§ 50-e applies to tort actions); Shabazz v. Dolan, 1995 U.S. Dist. LEXIS 11352, No. 95 Civ. 2116, 1995 WL 476698, at *1 (S.D.N.Y. Aug. 10, 1995); Pravda v. County of Saratoga, 637 N.Y.S.2d 508, 511 (3d Dep't 1996) (affirming dismissal of state-law claims for battery and false arrest because plaintiff failed to comply with notice-of-claim provisions). The plaintiff also agrees that his state law claims for false arrest and battery are barred by the applicable one-year statute of limitations. See N.Y. Civ. Prac. L. & R. § 215(3). Accordingly, the defendants' motion to dismiss the Eighth, Ninth, and Tenth Claims of the Second Amended Complaint alleging the state law claims of false arrest, battery, and malicious prosecution must be granted.
The defendant also argues that the Second, Third, and Fourth Claims must be dismissed as time-barred because the plaintiff's complaint was not filed until two days after the statute of limitations for these claims expired. The plaintiff responds that he timely filed the complaint containing these claims because he delivered his complaint to prison officials within the statute of limitations.
The Second, Third, and Fourth Claims allege respectively that the plaintiff was deprived of his constitutional rights under 42 U.S.C. § 1983 by an unlawful stop, the use of excessive force, and an unreasonable search and seizure.
The plaintiff's § 1983 claims are governed by a three-year statute of limitations prescribed by New York law. See Owens v. Okure, 488 U.S. 235, 249-50, 102 L. Ed. 2d 594, 109 S. Ct. 573 (1989) (holding that § 1983 action in state with more than one statute of limitations is governed by residual or general personal injury statute of limitations, which in New York is three years); Murphy v. Lynn, 53 F.3d 547, 548 (2d Cir. 1995) (statute of limitations for § 1983 claims in New York is three years).
In Dory v. Ryan, 999 F.2d 679 (2d Cir. 1993), modified on reh'g, 25 F.3d 81 (2d Cir. 1994), the Court of Appeals for the Second Circuit held that under Fed. R. Civ. P. 5(e), the complaint of an incarcerated pro se plaintiff is considered "filed" when the complaint is delivered to prison officials. Id. at 682. This rule recognizes "the inherent disadvantage suffered by the pro se litigant in his inability to monitor the course of his litigation." Id.
Crespo, who initiated this action pro se claims that he delivered the complaint for this action to prison officials on October 6, 1993, two days before the three-year statute of limitations expired on his § 1983 claims, but that prison officials returned the complaint to him because he had failed to provide a disbursement form. On October 8, 1993, the day the statute of limitations expired, Crespo returned the complaint to a corrections officer for mailing after having obtained the disbursement form. The complaint was again returned to Crespo with a request that he supply an "advance" disbursement form because he did not have sufficient funds in his account. Crespo returned the complaint to a corrections officer on October 10, 1993. Crespo claims that he was in keeplock in Green Haven Correctional Facility's hospital ward and did not have "free access" to disbursement forms while he was there. (Compl. P 56.)
The defendants dispute that Crespo actually delivered the complaint to prison officials before the statute of limitations expired, but acknowledged at oral argument that this argument rests on issues of fact that cannot be decided on a motion to dismiss. Whether the plaintiff delivered his complaint to the prison officials in a timely manner, whether the prison officials promptly returned the defective papers, and whether the prison mail regulations are reasonable are questions best decided after both parties have an opportunity to present evidence concerning the filing of the complaint. Accordingly, construing the facts in favor of the plaintiff, the defendants' motion to dismiss the Second, Third, and Fourth Claims as untimely is denied without prejudice. See Ortiz v. Cornetta, 867 F.2d 146, 149 (2d Cir. 1989) (motion to dismiss complaint on grounds that complaint was untimely filed with the pro se clerk's office should be denied because there was a question whether the pro se clerk's office had received the complaint before the expiration of the statute of limitations but had sent it back to the plaintiff for corrections); but see Dison v. Whitley, 20 F.3d 185, 187 (5th Cir. 1994) (prisoner did not timely file a notice of appeal where he failed to place the proper postage on the envelope containing the notice when he delivered it to prison officials; prison regulation involved was "reasonable"); Thompson v. Rasberry, 993 F.2d 513, 515 (5th Cir. 1993) (prisoner has obligation to do all he can do to ensure the timely filing of documents with the clerk of the court; "failure to stamp or properly address outgoing mail or to follow reasonable prison regulations governing prisoner mail does not constitute compliance with this standard").
The defendants argue that the § 1983 claim against the City of New York and the Police Commissioner must be dismissed because it is untimely. The plaintiff alleges pursuant to Monell v. New York City Dep't of Social Servs., 436 U.S. 658, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978), that the City of New York and the Police Commissioner are liable under § 1983 because they "fostered a policy pursuant to which perjury and the falsification of documents were methods of securing indictments and convictions of innocent individuals." (Compl. P 80.) The defendants contend that this claim is time-barred because it accrued on the date of the alleged false arrest, October 8, 1990, and the plaintiff did not add the New York City Police Department and the Police Commissioner as defendants until the plaintiff filed an amended complaint on December 18, 1995.
Federal law governs the date of accrual of § 1983 claims. Eagleston v. Guido, 41 F.3d 865, 871 (2d Cir. 1994), cert. denied, 41 F.3d 865 (1995). The parties agree that the thrust of the claims against the City and the Police Commissioner is a policy of malicious prosecution based on perjured testimony. It is well-established that for § 1983 claims based on malicious prosecution the statute of limitations does not begin to run until the underlying criminal action is terminated in favor of the accused. Heck v. Humphrey, 512 U.S. 477, 129 L. Ed. 2d 383, 114 S. Ct. 2364, 2371 (1994); Singer v. Fulton County Sheriff, 63 F.3d 110, 118 (2d Cir. 1995), cert. denied, 134 L. Ed. 2d 779, 116 S. Ct. 1676 (1996); Murphy, 53 F.3d at 548. Here, the underlying criminal action was not terminated in favor of Crespo until the Appellate Division rendered its decision on November 16, 1993. Because the plaintiff added the § 1983 claim against the City of New York and the Police Commissioner on December 18, 1995, less than three years after the underlying criminal action was terminated, this claim is timely. Accordingly, the defendants' motion to dismiss the Seventh Claim as untimely is denied.
Finally, the defendants contend that the plaintiff's claims against the individual officers for malicious prosecution and conspiracy and against the City of New York for fostering malicious prosecutions must be dismissed because Police Officer O'Keeffe's testimony, which forms the basis for all of these claims, is entitled to absolute immunity. In addition, the defendants claim that the plaintiff has failed to state a valid claim for conspiracy because he alleges only that the defendants had knowledge of Officer O'Keeffe's testimony.
The plaintiff is correct, and the defendants agreed at oral argument, that the Court of Appeals for the Second Circuit distinguishes between those witnesses whose role is limited to providing testimony and those witnesses who played a role in initiating the prosecution as a complaining witness. See White v. Frank, 855 F.2d 956, 958-61 (2d Cir. 1988); compare Briscoe v. LaHue, 460 U.S. 325, 75 L. Ed. 2d 96, 103 S. Ct. 1108 (1983) (police officers are immune from § 1983 liability based on their testimony as witnesses at trial). Complaining witnesses are not entitled to immunity if they initiate a baseless prosecution. White, 855 F.2d at 961. For the purposes of a motion to dismiss, the Court must accept as true the plaintiff's allegations that Officer O'Keeffe presented false testimony before the grand fury, that this evidence was the only evidence presented to the grand jury, and that therefore his testimony was the sole cause of the plaintiff's indictment. Police Officer O'Keeffe is not therefore entitled to immunity for his testimony to the grand jury because according to the facts alleged in the complaint he acted as a complaining witness and initiated a baseless prosecution against Crespo. Accordingly, the defendants' motion to dismiss the Fifth, Sixth, and Seventh Claims on the grounds that Officer O'Keeffe's testimony is protected by absolute immunity is denied.
The defendants also argue that the plaintiff has failed to state a claim for conspiracy. The plaintiff claims that Police Officer O'Keeffe falsely testified before a grand jury on October 12, 1990, that the other individual defendants were aware that Officer O'Keeffe's testimony was untrue, and that they therefore conspired to allow Officer O'Keeffe to testify falsely.
There is no heightened particularity requirement to state a claim for conspiracy under § 1983. See Leatherman, 507 U.S. at 168 (no heightened pleading requirement in actions alleging municipal liability under § 1983); Ferran v. Town of Nassau, 11 F.3d 21, 23 (2d Cir. 1994), cert. denied, 130 L. Ed. 2d 489, 115 S. Ct. 572 (1994) (citing Leatherman in finding conspiracy allegations sufficient to state a claim under § 1983). However, "'conclusory, vague, or general allegations that the defendants have engaged in a conspiracy to deprive [the plaintiff] of his constitutional rights'" are insufficient to state a claim for conspiracy under § 1983. Pinaud v. County of Suffolk, 52 F.3d 1139, 1156 (2d Cir. 1995) (quoting Dwares v. City of New York, 985 F.2d 94, 100 (2d Cir. 1993)); see also Sykes v. James, 13 F.3d 515, 521 (2d Cir. 1993), cert. denied, 129 L. Ed. 2d 867, 114 S. Ct. 2749 (1994) (conclusory allegations of conspiracy are insufficient to withstand a 12(b)(6) motion to dismiss); Fariello v. Rodriguez, 148 F.R.D. 670, 677 (E.D.N.Y. 1993), aff'd, 22 F.3d 1090 (2d Cir. 1994) (TABLE) (citing Leatherman for principle that although § 1983 claims are not held to a heightened pleading standard, the complaint must contain more than broad-based conclusory statements).
Crespo's allegations of conspiracy are not merely vague and conclusory; rather, he has alleged some facts from which the existence of a conspiracy could be inferred. The plaintiff claims while he was being held at the precinct house after his arrest, he overheard the defendant Officer O'Keeffe say to Defendant Officer Lungaro that "we are going to have to say we were chasing him." (Compl. P 41.) Crespo alleges that "defendant Officers Lungaro, Truglia, Booth, Griffith, Fitzpatrick and Gallagher were aware that O'Keeffe testified at the grand jury, were aware that his testimony was false, and were aware that O'Keeffe had falsified documents in connection with his testimony." (Compl. P 48.) Crespo contends that these officers, who were all involved in his arrest, had an agreement to deprive him of his federal rights. (Compl. P 48.) Recognizing that a plaintiff usually does not have access to the facts surrounding a conspiracy claim and that conspiracies are seldom proven with direct evidence, the Court finds that the factual allegations contained in Crespo's Second Amended Complaint are sufficient to state a claim for conspiracy under § 1983. Accordingly, the defendants' motion to dismiss the plaintiff's conspiracy claim is denied.
The plaintiff moves to compel the production of a complete, unredacted copy of a document that allegedly contains statements made by Police Officer Lungaro. The motion is denied.
Crespo claims that the document he seeks contains or refers to statements made by Officer Lungaro. The defendants respond that although the plaintiff accurately describes the portion of the document that was provided to him in connection with his criminal prosecution, the redacted portions of the document concern statements between the Assistant District Attorney ("ADA") who authored the document and two other ADAs and do not recount any factual statements made by Officer Lungaro. The defendants claim that this document is accordingly protected by the work-product privilege as set forth In Fed. R. Civ. P. 26(b)(3).
The plaintiff sought the document in support of his argument that he was denied a full and fair opportunity to contest the suppression motion and that therefore the results of that motion should not be given preclusive effect. The Court has already concluded that the results of that hearing do not have preclusive effect. Because the document is therefore wholly unnecessary to the plaintiff for the purported reason for which it is sought, the plaintiff's motion to compel its production is denied.
For the reasons stated above, the Court orders the following: (1) the defendants' motion to dismiss the First, Second, Fourth, Fifth, Sixth, and Seventh Claims on the grounds of collateral estoppel is DENIED ; (2) the defendants' motion to dismiss the plaintiff's state law claims contained in the Eighth, Ninth, and Tenth Claims is GRANTED ; (3) the defendants' motion to dismiss as untimely the Second, Third, and Fourth Claims is DENIED ; (4) the defendants' motion to dismiss as untimely the Seventh Claim against the City of New York and the Police Commissioner is DENIED ; (5) the defendants' motion to dismiss the Fifth, Sixth, and Seventh Claims on the grounds of absolute immunity is DENIED ; (6) the defendants' motion to dismiss the Sixth Claim alleging conspiracy against the individual defendant police officers is DENIED ; and (7) the plaintiff's motion to compel is DENIED.
Dated: New York, New York
June 17, 1996
John G. Koeltl
United States District Judge