Appeal from a judgment of the United States District Court for the Southern District of New York entered by Constance Baker Motley, Judge, dismissing plaintiff's action under 42 U.S.C. § 1983 for false arrest, assault and malicious prosecution, as barred by the applicable New York statute of limitations. Affirmed .
Before Waterman and Mansfield, Circuit Judges, and Weinstein, District Judge.*fn*
Jerome Singleton appeals from a judgment of the United States District Court for the Southern District of New York entered by Judge Constance Baker Motley on September 9, 1979, dismissing plaintiff's complaint against the City of New York and two of its police officers under 42 U.S.C. § 1983, alleging that in violation of his constitutional rights he was assaulted, falsely arrested and maliciously prosecuted for resisting arrest. The complaint was dismissed on the grounds (1) that the false arrest and assault claims were time-barred and (2) that the malicious prosecution claim, though timely filed, failed to allege that the state prosecution terminated in plaintiff's favor. We affirm.
On November 14, 1975, Singleton was in a restaurant in New York City. Two plainclothes New York City police officers, Ronald Salzer and Anthony Dellaventura, arrived at the restaurant after receiving a report that a black male had committed a robbery at a different restaurant which they apparently mistakenly believed to be the restaurant where Singleton was present. What happened next is a matter of dispute. Singleton, who is black, alleges that the police officers failed to identify themselves, assaulted him and arrested him for the crime of robbery. He also alleges that the police officers, upon learning that he was not the robbery suspect sought, falsely charged him with felonious assault and with resisting arrest, thus subjecting him to criminal prosecution.
Defendants, on the other hand, deny that the police officers failed to identify themselves, assaulted Singleton or ever made an arrest for robbery. They contend that plaintiff was properly arrested for the crimes of assault, resisting arrest and obstructing governmental administration. Defendants concede, however, that once Singleton was arrested for these crimes and taken to the station house it was established that he did not commit the robbery which gave rise to the incident.
On November 15, 1975, Singleton was arraigned on the criminal charges and his subsequent trial in the Criminal Court of the City of New York on those charges ended in a hung jury on March 31, 1976. On June 14, 1976, with Singleton's consent that court ordered that the action be "adjourned in contemplation of dismissal." N.Y.Crim.Proc.Law § 170.55.*fn1 The action was finally dismissed in accordance with § 170.55 on December 16, 1976.
Singleton subsequently commenced an action in state court, which is apparently still pending, alleging assault, false arrest and malicious prosecution. Thereafter, on February 9, 1979, he commenced the present federal action under § 1983, alleging that the defendants' conduct deprived him of "rights secured by the Constitution and laws of the United States," by assaulting him on November 14, 1975, by arresting him without probable cause or a warrant on the same date, by causing him to be arraigned on false charges on January 14, 1976, and by causing him to be brought to trial on the false charges which ended in a dismissal of those charges on December 14, 1976. The complaint seeks $5,000,000 in damages.
Defendants moved to dismiss on the ground that the action was time-barred. The district court found that the § 1983 action was governed by the three-year limitation period imposed by N.Y.C.P.L.R. § 214(2), which applies to actions "to recover upon a liability ... created or imposed by statute." Finding that Singleton's § 1983 cause of action for false arrest and assault accrued on November 14, 1975, the date on which the incident occurred, the court concluded that these claims were time-barred since Singleton commenced his action more than three years after that date. As to the malicious prosecution claim, which allegedly arose on December 16, 1976, when the prosecution of Singleton was terminated, the court concluded that although the claim was timely filed, it must be dismissed for failure to allege that the state court prosecution had terminated in favor of plaintiff, as required by Cardi v. Supermarket General Corp., 453 F. Supp. 633 (S.D.N.Y.1978). From the judgment dismissing his complaint, Singleton appeals.
Since Congress has not established a federal statute of limitations for actions brought in federal court under § 1983, we are instructed to apply the state statute of limitations most appropriate to § 1983 actions. 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). Following this mandate we have held that the three-year limitations period imposed by N.Y.C.P.L.R. § 214(2), which applies to actions to recover upon a liability created by statute, governs § 1983 suits brought against individuals in federal courts in New York. Quinn v. Syracuse Model Neighborhood Corp., 613 F.2d 438, 449 (2d Cir. 1980); Leigh v. McGuire, 613 F.2d 380, 382 (2d Cir. 1979), vacated and remanded for further consideration, 446 U.S. 962, 100 S. Ct. 2935, 64 L. Ed. 2d 820 (1980); Meyer v. Frank, 550 F.2d 726, 728 (2d Cir.), cert. denied, 434 U.S. 830, 98 S. Ct. 112, 54 L. Ed. 2d 90 (1977); Kaiser v. Cahn, 510 F.2d 282, 284 (2d Cir. 1974).
Section 214(2) has also been held by us to govern § 1983 actions against municipalities. Quinn v. Syracuse Model Neighborhood Corp., supra, 613 F.2d at 449. We reasoned in Quinn that "(t)o create different limitations periods for two similarly situated classes of defendants would create a distinction without a difference, and would engender unnecessary confusion for litigants and judges alike." 613 F.2d at 449.
Defendants-appellees here contend on the basis of the Supreme Court's recent decision in Chapman v. Houston Welfare Rights Organization, 441 U.S. 600, 99 S. Ct. 1905, 60 L. Ed. 2d 508 (1979), that the appropriate state statute of limitations is not N.Y.C.P.L.R. § 214(2) but either N.Y.Gen. Municipal Law § 50-i(1), which specifies a one-year, 90-day limitations period for actions against municipalities for wrongful conduct,*fn2 or N.Y.C.P.L.R. § 215(3), which fixes a one-year limitations period for "an action to recover damages for assault, battery, false imprisonment, malicious prosecution, libel, slander ...." Their argument is that since the Court in Chapman stated that § 1983 "does not provide any substantive rights at all," 441 U.S. at 618, 99 S. Ct. at 1916, but only furnishes a remedy for enforcement of federal constitutional rights, an action under § 1983 is not one "to recover upon a liability ... created or imposed by statute" within the meaning of § 214(2), which does not apply to "statutory provisions which provide only additional remedies or standing (but) do not create or impose new obligations," State v. Cortelle Corp., 38 N.Y.2d 83, 378 N.Y.S.2d 654, 655, 341 N.E.2d 223, 224 (1975). However, in holding in Quinn, supra, that such actions are governed by § 214(2) we questioned earlier suggestions that N.Y.Gen. Municipal Law § 50-i(1) establishes "the appropriate limitations period for § 1983 suits against municipalities," 613 F.2d at 449 n. 7; see Fine v. City of New York, 529 F.2d 70, 76 (2d Cir. 1975); Lombard v. Board of Education, 440 F. Supp. 577 (E.D.N.Y.1977); Adekalu v. New York City, 431 F. Supp. 812 (S.D.N.Y.1977). In any event, for reasons stated below we need not decide in this case whether Quinn must be reconsidered in the light of the Supreme Court's decision in Chapman.*fn3
The only other possibly relevant state statute of limitations is N.Y.C.P.L.R. § 213(1), which governs "an action for which no limitation period is specifically prescribed by law." Section 213(1) has generally been understood to govern actions for equitable relief, not actions for damages.*fn4 The Practice Commentaries to the section state:
"(Section 213(1)) corresponds with CPA § 53 (its predecessor), and reduces the residual statute of limitations from 10 to 6 years. This period, which governs actions in equity, had always been unnecessarily long. It had created many problems by encouraging tardy plaintiffs whose causes of actions were barred at law to conjure up improbable theories of equity to gain the benefit of the longer statute...." (Emphasis supplied).
Although § 213(1) is not by its terms limited to equitable actions, we must in choosing among state statutes of limitations to be applied in federal actions look to the state court interpretations of the statutes to "see where the claim fits into the state scheme." Klein v. Bower, 421 F.2d 338, 344 (2d Cir. 1970). As so interpreted this longer period for equity actions is clearly unavailable where full relief to plaintiff can be granted at law. Klein v. Bower, 421 F.2d at 344 (1970); Gilbert v. Meyer, 362 F. Supp. 168, 172 (S.D.N.Y.1973). Here plaintiff seeks only damages and makes no claim for equitable relief. Accordingly § 213(1) must be eliminated as a statute that might be applied in the present case.
Appellant agrees that the present action is governed by N.Y.C.P.L.R. § 214(2), requiring that it be commenced within three years from the date of accrual. However, he contends that his claims for false arrest and assault did not accrue on November 14, 1975, as determined by the district court, but rather on December 16, 1976, when the state prosecution terminated. Alternatively, appellant argues that the applicable state statute of limitations should have been tolled during that prosecution. We reject both contentions.
Under New York law a claim for assault accrues at the time of the assault and one for false arrest at the time when plaintiff is released from jail, see, e. g., Dailey v. Smiley, 65 App.Div.2d 915, 410 N.Y.S.2d 468 (1978). However, federal law, which governs the date of accrual of federal claims such as those asserted here, Kaiser v. Cahn, 510 F.2d 282, 285 (2d Cir. 1974), "establishes as the time of accrual that point in time when the plaintiff knows or has reason to know of the injury which is the basis of his action." Bireline v. Seagondollar, 567 F.2d 260, 263 (4th Cir. 1977). November 14, 1975, was the time at which plaintiff knew of his injury arising from the alleged assault and false arrest. The applicable statutory period therefore commenced running on that date. Singleton suggests no reason why the time for accrual should be other than November 14, 1975.*fn5
Singleton next contends, apparently for the first time, that the limitations period should be tolled during the period in which the state criminal prosecution was pending against him. The Supreme Court has recently held that state tolling rules, like state limitations periods, govern federal actions brought under § 1983 except when inconsistent with the federal policy underlying § 1983. Board of Regents v. Tomanio, 446 U.S. 478, 100 S. Ct. 1790, 64 L. Ed. 2d 440 (1980).
New York has codified the circumstances under which limitations periods may be tolled. The general rule is set forth unambiguously in N.Y.C.P.L.R. § 201: "An action ... must be commenced within the time specified in this article.... No court shall extend the time limited by law for the commencement of an action." Although the statute codifies a number of the tolling rules developed at common law,*fn6 there is no provision for tolling the time for filing a cause of action during the period when a criminal prosecution is pending against the plaintiff. The New York legislature has thus determined that the policy of repose underlying the statute of limitations outweighs any burden upon plaintiff arising from his being required to file a cause of action while he is subject to state prosecution.
Nor do we find any inconsistency between the state policy and the federal policy underlying § 1983. In order to gauge consistency, we must identify and compare the respective policies. On the one hand, the Supreme Court has recognized that state policies of repose are "fundamental to a well-ordered judicial system" and are not "disfavored in federal law." Board of Regents v. Tomanio, supra, 446 U.S. 478 at 487, 100 S. Ct. 1790, at 1796, 64 L. Ed. 2d 440. Meanwhile, the federal policy underlying § 1983 includes compensation of persons injured by a deprivation of federal rights and the prevention of abuses of power by those acting under color of state law. Robertson v. Wegmann, 436 U.S. 584, 591, 98 S. Ct. 1991, 1996, 56 L. Ed. 2d 554 (1978). Those federal policies, however, are not undermined by the running of the applicable New York limitations period from the date of arrest. As in Board of Regents v. Tomanio, "plaintiffs can still readily enforce their claims, thereby recovering compensation and fostering deterrence, simply by commencing their actions within three years." 100 S. Ct. at 1797. Nothing prevented Singleton from bringing suit during the period when the criminal prosecution against him was pending.
In his scholarly dissent Judge Weinstein acknowledges that under federal law "accrual for section 1983 purposes occurs at the time of the assault or when the plaintiff is released on bail after the arrest." (p. 202). Nevertheless, he then advances a novel theory to the effect that the separate wrongs in this case should be treated for accrual purposes as a "single transaction" which was not completed until December 16, 1976, when the state criminal proceedings against Singleton were dismissed. We find no authority supporting this theory.*fn7 Indeed, the settled law is to the contrary.
Characterizing defendants' separate wrongful acts as having been committed in furtherance of a conspiracy or as "a single series of interlocking events" does not postpone accrual of claims based on individual wrongful acts. The crucial time for accrual purposes is when the plaintiff becomes aware that he is suffering from a wrong for which damages may be recovered in a civil action. To permit him to wait and toll the running of the statute simply by asserting that a series of separate wrongs were committed pursuant to a conspiracy would be to enable him to defeat the purpose of the time-bar, which is to preclude the resuscitation of stale claims. As we stated in Rutkin v. Reinfeld, 229 F.2d 248, 252 (2d Cir.), cert. denied sub nom. Kaplow v. Reinfeld, 352 U.S. 844, 77 S. Ct. 50, 1 L. Ed. 2d 60 (1956):
"The person harmed by the conspiracy may bring suit as soon as the damage to him is inflicted; he obviously need not wait until the termination of the conspiracy which caused it. It is at the time of injury that the "right to relief by action' arises and the statute therefore begins to run at the moment such injury occurs."
The existence of a conspiracy does not postpone the accrual of causes of action arising out of the conspirators' separate wrongs. It is the wrongful act, not the conspiracy, which is actionable, whether that act is labelled a tort or a violation of § 1983. Korry v. International Telephone & Telegraph Corp., 444 F. Supp. 193 (S.D.N.Y.1978). Where no single act is sufficiently decisive to enable a person to realize that he has suffered a compensable injury, the cause of action may not accrue until the wrong becomes apparent. This may occur, for instance, where a person contracts silicosis as the result of ingesting infinitesimally small amounts of coal dust over a period of years, Sadowski v. Long Island Railroad, 292 N.Y. 448, 55 N.E.2d 497 (1944), or gradually becomes disabled as the result of operating a defective hammer, Fowkes v. Pennsylvania Railroad, 264 F.2d 397 (3d Cir. 1959). See also Triangle Underwriters, Inc. v. Honeywell, Inc., 457 F. Supp. 765, 770 (E.D.N.Y.1978), affd. as to this holding, 604 F.2d 737, 744-46 (2d Cir. 1979); Holdridge v. Heyer-Schulte Corp., 440 F. Supp. 1088, 1096 (N.D.N.Y.1977). But no such claim is made here.
Singleton contends that it would have been fruitless for him to have commenced his § 1983 action while the criminal prosecution was pending since there was a possibility that the federal district court would dismiss the § 1983 action on the ground that it would be inappropriate for a federal court to adjudicate constitutional issues which are relevant to the disposition of pending state criminal charges. See Clark v. Zimmerman, 394 F. Supp. 1166 (M.D.Pa.1975). These fears are unfounded. As suggested by the Fifth Circuit, the better course in situations where the district court feels compelled to abstain is to stay, rather than dismiss, the § 1983 action so that the plaintiff is protected from a possible statute of limitations bar to the § 1983 suit. Conner v. Pickett, 552 F.2d 585 (5th Cir. 1977) (per curiam); see also Mastracchio v. Ricci, 498 F.2d 1257 (1st Cir. 1974), cert. denied, 420 U.S. 909, 95 S. Ct. 828, 42 L. Ed. 2d 838 (1975) (§ 1983 suit stayed "by agreement of counsel" pending outcome of state criminal proceedings); Fulford v. Klein, 529 F.2d 377, 382 (5th Cir. 1976), affd. en banc, 550 F.2d 342 (5th Cir. 1977). Accord, Zurek v. Woodbury, 446 F. Supp. 1149, 1152 (N.D.Ill.1978).
Accordingly, we hold that the statute of limitations was not tolled in this case. Since Singleton's claims for assault and false imprisonment accrued on November 14, 1975, and this action was not commenced until February 9, 1979, more than three years later, these claims are barred by all possibly applicable state statutes of limitation, including N.Y.C.P.L.R. § 214(2) (three years) and, even assuming that Chapman calls for application of a different statute, by N.Y.C.P.L.R. § 215(3) (one year), and N.Y.Gen. Municipal Law § 50-i (one year and 90 days).
Turning to Singleton's malicious prosecution claims, it is undisputed that this claim accrued on December 16, 1976, and that it was therefore timely filed. Under the common law, however, it is well-settled that an accused, in order to maintain a cause of action for malicious prosecution, must establish that the state prosecution terminated in his favor. Restatement (Second) of Torts § 658 (1977). The district court reasoned that an "adjournment in contemplation of dismissal" pursuant to N.Y.Crim.Proc.Law § 170.55 did not constitute a termination in favor of appellant. Despite appellant's protestations to the contrary, the district court's conclusion is correct and adequately supported. Cardi v. Supermarket Corp., 453 F. Supp. 633 (E.D.N.Y.1978); Kenul v. Hollander, 86 Misc.2d 466, 382 N.Y.S.2d 650 (Dist.Ct.Nassau Cty.1976). Proceedings are "terminated in favor of the accused" only when their final disposition is such as to indicate the accused is not guilty, Restatement (Second) of Torts § 660, Comments a & b (1977). An adjournment in contemplation of dismissal, like a consent decree, involves the consent of both the prosecution and the accused and leaves open the question of the accused's guilt.
Nor are we persuaded that § 160.50 of the New York Criminal Procedure Law, relied upon heavily by our dissenting colleague, converts a dismissal under § 170.55 into an acquittal or determination that the plaintiff was not guilty, which would permit him to sue for malicious prosecution. In the first place, a dismissal pursuant to § 170.55 is not the equivalent of a verdict or finding that the defendant is not guilty of the offense charged against him, as is demonstrated in the present case by the jury's inability to reach a verdict, thus confirming that there surely was probable cause for his prosecution and indicating at least a real possibility that upon retrial he might be convicted.
Section 170.55 creates a procedure not unlike probation, designed as a "special break, given usually to first offenders." Kenul v. Hollander, 86 Misc.2d 466, 382 N.Y.S.2d 650 (Dist.Ct.Nassau County 1976); see, generally, Pirro, Adjournment in Contemplation of Dismissal: Criminal Procedure Law Section 170.55, 38 Alb.L.Rev. 223, 231-32 (1974) (hereinafter cited as Adjournment). The six-month hiatus between adjournment and dismissal is especially significant: It is a period of observation, during which time the defendant's behavior may be observed to determine whether the prosecutor's acquiescence in the adjournment was justified. The prosecutor's decision to restore the case to the calendar is totally discretionary and need not be based on factors relating to the defendant's original innocence or guilt. As the New York CPL Practice Commentary puts it, a dismissal is granted at the end of the period "(i)f the defendant behaved himself." The fact that it is common for judges granting adjournments in contemplation of dismissal to establish behavioral requirements which the defendant must meet during the adjournment period in order to avoid having the case restored to the calendar, see Adjournment, supra, at 235-39, confirms that an adjournment in contemplation of dismissal is far from being "in all respects favorable to the defendant."
Section 160.50, by classifying a § 170.55 dismissal as "in favor" of the defendant and permitting the arrest and prosecution to be deemed a nullity, merely confirms the "special break for first offenders" conferred by § 170.55 itself. By erasing the stigma that might otherwise be borne by the defendant as a result of the prosecution, the statute does not authorize a finding of "not guilty;" it simply permits the court to expunge the record against him, just as is authorized by state and federal laws with respect to juvenile delinquents or youthful offenders who have committed criminal acts.*fn8 If an adjournment in contemplation of dismissal were held to be a result favorable to the defendant for purposes of bringing an action for malicious prosecution, fewer prosecutors would be willing to consent to such adjournments. No purpose would be served in dismissing the criminal case if the issue of guilt or innocence were in any event to be litigated in a civil suit. The more prudent course, which would be less wasteful to the parties and the court, would be to bring the pending criminal case to trial. This is confirmed by the growing unsuccessful efforts by prosecutors to condition the granting of adjournments on the defendant's agreement to waive his rights against the government, see, e. g., People v. Wilmot, 104 Misc. 2d 412, 428 N.Y.S.2d 568 (Crim.Ct.N.Y.1980); Kurlander v. Davis, 103 Misc. 2d 919, 427 N.Y.S.2d 376 (Sup.Ct.Monroe Cty.1980).
There remains the question of whether a § 1983 claim for deprivation of civil rights through malicious prosecution may be stated without alleging and proving that the prosecution terminated in some manner indicating that the person was not guilty of the offense charged. We believe that such proof is essential. The essence of the § 1983 claim is the alleged groundless prosecution, without which there would not be any basis for the claim. A prosecution based on probable cause which results in a hung jury, as was the case here, does not deprive the defendant of civil rights within the meaning of § 1983. Without proof that the criminal prosecution based on probable cause was terminated in defendant's favor no federal claim exists. To hold otherwise would permit a defendant to relitigate the issue of probable cause by way of a § 1983 action, despite the state court's determination of that issue against him after full and fair consideration of the evidence, thus posing the prospect of harassment, waste and endless litigation, contrary to principles of federalism.
Our decision is therefore consistent with decisions cited by the dissent (pp. 199-201) to the effect that state tort law does not define or limit the scope of liability under § 1983, a principle with which we do not disagree. A § 1983 complaint must still allege a wrong to the plaintiff. This requirement is not met by a claim seeking federal review of a state prosecution on grounds of unfairness, absent proof of denial of due process or a finding that the defendant was maliciously prosecuted upon a charge of which he was found not guilty. The present case is governed by the principle stated by the Fourth Circuit in Tucker v. Duncan, 499 F.2d 963 (4th Cir. 1974), where the court, in dismissing a § 1983 malicious prosecution action because under North Carolina law a nol-pros obtained by the defense attorney from the prosecutor did not constitute a favorable termination, reasoned that it was "not inappropriate to borrow from state law a developed body of rules governing actionable wrongs and a procedural bar to the assertion of a federal claim of relative triviality." Id. at 965 n. 1. The common law rule that termination of the earlier proceedings in favor of the accused is an essential element of a malicious prosecution claim has generally been adopted and applied by federal courts, Sullivan v. Choquette, 420 F.2d 674 (1st Cir. 1969), cert. denied, 398 U.S. 904, 90 S. Ct. 1691, 26 L. Ed. 2d 62 (1970); Morrison v. Jones, 551 F.2d 939 (4th Cir. 1977), even with respect to federal tort claims, Dellums v. Powell, 184 U.S. App. D.C. 275, 566 F.2d 167, 191 n. 65 (D.C.Cir.), cert. denied, 438 U.S. 916, 98 S. Ct. 3146, 57 L. Ed. 2d 1161 (1977); United States v. Levering, 446 F. Supp. 977 (D.Del.1978). See also D. Prosser, Torts § 119, at 835 and § 120, at 853 (4th ed. 1971); Restatement (Second) of Torts § 674 (1977); 52 Am.Jur.2d Malicious Prosecution §§ 6, 29 (1970); 54 C.J.S. Malicious Prosecution § 54 (1948); and Annot., 14 A.L.R.2d 264, 276 (1950). We see nothing in the common law which undermines the federal policies fostered by § 1983. Where, as in the present case, the prior proceeding ended in a hung jury and Singleton's guilt was left open, the claim must fail.
With respect to the defendant City of New York, there is an additional reason why Singleton's § 1983 claim must be dismissed. Under Monell v. Department of Social Services, 436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978), a municipality may be sued for damages under § 1983 only where the constitutional violations have been committed pursuant to an official policy or custom, 436 U.S. at 690-91, 98 S. Ct. at 2036. No such policy or custom is alleged here. Moreover, in Turpin v. Mailet, 619 F.2d 196 (2d Cir. 1980), we noted that an "official policy" cannot ...