ANDREW SMALLS, Plaintiff-Appellant, v. POLICE OFFICER RICHARD COLLINS AND POLICE OFFICER DAVID TETA, Defendants-Appellees, CITY OF NEW YORK, POLICE OFFICER ERIC CABRERA, POLICE OFFICER JESSICA ALVARADO, SERGEANT BRIAN STAMM AND POLICE OFFICER ALVAREZ, Defendants. DESHAWN DANIEL, Plaintiff-Appellant, v. DETECTIVE BRIAN TAYLOR, DETECTIVE NEIL MAGLIANO, DETECTIVE JAMES CLEARY, SERGEANT WESLEY FRADERA, Defendants-Appellees, CITY OF NEW YORK, JOHN AND JANE DOES 1-5, NEIL C. MAGLIANO, Defendants.
Docket Nos. 20-1099-cv/20-1331-cv
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
August 20, 2021
August Term, 2020 (Argued: March 08, 2021)
SACK, MENASHI, Circuit Judges, AND KAPLAN, District Judge.*
Before: SACK, MENASHI, Circuit Judges, AND KAPLAN, District Judge.*
In these tandem appeals, the plaintiffs-appellants Andrew Smalls and Deshawn Daniel each filed suit under
REVERSE the judgments of the district courts with respect to the fair-trial claims, AFFIRM the dismissal of Daniel‘s other claims, and REMAND for further proceedings consistent with this opinion.
JOEL B. RUDIN (Matthew A. Wasserman, Jacob Loup, Law Offices of Joel B. Rudin, P.C., New York, NY, and Jon L. Norinsberg, Law Offices of Jon L. Norinsberg, New York, NY, on the brief), for Plaintiff-Appellant Andrew Smalls;
GREGORY ANTOLLINO, Antollino, PLLC, New York, NY, and STEPHEN BERGSTEIN, Bergstein & Ullrich, New Paltz, NY, for Plaintiff-Appellant Deshawn Daniel;
JOHN MOORE (Richard Paul Dearing, Devin Slack, on the brief), for James E. Johnson, Corporation Counsel
SACK, Circuit Judge:
Although these appeals come to us in different procedural postures, they present similar material facts and closely related legal questions and were therefore heard, and are decided, in tandem.
Plaintiffs-appellants Andrew Smalls and Deshawn Daniel were each prosecuted in state court for criminal possession of a weapon (and, in Smalls‘s case, also for trespass); in each case, the criminal proceedings terminated without an extant criminal conviction or any remaining pending charges. Smalls was initially convicted of three counts, two of which were later dismissed on appeal and the third on remand. Daniel‘s charge was resolved by an adjournment in contemplation of dismissal, and his case was ultimately dismissed in its entirety.
Both subsequently filed civil suits against the defendants1 (Smalls in the United States District Court for the Eastern District of New York, and Daniel in the Southern District). They asserted claims under
Smalls‘s section 1983 fabricated-evidence claim proceeded to trial and a jury found Police Officers Richard Collins and David Teta (the “Smalls defendants“) liable. The Smalls defendants subsequently moved for an order vacating the judgment and entering judgment in their favor based on the Supreme Court‘s decision in McDonough v. Smith, 139 S. Ct. 2149 (2019), which held that section 1983 fabricated-evidence claims do not accrue (and therefore cannot be brought) until a criminal proceeding has ended in the defendant‘s favor or a resulting conviction has been invalidated within the meaning of Heck v. Humphrey, 512 U.S. 477 (1994). McDonough, 139 S. Ct. at 2158. The district court (Carol Bagley Amon, Judge) granted the Smalls defendants’ motion, reasoning that McDonough‘s favorable-termination requirement for section 1983 fabricated-evidence claims is identical to that required for malicious-prosecution claims. In the context of malicious-prosecution claims, a plaintiff must demonstrate that the underlying criminal proceeding ended in a manner that affirmatively indicates her innocence. See Lanning v. City of Glens Falls, 908 F.3d 19, 22 (2d Cir. 2018). The district court concluded that Smalls could not meet this standard and that his claim was therefore barred.
Smalls and Daniel both appeal. They contend that the district courts erred in dismissing their respective section 1983 fabricated-evidence claims because McDonough does not require a termination indicative of innocence, and their criminal proceedings terminated in their favor within the meaning of McDonough. Daniel also argues that the district court erred in dismissing his section 1981 claims and denying his motion for equitable tolling. For the reasons that follow, we conclude that (1) the district courts erred in dismissing Smalls‘s and Daniel‘s section 1983 fabricated-evidence claims and entering judgment for the defendants; (2) Daniel‘s section 1981 claims were properly dismissed; and (3) Daniel‘s equitable tolling motion was properly denied. We therefore reverse the district courts’ judgments with respect to the fair-trial claims, affirm the dismissal of Daniel‘s other claims, and remand each matter for further proceedings consistent with this opinion.
BACKGROUND
I. Smalls
A. Smalls‘s State Criminal Proceedings
Plaintiff-appellant Andrew Smalls was indicted in the Supreme Court of the State of New York, Queens County, on two counts of criminal possession of a weapon (a firearm) and one count of criminal trespass. Smalls filed a pre-trial motion to suppress the firearm from use as evidence.
At the suppression hearing, police officers testified that, while in uniform, they were on foot patrol at a New York City public housing project when they heard a gunshot. They walked to the rear of a building from or near which the gunshots appeared to emanate. There, they saw a group of five youths (four males and one female), including Smalls, walking away from the building. The officers followed them for several blocks. When, eventually, the youths became aware of the officers’ presence, they began to run. The police gave chase and followed the group further into the public housing complex, which had “no trespassing” signs displayed, and up the stairs to the roof of one of the buildings. The officers testified that during the chase, they saw Smalls hand a pistol to a member of the group who turned out to be his brother, Ronnie; that the gun fell into the stairwell; and that the officers recovered the weapon one or two feet away from Ronnie. Following the hearing, the trial court denied Smalls‘s motion to suppress.
On appeal, the Appellate Division, Second Department, reversed Smalls‘s conviction. The court held that the trial court should have granted Smalls‘s motion to suppress the “physical evidence” – i.e., the firearm – because the police “lacked reasonable suspicion” to pursue Smalls. People v. Smalls, 83 A.D.3d 1103, 1104 (2d Dep‘t 2011). The court further found that “there [wa]s no evidence that, during the pursuit, the police had any basis for believing that [Smalls] . . . did not in fact live in the public housing complex.” Id. Accordingly, the court dismissed the two counts charging criminal possession of a weapon and ordered a new trial on the trespass count.
On remand, the trial court dismissed the remaining trespass count. After reopening the suppression hearing, the court concluded “that the observations made by the officers regarding [Smalls‘s] entry into and presence inside the subject public housing building, which were made during the illegal chase, are the fruits of an impermissible seizure.” Smalls JA.36.2 Because the court suppressed the officers’ purported observations and there was no other evidence to support the trespass count, the court dismissed the indictment.
Smalls served two years, one month, and fourteen days in jail as a result of being charged and convicted of the criminal possession of a weapon counts.3
B. Smalls‘s Section 1983 Action
After the dismissal of the criminal charges, on April 10, 2014, Smalls filed suit in the United States District Court for the Eastern District of New York, asserting – pursuant to
At trial, the police officers’ version of events (differing somewhat from the facts elicited in connection with the state criminal proceedings) was as follows: On the evening of May 19, 2006, after they heard a gunshot, the police pursued four men, including Smalls and his brothers Ronnie and Cedric, into a building located at 81-05 Rockaway Beach Boulevard, Queens, New York. Officer Collins testified that he saw Smalls hand a gun to Ronnie as the two were running up the stairs of the building. Officer Collins then followed Smalls and
Smalls contested the officers’ version of events, testifying that he was not present when the police were chasing his brothers and allegedly saw him holding a gun. Smalls stated that he was playing cards in the apartment of a friend, Lindsey Johnson, when their mutual friend William Davis knocked on the door and told Smalls that his brothers Ronnie and Cedric were being arrested. Smalls went downstairs, where he saw his brothers being placed in a police car. Smalls then got into a verbal altercation with the officers, who slammed him against a wall, causing a cut above his eye, and then handcuffed him. Smalls testified that he was wearing a gray hooded sweatshirt, but no jacket; it was too warm for a jacket. Several witnesses – including Lindsey Johnson and William Davis – testified on Smalls‘s behalf and corroborated his version of events.
Smalls‘s attorney also elicited evidence that appeared to undercut the police officers’ stories. For instance, the prisoner pedigree cards for Ronnie and Cedric said they were apprehended on the roof, while Smalls‘s card listed the arrest location only as 81-05 Rockaway Beach Boulevard – Officer Collins added the word “roof” later. Smalls JA.89-90, JA.251. Smalls‘s card also indicated that he was wearing a “grey hoodie,” although Collins later crossed this out and wrote in “black jacket.” Smalls JA.90, JA.251. There were also several photos taken of Smalls the night of the incident; in each, he was wearing a gray hoodie and not a black jacket. Moreover, Small‘s arrest photo listed resisting arrest, not criminal possession of a weapon, as the principal charge.
On May 20, 2019, the jury found, by a preponderance of the evidence, that Officers Collins and Teta deprived Smalls of his right to a fair trial by fabricating evidence, and the jury awarded him $60,000 in compensatory damages. Smalls filed a post-verdict motion for a new trial on damages only, arguing that $60,000 was “grossly inadequate” to compensate him for two years of incarceration. Pl. Mem. of Law at 1, Smalls v. Collins, No. 14 Civ. 2326 (CBA) (RML) (E.D.N.Y. June 18, 2019), ECF No. 134. The Smalls defendants moved under
On March 16, 2020, the district court granted the Smalls defendants’ motion. The court explained that it had authority under
The district court entered judgment for the defendants on March 17, 2020. This appeal followed.
II. Daniel
A. Daniel‘s Allegations4
1. Daniel‘s March 18, 2015 Arrest
Plaintiff-appellant Deshawn Daniel alleges that he has been the victim of repeated police harassment. During one such incident, a police officer smashed his hand with a boot, requiring medical attention. The incident caused a long-term injury known as “Mallet Finger,” which makes Daniel‘s right pinky droop and results in sharp pain in his right hand. Daniel filed a police-misconduct lawsuit relating to this incident; it was settled on undisclosed terms. Daniel purchased a used Mercedes-Benz convertible with some of the settlement proceeds.
Driving that car at night allegedly resulted in a false arrest. On March 18, 2015, officers observed Daniel driving his convertible onto Adam Clayton Powell Boulevard from the Macombs Dam Bridge, which connects the Bronx and Manhattan. The officers flashed their lights, sounded their siren, and pulled Daniel over to the side of the road. After inspecting Daniel‘s license and registration, they entered Daniel‘s information into their dash-computer. It disclosed that Daniel had an earlier arrest – the one related to the lawsuit that he had settled. They then directed Daniel to exit the vehicle, telling him that he had made an illegal left turn.
Daniel argued that he could not have made an illegal left turn because a left turn was the only legal turn available at that intersection. The officers opened the door to the automobile, pulled Daniel out, and then searched the vehicle without Daniel‘s consent. One officer asked, “How you own a Mercedes convertible?” Daniel JA.38 ¶ 30. While the officers found nothing incriminating in the car, they brought Daniel to the local precinct, where they allegedly strip-searched him without probable cause.
Based on the allegedly false evidence presented against him, Daniel was arraigned in Criminal Court of the City of New York, County of New York, and charged with criminal possession of a weapon. The charge was ultimately resolved by an adjournment in contemplation of dismissal (“ACD“) pursuant to
2. Daniel Files His Section 1983 Action Over Three Years After His Arrest
Daniel alleges that, following his March 18, 2015 arrest, he complained to the New York Police Department‘s Internal Affairs Board. He asserts that he was told someone would get back to him, but no one did.
Daniel further alleges that in December 2015, he was in an automobile accident. After the accident, he met with a lawyer who told him that she would represent him both in regard to the accident and his arrest. After engaging her as his attorney, Daniel called her many times to inquire about the progress of the case and requested that she initiate the action or turn over the case file. Eventually, in November 2017, the attorney‘s office told Daniel that she was not representing him.
Five months later, on April 27, 2018, Daniel filed suit in the United States District Court for the Southern District of New York, represented by another lawyer.
B. The District Court Proceedings
In the April 27th action, Daniel asserted various claims under
On March 31, 2019, the district court granted the motion to dismiss in part. The district court dismissed Daniel‘s section 1981 claims on the grounds that, “under the law of this Circuit, ‘the express cause of action for damages created by
In dismissing Daniel‘s section 1983 illegal search and excessive force claims as untimely, the district court also denied Daniel‘s cross-motion for equitable
tolling. Id. at *6. The district court acknowledged Daniel‘s argument that he was entitled to equitable tolling because “(1) he never heard back from the IAB after he filed a complaint with them in 2015, (2) he believed another attorney was representing him for a portion of the limitations period, and (3) he suffered a hand injury that prevented him from finding an attorney,” but found that these circumstances did not warrant tolling the statute of limitations. Id. The district court explained that “the IAB‘s failure to provide [Daniel] with the results of its investigation was neither extraordinary nor a circumstance that prevented [Daniel] from timely filing a complaint in federal court.” Id. The court further explained that his attorney‘s failure to get back to him did not justify tolling because, “[e]ven if [he] believed that this attorney had agreed to represent him[,] . . . he did not display reasonable diligence in allowing her to represent him for two years without ever filing a complaint.” Id. In addition, the district court wrote, “once [Daniel] affirmatively learned that the attorney was not representing him, he still had five months before the close of the limitations period to file a complaint,” and he provided “no explanation for his failure to file within that five-month time period.” Id. Finally, the district court concluded that Daniel‘s reliance on his hand injury was unconvincing because “[a] person acting
with reasonable diligence under such circumstances would have, at some point during the three-year limitations period, found a way to pursue his claims – perhaps with the help of a friend or family member, or through the use of his other hand.” Id.
On April 29, 2019, Daniel filed a second amended complaint. The Daniel defendants again moved to dismiss. On March 11, 2020, the district granted the defendants’ motion and dismissed the remaining fair-trial claim based on McDonough. Daniels v. Taylor, 443 F. Supp. 3d 471, 474, 479-80 (S.D.N.Y. 2020). The district court decided that the case law governing malicious prosecution claims should guide its analysis of Daniel‘s fair-trial claim and explained that, to assert a malicious-prosecution claim, a plaintiff must demonstrate “that the underlying criminal proceeding ended in a manner that affirmatively indicates his innocence.” Id. at 478 (internal quotation marks omitted). The district court further noted that, in the context of malicious-prosecution claims, “an ACD is not a favorable termination because it leaves open the question of the accused‘s guilt.” Id. (internal quotation marks omitted). The district court then concluded that Daniel‘s acceptance of the ACD barred his fair-trial claim. Id. at 478-80.
The district court entered judgment on March 27, 2020. Daniel appealed.
DISCUSSION
I. Standard of Review
“We review de novo the district court‘s decision on a motion for judgment as a matter of law,” applying “the same standard that is required of the district court.”8 Zellner v. Summerlin, 494 F.3d 344, 371 (2d Cir. 2007). “We ‘consider the evidence in the light most favorable to the party against whom the motion was made and . . . give that party the benefit of all reasonable inferences that the jury might have drawn in his favor from the evidence.‘” Id. (ellipsis in original) (quoting Black v. Finantra Cap., Inc., 418 F.3d 203, 209 (2d Cir. 2005)). “[A] court may grant a motion for judgment as a matter of law ‘only if it can conclude that, with credibility assessments made against the moving party and all inferences drawn against the moving party, a reasonable juror would have been compelled
Even if we were to consider this motion under the standard of review applicable to motions for reconsideration, however, that would not change the result because, as explained below, the district court‘s decision in Smalls rests on a legal error and therefore constitutes an abuse of discretion. See RJE Corp. v. Northville Indus. Corp., 329 F.3d 310, 316 (2d Cir. 2003) (“A court abuses its discretion when its decision rests on a legal error or a clearly erroneous factual finding, or when its decision does not fall within the range of permissible decisions.“).
to accept the view of the moving party.” Id. at 370-71 (emphasis omitted) (quoting Piesco v. Koch, 12 F.3d 332, 343 (2d Cir. 1993)).
“We review de novo a dismissal of a complaint for failure to state a claim upon which relief may be granted.” Kelleher v. Fred A. Cook, Inc., 939 F.3d 465, 467 (2d Cir. 2019). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. “[W]e accept only [the complaint‘s] factual allegations, and the reasonable inferences that can be drawn therefrom, as true.” Krys v. Pigott, 749 F.3d 117, 128 (2d Cir. 2014); Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002).
II. Daniel‘s and Smalls‘s Section 1983 Fabricated-Evidence Claims
The plaintiffs argue on appeal that the district courts erred in granting the defendants’
A. Applicable Law
1. Elements of a Fair-Trial Claim Based on Fabricated Evidence Prior to McDonough
Prior to McDonough, we held that to establish a section 1983 fair-trial claim based on fabrication of evidence, a plaintiff must demonstrate that “an (1) investigating official (2) fabricates information (3) that is likely to influence a jury‘s verdict, (4) forwards that information to prosecutors, and (5) the plaintiff suffers a deprivation of life, liberty, or property as a result.” Garnett v. Undercover Officer C0039, 838 F.3d 265, 279 (2d Cir. 2016). “[T]o succeed on a claim for a denial of the right to a fair trial against a police officer based on an allegation that the officer falsified information, an arrestee must [therefore] prove by a preponderance of the evidence that the officer created false information, the officer forwarded the false information to prosecutors, and the false information was likely to influence a jury‘s decision.” Id. at 279-80.
In contrast to malicious prosecution claims, which require a plaintiff to demonstrate “that the underlying criminal proceeding ended in a manner that affirmatively indicates his innocence,” Lanning, 908 F.3d at 22, we have long held “that Section 1983 liability attaches for knowingly falsifying evidence even where there simultaneously exists a lawful basis for [the] deprivation of liberty” that the plaintiff suffered. Victory v. Pataki, 814 F.3d 47, 64 (2d Cir. 2016); see also Ricciuti v. N.Y.C. Transit Auth., 124 F.3d 123, 130 (2d Cir. 1997). The same is true of other types of section 1983 fair-trial claims, such as those alleging the withholding of exculpatory or other impeachment material in violation of Brady v. Maryland, 373 U.S. 83 (1963). See Poventud v. City of New York, 750 F.3d 121, 133 (2d Cir. 2014) (en banc) (Because Brady ensures a fair trial and “proof of the constitutional violation need not be at odds with [the defendant‘s] guilt,” “a defendant‘s right to pre-trial disclosure under Brady is not conditioned on his ability to demonstrate that he would or even probably would prevail at trial if the evidence was disclosed, much less that he is in fact innocent.” (emphases and internal quotation marks omitted)). This is because malicious-prosecution and fair-trial claims “arise out of different constitutional rights, protect against different constitutional injuries, and implicate different constitutional concerns.” Simon v. City of New York, No. 16 Civ. 1017 (NGG) (RML), 2020 WL 1323114, at *6 (E.D.N.Y. Mar. 19, 2020).
Malicious-prosecution claims “essentially allege[] a violation of the plaintiff‘s right under the Fourth Amendment to be free from unreasonable seizure,” the “touchstone” of which is “reasonableness.” Lanning, 908 F.3d at 28 (internal quotation marks omitted); see also
A section 1983 fair-trial claim, by contrast, will not be defeated by evidence of probable cause because it “cover[s] kinds of police misconduct not addressed by . . . malicious prosecution claims” and vindicates a different constitutional right – the right to due process protected by the Fifth and Fourteenth Amendments. Garnett, 838 F.3d at 278. The due process clauses of the Fifth and Fourteenth Amendments prohibit the government from “depriv[ing] any person of life, liberty, or property, without due process of law,”
2. Evolution of the Accrual Rule for Section 1983 Fair-Trial Claims
Even where a plaintiff meets all the elements of a section 1983 claim, the plaintiff must also establish that the claim has accrued for purposes of the statute of limitations. Although we “look to state law for the length of the limitations period, the time at which a § 1983 claim accrues is a question of federal law, conforming in general to common-law tort principles.” McDonough, 139 S. Ct. at 2155 (internal quotation marks omitted). Where the claim has not yet accrued, the claim is not cognizable and the plaintiff may not bring an action. See Heck, 512 U.S. at 483 (Section 1983 claim had “not yet arisen” because it had not yet accrued; dismissal was therefore appropriate).
The Supreme Court explained that section 1983 “creates a species of tort liability” and therefore looked to the common law of torts for guidance. Id. at 483 (internal quotation marks omitted). The Court concluded that the “common-law cause of action for malicious prosecution provide[d] the closest analogy to claims of the type considered [in Heck] because, unlike the related cause of action for false arrest or imprisonment, it permits damages for confinement imposed pursuant to legal process.” Id. at 484. It noted that to prove malicious prosecution, it is necessary to establish “termination of the prior criminal proceeding in favor of the accused.” Id. This requirement, the Court explained, “avoids parallel litigation over the issues of probable cause and guilt . . . and it precludes the possibility of the claimant [sic] succeeding in the tort action after having been convicted in the underlying criminal prosecution, in contravention of a strong judicial policy against the creation of two conflicting resolutions arising out of the same or identical transaction.” Id. (alteration in original) (internal quotation marks omitted). With these “concerns for finality and consistency” in mind, the Court concluded that section 1983 damages actions “that necessarily require the plaintiff to prove the unlawfulness of his conviction or confinement” are “not appropriate vehicles for challenging the validity of outstanding criminal judgments.” Id. at 485-86.
Accordingly, “when a state prisoner seeks damages in a § 1983 suit, the district court must consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence; if it would, the complaint must be dismissed unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated.” Id. at 487. If, however, “the district court determines that the plaintiff‘s action, even if successful, will not demonstrate the invalidity of any outstanding criminal judgment against the plaintiff, the action should be allowed to proceed, in the absence of some other bar to the suit.” Id. (emphasis in original) (internal footnote omitted). The Supreme Court then provided several examples of ways in which a section 1983 plaintiff could meet this accrual rule, explaining that this requirement would be satisfied if “the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court‘s issuance of a writ of habeas corpus,
In McDonough, the Supreme Court extended the rule announced in Heck to ongoing criminal prosecutions. McDonough arose “out of an investigation into forged absentee ballots that were submitted in a primary election in Troy, New York, in 2009.” McDonough, 139 S. Ct. at 2153. The plaintiff, Edward McDonough, processed
Relying extensively on its prior decision in Heck, the Court found it useful to analogize McDonough‘s fabricated-evidence claim to the common-law tort of malicious prosecution, noting that malicious prosecution‘s favorable-termination requirement “is rooted in pragmatic concerns with avoiding parallel criminal and civil litigation over the same subject matter and the related possibility of conflicting judgments.” Id. at 2156-57. The Court explained that “similar concerns for finality and consistency” had motivated it to limit the “avenues for collateral attack on criminal judgments through civil tort vehicles such as § 1983” and to adopt Heck‘s “favorable-termination requirement.” Id. at 2157 (internal quotation marks omitted). Although McDonough differed from Heck because the plaintiff in Heck had been convicted while the plaintiff in McDonough was acquitted, the Court reasoned that McDonough‘s claims challenged the validity of the criminal proceedings against him “in essentially the same manner” as the plaintiff in Heck. Id. at 2157-58.
A criminal defendant therefore cannot “bring a fabricated-evidence challenge to criminal proceedings while those criminal proceedings are ongoing.” Id. at 2158. “Only once the criminal proceeding has ended in the defendant‘s favor, or a resulting conviction has been invalidated within the meaning of Heck, will the statute of limitations begin to run.” Id. (internal citation omitted).
Applying this newly formulated rule, the Court reversed the judgment of the Second Circuit, concluding that the statute of limitations for McDonough‘s section 1983 fabricated-evidence claim did not begin to run until the criminal proceedings against him “terminated in his favor – that is, when he was acquitted at the end of his second trial.” Id. at 2161.
B. McDonough‘s Favorable-Termination Requirement Does Not Require a Termination Indicative of Innocence
McDonough did not alter the substantive elements of a fabricated-evidence
McDonough did, however, announce a new accrual rule for fabricated-evidence claims. Relying on Heck‘s “favorable-termination requirement,” the Supreme Court concluded that “[t]here is not a complete and present cause of action to bring a fabricated-evidence challenge to criminal proceedings while those criminal proceedings are ongoing.” Id. at 2157-58 (emphasis added) (internal quotation marks and citation omitted). “Only once the criminal proceeding has ended in the defendant‘s favor, or a resulting conviction has been invalidated within the meaning of Heck, will the statute of limitations begin to run.” Id. at 2158 (internal citation omitted). To bring a fabricated-evidence claim, a plaintiff must therefore establish – as a condition precedent to suit – that the claim has accrued within the meaning of McDonough.
The core question at the heart of these appeals is what constitutes a favorable termination sufficient to trigger McDonough‘s accrual rule for fabricated-evidence claims. The defendants point out that McDonough‘s accrual rule for fabricated-evidence claims was premised on an analogy to malicious-prosecution claims and argue that McDonough‘s favorable-termination requirement should thus be interpreted to be coextensive with malicious prosecution‘s favorable-termination requirement, under which a plaintiff must establish that the proceeding ended in a manner indicative of innocence. This argument is inconsistent with the reasoning and holding of McDonough and, we think, lacks merit.
The starting point for understanding the force and effect of McDonough is Heck, upon which McDonough relied heavily to determine the appropriate accrual rule for fabricated-evidence claims. See McDonough, 139 S. Ct. at 2156-61. In Heck, the plaintiff filed a section 1983 action while he was still in prison for his underlying conviction. See Heck, 512 U.S. at 478-79. The Court expressed concern that allowing a section 1983 plaintiff to seek damages while still serving a sentence on the underlying conviction would promote an end-run around Congress‘s choice that habeas corpus, with its strict procedural rules, be the sole basis for challenging the constitutional validity of an outstanding state criminal conviction. See id. at 480-84. In determining whether such an action had accrued, the Court analogized to malicious prosecution‘s favorable-termination requirement as “illustrative of the common-law principle barring tort plaintiffs from mounting collateral attacks on their outstanding criminal convictions.” Heck, 512 U.S. at 486 n.4. Malicious prosecution‘s favorable-termination requirement, the Court explained, “avoids parallel litigation over the issues of probable cause and guilt . . . and it precludes the possibility of the claimant [sic] succeeding in the tort action after having been convicted in the underlying criminal prosecution, in contravention of a strong judicial policy against the creation of two conflicting resolutions arising out of the same or identical transaction.” Id. at 484 (alteration in original) (internal quotation marks omitted). The Court noted that similar concerns for “finality and consistency” were implicated on the facts of Heck and accordingly concluded that section 1983 tort actions
Notably, Heck‘s analogy to malicious prosecution did not result in the Supreme Court‘s adoption of a termination-indicative-of-innocence requirement for all section 1983 claims premised on an underlying conviction. Rather, to guard against parallel litigation and promote finality and consistency, the Court adopted an accrual rule designed to avoid inconsistent results and new avenues of collateral attack. See id. at 486-89. Under the Heck Court‘s favorable-termination requirement,9 if a section 1983 plaintiff establishes – before bringing suit – that the “action, even if successful, will not demonstrate the invalidity of any outstanding criminal judgment against the plaintiff, the action should be
allowed to proceed, in the absence of some other bar to the suit.” Id. at 487 (first emphasis in original, second emphasis added) (footnote omitted). A plaintiff may satisfy this requirement by demonstrating “that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court‘s issuance of a writ of habeas corpus,
Interpreting McDonough to essentially graft malicious prosecution‘s distinctive favorable-termination requirement onto fabricated-evidence claims, as the defendants request, would thus require us to conclude that McDonough has overruled Heck. But McDonough did no such thing. To the contrary, the McDonough Court found itself confronted with a set of facts that raised concerns similar to those present in Heck and simply extended Heck‘s reach to section 1983 lawsuits brought during pending criminal prosecutions. See McDonough, 139 S. Ct. at 2160 (”Heck explains why favorable termination is both relevant and required for a claim analogous to malicious prosecution that would impugn a conviction, and that rationale extends to an ongoing prosecution as well: The alternative would impermissibly risk parallel litigation and conflicting judgments.“). Although the McDonough plaintiff‘s claims did not fall within Heck because, unlike the plaintiff in Heck, he had been acquitted and there was therefore no outstanding conviction, the Supreme Court decided that the “pragmatic considerations” underlying the Heck rule apply with equal force to “ongoing” criminal proceedings. See id. at 2157-58 (emphasis added).
The McDonough Court explained that imposing “a ticking limitations clock on criminal defendants as soon as they become aware that fabricated evidence has
Indeed, the notion that McDonough established malicious prosecution‘s favorable-termination requirement as the accrual rule for section 1983 fair-trial claims is inconsistent with the rule announced in McDonough. The Supreme Court phrased its accrual rule disjunctively, making clear that invalidation of a conviction within the meaning of Heck or termination of an ongoing criminal proceeding in the defendant‘s favor would be sufficient to trigger the statute of limitations. Id.; see also Roberts, 947 F.3d at 1201 n.11. Further, while the Court had “no occasion to address the broader range of ways a criminal prosecution (as opposed to a conviction) might end favorably to the accused” because the
plaintiff‘s “acquittal was unquestionably a favorable termination,” it suggested that a “context-specific and more capacious understanding of what constitutes ‘favorable’ termination” might be appropriate for fabricated-evidence claims in light of prosecutors’ broad discretion over “the terms on which pleas will be offered or whether charges will be dropped[.]” McDonough, 139 S. Ct. at 2161 n.10. This language undercuts any suggestion that McDonough‘s accrual rule is merely coextensive with malicious prosecution‘s favorable-termination requirement.
Requiring a plaintiff alleging fabricated-evidence claims to establish that the underlying criminal proceeding ended in a manner that affirmatively indicates his innocence would also be fundamentally inconsistent with our longstanding distinction between
Accordingly, McDonough‘s accrual rule does not import malicious prosecution‘s favorable-termination requirement onto
C. Smalls‘s Criminal Proceeding Terminated in his Favor
McDonough holds that a fabricated-evidence claim may accrue where a “criminal proceeding has ended in the defendant‘s favor, or a resulting conviction has been invalidated within the meaning of Heck[.]” McDonough, 139 S. Ct. at 2158. A conviction is invalidated within the meaning of Heck if it was “reversed on direct appeal” because, under those circumstances, the “plaintiff‘s action, even if successful, will not demonstrate the invalidity of any outstanding criminal judgment against the plaintiff[.]” Heck, 512 U.S. at 487. A criminal proceeding likewise ends in the defendant‘s favor where any remaining charges are dismissed on remand following the vacatur or reversal of a judgment of conviction on appeal, because, in such circumstances, there is no ongoing prosecution that poses an impermissible risk of parallel litigation and conflicting judgments. See McDonough, 139 S. Ct. at 2160.
Both occurred here and we are therefore presented with two potential accrual dates: (1) the date the Appellate Division reversed Smalls‘s judgment of conviction on direct appeal and dismissed the weapons-possession counts; or (2) the date the trial court dismissed the trespass count on remand, following the Appellate Division‘s reversal of Smalls‘s conviction. Smalls contends that the accrual of his claim should run from the date the Appellate Division reversed his judgment of conviction and dismissed the weapons-possession charges, because his
Indeed, even assuming arguendo that Smalls‘s fabricated-evidence claim accrued
D. Daniel‘s Criminal Proceeding Terminated in his Favor
1. Daniel‘s Fabricated-Evidence Claim Arises Under the Due Process Clause
Relying on Manuel v. City of Joliet, 137 S. Ct. 911 (2017), the Daniel defendants argue that, even if a termination indicative of innocence is not required under McDonough, Daniel‘s claim - which involves a pretrial deprivation of liberty - is governed by the
The Daniel defendants essentially assert that, in Manuel, the Supreme Court categorically precluded due process fabricated-evidence claims seeking damages for pretrial detention. They argue that the Supreme Court held that such claims may only be brought under the
We have held that Manuel did not rule out the possibility that, in such circumstances, the Constitution also permits a due process claim that the plaintiff was deprived of life, liberty, or property as a result of the use of fabricated evidence. In Frost v. New York City Police Department, 980 F.3d 231 (2d Cir. 2020), we concluded that the district court erred in granting the defendants’ motion for summary judgment as to Frost‘s
The majority in Frost reconciled this result with Manuel, explaining:
The Supreme Court‘s holding in Manuel v. City of Joliet . . . does not compel a different result. In Manuel, the Supreme Court held that a
§ 1983 plaintiff could challenge his pretrial detention based on purportedly fabricated evidence under the Fourth Amendment, even after a judge determined that this evidence constituted probable cause. But just as a Fourth Amendment claim survives the initiation of “legal process,” our precedents establish that a fair trial claim under the Due Process Clause may accrue before the trial itself. Accordingly, the holding of Manuel does not preclude Frost‘s fair trial claim.
Id. at 251 n.14 (internal citations omitted).
The defendants’ argument is therefore foreclosed by Frost. Under our precedent, Daniel may assert a fabricated-evidence claim related to his pretrial detention under the Due Process Clause.
2. Daniel‘s ACD Constitutes a Favorable Termination Under McDonough
In McDonough, the Court declined to provide further guidance concerning “the broader range of ways a criminal prosecution (as opposed to a conviction) might end favorably to the accused” because the plaintiff‘s acquittal there “was unquestionably a favorable termination[.]” McDonough, 139 S. Ct. at 2160 n.10. While the Court suggested that a “context-specific and more capacious understanding of what constitutes ‘favorable’ termination” might be appropriate to take account of prosecutors’ broad discretion over “the
The pragmatic concerns animating McDonough counsel in favor of concluding that it does. As explained above, McDonough extended Heck to
This conclusion is reinforced by the rationales underlying our enduring distinction between malicious-prosecution and fair-trial claims. While a termination indicative of innocence is necessary in the context of malicious-prosecution claims to ensure that there were no reasonable grounds for the prosecution, see Lanning, 908 F.3d at 28, depriving an individual of life, liberty, or property by fabricating evidence violates due process regardless of whether there was probable cause because “[n]o arrest, no matter how lawful or objectively reasonable, gives an arresting officer or his fellow officers license to deliberately manufacture false evidence against an arrestee.” Ricciuti, 124 F.3d at 130. In contrast to a malicious-prosecution claim, which focuses on the validity of the initiation of the prosecution, a
Consistent with this distinction, it is well-settled that acceptance of an ACD bars a malicious-prosecution claim because it leaves the question of innocence or guilt unanswered and is thus not a termination indicative of innocence. See Rothstein v. Carriere, 373 F.3d 275, 286-87 (2d Cir. 2004); Singleton, 632 F.2d at 193-94. And it was similarly well-accepted, prior to McDonough, that an ACD did not preclude a fair-trial claim. See Apostol v. City of New York, No. 11 Civ. 3851 (RRM) (CLP), 2014 WL 1271201, at *5 (E.D.N.Y. Mar. 26, 2014) (acceptance of an adjournment in contemplation of dismissal “does not preclude a fair trial claim” (collecting cases)), aff‘d, 607 F. App‘x 105 (2d Cir. 2015) (summary order). McDonough did not impose malicious prosecution‘s favorable-termination requirement onto fair trial claims or overrule our precedent concerning the contours of fabricated-evidence claims. See McDonough, 139 S. Ct. at 2155. Rather, as explained above, McDonough simply extended Heck‘s favorable termination requirement to ongoing prosecutions under circumstances that implicate Heck‘s pragmatic concerns for finality and consistency. Such concerns are not present where, as here, the charges against Daniel were dismissed pursuant to an ACD.
The Daniel defendants’ arguments to the contrary are unavailing. They first assert that allowing Daniel‘s fabricated-evidence claim to proceed would be inconsistent with McDonough because Daniel‘s “claim that his prosecution was entirely the result of fabricated evidence necessarily impugns that prosecution.” Daniel Defs. Br. at 23. But, by that logic, the plaintiff in McDonough - who contended that his indictment, prosecution, and trial were the result of fabricated evidence - also necessarily impugned the prosecution and therefore should have been barred from bringing suit. Yet the Supreme Court allowed his claim to proceed. Indeed, interpreting McDonough to bar a
The Daniel defendants also argue that there are strong practical reasons to require a plaintiff alleging fabrication of evidence to demonstrate that the underlying criminal prosecution ended in a manner indicative of innocence. According to the Daniel defendants, adopting a contrary rule would disincentivize prosecutors from offering ACDs in order to foreclose
For all these reasons, we conclude that a defendant‘s fair-trial claim accrues (and may be brought) once her charges are conclusively dismissed pursuant to an ACD. The dismissal of Daniel‘s charges pursuant to an ACD therefore constituted a favorable termination within the meaning of McDonough and McDonough poses no bar to suit.
III. Daniel‘s Section 1981 Claims
Daniel also argues that he should be permitted to bring claims under
In Duplan, we expressly held that “42 U.S.C. § 1983 provides the sole cause of action available against state actors alleged to have violated § 1981.” Duplan, 888 F.3d at 616. In reaching this conclusion, we acknowledged the Ninth Circuit‘s contrary holding in Federation of African American Contractors v. City of Oakland, 96 F.3d 1204 (9th Cir. 1996) - upon which Daniel relies in his brief - but found it unpersuasive. See Duplan, 888 F.3d at 620. Indeed, “[e]very subsequent Circuit to consider the issue . . . has declined to follow Federation‘s reasoning.” Id. at 620 & n.2. Moreover, as we explained, the Supreme Court - in Jett v. Dallas Independent School District, 491 U.S. 701 (1989) - “held that ‘the express cause of action for damages created by § 1983 constitutes the exclusive federal remedy for violation of the rights guaranteed in § 1981 by state governmental units.‘” Duplan, 888 F.3d at 619 (emphasis in original) (quoting Jett, 491 U.S. at 733).
Although Congress amended
“[G]enerally a decision of a panel of this Court is binding unless and until it is overruled by the Court en banc or by the Supreme Court,” or there is “an intervening Supreme Court decision . . . [that] casts doubt on our controlling precedent[.]” United States v. Hightower, 950 F.3d 33, 36 (2d Cir. 2020) (internal quotation marks omitted); Deem v. DiMella-Deem, 941 F.3d 618, 623 (2d Cir. 2019). This Court‘s decision in Duplan has not been overruled, and Daniel points to no intervening decision that casts doubt on its holding. Daniel has provided no legitimate basis for revisiting this Court‘s binding precedent in Duplan. We therefore affirm the district court‘s dismissal of Daniel‘s
IV. Daniel‘s Motion for Equitable Tolling
“Generally, a litigant seeking equitable tolling bears the burden of establishing two elements: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way.” Watson v. United States, 865 F.3d 123, 132 (2d Cir. 2017) (quoting Mottahedeh v. United States, 794 F.3d 347, 352 (2d Cir. 2015)). “The term ‘extraordinary’ refers not to the uniqueness of a party‘s circumstances, but rather to the severity of the obstacle impeding compliance with a limitations period.” Harper v. Ercole, 648 F.3d 132, 137 (2d Cir. 2011). Moreover, “[t]o secure equitable tolling, it is not enough for a party to show that he experienced extraordinary circumstances[;] [h]e must further demonstrate that those circumstances caused him to miss the original filing deadline.” Id.. In addition, even if a party demonstrates a causal relationship between the extraordinary circumstances and the lateness of his filing, the party seeking equitable tolling is “required to show reasonable diligence in pursuing his claim throughout the period he seeks to have tolled.” Id. at 134. This showing cannot be made if the party, “acting with reasonable diligence, could have filed on time notwithstanding” the extraordinary circumstances. Bolarinwa v. Williams, 593 F.3d 226, 231 (2d Cir. 2010). We review the district court‘s equitable tolling ruling for
Daniel argues that the district abused its discretion in denying his motion for equitable tolling because extraordinary circumstances prevented him from filing his
Even assuming the conduct of Daniel‘s initial attorney rose to the level of extraordinary circumstances,13 it did not cause Daniel to miss the filing deadline.
“A court may conclude that such causation is lacking where the identified extraordinary circumstances arose and concluded early within the limitations period.” Harper, 648 F.3d at 137. Here, as the district court noted, the attorney notified Daniel in November 2017 - nearly five months before the close of the limitations period on March 18, 2018 - that she was not representing him. During this five-month period, we think that a reasonably diligent person could have retained an attorney and filed suit.
Daniel also cannot establish that he demonstrated reasonable diligence throughout the period that he seeks to toll. First, as the district court noted, the IAB‘s failure to provide Daniel with the results of its investigation did not “prevent[] [him] from timely filing a complaint in federal court.” Daniels, 2019 WL 1437586, at *6. Daniel‘s “failure to follow up with the IAB, or to otherwise pursue his claims in the absence of learning the results of the investigation, supports the conclusion that he did not pursue his claims with reasonable diligence through the limitations period.” Id.. Indeed, Daniel did not retain counsel until around December 2015 - nine months after his arrest - when he got into a car accident and met a paralegal at the scene who introduced him to his initial attorney. Daniel JA.85 ¶ 2. Moreover, as previously noted, “once Daniel affirmatively learned that [the attorney] was not representing him, he still had five months before the close of the limitations period to file a complaint[.]” Daniels, 2019 WL 1437586, at *6.
Daniel‘s reliance on his hand injury to explain this delay is unpersuasive. As the district court explained, while Daniel had a hand injury “that made it difficult for him to type or make phone calls,” “[a] person acting with reasonable diligence under such circumstances would have . . . found a way to pursue his claims - perhaps with the help of a friend or family member, or through the use of his other hand.” Id.
Accordingly, the district court did not abuse its discretion in denying Daniel‘s motion for equitable tolling.
We have considered the parties’ remaining arguments on appeal and conclude that they are without merit. We therefore REVERSE the district courts’ judgments with respect to the fair-trial claims, AFFIRM the dismissal of Daniel‘s other claims, and REMAND each case for further proceedings consistent with this opinion.
Notes
This argument is unpersuasive for the same reasons explained above. Neither McDonough nor Heck says anything about requiring a favorable termination that excludes any suggestion of guilt. To the contrary, Heck - upon which McDonough relies and reaffirms - expressly provides that there will be no bar to suit if the plaintiff “can demonstrate that the conviction or sentence has already been invalidated.” Heck, 512 U.S. at 487. This rule may be satisfied where “the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court‘s issuance of a writ of habeas corpus.” Id. These resolutions do not inquire into the plaintiff‘s guilt. Indeed, a plaintiff‘s conviction may be overturned on direct appeal, expunged by virtue of a pardon, or called into question by a federal court‘s issuance of a writ of habeas corpus due to constitutional violations or evidentiary errors despite evidence indicative of the plaintiff‘s guilt. McDonough, like Heck, is not concerned with the guilt or innocence of the plaintiff; rather, McDonough‘s favorable-termination requirement is intended to prevent parallel proceedings and inconsistent civil and criminal judgments that result when there is a pending prosecution or outstanding conviction. Neither is present here.