296 F.3d 76 (2nd Cir. 2002), 01-7914, Pearl v. City of Long Beach

Docket Nº:01-7914
Citation:296 F.3d 76
Party Name:Pearl v. City of Long Beach
Case Date:July 15, 2002
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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296 F.3d 76 (2nd Cir. 2002)

David PEARL, Plaintiff-Appellant,


The CITY OF LONG BEACH, Long Beach City Police Department, Long Beach Police Officer Leo Nolan, Arthur Whitman and Long Beach Police Officer Vincent Milo, Defendants-Appellees.

No. 01-7914.

United States Court of Appeals, Second Circuit

July 15, 2002

Argued: April 2, 2002.

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Stephan H. Peskin, Tolmage, Peskin, Harris & Falick, New York, N.Y. (Jonathan C. Moore, New York, NY; William H. Goodman, Center for Constitutional Rights, New York, NY, on the brief), for Plaintiff-Appellant.

Corey E. Klein, Acting Corporation Counsel, Long Beach, NY, for Defendants-Appellees The City of Long Beach and Long Beach City Police Department.

Orrit Hershkovitz, Snitow Kanfer Holtzer & Millus, LLP, New York, N.Y. (Paul F. Millus, New York, NY, on the brief), for Defendant-Appellee Leo Nolan.

Michael T. Hopkins, Hopkins & Kopilow, Garden City, NY, for Defendant-Appellee Arthur Whitman.

Christine Mclnerney, Ruskin, Moscou, Evans & Faltischek, P.C., Uniondale, NY, submitted papers for Defendant-Appellee Vincent Milo.

Before WALKER, Chief Judge, NEWMAN, and KEARSE, Circuit Judges.

JON O. NEWMAN, Circuit Judge.

This appeal illustrates, in a dramatic context, the tension between the judicial system's instinct to provide a remedy for every wrong and the system's recognition that the passage of time must leave some wrongs without a remedy. David Pearl appeals from the July 18, 2001, judgment of the District Court for the Eastern District of New York (Leonard D. Wexler, District Judge) dismissing, as barred by the statute of limitations, his suit seeking damages for police brutality allegedly inflicted upon him 35 years ago. Acknowledging the normally applicable barrier of the statute of limitations, Pearl contends that he may sue at this late date because the settlement of his prior timely lawsuit was obtained by fraud, his currently pleaded causes of action were concealed by fraud, and he can now establish the truth through the testimony of a conscience-stricken police officer who admits that he participated in the brutality and that he and the other defendants lied about Pearl's claim. We are obliged to agree with the District Court that Pearl's evidence, accepted as true for purposes of this appeal, does not permit his current suit to proceed. We therefore affirm.

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The alleged assault. Pearl alleges the following circumstances. In 1967, Pearl, then sixteen years old, was stopped on the street and brutally attacked by four City of Long Beach (Nassau County, N.Y.) police officers—Appellees Leo J. Nolan and Vincent F. Milo, Jr., and George F. Ellert and Sergeant James Rosengrave, both now deceased. As detailed in Pearl's 1968 state court civil complaint, on August 9, 1967, he was called over to a police car by Officer Nolan. After asking Pearl a few questions, Nolan told him to get into the back of the police car. In the course of being transported to the police station, Pearl was repeatedly punched in the stomach and face by Nolan, while restrained by Officer Milo. Officer Ellert drove the car. Nolan and the other officers continued to hit and kick Pearl at the police station, causing Pearl to lose consciousness for a period of time. Pearl's injuries required a ten-day period of hospitalization and left him permanently blind in one eye.

The officers, including Appellee Arthur Whitman, testified to a different version of the episode at two state court criminal trials. They said that Pearl swore at Officer Whitman, who was on traffic patrol, as he was walking by. Officer Nolan called Pearl over to his car after hearing him swear. Pearl then swore at Nolan and, after getting into the police car, struck him. The officers (other than Whitman) used force in the car and in the station only in order to subdue Pearl.

The criminal case. The Nassau County prosecutor charged Pearl with assaulting a police officer, resisting arrest, and disorderly conduct. Pearl was initially convicted at a bench trial, but the conviction was overturned on appeal because Pearl had unconstitutionally waived his right to a jury trial, which Pearl had done in order to maintain juvenile offender status. People v. David P., 35 A.D.2d 584, 315 N.Y.S.2d 398 (2d Dep't 1970). The second trial ended in a deadlocked jury and a mistrial. At each trial, all four officers involved in the incident testified against him, as did Officer Whitman. Pearl was informed that prosecutors would proceed with a third trial.

The state court civil case. Just prior to sentencing in the first trial, Pearl and his mother, Florence Wexler, brought a civil suit in Nassau County Superior Court under 42 U.S.C. § 1983 against the City of Long Beach and Officers Nolan, Milo, and Ellert, alleging excessive force by them, and recklessness on the part of the City in allowing its officers to assault Pearl. In their pretrial depositions for the civil case, the officers again gave their account of the episode. In 1972, with the third criminal trial impending, Pearl and his mother chose to settle their civil suit. At the settlement hearing, Pearl's mother made it clear that the sole reason she agreed to settle was that the prosecutor had indicated that the criminal charges would be dropped if Pearl settled. Pearl's attorney advised that it would be an uphill battle to convince a jury in the civil trial and the impending criminal trial that four police officers were lying on the stand. Pearl also believed that his witnesses were intimidated by the police and failed to fully support his defense. Pearl and his mother agreed to settle the civil case for $30,000, an amount that did not cover his medical bills and the fees and expenses of his criminal defense. The individual police officers and the City were released with respect to "all actions and claims arising out of the incident which occurred on August 9, 1967." The City paid the $30,000.

Milo's recantation. In June 1999, Milo, one of the officers involved in the 1967 episode, submitted a sworn statement to the Nassau County District Attorney, stating

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that the officers' testimony in the Pearl case was fabrication. He confessed that he "never saw Pearl throw a punch or kick any of the police officers involved," and that "Nolan laid out the story as to what the reports should say."

In a second affidavit given in May 2000, Milo recounted the extent of brutality within the Long Beach Police Department: "[T]here existed a pattern of brutality [within the Department] in which not all police officers participated but in which all acquiesced"; "[b]eatings by senior officers, especially the detectives to extract confessions were common place"; he recalled other instances of suspects being beaten and that it was "nothing out of the ordinary, just standard operating procedure"; and "[b]lackjacks, clubs and rubber hoses and telephone books were all part of our 'unofficial' equipment."

He also stated: "When we were sued by Mr. Pearl we insisted that the City hire as our attorney Leon Stern. He was most familiar with the facts of the case as he was allowed to be present in the Grand Jury room while the Pearl case was being presented]. In fact, he gave us detailed accounts of each civilian witness'[s] testimony so that we could adjust our presentation . . . . [H]e was 'one of the boys' while an Assistant District Attorney and understood the way we operated." Milo also stated that he left the Long Beach Police Department and transferred to the Long Beach Fire Department.

Pearl's current lawsuit. Milo's first affidavit prompted Pearl to institute the instant lawsuit on January 19, 2000, asserting federal causes of action under 42 U.S.C. § 1983 and RICO, 18 U.S.C. § 1961; seq., claims under the Fourth, Fifth, Eighth, and Fourteenth Amendments, and state law claims. The defendants are No-an and Milo, the two officers still living ho participated in the episode, Whitman, ho testified against Pearl, the City, and he Long Beach Police Department. Pearl seeks to revive claims arguably extinguished by the 1972 settlement, such as his excessive force claim against the individual officers, and also seeks to assert, purportedly for the first time, claims that he alleges became known to him only in 1999. The latter include: section 1983 claims against the officers for conspiracy to cover-up, against the City for failure to protect, and against the City based on the Supreme Court's decision in Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978); false imprisonment, intentional and negligent infliction of emotional distress and negligence under state law; fraud under state law; and a RICO claim.

Judge Wexler granted Defendants' 12(b)(6) motion, dismissing Pearl's Complaint on statute of limitations grounds. This appeal followed.


In section 1983 actions, the applicable limitations period is found in the "general or residual [state] statute [of limitations] for personal injury actions," Owens v. Okure, 488 U.S. 235, 249-50, 109 S.Ct. 573, 102 L.Ed.2d 594 (1989), and the parties agree that in this case that period is three years, see N.Y. C.P.L.R. § 214(5) (McKinney 1990).1 The Appellant contends that the three-year statute of limitations does not bar his pending lawsuit,

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even though it was filed 32 years after the 1967 episode, because the Appellees concealed his causes of action from him by their false statements in their official reports, and their false testimony in the two criminal trials and in depositions in the state court civil suit that was settled. As the Appellant frames his contention, the statute of limitations has been "tolled" by reason of the Appellees' fraudulent concealment. Brief for Appellant at 26-36. This contention requires consideration of several related issues: when does a cause of action accrue, what circumstances toll the...

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