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ORTIZ v. MORGENTHAU

September 13, 1991

ANTONIO MIRANDA ORTIZ, PLAINTIFF,
v.
ROBERT M. MORGENTHAU, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS MANHATTAN DISTRICT ATTORNEY; DEBORA L. MORSE, INDIVIDUALLY AND IN HER OFFICIAL CAPACITY AS ASSISTANT DISTRICT ATTORNEY (A.D.A.); MARK DWYER, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS A.D.A.; DEBORAH HICKEY, INDIVIDUALLY AND IN HER OFFICIAL CAPACITY AS A.D.A.; EUGENE NARDELLI, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS MANHATTAN SUPREME COURT JUDGE [SIC]; J. CASTLE, INDIVIDUALLY AND IN HER OFFICIAL CAPACITY AS A.D.A.; ANTHONY C. GINETTO, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS AN ATTORNEY AT LAW; JAY ROSEN, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS AN ATTORNEY AT LAW; VICTOR CORNETTA, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS A POLICE OFFICER; JOAN BARRELLA, INDIVIDUALL [SIC]; CAROL BROWN, INDIVIDUALLY; STEVEN RUSSELL, INDIVIDUALLY; SEVERAL JOHN, AND JANE DOES, DEFENDANTS.



The opinion of the court was delivered by: Robert P. Patterson, Jr., District Judge.

OPINION AND ORDER

This is an action commenced on December 13, 1990 by plaintiff pro se, seeking relief under 42 U.S.C. § 1981, 1983, 1985, 1986, 1997a and 28 U.S.C. § 1961. Defendants Morgenthau, Morse, Dwyer, Hickey, Nardelli, and Ginetto move to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(6). For the reasons set forth below, this action is dismissed as to all defendants.

BACKGROUND

For purposes of this motion, the facts as stated in the complaint must be taken as true. They are, in pertinent part, as follows.

Plaintiff was arrested on June 21, 1984 and charged with robbery. Plaintiff alleges that this arrest and his subsequent conviction, on February 11, 1985, and sentencing, on March 28, 1985, were the result of a conspiracy among defendants to deprive plaintiff of his constitutional rights and that he is thus being "illegally confined." Complaint at 7, ¶ 3. Plaintiff further claims that this conspiracy continued during the appellate stage of his criminal proceeding and in connection with his petition for a writ of error coram nobis.

Plaintiff claims that defendant Cornetta, who arrested plaintiff for robbery on June 21, 1984, assaulted him and stole his property. Plaintiff further alleges that defendants District Attorney Morgenthau, Assistant District Attorney Castle, plaintiff's trial attorney Rosen, and New York Supreme Court Justice Nardelli conspired to "cover up . . . the events for which [plaintiff] was charged and convicted of" and arranged for witnesses to give perjured testimony against him. Complaint at 4, ¶¶ 3-4. Specifically, plaintiff claims that he received an unfair trial at which perjured testimony was given by defendants Cornetta, Russell, Barrella, and Brown and a 1978 photograph of himself was used improperly to refresh a witness's recollection, the real purpose having been to refresh a juror's recollection that plaintiff had robbed the juror in 1978 and that the juror had convicted plaintiff in 1979. Complaint at 4, ¶ 5. Plaintiff also asserts that defendant Nardelli failed to decide a motion plaintiff filed pursuant § 440.10 of the New York Criminal Procedure Law on October 12, 1987. Complaint at 5-6, ¶ 11.

Plaintiff alleges that his appellate counsel, defendant Ginetto, as well as defendants Assistant District Attorneys Hickey and Dwyer, then deprived plaintiff of his right to appeal by "making deals" with one another without plaintiff's knowledge. According to the Complaint, the Appellate Division affirmed plaintiff's conviction on April 30, 1987.

The Complaint next alleges that plaintiff was unable properly to prepare his August 8, 1988 petition for a writ of habeas corpus in this Court, No. 88 Civ. 6096 (RO), due to an order of Defendant Nardelli denying plaintiff access to the trial record. Complaint at 6, ¶ 12.

Finally, plaintiff asserts that, when he filed a writ of error coram nobis on November 4, 1990, defendant Assistant District Attorney Morse continued the conspiracy by relying in her responsive papers of February 25, 1991 on "perjury, and false statement, in order to confuse the Appelate Division." Complaint 6, ¶ 13.

DISCUSSION

A pro se complaint is held "to less stringent standards than formal pleadings drafted by lawyers." Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 595-96, 30 L.Ed.2d 652 (1972). Nonetheless, even according this complaint the most sympathetic reading, it must be dismissed for its failure to state a claim upon which relief may be granted.

1. Statute of Limitations

It is well-settled that an action under 42 U.S.C. § 1983 is governed by the state statute of limitations for personal injury and that in New York the relevant statute is section 214(5) of the New York Civil Practice Law, which provides for a three-year limitations period. See Owens v. Okure, 488 U.S. 235, 109 S.Ct. 573, 102 L.Ed.2d 594 (1989); Day v. Morgenthau, 909 F.2d 75, 78 (2d Cir. 1990). The three-year limitations period is appropriate for actions pursuant to 42 U.S.C. § 1981 and 1985 as well. See Tadros v. Coleman, 898 F.2d 10, 12 (2d Cir. 1990) (section 1981), cert. denied, ___ U.S. ___, 111 S.Ct. 186, 112 L.Ed.2d 149 (1990); Hernandez-Avila v. Averill, 725 F.2d 25, 27 n. 3 (2d Cir. 1984) (sections 1981, 1983, 1985). 42 U.S.C. § 1986 by its own terms requires that claims brought thereunder be "commenced within one year after the cause of action has accrued."*fn1

The time of accrual for this action is "that point in time when the plaintiff [knew] or ha[d] reason to know of the injury which is the basis of his action." Singleton v. City of New York, 632 F.2d 185, 192 (2d Cir. 1980), cert. denied, 450 U.S. 920, 101 S.Ct. 1368, 67 L.Ed.2d 347 (1981); see also Barrett v. United States, 689 F.2d 324, 333 (2d Cir. 1982) (quoting Singleton), cert. denied, 462 U.S. 1131, 103 S.Ct. 3111, 77 L.Ed.2d 1366 (1983). Where the gravamen of a plaintiff's claim is his imprisonment upon a conviction arising from an allegedly unfair trial, the claim accrues at the time of sentencing. Kaiser v. Cahn, 510 F.2d 282, 285 (2d Cir. 1974). The Complaint alleges that plaintiff was sentenced on March 28, 1985. This action was commenced on June 7, 1991, over six years ...


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