999 F.2d 679 (2nd Cir. 1993), 1503, Dory v. Ryan

Docket Nº:1503, Docket 92-2790.
Citation:999 F.2d 679
Party Name:Rowland W. DORY, Plaintiff-Appellant, v. Burton T. RYAN, Jr., Assistant District Attorney, Nassau County; Robert Anderson, Defendants-Appellees.
Case Date:July 28, 1993
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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Page 679

999 F.2d 679 (2nd Cir. 1993)

Rowland W. DORY, Plaintiff-Appellant,

v.

Burton T. RYAN, Jr., Assistant District Attorney, Nassau

County; Robert Anderson, Defendants-Appellees.

No. 1503, Docket 92-2790.

United States Court of Appeals, Second Circuit

July 28, 1993

Submitted May 18, 1993.

Page 680

Rowland W. Dory, pro se.

Robert W. Schmidt, County Atty., Nassau County, NY (Ernest G. D'Angelo, Deputy County Atty., of counsel), for defendant-appellee.

Before: LUMBARD, CARDAMONE, and ALTIMARI, Circuit Judges.

ALTIMARI, Circuit Judge:

Rowland W. Dory, proceeding pro se, appeals from a judgment of the United States District Court for the Eastern District of New York (Platt, C.J. ) dismissing sua sponte his complaint pursuant to 42 U.S.C. § 1983 (1988). Dory's complaint alleged that he was convicted in 1981 for narcotics offenses because of a conspiracy between the prosecuting attorney and a police officer witness to facilitate the admission of perjurious testimony against him. The complaint was dismissed on two bases: first, that it was untimely; and second, that the defendant-appellees enjoyed absolute immunity for their roles in Dory's trial. On appeal, Dory argues that his complaint was timely because he could not have known about the conspiracy until informed by a government witness. He also contends that the defendant-appellees do not enjoy absolute immunity for their roles in the conspiracy.

For the reasons set forth below, we reverse the judgment of the district court and remand for further proceedings consistent with this opinion.

BACKGROUND

Plaintiff-appellant Rowland W. Dory was convicted in 1981 of aiding and abetting in the offer to sell three ounces of cocaine. He is currently incarcerated at the Auburn Correctional Facility in Auburn, New York.

In 1989, Dory received a notarized affidavit from Edward Strahm, who had been a witness against Dory in Dory's 1981 trial. The affidavit was dated August 29, 1989, and Dory received it three days later. Strahm averred in the affidavit that he had been coerced by the prosecution to commit perjury at Dory's trial. Specifically, Strahm stated that he had been told to testify that Dory had provided him with cocaine, when in fact Dory had only introduced Strahm to other dealers. Strahm also recounted that he was told to testify that there were people in danger inside the house police entered to arrest Dory, even though there "was no threat of danger in the house."

Subsequently, Dory commenced an action under 42 U.S.C. § 1983 (1988) against defendant-appellees Burton Ryan, the assistant district attorney who prosecuted him, and police officer Robert Anderson, who testified at his trial. Dory alleged that Ryan and Anderson had entered into an extra-judicial conspiracy to convict Dory based on perjured testimony. Dory also claimed that Ryan had withheld exculpatory material from the defense, material that would have undermined the perjured testimony, in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The complaint was filed on September 11, 1992, but a copy of a "Department of Correctional Services Disbursement or Refund Request" form indicates that on either August 31, 1992 or September 1, 1992 Dory submitted correspondence related to his complaint to prison officials.

Dory's complaint was brought pro se before the United States District Court for the Eastern District of New York (Platt, J. ).

Page 681

By an order filed November 30, 1992, the district court sua sponte dismissed the complaint without prejudice on two grounds. First, the court determined that Dory's action was untimely under the three-year statute of limitations. Dory had not brought his complaint until 11 years after the original actions by the state officials that prompted the suit.

The second basis for dismissing Dory's...

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