Poy v. Boutselis

• Decision Date: 19 December 2003
• Docket Number: No. 03-1243.,No. 03-1201.,03-1201.,03-1243.
• Citation: 352 F.3d 479
• Parties: Phaly POY, Plaintiff, Appellant, v. John BOUTSELIS, et al., Defendants, Appellees. John Boutselis, et al., Defendants, Appellants, v. Phaly Poy, Plaintiff, Appellee.
• Court: U.S. Court of Appeals — First Circuit

352 F.3d 479

Phaly POY, Plaintiff, Appellant, v. John BOUTSELIS, et al., Defendants, Appellees.

John Boutselis, et al., Defendants, Appellants, v. Phaly Poy, Plaintiff, Appellee.

No. 03-1201.

No. 03-1243.

United States Court of Appeals, First Circuit.

Heard November 5, 2003.

Decided December 19, 2003.

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Thomas J. Freda with whom Joseph W. Monahan, III and Monahan & Padellaro were on brief for John Boutselis.

Mark W. Miller with whom Howard B. Wernick was on brief for Phaly Poy.

Before SELYA, Circuit Judge, COFFIN, Senior Circuit Judge, and LIPEZ, Circuit Judge.

COFFIN, Senior Circuit Judge.

These appeals arise out of an incident on February 16, 1997 involving plaintiff Phaly Poy¹ in an arrest, a scuffle with a Lowell Massachusetts, police officer, defendant Boutselis, a booking at the police station, and emergency hospital treatment for a laceration. Plaintiff was charged with several offenses, including disturbing the peace and assault and battery. After being acquitted by a jury, he brought suit on February 16, 2000 against Boutselis and another officer present at the scene, Conroy, and the Lowell Chief of Police, Davis, as well as the city of Lowell, citing 42 U.S.C. § 1983, and a variety of state claims. Also included as a defendant was one Neov, owner of the premises where the incident occurred and the temporary employer of Boutselis.

After denial of a motion to dismiss on statute of limitations grounds, a seven day jury trial in 2002 resulted in a verdict for plaintiff against defendant Boutselis in his personal capacity, granting him $5,000 to compensate for the use of excessive force, $5,000 to compensate for severe emotional distress, and $25,000 in punitive damages. In addition, the court allowed prejudgment interest in the amount of $31,013.33. All other claims against all parties were dismissed. Post trial, the district court denied Boutselis' motion for new trial and declined to award any counsel fees to any party.

Both plaintiff and Boutselis have appealed. Boutselis has challenged the rejection of his statute of limitations defense, the denial of his motion for a new trial, and denial of defendant Conroy's motion for attorney's fees. Poy appeals from the court's refusal to award him attorney's fees and costs. We affirm the court's rulings as to Boutselis and Conroy; we vacate the court's orders denying Poy's motions for attorney's fees and costs and remand for reconsideration in light of this opinion.

We first describe the incident giving rise to these cases, giving the version of facts and inferences favorable to plaintiff-appellant Poy. We then discuss defendant-appellant Boutselis' appeal, following with our deliberations as to Poy's appeal.

I. The Incident

At about 11:30 p.m. on February 16, 1997, Poy, a 24-year-old man of Cambodian origin, and three friends went to a club, The Golden Swan, and proceeded along a hallway to a dance or function room. Barred from entering by a doorman, Poy looked inside to see if he knew anyone there. Soon officer Boutselis, specially employed by the club owner Neov, approached Poy, telling him in abusive language to leave before "I fucking pound your fucking head." As Poy was peacefully leaving, Boutselis pushed him from behind. Poy fell on the floor. Boutselis, six feet tall and weighing 240 pounds, sat on him, struck him above his right eye, and handcuffed his hands behind him, the right hand being brought over his shoulder and the left hand being drawn across his back and up. Two of Poy's friends testified that Boutselis, using the handcuffs as brass knuckles, repeatedly hit Poy on the head.

Poy was dragged to a police van and taken to the police station, helped by a policewoman to sign his name, and was charged with four counts: disorderly conduct; assault and battery on a police officer; assault and battery with a dangerous weapon; and resisting arrest. He was then taken to a hospital where he received five stitches to close a laceration over his right eye, leaving a scar observed by the jury. He returned to the police station where he remained for a number of hours until he was bailed. Poy testified that he felt pain lasting some two months in his shoulder, back, wrist, and head, and had difficulty sleeping and eating.

The above account is diametrically contradicted by the testimony of Officer Boutselis at every critical point-provocation, resistance, efforts to subdue, and extent of injury. But the jury was not required to accept his version.

II. Appeal of Boutselis

A. Statute of Limitations

Boutselis argues that Poy's suit, filed on the third anniversary of the key events, was one day late. Boutselis urges us to reject both Mass. R. Civ. P. 6(a) and Fed. R.Civ.P. 6(a) by counting the limitations period of three years inclusive of the date of accrual,² so that the final day for bringing suit would fall one day before the third anniversary. It is an argument which upon analysis reveals less than meets the eye.

The argument begins with the recitation of propositions accepted by both parties: a § 1983 claim, according to 42 U.S.C. § 1988, borrows the appropriate state law governing limitations unless contrary to federal law, Wilson v. Garcia, 471 U.S. 261, 267, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1984); since the claims against Boutselis were for the use of excessive force, assault, battery, etc., the limitations period for personal injury is the appropriate analogue, id. at 273; the Massachusetts statute governing personal injury claims is Mass. Gen. Laws ch. 260, § 2A, providing that actions shall be commenced "within three years next after the cause of action accrues." Federal law controls the determination of when the cause of action accrues, Guzman-Rivera v. Rivera-Cruz, 29 F.3d 3, 5 (1st Cir.1994). Both federal and Massachusetts law agree that a § 1983 claim accrues when a plaintiff knows or has reason to know of his injury. See Nieves v. McSweeney, 241 F.3d 46, 52 (1st Cir.2001); Riley v. Presnell, 565 N.E.2d 780, 784, 409 Mass. 239, 243 (1991). Massachusetts begins counting on the day following the day of the incident, with the last day for filing suit being the anniversary date of the event, in accordance with Mass. R. Civ. P. 6(a). See Ciampa v. January, 1992 Mass.App. Div. 204 (1992). We refer to Rule 6(a) as the Massachusetts application rule.

At this point, appellant advances two parallel arguments — both strained — in support of his contention that the claim is time barred.

First, Boutselis argues that while we may borrow the limitations period in Mass. Gen. Laws ch. 260 § 2A, we are prohibited from borrowing the application rule in Mass. R. Civ. P. 6(a). Under Boutselis' reading of precedent, borrowing the Massachusetts application rule contradicts the Supreme Court's directive in West v. Conrail, 481 U.S. 35, 39, 107 S.Ct. 1538, 95 L.Ed.2d 32 (1987), which advised federal courts that if a state statute of limitations must be borrowed for a federal cause of action, the court is to borrow "no more than necessary." Second, even if we were permitted to borrow the state rule of application, Boutselis maintains that Massachusetts utilizes a different application rule for § 1983 claims than for those arising under state law.

With respect to his first argument — that we may not borrow the Massachusetts application rule — Boutselis attempts to derail as precedent our opinion in Carreras-Rosa v. Alves-Cruz, 127 F.3d 172 (1st Cir.1997), but in doing so contradicts the Supreme Court's decision in Wilson, 471 U.S. at 269, 105 S.Ct. 1938, which holds that "the length of the limitations period, and closely related questions of tolling and application, are to be governed by state law." In Carreras, we recognized Wilson's teaching and looked to a Puerto Rico statute and a ruling of the Puerto Rico Supreme Court to determine the timeliness of a § 1983 action. See Carreras, 127 F.3d at 174. Boutselis suggests, however, that this holding encompasses only those instances in which a state statute, rather than a rule of procedure, sets forth the application rule.³ In advancing this pained distinction, he also ignores our disagreement in Carreras with dicta equating "the date of accrual with the first day of the limitations period," id. at 175.

Boutselis' second argument urges us to hold that Massachusetts uses a different rule of application for § 1983 claims than for claims arising under state law. Boutselis concedes that Massachusetts generally excludes the accrual date in calculating the limitations period of tort claims, see Ciampa, 1992 Mass.App. Div. at 204, but he maintains that under Pagliuca v. City of Boston, 626 N.E.2d 625, 35 Mass.App.Ct. 820 (1994), the statute of limitations for § 1983 claims begins running on (and therefore is inclusive of) the date of the wrongful acts. In Pagliuca, the court was dealing with the question of whether a § 1983 action accrues on the date of the wrongful acts or a later date when the effects of the acts were felt. Its decision about the beginning and ending dates of the limitations period cited no Massachusetts authority and relied solely on our decision in Altair v. Pesquera de Busquets, 769 F.2d 30, 32 (1st Cir.1985). We specifically abrogated Altair in Carreras, 127 F.3d at 174, borrowing instead the Puerto Rico law which calculated the limitations period exclusive of the date of accrual.

Most importantly, Boutselis ignores the strong indication of a beginning date in the "next after" language of Mass. Gen. Laws ch. 260 § 2A as well as longstanding Massachusetts precedent excluding the date of accrual from the calculation of the limitations period. See Pierce v. Tiernan, 280 Mass. 180, 182, 182 N.E. 292, 293 (1932) (interpreting prior Mass. Gen. Laws. ch. 260 § 4, which contained the same "next after" language as the current Mass. Gen. Laws. ch. 260 § 2A, to mean that in "computing [the] limit of time, the day upon which the cause of action accrued is to be...