The opinion of the court was delivered by: WEINSTEIN
WEINSTEIN, District Judge.
In this civil rights action seeking an injunction and damages, plaintiff alleges a conspiracy among the District Attorney of Suffolk County and two newspapers, Newsday and the Long Island Press, to suppress evidence necessary for his defense to a criminal prosecution. Convicted of robbery and grand larceny, on April 22, 1966, he was sentenced to long prison terms.
The defendant Suffolk County District Attorney moves to dismiss the complaint chiefly for failure to state a claim for relief against him and because of bar by the statute of limitations. Neither ground has merit. The question of official immunity was not raised and we do not decide it. Cf. Fanale v. Sheehy, 385 F.2d 866 (2d Cir. 1967).
A series of overt acts are alleged including that the defendant Newsday's representative was "seen and heard to conspire with the Suffolk District Attorney" before taking the stand in his third and final trial and "was permitted to testify falsely. * * *"; and that the Long Island Press deliberately failed both to appear at this trial in response to a subpoena and to produce required records. This suffices to withstand a motion to dismiss. 42 U.S.C. § 1983. See Powell v. Workmen's Compensation Board, 327 F.2d 131, 137 (2d Cir. 1964) ("It was incumbent upon [plaintiff] to allege with at least some degree of particularity overt acts which defendants engaged in which were reasonably related to the promotion of the claimed conspiracy.").
The chief problem posed is whether this claim is barred by the statute of limitations. We hold that it is not. The New York tolling provision is applicable and, as a prisoner, plaintiff is entitled to its benefits.
Since there is no statute of limitations included in the Civil Rights Act, 42 U.S.C. § 1983, the state law analogue is the source of the appropriate limitations period. Campbell v. City of Haverhill, 155 U.S. 610, 15 S. Ct. 217, 39 L. Ed. 280 (1895); Swan v. Board of Higher Education, 319 F.2d 56, 59 (2d Cir. 1963). The moving party relies upon New York's three year period. CPLR 214(2) ("an action to recover upon a liability * * * created or imposed by statute * * *"); Romer v. Leary, 425 F.2d 186 (2d Cir. 1970). This period runs from the time when the cause of action accrued (CPLR § 203(a)) -- April 22, 1966 -- and would bar the claim unless the period was tolled.
Conforming to the American pattern, New York tolls its statute during imprisonment when the plaintiff is imprisoned at the time the cause of action -- or in federal terminology, the claim for relief -- accrues. CPLR 208 provides:
If a person entitled to commence an action is, at the time the cause of action accrues, * * * imprisoned on a criminal charge or conviction for a term less than for life, and the time otherwise limited for commencing the action is three years or more and expires no later than three years after the disability ceases * * * the time within which the action must be commenced shall be extended to three years after the disability ceases * * *. The time within which the action must be commenced shall not be extended by this provision beyond ten years after the cause of action accrues, * * *
Cf. New York Court of Claims Act, § 10(5) (claims against the state cognizable in the New York Court of Claims may be presented within two years after a disability such as imprisonment is terminated); Todzia v. State, 53 Misc. 2d 200, 278 N.Y.S. 2d 291 (Ct. of Cl. 1967).
Plaintiff's cause of action did accrue at a time when he was imprisoned. While it is unclear whether he was in jail prior to his March, 1966 trial (see Brief of Relator-Appellant, United States ex rel. Sabella v. Follette, 432 F.2d 572, Docket No. 34,492, Second Circuit, indicating on page 9 that the plaintiff was incarcerated while awaiting trial), the conspiracy cause of action based on deliberate suppression of trial evidence did not accrue until plaintiff was sentenced on April 22, 1966, when he was surely in custody. See Gaito v. Strauss, 249 F. Supp. 923, 932 (W.D. Pa.), aff'd, 368 F.2d 787 (3d Cir. 1966), cert. denied, 386 U.S. 977, 87 S. Ct. 1173, 18 L. Ed. 2d 139 (1967) (final date of conspiracy was sentencing); cf. Chartener v. Kice, 270 F. Supp. 432, 438-439 (E.D.N.Y. 1967) (statute tolled if insanity caused by the malpractice); but cf. Mulligan v. Schlachter, 389 F.2d 231, 233 (6th Cir. 1968) (cause of action based on arrest without probable cause accrued prior to incarceration). Thus, if the state tolling statute is applicable in civil rights cases, this action is not barred.
Federal law determines whether to borrow all or part of a state statute of limitations in a case predicated upon federal substantive law -- i.e., whether to toll. Holmberg v. Armbrecht, 327 U.S. 392, 66 S. Ct. 582, 90 L. Ed. 743 (1946); Esplin v. Hirschi, 402 F.2d 94, 103 (10th Cir. 1968), cert. denied, 394 U.S. 928, 89 S. Ct. 1194, 22 L. Ed. 2d 459 (1969). As Mr. Justice Frankfurter put the matter:
The implied absorption of State statutes of limitation within the interstices of the federal enactments is a phase of fashioning remedial details where Congress has not spoken but left matters for judicial determination within the general framework of familiar legal principles. Holmberg ...