The opinion of the court was delivered by: Robert P. Patterson, Jr., District Judge.
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.
For purposes of this motion, the facts as stated in the
complaint must be taken as true. They are, in pertinent part,
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.
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 ...