The opinion of the court was delivered by: TELESCA
MICHAEL A. TELESCA, United States District Judge
The facts pertinent to the motion now before me are largely undisputed. Douglas E. Lee, the pro se plaintiff in this civil rights action, is a New York State prisoner presently confined at the Greenhaven Correctional Facility. On February 10, 1983, while Lee was imprisoned at the Attica Correctional Facility, he received several pieces of mail addressed to "Dr. Douglas E. Lee, PhD." On February 11, an inmate misbehavior report was filed by Corrections Officer Richard D. Case, who accused Lee of violating Facility rules against lying and impersonation, as well as specific instructions not to use the titles "Dr." or "PhD." with his name. Defendant Harold J. Smith, the Superintendent of the Attica Facility at that time, reports that this restriction was imposed because outsiders had apparently been deceived into believing that Lee was a member of the Attica medical staff.
On the basis of the inmate misbehavior report filed by Officer Case, Lee alleges that he was punished with solitary confinement in his cell for several days. A superintendent's hearing on the charges was conducted on February 16, 1983 before Captain R. J. Kirby, who dismissed the charges on the grounds that plaintiff had no control over the addresses on his incoming mail.
In this civil rights action brought under 42 U.S.C. § 1983, plaintiff -- who identifies himself as "Dr. Douglas E. Lee, M.D." -- alleges that the inmate misbehavior report and the resulting deprivation of his liberty were in retaliation for his activities as a "jailhouse lawyer." See Purcell v. Coughlin, 790 F.2d 263 (2d Cir. 1986). He further contends that various supervisory officials in the Department of Corrections, including the other named defendants, have denied his requests to have the inmate misbehavior report expunged from his prison records. His complaint seeks compensatory and punitive damages for the alleged deprivation of his constitutional rights, as well as declaratory and equitable relief directing defendants to expunge all records of the controversial misbehavior report.
Shortly after the filing of this complaint, plaintiff and defendants cross-moved for summary judgment on the merits of the action. Defendants also moved for summary judgment on the grounds that this action is barred by the applicable statute of limitations.
In light of the "settled federal practice" of reaching constitutional questions only when a case cannot be decided on statutory grounds, New York City Transit Authority v. Beazer, 440 U.S. 568, 582, 59 L. Ed. 2d 587, 99 S. Ct. 1355 (1979), this Court is obligated to decide defendants' statute of limitations argument before considering the merits of plaintiff's constitutional claims. There is no dispute that this action was commenced in December 1985, approximately two years and ten months after the filing of the inmate misbehavior report and subsequent superintendent's hearing.
The Reconstruction Civil Rights Acts do not contain a statute of limitations for actions brought under 42 U.S.C. § 1983. In accordance with the Congressional command of 42 U.S.C. § 1988, therefore, federal courts must look to state law to borrow an appropriate rule, and will adopt the most analogous state statute of limitations that is not inconsistent with federal laws or policy. Burnett v. Grattan, 468 U.S. 42, 49, 82 L. Ed. 2d 36, 104 S. Ct. 2924 (1984).
At the time of the events described in Lee's complaint, it was settled that the most analogous New York statute of limitations for all § 1983 actions was the three year period set forth in New York Civil Practice Law & Rules (CPLR) § 214(2) for actions to recover upon a liability created or imposed by statute. Pauk v. Board of Trustees of the City University of New York, 654 F.2d 856 (2d Cir. 1981), cert. denied, 455 U.S. 1000, 71 L. Ed. 2d 866, 102 S. Ct. 1631 (1982). Long before this action was commenced, however, the United States Supreme Court held that all § 1983 claims must be characterized, for the purposes of borrowing an analogous statute of limitations from state law, as actions to recover damages for injuries to the person. Wilson v. Garcia, 471 U.S. 261, 105 S. Ct. 1938, 85 L. Ed. 2d 254 (1985).
As I noted in Doty v. Rochester City Police Department, 625 F. Supp. 829 (W.D.N.Y. 1986), New York provides two personal injury limitation periods which can arguably be analogized to the § 1983 remedy. New York law allows one year to commence an action to recover damages for the intentional personal injuries listed in CPLR § 215(3), which include assault, battery, false imprisonment, malicious prosecution, defamation, and violation of statutory privacy rights. Almost all other personal injury actions are subject to a three year period under CPLR § 214(5).
As Justice O'Connor observed, the opinion of the Court in Wilson provides little explicit guidance for selecting the proper limitations period in states, such as New York, which "def[y] the newly minted rule by supplying not one but two periods that govern various injuries to personal rights." Wilson, supra, 105 S. Ct. at 1953 (O'Connor, J. dissenting).
Although the applicable New York statute of limitations for § 1983 has not yet been conclusively resolved, the Court of Appeals for the Circuit has offered the opinion, albeit in dictum, that Wilson v. Garcia seems to mandate the application of the three year period set forth under CPLR § 214(5). Villante v. Department of Corrections of the City of New York, 786 F.2d 516, 520 n.2 (2d Cir. 1986). Furthermore, under the settled law of this Circuit, the one year period of CPLR § 215(3) must be rejected as "inconsistent with the Constitution and the laws of the United States." 42 U.S.C. Section 1988. In Pauk v. Board of Trustees of City University of New York, 654 F.2d 856, 862 (2d Cir. 1981), cert. denied, 455 U.S. 1000, 71 L. Ed. 2d 866, 102 S. Ct. 1631 (1982), the Court of Appeals for this Circuit held that:
A federal court, searching for an analogous state limitations period for a § 1983 suit, should not select any period shorter than the two years Congress has specified as the time within which notice must be given of claims against the United States for unlawful actions by federal law enforcement officers. 28 U.S.C. §§ 1346(b), 2680(h) (1976). That expression of federal policy should establish a floor for the ...