Appeal from an order of the United States District Court for the Southern District of New York, Charles H. Tenney, Judge, dismissing civil rights claim as barred by the statute of limitations. Reversed.
Before Mulligan, Van Graafeiland and Kearse, Circuit Judges.
This appeal raises the question whether a federal civil rights suit against a sheriff may be dismissed pursuant to New York Civil Practice Law and Rules ("CPLR") § 215(1), which provides that certain actions against a sheriff must be commenced within one year. Rodney Taylor brought this action pro se in the United States District Court for the Southern District of New York on August 29, 1978 alleging that on January 16, 1977, two deputy sheriffs, under color of state law, deprived him of his civil rights. He sought redress under 42 U.S.C. § 1983. The district court, finding CPLR § 215(1) applicable to the acts alleged, granted defendants' motion to dismiss on the ground that the action was brought more than one year after the acts complained of. We reverse on the ground that the action is governed by the three-year provision of CPLR § 214 and was timely commenced.
Taylor's complaint, as filed, alleges simply that on January 16, 1977, the defendant deputies "under the color of Law and while on duty did Fire one bullet from a service revolver at the Plaintiff and proceed to and thereby Endanger the life of the plaintiff by an unlawful and unexplained act of Attempted Murder." With the complaint, Taylor submitted copies of certain papers he had prepared for state court and administrative proceedings, including several pro se petitions for state writs of habeas corpus, a complaint to the State Division of Human Rights and a motion for relief pursuant to CPLR Article 78. The district court relied on these papers in fleshing out the events leading up to the act complained of. The picture that emerges is as follows.
In December 1976 Taylor was a student at the State University at New Paltz, New York and had an apartment in New Paltz; his legal residence was his parents' home in Rosendale, New York, some ten miles away. On December 26, 1976, having spent Christmas with his parents, Taylor returned to his New Paltz apartment to find that it had been searched on December 25, allegedly without a warrant, by New Paltz policemen who apparently had removed certain articles and left an itemized receipt taped to the wall. Shortly thereafter Taylor learned from University officials that a warrant had been issued for his arrest on a charge of rape in the first degree. Taylor telephoned state police headquarters and received verification that such a warrant was outstanding. Taylor did not turn himself in, however, and apparently some two weeks passed without execution of the warrant.
On the evening of January 15, 1977, Taylor was at his parents' home in Rosendale. At about 11:00 p. m., Taylor drove his father's van from Rosendale to New Paltz. At approximately 4:00 a. m. on January 16, he was still in New Paltz and, at that time apparently some distance away from the van, was stopped by an off-duty Rosendale policeman who stated that he intended to hold Taylor for the state police. When Taylor asked to see a warrant, the policeman answered that the state police were on their way with a warrant. Taylor fled. After he "lost" the policeman, Taylor returned to the van and drove toward his home in Rosendale.
Just outside New Paltz, a patrol car, lights flashing, began following the van. As Taylor approached Rosendale, he saw a sheriff's patrol car, lights on, parked on the left side of the road. After he passed the latter patrol car, Taylor heard a bullet hit the driver's side of the van. It is the firing of this shot that Taylor contends violated his constitutional rights.*fn1
On August 29, 1978, Taylor commenced this suit under § 1983, seeking injunctive relief and $350,000 in damages, against New Paltz Sheriff Thomas Mayone and two of his deputies who were denominated "John Doe." The complaint alleges that the shot was fired by one of the defendant deputies, and that Mayone is joined as a defendant because the deputies were in his employ at the time. Papers submitted with the complaint, however, asserted that in 1975, in connection with an investigation of the death of Taylor's brother, Mayone had posted a photograph of Taylor in the police station "for so-called security reasons" and thereby "created a hazardous attitude" toward Taylor and generated disrespect for his life.*fn2
Defendants moved to dismiss the complaint on the ground, inter alia,*fn3 that the action is time-barred under CPLR § 215(1), which provides a one-year limitation on suits against a sheriff for acts, other than the collection of money upon an execution, performed in his official capacity. The district court concluded that § 215(1) was applicable and, since the action had not been commenced within one year of the January 1977 driving-shooting incident, granted the motion to dismiss. This appeal followed.
Section 1983 does not contain its own statute of limitations. Thus the "most appropriate" period of limitations provided by state law must be applied. Board of Regents v. Tomanio, 446 U.S. 478, 100 S. Ct. 1790, 64 L. Ed. 2d 440 (1980); Johnson v. Railway Express Agency, 421 U.S. 454, 462, 95 S. Ct. 1716, 1721, 44 L. Ed. 2d 295 (1975); Quinn v. Syracuse Model Neighborhood Corp., 613 F.2d 438, 449 (2d Cir. 1980).
Our Court traditionally has held that suits brought in federal district courts in New York under § 1983 are governed by the three-year period of limitations provided by CPLR § 214(2) for actions "to recover upon a liability, penalty or forfeiture created or imposed by statute." Quinn v. Syracuse Model Neighborhood Corp., supra;*fn4 Meyer v. Frank, 550 F.2d 726, cert. denied, 434 U.S. 830, 98 S. Ct. 112, 54 L. Ed. 2d 90 (1977); Kaiser v. Cahn, 510 F.2d 282 (2d Cir. 1974); Ortiz v. LaVallee, 442 F.2d 912 (2d Cir. 1971); Romer v. Leary, 425 F.2d 186 (2d Cir. 1970); Swan v. Board of Higher Education, 319 F.2d 56 (2d Cir. 1963). None of ...