*1 ‐ ‐ cv Phillips In the

United States Court of Appeals

For the Second Circuit

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A UGUST ERM , A RGUED : S EPTEMBER D ECIDED : M AY No.

P AUL S PAK Plaintiff Appellant, S HANE P HILLIPS Defendant Appellee.

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Appeal United States District Court District Connecticut. Civ. – Jeffrey A. Meyer, Judge ________

Before: W ALKER C ABRANES Circuit Judges B ERMAN District Judge ^[*]

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Plaintiff appellant Paul Spak appeals decision United States District Court District (Jeffrey A. Meyer, J.) granting summary judgment appellee Shane Phillips, officer with Plainville Police Department Plainville, Connecticut. In Spak was arrested by Phillips and charged under Gen. Stat. § 53a destroying evidence related alleged discharge illegal fireworks. The prosecuting attorney subsequently dismissed those entering More than three years after Spak brought suit Phillips violation Fourth Amendment, U.S.C. district held Spak’s claim accrued when entered, result his suit was barred. On appeal, contends his did accrue when prosecuting attorney nolled his case, thirteen months later when all public records were erased pursuant recordkeeping statute. We conclude accrued therefore AFFIRM court.

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J OHN R. W ILLIAMS John R. Williams Associates, LLC, New Haven, CT, Plaintiff ‐ Appellant *3 ‐ ‐

J AMES N. ALLBERG (Dennis M. Durao, brief ), Karsten & Tallberg, LLC, Rocky Hill, CT, Defendant ‐ Appellee.

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J OHN M. W ALKER J R ., Circuit Judge :

Plaintiff appellant Paul Spak appeals decision United States District Court District (Jeffrey A. Meyer, J.) granting summary appellee Shane Phillips, officer with Plainville Police Department Plainville, Connecticut. In Spak was arrested by Phillips charged under Gen. Stat. § 53a destroying evidence related alleged discharge illegal fireworks. The prosecuting attorney subsequently dismissed those entering More than three years after Spak brought suit Phillips violation Fourth Amendment, U.S.C. held Spak’s claim accrued when entered, result his suit was barred. On appeal, contends his did accrue when prosecuting attorney his case, thirteen months later all public records erased pursuant recordkeeping statute. conclude *4 accrued charges against . therefore AFFIRM court.

BACKGROUND

The relevant facts appeal dispute. On June 12, 2010, Phillips responded to complaint fireworks being discharged Spak’s neighborhood. When he arrived investigate, he observed Spak burning remnants fireworks backyard fire pit, what Phillips perceived attempt destroy evidence. The following day, Phillips submitted sworn affidavit Superior Court seeking warrant arrest Spak on, inter alia charges tampering fabricating evidence. Based on Phillips’ sworn statement, Superior Court issued warrant arrest on June 15, 2010, based on warrant Spak arrested June 24, On September 10, 2010, prosecuting attorney unilaterally dismissed Spak by entering . A nolle prosequi “a declaration prosecuting officer he will prosecute further Upon entering state’s attorney, there no case.” State Winer Conn. 666, (quoting State Ackerman Supp. (1967)). never instituted further subsequent stemming June incident.

On October 29, 2013, Spak sued Phillips court for malicious prosecution Fourth Amendment. Phillips removed action District on November 18, On January 30, 2015, Phillips moved summary judgment on several grounds, including that Spak’s action untimely he filed his complaint more than three years after accrual his claim. On October 14, 2015, district court granted Phillips’ motion summary judgment on ground. Specifically, district court held malicious accrued on September 10, 2010, nolled therefore dismissed suit barred. Spak now appeals.

DISCUSSION

A district court’s grant summary reviewed de novo Gallo Prudential Residential Servs., Ltd. P ʹ ship (2d Cir. All legal conclusions reviewed de novo United States Livecchi (per curiam).

On appeal, it uncontested Spak filed his complaint alleging more than three years after state’s attorney’s concedes if his accrued date state’s attorney him, suit untimely. he *6 6 15 3525 argues that his claim did accrue on the date that the nolled , thirteen months later when law mandated that the records of his prosecution erased.

I. Accrual of Section 1983 Claims

In the absence of federal law, the merits of claim for malicious prosecution under Section 1983 are governed state law. Janetka v. Dabe 892 F.2d 187, 189 (2d Cir. 1989). ^[1] Likewise, the applicable statute of limitations for malicious prosecution is borrowed the statute of limitations for the analogous under the law of the state where the cause of action accrued, see *7 7 15 3525 Lounsbury v. Jeffries , 25 F.3d 131, 133 (2d Cir. 1994); see also Wallace v. Kato , 549 U.S. 384, 387 (2007), which is three years, see Walker v. Jastremski , 430 F.3d 560, 562 (2d Cir. 2005). the which malicious prosecution

under Section 1983 accrues “a question of federal law is resolved reference to state law.” Wallace U.S. Federal courts apply “general common law tort principles” to determine the accrual date of Section claim. Id .; see also Manuel S. Ct. (“In defining contours prerequisites of claim, including its rule accrual, courts are look first common law torts.”). In prosecution suits under Section 1983, statute limitations begins run “terminate[s] plaintiff’s favor.” Poventud v. N.Y. 121, (2d Cir. (en banc) (quoting Heck Humphrey U.S. (1994)). A “favorable termination” does occur until plaintiff has “conclusively” ended. Murphy Lynn

One point clarification regarding accrual rule order. fact accrual claims analyzed under federal while merits those claims analyzed where tort occurred, led some confusion concerning standards used define “favorable termination” context. This *8 because a claim accrues underlying terminates of accused, id ., but “favorable termination” is also a substantive element of a state law tort claim, see, e.g ., Singleton New York While same phrase—“favorable termination”—is used both accrual analysis merits analysis a suit, it is analyzed under a different legal standard each context.

When question before federal court is what point accrued, “favorable termination” is analyzed under federal common law, timing accrual is question federal law. See, e.g ., Wallace U.S. When, contrast, federal analyzing substantive merits plaintiff’s claim, definition “favorable termination” analyzed under state law. See, e.g ., Singleton What constitutes “favorable termination” may turn out be same each context, but necessarily so. even if “favorable termination” particular case unclear as matter state law, it can still be conclusively resolved matter accrual under federal law. Thus, fact constitutes termination under may relevant our accrual inquiry, it dispositive. Unless also constitutes “favorable termination” federal *9 then did not accrue purposes upon of nolle

II. Effect of a Nolle Prosequi

Under a prosecutor may decline prosecute case by entering nolle prosequi Conn. Practice Book § (2017). The effect nolle terminate particular prosecution defendant. nolle not equivalent dismissal prosecution prejudice, jeopardy does attach. Roberts Babkiewicz (per curiam) (“A ‘a unilateral act by prosecutor, which ends pending proceedings without acquittal and without placing jeopardy.’”) (quoting Cislo Shelton, Conn. n.9 (1997)). statute limitations charge continues run,

and prosecutor may choose initiate second prosecution any before limitations period expires. Winer Conn. A can only be reinstituted following however, filing new charging document and new arrest. Id If new commenced, requires within thirteen months “all police records records state’s prosecuting attorney” related erased. Gen. Stat. ‐ *10 10 15 3525 142a(c)(1); see also Martin v. Hearst Corp ., F.3d (2d Cir.

III. The Nolle Prosequi Constituted a Favorable Termination for Claim Accrual Purposes

We agree with the district court that as general matter a nolle prosequi constitutes “favorable termination” the purpose of determining Section accrues. The weight of authority on the common law of supports this conclusion. See, e.g. R ESTATEMENT (S ECOND ) OF ORTS cmt. (c) (A M . L AW I NST . (“If the public prosecutor power to make such entry [of nolle prosequi ] without the consent of the court, the entry constitutes termination the proceedings in the accused.”). Other federal courts have held the nolle sufficient constitute favorable termination. See, e.g. Owens Balt. State ʹ s Attorneys Office (4th Cir. *11 15 3525 2014), cert. denied sub nom. Balt. Police Dep ʹ t v. Owens S. Ct. (2015) (citing common law authorities conclude constitutes favorable termination); Donahue v. Gavin F.3d Cir. 2002); White v. Rockafellow F.3d 106, (6th 1999); Washington Summerville F.3d (7th Cir. 1997).

To be sure, courts law authorities does constitute favorable termination it entered for reasons are “not indicative defendant’s innocence.” Washington this qualifier defined narrowly. It generally only includes nolles caused by defendant—either by fleeing jurisdiction make himself unavailable trial delaying trial by means fraud. It also includes any entered exchange consideration offered ( e.g ., cooperation). See generally R ESTATEMENT (S ECOND ) OF ORTS (A M L AW I NST disputes conclusion, cites our decision Murphy Lynn which states termination must “conclusive[]” order satisfy favorable termination requirement claim. Murphy involved originating New York, while accrued Connecticut, it nonetheless relevant termination accrual purposes matter federal *12 which does not vary from state. contends a nolle prosequi not “conclusive” termination prosecution jeopardy does attach when entered and the prosecuting attorney may file new the same defendant for the same criminal act any before statute limitations the underlying crime has run.

This argument misreads our holding Murphy It true that, strictly speaking, only terminates specific prosecution vacating charging instrument; it does prevent prosecutor re charging same for same criminal conduct some point future. Winer Under however, termination existing sufficient malicious prosecution accrue. See W. P AGE K EETON ET AL ., P ROSSER & K EETON ON ORTS (5th ed. (noting constitutes termination it “h[as] effect ending particular proceeding requiring new process or other official action commence new prosecution”). So long particular has been “conclusively” terminated accused, such underlying indictment information has been vacated cannot revived, then plaintiff justiciable prosecution. At point, all issues relevant *13 No. claim—such malice and lack of probable cause, see , 11—are ripe adjudication. Nothing in our opinion in Murphy can read contravene longstanding rule.

We are mindful both our court, see DiBlasio v. of New York , 1996), and the Supreme Court have warned against possibility of parallel civil and criminal litigation arising state’s of same same criminal offense, Heck , U.S. 484–86 (noting favorable termination requirement “avoids parallel litigation over issues of probable cause and guilt and [] precludes possibility claimant [ sic ] succeeding in tort action after having been convicted underlying prosecution, contravention strong judicial policy creation two conflicting resolutions arising out same or identical transaction”) (quoting S. S PEISER C. K RAUSE & A. G ANS A MERICAN L AW OF ORTS 28:5, p. (1991)); accord Poventud we read our precedent and Supreme Court’s dicta Heck Humphrey counsel only duplicative litigation issues guilt and probable cause arising out same accusatory instrument. Heck its progeny generally deal *14 14 No. 15 ‐ 3525 ‐ with suits that filed by plaintiffs asserting that a prior criminal conviction is invalid, seeking recover damages the state’s abuse legal process. Those decisions thus require that plaintiff demonstrate that outstanding conviction been conclusively invalidated in manner that demonstrates his innocence before he can pursue his civil claim. See, e.g ., Heck U.S. at 81; Pontevud at 33; DiBlasio F.3d at ‐ They do not address type termination at issue here, in which plaintiff was never convicted criminal offense, but were dismissed manner that did not preclude future different charging instrument. do not read those opinions prevent such plaintiff bringing suit on basis vacated simply he might be prosecuted again future, even successfully. See, e.g ., R ESTATEMENT (S ECOND ) OF ORTS 659, cmt. b (1977) (A M L AW I NST 1977) (“In order there may sufficient termination accused it not necessary proceedings should have WL 1737444, *10 (D. Conn. July 29, (“A does not qualify favorable termination purposes claim.”); Bacchiocchi Chapman, 03:02CV1403, WL *4 (D. Jan. 26, These holdings based Second Circuit’s decision Roesch Otarola, 1992), which stated “[a] person who thinks there not even probable cause believe he committed crime which he charged must pursue case acquittal an unqualified dismissal, or else waive section claim.” In Roesch plaintiff terminated by rather participation pre trial rehabilitation program. Id To extent courts have read Roesch imply does constitute termination, reading mistaken. *15 gone so far as preclude further on ground double jeopardy.”). Indeed, while it theoretically possible a prosecutor could revive case, and obtain criminal conviction defendant who already received favorable civil suit, we think highly unlikely occur practice. Cf Uboh Reno 1005–06 (11th (holding prosecutor’s unilateral dismissal charges constituted termination, grounds it “extraordinarily unlikely” prosecutor would “renew[] [the charges] subsequent action”).

Moreover, preventing plaintiffs bringing suit once entered would inconsistent purpose Section See Manuel S. Ct. (“In applying, selecting among, adjusting approaches [for determining accrues], courts must closely attend values and purposes constitutional right issue.”). When institutes maliciously without probable cause and requires appear before answer those charges, it violates Fourth Amendment’s guarantee unlawful seizure. See Murphy accused entitled seek recovery such wrongful seizure soon as vacated. His day *16 should not delayed merely state remains free bring similar future.

Lastly, Spak’s contention accrued not upon thirteen months later records automatically erased pursuant see Conn. Gen. Stat. 142a(c)(1), meritless. courts have made clear erasure provision cites purely administrative measure, Winer 679–80 (holding “the recording nolles later, erasure criminal records,” “administrative rather than substantive intent”). Moreover, erasure records pertaining does preclude prosecuting attorney filing new same some point future. See id (noting erasure provision does “provide new substantive protections defendants”). This statute therefore provides no more “conclusive” bar future proceedings than itself.

CONCLUSION

We have considered remaining arguments, we find them unavailing. therefore AFFIRM court.

[*] Judge Richard M. Berman, United States District Judge Southern District New York, sitting designation.

[1] Under plaintiff asserting malicious prosecution must prove that: “(1) the defendant initiated or procured the institution of criminal proceedings the plaintiff; (2) proceedings have terminated of plaintiff; (3) the defendant acted without probable cause; and (4) defendant acted malice, primarily for purpose other than of bringing an offender to justice.” Brooks v. Sweeney 196, (2010). The United States Supreme Court never squarely held plaintiff may bring suit under Section malicious based an alleged violation Fourth Amendment rights. In Manuel v. City Joliet S. Ct. (2017), Supreme Court confirmed plaintiffs can sustain Section suits under Fourth Amendment deprivations liberty suffered as result improper or maliciously instituted legal process. Id . (“[T]hose objecting pretrial deprivation liberty may invoke Fourth Amendment . deprivation occurs after legal process commences.”). Court’s opinion Manuel did directly address other “elements of, rules associated with, an action seeking damages for” unlawful pretrial detention. Id rule Second Circuit plaintiffs may bring what effect state suit federal under 1983, so long they able demonstrate deprivation liberty amounting seizure Fourth Amendment. Singer Fulton Cty. Sheriff (2d Cir. 1995). Under our precedent, such suit proper where: (1) actor, (2) plaintiff who was subject also subject arrest seizure within meaning Fourth Amendment. See Manganiello New York

[2] Our opinion Roberts Babkiewicz 2009), did not settle issue. In Roberts the district court granted on the pleadings the defendants on the plaintiff’s claim. Id 20. district court held plaintiff had not demonstrated dismissal constituted “favorable termination” as matter state substantive had been part plea agreement. Id remanded case further proceedings, basis facts complaint, construed light most favorable plaintiff, did necessarily demonstrate entered exchange plea lesser charge. Id ‐ our opinion Roberts only dealt merits plaintiff’s underlying claim. It did address question whether constitutes termination federal law.

[3] aware District held several instances sufficient constitute termination, plaintiff must obtain either unqualified dismissal an acquittal order pursue See Simpson Denardo 3:02CV1471(MRK),