the court will now address the separate claims.
1. Excessive Force and Unlawful Search and Seizure
Plaintiff does not dispute that his excessive force and unlawful search and seizure claims normally would have accrued on February 25, 1984 when the defendants allegedly committed the underlying acts. The present claim was not filed until March 29, 1993, over nine years after the applicable statutory time period commenced. Thus, absent unusual circumstances plaintiff's claims would be barred by the three-year statute of limitations. However, plaintiff argues that the doctrine of equitable tolling should apply to toll the statute of limitations thereby permitting the commencement of this action. In order to evaluate plaintiff's tolling claim, we must review the tolling rules applicable to 1983 actions.
New York's tolling provisions govern the tolling of the statute of limitations. Woods v. Candela, 13 F.3d 574 (2d Cir. 1994). New York has codified the circumstances under which limitations periods may be tolled. New York's choice in this regard is binding law. Board of Regents v. Tomanio, 446 U.S. 478, 100 S. Ct. 1790, 1795, 64 L. Ed. 2d 440 (1980). However, "considerations of state law may be displaced where their application would be inconsistent with the federal policy underlying the cause of action under consideration." Board of Regents v. Tomanio, 446 U.S. at 478, 100 S. Ct. at 1795 (quoting Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 465, 44 L. Ed. 2d 295, 95 S. Ct. 1716 (1975)).
There is no statutory provision for tolling the time for filing a cause of action during the period when a criminal prosecution is pending against the plaintiff. Singleton v. New York, 632 F.2d at 191. Moreover, plaintiff's reliance on federal common law tolling principles is misplaced.
Plaintiff advances no argument that federal tolling rules should apply because restricting tolling of his claims to those circumstances covered by New York's tolling rules is inconsistent with the policies underlying 1983. See Woods v. Candela, 825 F. Supp. 43, 47 (S.D.N.Y. 1993). Instead, plaintiff argues that he did not dare risk filing the 1983 action because to do so would have compelled him to give up his Fifth Amendment right against self-incrimination and would have subjected him to the risk of additional perjury prosecutions. These fears are unfounded as the Second Circuit requires federal district courts to stay rather than to dismiss 1983 actions while state criminal proceedings are pending. Mack v. Varelas, 835 F.2d 995, 999 (2d Cir. 1987); Woods v. Candela, 13 F.3d at 574. Accordingly, this court grants defendants' motion to dismiss plaintiff's claims for excessive force and unreasonable search and seizure on the ground that the statute of limitations has expired.
2. False Arrest
Unless otherwise tolled, a § 1983 claim for false arrest and false imprisonment will accrue on the date of the alleged false arrest. Woods, 13 F.3d at 576; Singleton v. New York, 632 F.2d at 191; Bezerra v. County of Nassau, 846 F. Supp. 214 (E.D.N.Y. 1994). Plaintiff's claim for false arrest accrued on February 26, 1984 when plaintiff was arrested. As noted above, plaintiff commenced his claim on March 29, 1993. It is therefore barred by the three-year statute of limitations. Accordingly, this court dismisses plaintiff's claim for false arrest against all defendants.
3. False Testimony
Contrary to defendants' interpretation of the complaint, plaintiff does not allege an independent claim for false testimony. See Plaintiff's Memorandum of Law at 18; see also Plaintiff's Statement Pursuant to Local Rule 10(j), P 5. Therefore, this court will not address either defendants' motion to dismiss plaintiff's claim for false testimony or defendants' defense of absolute immunity to that claim.
C. Motion to Dismiss Plaintiff's Claim for Malicious Prosecution
The Second Circuit consistently has held that the commonlaw elements of malicious prosecution also form the basis for imposition of liability under section 1983. Posr v. Doherty, 944 F.2d 91, 99 (2d Cir. 1991); White v. Frank, 855 F.2d 956, 961 (2d Cir. 1988); Raysor v. Port Authority of New York & New Jersey, 768 F.2d 34, 40 (2d Cir. 1985), cert. denied, 475 U.S. 1027, 89 L. Ed. 2d 337, 106 S. Ct. 1227 (1986). In Albright v. Oliver, 127 L. Ed. 2d 114, 1994 U.S. LEXIS 1319, 114 S. Ct. 807 (1994), the Supreme Court acknowledged the validity of section 1983 malicious prosecution claims and held that the right to be free from prosecution without probable cause, which forms the very essence of a malicious prosecution claim, arises under the Fourth Amendment. In order to prove either a § 1983 or state law claim of malicious prosecution, the plaintiff must establish that:
1) the defendant either commenced or continued a criminal proceeding against him;
2) that the proceeding terminated in his favor;
3) that there was no probable cause for the criminal proceeding; and
4) that the criminal proceeding was instituted with actual malice.
Posr v. Doherty, 944 F.2d 91, 100 (2d Cir. 1991) (citations omitted). Moreover, the conviction of an accused conclusively establishes the existence of probable cause unless the conviction was obtained by fraud, perjury or other corrupt means. Cameron v. Fogarty, 806 2d Cir. 380 (1986); Williams v. New York, 508 F.2d 356 (2d Cir. 1974); see also, White v. Frank, 855 F.2d 956 (stating that a grand jury indictment is prima facie evidence of probable cause that may be rebutted by proof that the defendant misrepresented, withheld or falsified evidence).
Although plaintiff's complaint does not allege a specific constitutional provision under which his malicious prosecution claim arises, construing plaintiff's allegations in the light most favorable to the plaintiff, as required under Fed. R. Civ. P. 12(b), this court will assume that the claim is pled under the Fourth Amendment. Advancing under this assumption, plaintiff has satisfied the procedural pleading requirements for establishing a malicious prosecution claim. See Complaint PP. 42-44. Moreover, plaintiff alleges that the prosecution at issue was based upon fraud, perjury or other corrupt means, thereby pleading the necessary exception to rule that conviction is conclusive proof of probable cause. More specifically, plaintiff alleges that the defendants knowingly and maliciously gave false testimony and deliberately and maliciously withheld and suppressed exculpatory information and evidence. Id. Deeming these allegations to be true and construing them liberally in the light most favorable to the plaintiff, as required when considering a motion to dismiss, this court finds that the plaintiff's complaint sufficiently states a cause of action for malicious prosecution upon which relief may be granted. Accordingly, the court denies defendants' motion to dismiss plaintiff's claim for malicious prosecution. This does not end our inquiry, however, as there remains the question of whether plaintiff's malicious prosecution claim may support his conspiracy claim.
D. Motion to Dismiss Plaintiff's Conspiracy Claim
Defendants seek dismissal of plaintiff's conspiracy claim on several grounds which this court will address in turn. At the outset, it should be noted that plaintiff does not specifically allege that defendants' conspired to maliciously prosecute him. However, when the allegations made in the complaint are construed in the light most favorable to the plaintiff, it may be reasonably inferred that the essence of the conspiracy alleged is the malicious prosecution of the plaintiff. See Complaint PP. 42-48.
First, defendant Cooke moves to dismiss the conspiracy claim on the ground that this court lacks subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1). Specifically, defendant Cooke argues that the Eleventh Amendment bars claims for money damages against a State officer acting in his official capacity. This argument ignores the well established 1983 jurisprudence which clearly permits the recovery of money damages against individual police officers acting under the color of state law. West v. Atkins, 487 U.S. 42, 47, 108 S. Ct. 2250, 2255, 101 L. Ed. 2d 40 (1988).
To state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and a plaintiff must show that the alleged deprivation was committed by a person acting under color of state law. West v. Atkins, 108 S. Ct. at 2255. The traditional definition of action under the color of state law requires that the defendant in a 1983 action has exercised power "possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of the state." Id. (citations omitted). Generally, a public employee acts under color of state law while acting in his official capacity or while exercising his responsibilities pursuant to state law. Id.
Plaintiff's complaint repeatedly alleges that defendant Cooke is being sued as an individual acting under color of law for violating his constitutional rights. See, e.g., Complaint PP. 1, 39, 41, 43. Thus, plaintiff has met the twofold pleading requirement with respect to defendant Cooke. Deeming the allegations contained within the four corners of the complaint in the light most favorable to the plaintiff, this court denies defendant Cooke's motion to dismiss for lack of subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1).
Next, defendants allege that plaintiff has failed to state the actual deprivation of a constitutional right required to support a 1983 action for conspiracy. It is well settled that a valid claim under section 1983 requires the "plaintiff [to] allege and prove both a conspiracy and an actual deprivation of constitutional rights; mere proof of a conspiracy is insufficient to establish a section 1983 claim." San Filippo v. United States Trust Company, 737 F.2d 246, 256 (2d. Cir. 1984). As discussed above, plaintiff has stated a colorable constitutional claim for malicious prosecution, thereby sufficiently pleading the required deprivation of a constitutional right.
Finally, defendants move to dismiss on ground that the conspiracy claim is barred by the statute of limitations. Under section 1983, the actionable violation is the tortious act itself. Vonritter v. Bethel, 1993 U.S. Dist. LEXIS 3382, at *7 (N.D.N.Y. Mar. 13, 1993). Therefore, a conspiracy theory must be supported by claims that come within the statute of limitations. Singleton v. New York, 632 F.2d at 190. Plaintiff has stated a timely claim for malicious prosecution. plaintiff's claim for conspiracy to maliciously prosecute accrues when the plaintiff knew or should have known of the alleged constitutional violations. Singleton, 632 F.2d at 190. Viewing the allegations in the complaint in the light most favorable to the plaintiff, this court infers that plaintiff could not have known of the alleged conspiracy before the underlying claim of malicious prosecution came into existence on December 21, 1991. Thus, for the reasons stated above, defendants' motion to dismiss plaintiff's conspiracy claim is denied.
E. Motion to Dismiss the Claim Against Jefferson County
The Supreme Court enunciated the standard for municipal liability under § 1983 in Monell v. Dept. of Social Servs., 436 U.S. 658, 690-91, 98 S. Ct. 2018, 2050, 56 L. Ed. 2d 611 (1978). In Monell, the Supreme Court opined that, under § 1983, Congress did not intend to expose municipalities to respondeat superior liability for all misdeeds by municipal authorities. Id. at 691. Rather liability attaches to municipalities only when "the execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983." Id. at 694. A municipality may also be liable under 1983 for failure to train or supervise its employees. Canton v. Harris, 489 U.S. 378, 388, 109 S. Ct. 1197, 1203, 103 L. Ed. 2d 412 (1989). The Harris court stated that a claim for inadequate training will survive only if "the failure to train amounts to deliberate indifference to the rights of those" with whom the employees may come into contact. Canton v. Harris, 489 U.S. at 388, 109 S. Ct. at 1024.
Plaintiff has adequately alleged the above requirements with respect to the Jefferson County Sheriff and Jefferson County. See Complaint PP. 49-53. Deeming the plaintiff's allegations to be true, and construing them liberally in the light most favorable to the plaintiff, this court finds that the plaintiff's complaint sufficiently states a cause of action for malicious prosecution against the Jefferson County Sheriff and Jefferson County upon which relief may be granted. Municipal defendants' motion to dismiss plaintiff's Monell claim is therefore denied without prejudice.
Based upon the foregoing discussion, the court hereby grants in part and denies in part defendants' motions to dismiss.
Under Fed. R. Civ. P. 12(b)(6) defendants' motion to dismiss plaintiff's claims of excessive force, unreasonable search and seizure and false arrest as barred by the statute of limitations, are granted.
Under Fed. R. Civ. P. 12(b)(6) defendants' motions to dismiss plaintiff's claims of malicious prosecution and conspiracy to maliciously prosecute are denied without prejudice.
Under Fed. R. Civ. P. 12(b)(6) defendants' Jefferson County Sheriff and Jefferson County motion to dismiss the plaintiff's municipal liability claim for malicious prosecution and conspiracy claim is denied without prejudice
IT IS SO ORDERED.
Dated at Watertown,
New York June 6, 1994
Thomas J. McAvoy
Chief U.S. District Judge
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