Appeal from a judgment entered in the Southern District of New York, Robert W. Sweet, District Judge, granting defendant Police Commissioner's motion for summary judgment and dismissing the civil rights complaint of former New York City policy officers on the ground the action was barred by the New York three-year statute of limitations. Reversed and remanded.
Before Moore, Timbers and Van Graafeiland, Circuit Judges.
Appellants, two former police officers who were discharged from the New York City Police Department in 1970, commenced the instant action in the Southern District of New York on May 12, 1978 pursuant to 42 U.S.C. § 1983 (1976), seeking to vacate and annul their dismissal from the force. The basis of their action was that the use of illegally obtained wiretap evidence against them in Police Department proceedings violated their rights under the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. § 2511 Et seq. (1976), and under the Fourth and Fourteenth Amendments. The district court in an opinion filed April 6, 1979, 468 F. Supp. 1163, granted summary judgment for appellee Police Commissioner, ruling that the action was barred by the applicable New York three-year statute of limitations. From the judgment entered on Judge Sweet's opinion, this appeal has been taken.
The issue on appeal is whether the statute of limitations should be tolled during the period in which appellants litigated the same substantive claim in the New York state courts. Under the circumstances of this case, we hold that the statute should be tolled. We therefore reverse and remand.*fn1
In view of the narrow legal issue on which this appeal turns, we cut through the procedural morass of state court proceedings during the past decade and briefly summarize here only those facts and prior proceedings believed necessary to an understanding of our ruling on the legal issue presented.*fn2
Appellants Charles Leigh and Leonard Allen joined the New York City Police Department in 1951. In 1968 they were indicted for an alleged conspiracy to accept bribes from gamblers. They were suspended from the force without pay. In October 1970 the Acting Police Commissioner made a final determination dismissing appellants from the force. Appellants then commenced an Article 78 proceeding, N.Y.Civ.Prac.Law § 7801 (McKinney 1963), alleging, inter alia, that their dismissals were based on evidence obtained by means of illegal wiretaps. From this point on, appellants' Article 78 and criminal proceedings progressed "in tandem" through the New York courts. Although technically separate, the issues presented in each were substantially the same. The New York courts recognized that the criminal and Article 78 proceedings were closely tied.*fn3
Appellants' dismissal from the force was upheld by the Appellate Division, First Department, in 1971. The following year they were convicted on the criminal charges. In February 1974, however, the Appellate Division ruled that certain wiretap evidence which had been used in appellants' criminal trial had been obtained illegally. Their convictions, therefore (along with the convictions of several other defendants), were vacated. People v. Koutnik, note 1, Supra. Because of the wiretap ruling in Koutnik, the Appellate Division entered an order on June 18, 1974 which annulled appellants' dismissal from the police force. This order of annulment was stayed, however, pending the state's appeal from the Appellate Division's ruling in Koutnik.
In October 1975 the New York Court of Appeals affirmed the Appellate Division's ruling in Koutnik that the wiretap evidence had been illegally obtained. Since the Court of Appeals decision ostensibly settled once and for all that the wiretap evidence against appellants the basis for the bribery charges in both the departmental and the criminal proceedings had been obtained illegally and hence was inadmissible, appellants sought appropriate final relief in their Article 78 proceeding. They therefore moved in the Appellate Division to vacate the stay of the June 18, 1974 order which had annulled their dismissals from the police force. In December 1975, however, the Appellate Division, without opinion, denied appellants' motion and instead granted the motion of the Police Commissioner to vacate the June 18, 1974 order of annulment.*fn4
The final result of the extensive proceedings in the state courts was that appellants succeeded in establishing their claims of constitutional violations, and yet were denied relief. In an effort to correct this incongruous result, appellants commenced the instant § 1983 action to obtain the relief which had been denied them at the state level.
It is well established that in an action brought under § 1983 federal courts should apply the statute of limitations applicable to the most similar state cause of action. Williams v. Walsh, 558 F.2d 667, 670 (2 Cir. 1977); Kaiser v. Cahn, 510 F.2d 282, 284 (2 Cir. 1974). In this case, the New York three-year statute of limitations must govern the claim.*fn5 Appellants' cause of action first accrued when they were dismissed from the force in 1970. Their § 1983 action was not commenced until May 1978. Appellants argue, however, that the § 1983 complaint was timely filed because the statute of limitations was tolled until at least December 1975, while they litigated their claims in the state courts.
There is no doubt that a federal court has the power to toll borrowed statutes of limitations in § 1983 actions. Meyer v. Frank, 550 F.2d 726, 729 (2 Cir.), Cert. denied, 434 U.S. 830, 54 L. Ed. 2d 90, 98 S. Ct. 112 (1977); Kaiser v. Cahn, supra, 510 F.2d at 286-87. The question before us today is whether the circumstances of this case warrant such tolling. In answering this question, we must attempt to balance policies of federalism which are served by tolling the statute of limitations against policies of repose served by strict application of the statute of limitations.
Ordinarily, the remedial policy underlying § 1983 would not be impinged by strict application of the three-year state limitations period, since § 1983 plaintiffs are not required to exhaust state remedies before seeking federal relief. Nevertheless, considerations of comity and federalism under some circumstances do require that the statute of limitations be tolled during the pendency of state court or agency proceedings. Federal courts should avoid as much as possible "intruding upon the domain which is particularly the responsibility of the state courts". Williams v. Walsh, supra, 558 F.2d at 674. Thus, where a potential § 1983 plaintiff initially enters the state courts or administrative agencies to prosecute State-created claims, federal courts have tolled the § 1983 statute of limitations during the pendency of the state or administrative proceedings. In this way, federal courts have protected the plaintiff's right to seek his federal remedies under § 1983 ...