Day v. Moscow
| Decision Date | 24 January 1992 |
| Docket Number | D,No. 539,539 |
| Citation | 955 F.2d 807 |
| Parties | Christopher C. DAY, Ph.D., Plaintiff-Appellant, v. John W. MOSCOW and Joseph B. Murray, individually and as Senior Court Officer of the State of New York, Jane Doe Marshall, individually and as Captain of the New York City Department of Correction and John Doe, 1-10, unknown named officers of the New York City Police Department and the New York City Department of Correction, Defendants-Appellees. ocket 91-7536. |
| Court | U.S. Court of Appeals — Second Circuit |
Bernard Fromartz, Brooklyn, N.Y., for plaintiff-appellant.
Thomas B. Litsky, Asst. Dist. Atty., New York City (Robert M. Morgenthau, Dist. Atty., Marc Frazier Scholl, Asst. Dist. Atty., on the brief), for defendant-appellee John W. Moscow.
Stephen Mendelsohn, Asst. Atty. Gen. of State of N.Y., New York City (Robert Abrams, Atty. Gen. of State of N.Y., on the brief), for defendant-appellee Joseph B. Murray.
Before OAKES, Chief Judge, and MESKILL and KEARSE, Circuit Judges.
Plaintiff Christopher C. Day appeals from a final judgment of the United States District Court for the Southern District of New York, Kevin Thomas Duffy, Judge, entered after proceedings on remand from our prior decision, Day v. Morgenthau, 909 F.2d 75 (2d Cir.1990) ("Day I "), dismissing his post-remand amended complaint brought under 42 U.S.C. §§ 1983 and 1985(2) (1988) for damages in connection with claims of, inter alia, false arrest, unlawful search and seizure, malicious prosecution, and conspiracy. The district court dismissed the complaint pursuant to Fed.R.Civ.P. 12(b)(6) and 12(f) on the grounds that the claims asserted were barred by Day I and/or by the 3-year statute of limitations. On appeal, Day contends principally (1) that his new claims were not foreclosed by the prior proceedings, and (2) that the statute of limitations had been tolled. For the reasons below, we reject these contentions and affirm the judgment of dismissal.
The events leading to this litigation, as alleged in the complaint and reiterated in the amended complaint, are set forth in Day I, familiarity with which is assumed, and will be but briefly summarized here. At the pertinent times, Day was serving as a paralegal for a New York City law firm. Defendant John W. Moscow was an Assistant District Attorney for New York County; defendant Joseph B. Murray was a senior court officer in the criminal courts building ("courthouse") at 111 Centre Street in New York County.
On December 11, 1985, Day accompanied one of the firm's attorneys to an area of the courthouse known as the "holding pens," in which prisoners were detained. Day waited outside the holding pens while the attorney went inside to deliver a message to a prisoner. On the following day, December 12, 1985, while sitting in a courtroom in the same courthouse, Day was arrested, without a warrant, and charged with criminal trespass in connection with his presence outside the holding pens the day before. Murray arrested Day on the instruction of Moscow, and searched Day's briefcase and billfold. Day was incarcerated for some 31 hours while awaiting his arraignment. The charge against him was eventually dismissed.
On December 13, 1988, Day commenced the present action against Moscow, Murray, "Jane Doe" Marshall, and several other defendants under § 1983, seeking $500,000 in compensatory damages and $1 million in punitive damages. Day asserted various claims, including claims against Moscow and Murray for false arrest and unlawful search and seizure (sometimes referred here to as the "arrest/search" claims), and against Moscow for malicious prosecution as well. All defendants moved to dismiss the complaint pursuant to Rule 12(b)(6). Moscow argued that he was entitled to prosecutorial immunity; Murray argued that the complaint failed to state a claim against him and that, in any event, the claims asserted against him were barred by the statute of limitations.
In a Memorandum and Order dated October 23, 1989, the district court dismissed the complaint in its entirety. To the extent pertinent here, the court dismissed the In Day I, this Court vacated the dismissal of the arrest/search claims against Moscow, remanding for the filing of an amended complaint containing those claims, and in all other respects we affirmed the judgment. Since Day did not present any argument as to the dismissals of the defendants other than Moscow and Murray, we discussed only the claims against those two defendants.
claims asserted against Moscow on the ground that his actions were within the scope of his prosecutorial duties and that he therefore enjoyed absolute immunity from Day's claims. The court dismissed the complaint against Murray on the ground that it failed to state a claim against him on which relief could be granted. Day moved for leave to file an amended complaint elaborating on his claims against Moscow and Murray. The district court denied the motion, and Day appealed
With respect to Murray, who argued that the complaint failed to state a claim against him and, alternatively, that the statute of limitations had run, we affirmed the dismissal on the latter ground. Ruling that the three-year limitations period provided by N.Y.Civ.Prac.L. & R. ("CPLR") § 214(5) (McKinney 1990), governed the action, and ruling on reargument that the action had been commenced three years and one day after the claims' accrual, we concluded that the action against Murray was time-barred. With respect to the claims against Murray, we also affirmed the district court's denial of leave to amend. Day I, 909 F.2d at 79.
With respect to Moscow, we agreed with the district court that Moscow enjoyed absolute immunity from the claim of malicious prosecution. We ruled that the arrest/search claims, however, alleged acts that are not normally considered prosecutorial functions. As to those claims, therefore, Moscow could claim only qualified, not absolute, immunity. Since his entitlement to qualified immunity could not be determined from the face of Day's complaint, we vacated the dismissal of the arrest/search claims. We remanded and directed the district court "to permit Day to file an amended complaint amplifying those claims." Id. at 78.
On remand, Day filed an amended complaint that not only amplified his arrest/search claims against Moscow but also repleaded other claims that had been dismissed and asserted new claims under § 1983 and under 42 U.S.C. § 1985(2) against Murray, Moscow, and "Jane Doe" Marshall, and against 10 "John Doe" defendants who had not been named in the original complaint. The amended complaint, demanding $1 million in compensatory damages and $3 million in punitive damages, asserted, inter alia, claims against Murray and Moscow for false arrest, search and seizure, malicious prosecution, unlawful delay of Day's arraignment, and conspiracy to prevent Day from testifying in a court proceeding.
Murray moved pursuant to Rule 12(f) to strike the amended complaint as to him on the ground that the dismissal of the original complaint against him, without leave to replead, had been affirmed on appeal. Moscow moved pursuant to Rule 12(b)(6) to dismiss most of the claims against himself on similar grounds, i.e., that all claims other than the arrest/search claims had been dismissed without leave to replead, that the dismissal had been affirmed on appeal, and that this Court had ordered that Day be allowed to file an amended complaint only with respect to the arrest/search claims. He moved to dismiss the arrest/search claims on the ground that they were barred by the statute of limitations.
In a Memorandum and Order dated May 14, 1991, 769 F.Supp. 472, ("May 1991 Order"), the district court granted Murray's motion to strike the amended complaint as against him. Noting that this Court had affirmed the dismissal of the original complaint as against Murray on the ground that the claims were barred by the statute of limitations, the district court concluded that the claims Day attempted to assert against Murray in the amended complaint were likewise barred.
As to Moscow, the district court concluded that this Court's remand to permit Day to replead had been limited to the arrest/search claims and that Day's new claims were thus improperly asserted. As to the arrest/search claims, the court concluded that they were barred by the statute of limitations. The district court noted that this Court had found those claims untimely as to Murray, and it concluded that, "[i]f untimely as to Murray, it necessarily follows that these claims were untimely as to Moscow." Id. at 476. Though Day contended that the statute of limitations had been tolled for a number of reasons, the court rejected all of his arguments.
As to the "John Doe" defendants, the district court ruled that this Court's limited grant of leave to replead against Moscow did not allow Day to bring in new parties, and it apparently concluded that the claims against these parties, which arose from the same series of events, were barred by the statute of limitations.
Accordingly, the court dismissed the amended complaint in its entirety. This appeal followed.
On appeal, Day argues principally (1) that the mandate in Day I did not foreclose his assertion of any claims, and (2) that his arrest/search claims against Moscow are not time-barred because the running of the statute of limitations had been tolled. For the reasons below, we conclude that most of Day's new claims were foreclosed by Day I, that the statute of limitations on Day's arrest/search claims against Moscow was not tolled, and that the complaint was therefore properly dismissed.
Day's challenges to the district court's dismissal of the amended...
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