims on

the ground that our limited remand permitting amendment

of two claims against Moscow foreclosed the introduction

of claims against any new defendants and that such claims

_ were barred by the statute of limitations. Day has not

explicitly challenged the dismissal of the “John Doe[s]”

on this appeal, but we note that to the extent that his

request for relief envisions reinstatement of his claims

against these parties, it lacks merit. Though our prior

decision did not purport to foreclose the commencement

of a new action against any persons other than those who

were then parties to the action, it established that the

three-year statute of limitations provided in CPLR

§ 214(5) governs Day’s claims, Day I, 909 F.2d at 78-79.

Dismissal of the asserted claims against the new defen-

dants thus was correct on statute of limitations grounds.

B. The Claims Against Moscow

The claims asserted by Day in the amended complaint

against Moscow may be divided into two groups: his

arrest/search claims, all other claims. Assertion of the lat-

ter group was barred by Day J; assertion of the

arrest/search claims was barred by the statute of limita-

tions. We discuss them in reverse order.

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spirator of Moscow, or (3) because CPLR § 204(a) (Mc-

Kinney 1990) provides for tolling in connection with

Day’s filing of a notice of claim under New York’s munic-

ipal administrative claim procedure. We note that these

issues were not addressed by this Court in Day / because

in response to Murray’s statute-of-limitations argument

(Moscow had not then asserted such a defense), Day made

no argument as to tolling. Though it is well established

that when a federal court looks to state law to determine

the appropriate statute of limitations governing a claim

brought under § 1983, it must also refer to the state's

coordinate tolling rules unless they are inconsistent with

o federal law, Board of Regents v. Tomanio, 446 U.S. 478,

484-86 (1980), we conclude that none of Day’s present

contentions has merit, and only the third requires

extended discussion.

We reject Day’s first contention, i.e., that the statute of

limitations was tolled by duress, because under New York

law duress will toll the running of a statute of limitations

only if duress against the plaintiff is an element of the

cause of action asserted. See, e.g., Cullen v. Margiotta,

811 F.2d 698, 722 (2d Cir.), cert. denied, 483 U.S. 1021

(1987); Baratta v. Kozlowski, 94 A.D.2d 454, 458-59, 464

N.Y.S.2d 803, 806 (2d Dep’t 1983). Duress is not an ele-

ment of a cause of action for false arrest, see generally

Broughton v. New York, 37 N.Y.2d 451, 456-57, 373

N.Y.S.2d 87, 93-94, cert. denied, 423 U.S. 929 (1975), or

a claim of unlawful search and seizure. We reject Day’s

second contention, i.e., that the statute was tolled by

timely service of process on a coconspirator, because,

inter alia, the original complaint did not allege a con-

spiracy, Day | did not permit Day to introduce a con-

spiracy claim, and in any event, as the district court aptly

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1384

1. The Claims of Malicious Prosecution, Conspiracy,

etc.

Where issues have been “explicitly or implicitly

decided on appeal,” United States y. Uccio, 940 F.2d 753,

758 (2d Cir. 1991), the law-of-the-case doctrine obliges

the district court on remand to follow the decision of the

court of appeals, see, e.g., id. at 757: Soto-Lopez v. New

York City Civil Service Commission, 840 F.2d 162, 167

(2d Cir. 1988); United States v. Fernandez, 506 F.2d 1200,

1202 (2d Cir. 1974); 18 C. Wright, A. Miller & E. Cooper,

Federal Practice and Procedure § 4478, at 792-93 (1981).

In Day I, we explicitly affirmed the dismissal of the claim

against Moscow for malicious Prosecution on the ground

of absolute immunity. The dismissal of that claim thus

was final. Further, since in vacating the dismissal of the

arrest/search claims we stated that Day should be allowed

to “file an amended complaint amplifying those claims,”

Day 1, 909 F.2d at 78 (emphasis added), we implicitly, if

not explicitly, ruled that any amended complaint was to be

limited to those claims.

Accordingly, the district court properly ruled that the

amended complaint, insofar as it sought to assert against

Moscow claims other than claims for false arrest and

unlawful search and seizure, was foreclosed by Day /.

2. The Arrest/Search Claims Against Moscow

The remaining question is whether the arrest/search

claims against Moscow were properly dismissed on

Statute-of-limitations grounds. Day contends that the dis-

trict court should have ruled his claims against Moscow

timely on the ground that the statute of limitations was

tolled either (1) because Day was under duress, or (2)

because he timely served process on an alleged cocon-

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1383

found, Day’s present allegation “of a purported compre-

hensive conspiracy is frivolous.” May 1991 Order at 10.

Day’s final contention, i.e., that the statute of limita-

tions was tolled by CPLR § 204(a), has some superficial

appeal but ultimately does not withstand analysis. The

foundation for this argument is the interplay between

CPLR § 204(a) and the state administrative provisions

affecting claims against municipalities.

When the alleged events occurred, New York law pro-

vided that a suit against a municipality or its employees

must be preceded by the filing of a notice of claim with

the municipality. See N.Y. Gen. Mun. Law § 50-e (Mc-

Kinney 1986 & Supp. 1991); bur see Felder v. Casey, 487

U.S. 131 (1988) (ruling that states may not establish such

a notice of claim as a precondition to suit in state court

under § 1983). The New York statutory scheme also pro-

vided that whenever a notice of claim was filed, the

municipality had the right to demand an examination of

the claimant, and that “[w]here [such] a demand has been

served . . . no action shall be commenced against the

[municipality] unless the claimant has duly complied with

such demand for examination.” N.Y. Gen. Mun. Law

§ 50-h(5) (McKinney 1986 & Supp. 1991).

CPLR § 204(a) provides that “[w]here the commence-

ment of an action has been stayed by a court or by statu-

tory prohibition, the duration of the stay is not a part of

the time within which the action must be commenced.”

Under New York law, the prohibition found in § 50-h(5),

forbidding commencement of an action until the demand

for an examination has been honored, triggers § 204(a)’s

tolling provision. See Hauptman v. New York City Health

and Hospitals Corporation, 162 A.D.2d 588, 589, 556

N.Y.S.2d 929 (2d Dep’t 1990).

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1385

In his amended complaint, Day alleged that “[{ojn

November 3, 1986, the Office of the Comptroller served

a Demand for Plaintiff’s examination, which'was held on

June 8, 1987.” (Amended Complaint q 2.) Thus, he argues

that from November 3, 1986, to June 8, 1987, § 50-h(5)

prevented him from commencing his suit and that CPLR

§ 204(a) tolled the statute of limitations for that seven-

month and five-day period. When this additional time is

added to the limitations period, Day’s arrest/search claims

were timely filed. Ws

The flaw in this argument is that, though New York’s

notice-of-claim requirements were, prior to Felder vy.

Casey, 487 U.S. 131, applicable to § 1983 suits brought in

State court, they were not applicable to § 1983 suits

brought in federal court. See, e.g., Brandon v. Board of

Education, 635 F.2d 971, 973 n.2 (2d Cir. 1980), cert.

denied, 454 U.S. 1123 (1981); Courtemanche vy. Enlarged

City School District, 686 F. Supp. 1025, 1032 (S.D.N.Y.

1988); Burroughs v. Holiday Inn, 621 F. Supp. 351, 353-

55 (W.D.N.Y. 1985); Williams v. Allen, 616 F. Supp. 653,

656-59 (E.D.N.Y. 1985); Paschall v. Mayone, 454 F.

Supp. 1289, 1298 (S.D.N.Y. 1978). Thus, Felder v. Casey

noted that although the Supreme Court itself “ha[d] never

passed on the question, the lower federal courts have all,

with but one exception, concluded that notice-of-claim

Provisions are inapplicable to § 1983 actions brought in

federal court.” 487 U.S. at 140. The lone exception

referred to in Felder was Cardo v. Lakeland Central

School District, 592 F. Supp. 765, 772-73 (S.D.N.Y.

1984), which was not authoritative, since it was contrary

to the principle stated by this Court in Brandon v. Board

of Education, 635 F.2d at 973 n.2, upholding a ruling that

compliance with the state’s notice-of claim provision was

not a precondition to the district court action. Since the

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filing of a notice of claim was not a prerequisite to the

federal-court suit, a municipality perforce could not

require a delay of the commencement of a federal-court

Suit pending an examination based on such a notice. Thus,

there was no point during the three-year period provided

by CPLR § 214(5) at which Day was barred from com-

mencing the present suit in federal court. Since there was

no statutory prohibition against a suit such as the present

one in federal court, we conclude that under state law, the

tolling provision in § 204(a) would not be deemed appli-

cable to an action in federal court.

A statute of limitations is a statute of repose, “consid-

ered indispensable to any scheme of justice.” Felder v.

Casey, 487 U.S. at 140. The purpose of a tolling provision

is to assure that the claimant has the full period of time

provided by a statute of limitations in which to bring his

suit. In the present case, no valid purpose would be served

by enlarging the prescribed period to “compensate” for a

disability that did not exist.

CONCLUSION

We have considered all of Day’s arguments on this

appeal and have found them to be without merit. The

judgment dismissing the amended complaint is affirmed.

1387

UNITED STATES COURT OF APPEALS

FOR THE

SECOND CIRCUIT

At a stated Term of the United States

the City of New York, on the day

on thousand nine hundred and

Present:

Hon. J.L. OAKES

Hon. T.J. MESKILL

Hon. A.L. KEARSE

CIRCUIT JUDGES

CHRISTOPHER C. DAY, Ph.D.,

Plaintiff-Appellant,

Document No.

91-7536

Vv.

JOHN W. MOSCOW and JOSEPH B. MURRAY,

Individually and as Senior Court

Officer of the State of New York,

JANE DOE MARSHALL, Individually and

as Captain of the New York City

Department of Correction and

JOHN DOE 1-10, Unknown named

Officers of the New York City

Police Department and the New York

A-67

City Department of Correction.

Defendants~-Appellees.

A petition for rehearing, having been

filed herein by Plaintiff-Appellant,

Christopher C. Day, Ph.D.

Upon consideration, thereof, it is

Ordered that said petition be and it

hereby is DENIED.

SO ORDERED:

FOR THE COURT,

Elaine B. Goldsmith, Clerk

By: Kathy Brouwer, Operations Mgr.

Date: 2-25-92

A-68

APPENDIX: A.

STATUTES INVOLVED

42 United States Code Section 1988

provides in pertinent part:

Proceedings in Vindication of Civil

Rights

The jurisdiction in civil ana

criminal matters conferred on

the district courts by the pro-

visions of this Title, and of

Title "CIVIL RIGHTS", and of

Title "CRIMES," for the prote-

ction of all persons in the U-

nited States in their civil

rights, and for their vindica-

tion, shall be exercised and

enforced in conformity with the

laws of the United States, so

far as such laws are Suitable to

carry the same into effect; but

in all cases where they are not

adapted to the object, or are

deficient in the provisions nec-

essary to furnish suitable reme-

dies and punish offenses against

the law, the common law, as mod-

ified and changed by the consti-

tution and statutes of the State

wherein the court having juris-

diction of such civil or crimi-

nal cause is held, so far as the

Same is not inconsistent with

the Constitution and laws of the

United States, shall be extended

to and govern the said courts in

A-69

the trial and disposition of the

cause, and, if it is of a crimi-

nal nature, in the infliction of

punishment on the party found

guilty. [...]

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.