14-1468-cv
Smith et al., v. Campbell


                            UNITED STATES COURT OF APPEALS
                                  FOR THE SECOND CIRCUIT
                                       _____________________

                                         AUGUST TERM, 2014

          (ARGUED: MARCH 5, 2015                                     DECIDED: April 1, 2015)

                                            No. 14-1468
                                       _____________________

                              JOANNE SMITH, DONALD SMITH, EDWARD LILLY

                                                        Plaintiffs-Appellants,

                                                 -v.-

                               BEN CAMPBELL, NEW YORK STATE TROOPER

                                                        Defendant-Appellant,

                              NEW YORK STATE POLICE, DIVISION OF STATE POLICE,

                                                        Defendant.

Before:             GUIDO CALABRESI, PETER W. HALL, Circuit Judges, and JED S. RAKOFF, District
                    Judge.1
                                    _______________________

          At issue in this case is whether plaintiff Joanne Smith’s First Amendment claim for

retaliatory prosecution is time barred and whether plaintiff Edward Lilly’s claim for unlawful

seizure was properly dismissed by the district court. Because plaintiff Smith’s claim is time

barred, and because the district court improperly dismissed plaintiff Lilly’s claim for failing to

plead the claim as arising under 42 U.S.C. § 1983, the judgment of the United States District

Court for the Western District of New York (Arcara, J.) is hereby AFFIRMED in part, and

1
 Hon. Jed S. Rakoff, of the United States District Court for the Southern District of New York,
sitting by designation.
                                                  1
VACATED in part, and the case is REMANDED to the district court.

                                   _______________________

APPEARING FOR APPELLANTS:                         RICHARD H. WYSSLING, Law Office of Richard
                                                   Wyssling, Buffalo, New York

APPEARING FOR APPELLEE:                        BEVERLEY S. BRAUN, and Mitchell J. Banas, Jr.,
                                                 Jaeckle Fleischmann & Mugel LLP, Buffalo, New
                                                 York
                                        _______________________

Hall, Circuit Judge:

        Before us on appeal is an amended complaint alleging various acts of intimidation and

harassment aimed at Joanne Smith and Edward Lilly by New York State Trooper Ben Campbell.

We AFFIRM that part of the district court’s order dismissing Smith’s claim for retaliatory

prosecution, Lilly’s claim of a violation of his First Amendment right to peaceable assembly, and

both plaintiffs’ claims for intentional infliction of emotional distress. We VACATE and

REMAND, however, the dismissal of plaintiff Lilly’s unlawful seizure claim.

                                              BACKGROUND2

        Smith alleges in her amended complaint that Campbell began harassing her on November

22, 2007 when he tailgated her in an off-duty vehicle, spooking her, and causing her to run a

yellow light. Campbell continued to follow Smith until she pulled into the private driveway of a

residence from which she was picking up her adult son, Tom Smith (“Tom”). Campbell parked

behind Smith’s car. He and an off-duty local police officer who had been riding with him then

approached the vehicle on opposite sides. Campbell, now standing outside the driver’s-side

window, identified himself as a New York State Trooper before he and the local officer began to




2
  The factual background presented is taken from the allegations of plaintiffs’ amended complaint, which we must
take as true for purposes of analyzing a motion to dismiss.

                                                        2
question Smith about her driving, accusing her of running a red light and failing to legally yield

at a stop-sign.

        At Campbell’s direction, Tom, who had emerged from the house, approached the vehicle

and saw that his mother was visibly shaken. Tom and Campbell exchanged heated words, during

which Campbell indicated that Smith would receive an additional ticket because Tom was

causing trouble. Tom then took out his cell phone and stated that he would call 911 and speak

to Campbell’s supervisor. Campbell and the local officer immediately left without issuing Smith

any tickets at that time.

        On November 26, 2007, Smith and her husband Donald Smith visited the New York

State Police Barracks where Campbell was stationed and complained about Campbell’s conduct.

Four hours later, Campbell appeared at Smith’s home and delivered to her three traffic tickets

related to the November 22 incident.

        In December 2007 and January 2008, Smith wrote additional letters to the New York

State Police complaining of Campbell’s conduct. On January 23, 2008, the state police

responded by letter, dismissing her accusations against Campbell. On February 26, 2008,

officers appeared at Smith’s home suggesting in an intimidating manner that she plead guilty to

all of the traffic tickets and that everything would be reduced to a parking ticket as a result.

        On July 9, 2008, Smith appeared in Lewiston Town Court to challenge all three tickets.

Campbell acted as prosecutor for the case, as is permitted under New York law. Campbell also

testified, admitting, among other things, that the tickets were issued partly because Tom was

making a scene and Smith refused to admit she had done anything wrong. Smith was convicted

on all three tickets. She appealed the Town Court’s ruling as to all three tickets.




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       Three days later, on July 12, 2008, while Smith’s appeal was pending, Tom remarked at a

coffee shop that Campbell had been harassing his mother. As pleaded in the amended complaint,

this prompted additional retaliation from Campbell who, later the same day, appeared at Smith’s

home with a second New York State Trooper, John Pinzotti. Upon their arrival, Smith, who had

been outside playing with her grandchild, called Donald and retreated back into the house.

Donald informed Campbell and Pinzotti that Tom was not home.

        At this point Lilly, Smith’s son-in-law, pulled into Smith’s driveway. Campbell,

recognizing Lilly, ordered him to leave. Lilly refused to leave and requested that Campbell

cease harassing his in-laws. In response, Campbell and Pinzotti surrounded Lilly, Campbell

standing within six inches of Lilly’s face and Pinzotti standing in very close proximity directly

behind Lilly. Campbell proceeded to yell at Lilly, again instructing him to leave but continuing

to stand sufficiently close so as to block Lilly’s egress. Lilly did not move, believing that the

close proximity of the officers was purposeful and an attempt, when coupled with the yelling, to

cause Lilly to come into physical contact with one of the troopers should he attempt to leave.

Lilly believed that if he came into physical contact with either Campbell or Pinzotti he would be

arrested and struck by Campbell.

       Lilly told Pinzotti that he was only trying to stop Campbell’s harassment of his in-laws,

prompting Pinzotti to walk away. Campbell, after making additional comments, followed

Pinzotti. Pinzotti and Campbell, who had arrived in separate cars, moved their vehicles.

Pinzotti parked across the street from Smith’s home. Campbell blocked her driveway.

       Lilly then called 911 to report Campbell, and Donald, having gone inside and retrieved a

camera, began taking pictures. Upon Donald’s emergence from the house with the camera,

Campbell and Pinzotti departed. Later that day Campbell returned, again parking in front of the



                                                  4
Smiths’ house. The amended complaint alleges further acts of harassment by Campbell that are

unnecessary to detail here.

       About eleven months later, on June 4, 2009, two of the three tickets issued to Smith were

dismissed on appeal.

       Two years later, on June 24, 2011, plaintiffs commenced this § 1983 suit against

Campbell. After an initial dismissal with permission to replead, the amended complaint at issue

in this appeal was filed. The amended complaint alleges three claims (1) “Deprivation of rights

under 42 U.S.C. § 1983,” (2) “Deprivation of Rights under Fourth Amendment,” and (3)

“Intentional Infliction of Emotional Distress.”

       Defendant moved to dismiss the amended complaint pursuant to Federal Rules of Civil

Procedure 12(b)(6) and 12(h)(3). The magistrate judge handling the case construed the amended

complaint as alleging four claims: (1) a First Amendment peaceable assembly claim asserted by

Lilly, (2) a retaliatory prosecution claim asserted by Smith, (3) an unlawful seizure claim

asserted by Lilly, and (4) an intentional infliction of emotional distress claim asserted by both.

The magistrate judge’s Report and Recommendation (“R&R”) recommended granting the

motion to dismiss as to the peaceable assembly and intentional infliction of emotional distress

claims but also recommended denying the motion as to the retaliatory prosecution and unlawful

seizure claims.

       Defendant filed objections to the R&R, arguing that Smith’s First Amendment claim was

time barred and that Lilly’s allegations related to his seizure did not plausibly allege a Fourth

Amendment violation. In their responsive briefing to defendant’s objections, plaintiffs neither

filed objections to the R&R, nor challenged the magistrate judge’s recommendation that the

peaceable assembly and intentional infliction of emotional distress claims be dismissed.



                                                  5
         The district court adopted the magistrate judge’s unchallenged recommendation to

dismiss the peaceable assembly and intentional infliction of emotional distress claims, but

rejected the recommendation that the retaliatory prosecution and unlawful seizure claims should

not be dismissed. The district court held that the retaliatory prosecution claim was time barred

because it was filed more than three years after Smith received the tickets from Campbell. It

dismissed the unlawful seizure claim solely on the ground that Lilly had improperly identified

that claim as arising under the Fourth Amendment rather than under 42 U.S.C. § 1983. This

appeal followed.

                                                  DISCUSSION

         “We review de novo a district court’s grant of a defendant’s motion to dismiss . . .

including its interpretation and application of a statute of limitations.” City of Pontiac Gen.

Emps.’ Ret. Sys. v. MBIA, Inc., 637 F.3d 169, 173 (2d Cir. 2011) (citations omitted).

         A. Lilly’s Unlawful Seizure Claim3

         When evaluating Lilly’s claim that he was constructively seized by Campbell outside of

the Smiths’ house on July 12, 2008, the district court reasoned as follows:

         [T]he Court previously dismissed pursuant to Fed. R. Civ. P. 12(h)(3) claims asserted in
         this action directly under the U.S. Constitution. If Plaintiff Lilly has a viable Fourth
         Amendment claim, he will have to plead it as a § 1983 claim, and he has not done so.
         The Amended Complaint excludes plaintiff Lilly’s Fourth Amendment allegations from
         his § 1983 claim. Plaintiff Lilly’s Fourth Amendment claim is therefore dismissed with
         leave to replead.
(citations omitted). After the district court’s order was entered, the United States Supreme Court

made clear that a failure to specify 42 U.S.C. § 1983 as the vehicle for pleading a constitutional


3
  Defendant’s argument that this claim was abandoned on appeal because plaintiffs did not address it in their brief is
without merit. Although the heading in plaintiffs’ brief appears to be mislabeled and their argument on this point is
less than cogently explained, there is no question that they have argued to this court that Lilly was constructively
seized. See Pls.’ Br. at 16 (“The above facts clearly constituted a constructive seizure.”). Defendant’s argument that
plaintiffs’ decision to appeal the dismissal of Lilly’s constructive seizure claim, rather than to replead the claim an
additional time, amounted to a waiver of Lilly’s right to challenge the dismissal on appeal is similarly without merit.

                                                          6
claim is not a defect warranting dismissal, at least in the absence of some prejudice to the

defendant. See Johnson v. City of Shelby, 135 S. Ct. 346 (2014) (summary reversal). The Court

explained that the “[f]ederal pleading rules . . . do not countenance dismissal of a complaint for

imperfect statement of the legal theory supporting the claim asserted. In particular, no

heightened pleading rule requires plaintiffs seeking damages for violations of constitutional

rights to invoke § 1983 expressly in order to state a claim.” Id. at 346–47 (citations omitted).

When, as in this case, plaintiffs have “informed [the defendant] of the factual basis for their

complaint, they [are] required to do no more to stave off threshold dismissal for want of an

adequate statement of their claim.” Id. at 347. Accordingly, especially in light of the Supreme

Court’s guidance in Johnson, the district court dismissal of Lilly’s constructive seizure claim on

the ground that he failed to specifically identify § 1983 in that portion of the amended complaint

was in error.

       Campbell has also not been prejudiced by Lilly’s failure to identify § 1983 in the

amended complaint. Indeed, the defendant’s motion to dismiss addresses Lilly’s constructive

seizure claim as one arising under § 1983. See Def.’s Mem. in Supp. of Mot. to Dismiss 6–10

(Dist. Ct. Dkt. No. 38) (“Plaintiff Lilly’s Fourth Amendment Claims Still Fail as a Matter of Law

Even If Analyzed as 42 U.S.C. § 1983 Claims.”). Obviously, this is not a case where the

identification of a particular legal theory in the complaint “serves a notice function” that alerts an

adverse party to aspects of the case which may not have otherwise been clear on the basis of the

complaint. Johnson, 135 S. Ct. at 347.

       Because it found that dismissal was appropriate on the basis of Lilly’s failure to plead

§ 1983, the district court did not resolve the issue of whether Lilly had otherwise plausibly

alleged sufficient facts to support a claim for constructive seizure. Id. (“A plaintiff . . . must



                                                   7
plead facts sufficient to show that her claim has substantive plausibility.”). Accordingly, Lilly’s

unlawful seizure claim is remanded for the district court to address that issue in the first instance.

        B. Smith’s First Amendment Retaliatory Prosecution Claim

        On appeal, plaintiffs argue (1) that Smith’s First Amendment retaliatory prosecution

claim accrued on July 9, 2008, the date of the Town Court trial, because it was not known

whether Smith would be found guilty until that date, and (2) that service of the accusatory

instruments, in this case traffic tickets,4 does not suffice to trigger a retaliatory prosecution claim.

We do not agree and affirm the district court’s determination that the retaliatory prosecution

claim accrued when Campbell delivered to Smith the three traffic tickets on November 26, 2007.

Because plaintiffs did not file their initial complaint in this case until June 24, 2011, more than

three years after the receipt of the tickets, Smith’s First Amendment claim is barred by the statute

of limitations.

         “It is undisputed that retaliatory prosecution may expose a state official to section 1983

damages.” Magnotti v. Kuntz, 918 F.2d 364, 368 (2d Cir. 1990). “The statute of limitations for

claims brought under Section 1983 is governed by state law, and in this case is the three-year

period for personal injury actions under New York State law.” Shomo v. City of New York, 579

F.3d 176, 181 (2d Cir. 2009). Thus, for Smith’s claim for retaliatory prosecution in violation of

her First Amendment rights to be timely, her initial complaint must have been filed within three

years of the accrual of her claim. While the applicable statute of limitations in a § 1983 case is

determined by state law, “the accrual date of a § 1983 cause of action is a question of federal law

that is not resolved by reference to state law.” Wallace v. Kato, 549 U.S. 384, 388 (2007).

Rather, “it is the standard rule that accrual occurs when the plaintiff has a complete and present

4
 We assume without deciding that a retaliatory prosecution claim may arise from the issuance of traffic tickets in
New York and treat the issuance of the traffic tickets as the commencement of a criminal proceeding for the limited
purpose of explaining why Smith’s claim fails regardless on statute of limitations grounds.

                                                         8
cause of action, that is, when the plaintiff can file suit and obtain relief.” Id. (citations and

internal marks omitted). Importantly for this case, “the tort cause of action accrues, and the

statute of limitations commences to run, when the wrongful act or omission results in damages.

The cause of action accrues even though the full extent of the injury is not then known or

predictable.” Id. at 392 (citation omitted).

         “To plead a First Amendment retaliation claim a plaintiff must show: (1) he has a right

protected by the First Amendment; (2) the defendant’s actions were motivated or substantially

caused by [plaintiff’s] exercise of that right; and (3) the defendant’s actions caused him some

injury.” Dorsett v. County of Nassau, 732 F.3d 157, 160 (2d Cir. 2013). All three of these

elements were met at the time Smith was served with the three traffic tickets because by that

time (1) Smith had engaged in protected speech by complaining about Campbell’s conduct, (2)

Campbell’s appearance at her house to deliver the tickets mere hours later was sufficiently

proximate to imply that the issuance of the tickets was motivated by Smith’s complaint, and (3)

issuance of the tickets was an injury in that it subjected her to a state action requiring that she

either appear in court, pay a fine, or both. Accordingly, her cause of action for First Amendment

retaliation accrued on November 26, 2007, more than three years prior to the filing of the initial

complaint. That the full scope of her injury was not known at that time, including whether or not

she would be convicted of the traffic infractions and that Campbell would continue harassment,5

does not alter the date that her cause of action accrued. Wallace, 549 U.S. at 391.

         Plaintiff argues that the accrual of her claim was delayed until after her trial or appeal and

incorrectly cites Heck v. Humphrey, 512 U.S. 477 (1994), for this proposition. Quite apart from

whether Heck is at all relevant, her argument mistakenly conflates the Fourth Amendment tort of

5
  Plaintiffs do not argue that Campbell’s later conduct operated to toll the statute of limitations for Smith’s First
Amendment claim on the basis of the continuing violation doctrine, and we express no view as to the applicability of
the doctrine in this case. See generally Washington v. County of Rockland, 373 F.3d 310, 317–18 (2d Cir. 2004).

                                                         9
malicious prosecution with the First Amendment tort of retaliation. These two kinds of claims

are not subject to the same standards. See Johnson v. Bax, 63 F.3d 154, 159–61 (2d Cir. 1995).

       It is true that, in New York, “[m]alicious prosecution suits require, as an element of the

offense, the termination of the proceeding in favor of the accused . . . . [and] the tort cannot stand

unless the underlying criminal cases finally end in failure.” Poventud v. City of New York, 750

F.3d 121, 130–31 (2d Cir. 2014) (en banc) (majority opinion) (citations and internal marks

omitted). As a result, “several United States Courts of Appeals have cited Heck v. Humphrey as

authority for the proposition that § 1983 claims for malicious prosecution do not accrue until

their respective criminal prosecutions end in acquittal.” Id. at 131 (citation and internal marks

omitted). Thus, it may be that had Smith’s claim been one for malicious prosecution in violation

of her Fourth Amendment rights, that claim would not have accrued until after the trial and

appeal related to her tickets. That, however, is not the cause of action which plaintiffs have

pressed in this case.

       As the Supreme Court explained in Wallace, delayed accrual of the constitutional tort in

Heck occurred because in that case there was an extant criminal conviction that, unless otherwise

expunged, a federal court’s finding of a constitutional violation under § 1983 would necessarily

“impugn.” Wallace, 549 U.S. at 393. Put another way, Heck only comes into play potentially to

delay accrual of an action when a resolution of that action in a plaintiff’s favor could not be

reconciled with an extant criminal conviction. Poventud, 750 F.3d at 132 (majority opinion).

The Heck rule does not delay the accrual of “an action which would impugn an anticipated

future conviction.” Wallace, 549 U.S. at 393. Nor does the Heck rule operate as a toll on the

statute of limitations when a criminal conviction that would be impugned by a § 1983 action

occurs after the accrual of the § 1983 action. See id. at 394–396.



                                                 10
       “Not every § 1983 claim that arises out of a criminal case requires that the underlying

criminal process reach a favorable termination . . . Unlike malicious prosecutions, many

violations of constitutional rights, even during the criminal process, may be remedied without

impugning the validity of a conviction.” Poventud, 750 F.3d at 132 (majority opinion). In this

Circuit, First Amendment claims, even those arising out of the same series of events that give

rise to Fourth Amendment claims, do not require a favorable termination in the criminal action to

be cognizable as a matter of law. Bax, 63 F.3d at 159 (“Unlike claims sounding in malicious

prosecution . . . the favorable termination of a criminal proceeding is not an essential element of

an independent First Amendment claim.”). Moreover, the First Amendment retaliatory

prosecution claim here presents itself in a temporal posture similar to the unlawful arrest claim

that the Supreme Court’s decision in Wallace held accrued prior to any conviction. Just as in a

false arrest claim, the cause of action here accrues when all of the elements necessary to state the

claim are present, even though later developments in a related criminal action may ultimately

effect the viability of the claim and a stay of the § 1983 action may be appropriate while the

criminal action pends. See Wallace, 549 U.S. at 394 (“If the plaintiff is ultimately convicted, and

if the stayed civil suit would impugn that conviction, Heck will require dismissal; otherwise, the

civil action will proceed absent some other bar to suit.”); Curley v. Village of Suffern, 268 F.3d

65, 73 (2d Cir. 2001) (holding that the existence of probable cause for an arrest alleged to be in

retaliation for protected speech affects the second prong of the First Amendment analysis); see

also Singer v. Fulton County Sheriff, 63 F.3d 110, 120 (2d Cir. 1995); Mozzochi v. Borden, 959

F.2d 1174, 1180 (2d Cir. 1992).

       As a consequence of the foregoing analysis, there is nothing in our prior case law that

delays the accrual of Smith’s claim for retaliatory prosecution in violation of her First



                                                 11
Amendment rights. Having not been delayed or otherwise tolled, Smith’s claim accrued on

November 26, 2007. Thus, the district court was correct that Smith’s claim for retaliatory

prosecution, filed more than three years later on June 24, 2011, is barred by the statute of

limitations. The holding of the district court as to this claim is affirmed.

       C. The Remaining Claims Are Waived

       Plaintiffs’ submission on appeal is less than ideally clear as to the extent that they

challenge the district court’s adoption of the magistrate judge’s recommendation that the

intentional infliction of emotional distress and peaceable assembly claims be dismissed. Because

they did not object to the R&R before the district court, however, we would decline to reach

those arguments in any case.

       As noted, the R&R’s recommendations that the intentional infliction of emotional distress

and peaceable assembly claims be dismissed were not objected to before the district court.

Indeed, plaintiffs filed no objections whatsoever to the R&R despite being warned in the R&R

itself that “[f]ailure to file objections within the specified time or to request an extension of such

time waives the right to appeal the District Court’s Order.” “Where parties receive clear notice

of the consequences, failure to timely object to a magistrate’s report and recommendation

operates as a waiver of further judicial review of the magistrate’s decision.” Mario v. P & C

Food Markets, Inc., 313 F.3d 758, 766 (2d Cir. 2002) (citing Small v. Sec’y of Health & Human

Servs., 892 F.2d 15, 16 (2d Cir. 1989) (per curiam)). Accordingly, plaintiffs’ intentional

infliction of emotional distress and peaceable assembly claims are deemed waived, and the court

will not address them.




                                                  12
       III. Conclusion

       We have carefully reviewed the parties’ additional arguments and find them to be without

merit. For the reasons set forth, the judgment of the district court is AFFIRMED as to all claims

except Lilly’s claim for unlawful seizure. The district court’s decision with respect to that claim

is VACATED, and the claim is REMANDED for the district court to address whether the factual

allegations of the amended complaint adequately allege a constructive seizure violative of the

Fourth Amendment and for further proceedings consistent with this opinion.




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