14-1448-cv
Lilly v. Lewiston
                      UNITED STATES COURT OF APPEALS
                          FOR THE SECOND CIRCUIT

                                  SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
“SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY
PARTY NOT REPRESENTED BY COUNSEL.

       At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
on the 7th day of November, two thousand fourteen.

PRESENT: JOHN M. WALKER, Jr.,
         GERARD E. LYNCH,
         DENNY CHIN,
                       Circuit Judges.

———————————————————————

EDWARD LILLY,

                                   Plaintiff-Appellant,

                     v.                                                No.    14-1448-cv

TOWN OF LEWISTON, LAUREN PASSANESE
CAMPBELL, in her Individual and Official Capacity
of a Police Officer in the Lewiston Police Department,
AKA Lauren Campbell,

                                   Defendants-Appellees.

———————————————————————

FOR PLAINTIFF-APPELLANT:                          RICHARD H. WYSSLING, Buffalo,
                                                  New York.

FOR DEFENDANTS-APPELLEES:                         JENNA W. KLUCSIK, Sugarman Law
                                                  Firm, LLP, Syracuse, New York.
       Appeal from the United States District Court for the Western District of New York

(Richard J. Arcara, Judge).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the order of the district court is AFFIRMED.

       Plaintiff-appellant Edward Lilly appeals from the district court’s order granting

defendants-appellees’ motion to dismiss Lilly’s complaint under 42 U.S.C. §§ 1983 and

1985. We assume the parties’ familiarity with the underlying facts and procedural history

of the case, which we recite only to the extent necessary to explain our decision.

       On November 24, 2010, Lilly sued Melissa Murphy, who is not a party to this

case, for defamation. Lilly’s suit, brought in New York State Supreme Court, was based

on a purportedly false incident report Murphy had provided to the Lewiston Police

Department that implicated Lilly in a littering incident, and resulting newspaper articles

that made similar allegations against him. On January 7, 2011, Murphy answered the

complaint, stating that she had not named Lilly in her report, nor had she provided

information identifying him as a suspect.

       In response, on January 2, 2014, Lilly brought suit in federal court against the

town of Lewiston and Officer Campbell, alleging that Officer Campbell had fabricated

the report, violating (and conspiring to violate) his due process rights. He also alleged

that Officer Campbell was retaliating against him because he exercised his First

Amendment rights in criticizing her husband, who was a New York State trooper, in

violation of 42 U.S.C. §§ 1983 and 1985.


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       Defendants-appellees moved to dismiss Lilly’s complaint as time-barred, as it was

filed: (1) more than three years after Lilly brought his suit against Murphy in state court;

and (2) more than three years after the last act by the Lewiston Police Department of

which Lilly complains. The district court granted that motion. We affirm for largely the

reasons stated by the district court in its March 31, 2014 Decision and Order.

       “In section 1983 actions, the applicable limitations period is found in the ‘general

or residual [state] statute [of limitations] for personal injury actions.’” Pearl v. City of

Long Beach, 296 F.3d 76, 79 (2d Cir. 2002) (alterations in original), quoting Owens v.

Okure, 488 U.S. 235, 249-50 (1989). Neither party disputes that, here, the relevant

statute of limitations for the § 1983 claim is N.Y. C.P.L.R. § 214(5), which provides for a

three-year limitations period. The statute of limitations governing actions brought under

42 U.S.C. § 1985 is also three years. See Cornwell v. Robinson, 23 F.3d 694, 703 (2d Cir.

1994). Generally, a claim accrues “once the plaintiff knows or has reason to know of the

injury which is the basis of his action.” Id. (internal quotation marks omitted).

       Lilly argues, however, that his claim did not accrue until Murphy answered his

complaint in state court on January 7, 2011, because it was not until then that he learned

that Officer Campbell submitted a false incident report. We disagree. Like the district

court, we conclude that Lilly’s claim accrued, at the latest, by the time he filed his suit

against Murphy in state court on November 24, 2010, by which time he “kn[ew] or ha[d]

reason to know of the injury which [was] the basis of his action,” Pearl, 296 F.3d at 80




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(internal quotation marks omitted), and, upon further investigation, could have discovered

other potential defendants.

       To the extent Lilly contends that he was subject to a continuing violation due to a

“continuous practice and policy of discrimination, ” Cornwell, 23 F.3d at 703 (internal

quotation marks omitted), by the Lewiston Police Department such that the statute of

limitations should be tolled, that argument is also meritless. The last act of which Lilly

complains occurred on November 22, 2010, also more than three years before Lilly filed

the complaint in this case. Even under the continuing violation theory, therefore, Lilly’s

complaint was untimely.

       We have considered Lilly’s remaining arguments and find them to be without

merit. The order of the district court is therefore AFFIRMED.


                                   FOR THE COURT:
                                   CATHERINE O’HAGAN WOLFE, Clerk of Court




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