17-3152-cv
Thompson v. Rovella


                          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 30th day of May, two thousand eighteen.

PRESENT: ROBERT D. SACK,
                 REENA RAGGI,
                                 Circuit Judges,
                 LEWIS A. KAPLAN,
                                 District Judge. *
----------------------------------------------------------------------
HUBERT THOMPSON,
                                 Plaintiff-Appellant,

                        v.                                               No. 17-3152-cv

JAMES C. ROVELLA, Chief of Police, City of Hartford,
In His Official Capacity, ANTHONY KOZIERADZKI,
LIAM PESCE, Sergeant, City of Hartford, In His
Individual    and    Official   Capacities,     TUYEN
BERGENHOLTZ, Officer, City of Hartford, In Her
Individual and Official Capacities, CITY OF
HARTFORD,
                          Defendants-Appellees,

JANE DOE / JOHN DOE, Supervisor, Crimes Against
Persons Unit, City of Hartford, In Her / His Individual and

*
 Judge Lewis A. Kaplan, of the United States District Court for the Southern District of
New York, sitting by designation.
Official Capacities, JANE DOE(S) / JOHN DOE(S),
Evidence Officer(s) (2003–2014), City of Hartford, In
Their Individual Capacities,
                                 Defendants.
----------------------------------------------------------------------
APPEARING FOR APPELLANT:                          RACHEL M. BAIRD,       Esq.,   Harwinton,
                                                  Connecticut.

APPEARING FOR APPELLEES:                  DANIEL J. KRISCH (James J. Szerejko, on the
                                          brief), Halloran & Sage LLP, Hartford,
                                          Connecticut, for Anthony Kozieradzki, Liam
                                          Pesce, and Tuyen Bergenholtz.

                                          NATHALIE FEOLA-GUERRIERI, Senior
                                          Assistant Corporation Counsel, Office of the
                                          Corporation Counsel, City of Hartford,
                                          Hartford, Connecticut, for James C. Rovella and
                                          City of Hartford.

       Appeal from a judgment of the United States District Court for the District of

Connecticut (Vanessa L. Bryant, Judge).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment entered on February 21, 2017, is AFFIRMED.

       Plaintiff Hubert Thompson appeals from the dismissal of his complaint, brought

pursuant to 42 U.S.C. § 1983 and state law, against the City of Hartford and current and

former members of the Hartford Police Department for damages sustained in the course

of his arrest and now-vacated 1998 conviction for sexual assault and kidnapping.

Thompson further appeals the denial of his motion for reconsideration, challenging the

district court’s dismissal of his § 1983 claims as untimely. 1     We review de novo the


1
  Thompson raises no arguments in his brief separately challenging the district court’s
dismissal of his state law claims. He has thus abandoned any such claims. See

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dismissal of a complaint pursuant to Fed. R. Civ. P. 12(b)(6), “accepting all factual

allegations as true and drawing all reasonable inferences in favor of the plaintiff.”

Trustees of Upstate N.Y. Eng’rs Pension Fund v. Ivy Asset Mgmt., 843 F.3d 561, 566 (2d

Cir. 2016).    We review the denial of a motion for reconsideration for abuse of

discretion.   See Trikona Advisers Ltd. v. Chugh, 846 F.3d 22, 29 (2d Cir. 2017).       In

applying these principles here, we assume the parties’ familiarity with the underlying

facts and procedural history of the case, which we reference only as necessary to explain

our decision to affirm.

1.     Section 1983 Statute of Limitations

       The statute of limitations applicable to § 1983 claims is “borrowed” from that “for

the analogous claim under the law of the state where the cause of action accrued, which

in Connecticut is three years.”     Spak v. Phillips, 857 F.3d 458, 462 (2d Cir. 2017)

(internal citations omitted).   Nevertheless, “the accrual date of a § 1983 cause of action

is a question of federal law that is not resolved by reference to state law.” Smith v.

Campbell, 782 F.3d 93, 100 (2d Cir. 2015) (emphasis in original) (internal quotation

marks omitted).    For § 1983 claims sounding in malicious prosecution, “the statute of

limitations begins to run when the prosecution terminates in the plaintiff’s favor,” which

occurs when “the prosecution against the plaintiff has conclusively ended,” such that “the

underlying indictment or criminal information has been vacated and cannot be revived.”

Spak v. Phillips, 857 F.3d at 462, 464 (alteration and internal quotation marks omitted).


LoSacco v. City of Middletown, 71 F.3d 88, 92–93 (2d Cir. 1995).

                                              3
For § 1983 claims premised on false arrest, such claims accrue “at the time the claimant

becomes detained pursuant to legal process.”         Wallace v. Kato, 549 U.S. 384, 397

(2007).     The latter occurred here at least by the time of Thompson’s trial in 1998.

       After conviction, however, DNA testing revealed that DNA recovered from

evidence in Thompson’s case matched that of another person.         Accordingly, Thompson

was released from prison on March 12, 2012, his conviction was vacated, and a new trial

was ordered.       On July 19, 2012, all charges against Thompson were dismissed.

Viewing these facts most favorably to Thompson, “the underlying criminal action”

against him had been “conclusively terminated” by at least July 19, 2012, Murphy v.

Lynn, 53 F.3d 547, 548 (2d Cir. 1995); see Spak v. Phillips, 857 F.3d at 464, such that the

statute of limitations on his § 1983 claims started to run no later than July 19, 2012.   His

complaint, filed more than three years later on November 25, 2015, was therefore

untimely.

       In urging otherwise, Thompson relies on Heck v. Humphrey, 512 U.S. 477 (1994),

to argue that his § 1983 claims did not accrue until January 2, 2014, when—in connection

with his claim for compensation from the State of Connecticut for wrongful

incarceration, see Conn. Gen. Stat. § 54-102uu—he received a letter from the

Connecticut Office of the Attorney General informing him that the State’s Attorney’s

Office had opined that dismissal of the criminal charges had been “consistent with [his]

innocence” and, “[a]ccordingly, the State [would] not be contesting that aspect” of the




                                               4
compensation claim, App’x 61 (internal quotation marks omitted).        Thompson’s reliance

on Heck is misplaced.

       In Heck, the Supreme Court ruled that when “a judgment in favor of the plaintiff

would necessarily imply the invalidity of his conviction,” a § 1983 action cannot be

maintained “unless the plaintiff can demonstrate that the conviction . . . has already been

invalidated.”   Heck v. Humphrey, 512 U.S. at 487.         In those circumstances, “until the

conviction . . . has been invalidated,” accrual of such § 1983 claims is delayed.      Id. at

490.   Both the Supreme Court and this court, however, have made clear that Heck’s

delayed accrual rule comes into play only when “resolution of [an] action in a plaintiff’s

favor could not be reconciled with an extant criminal conviction.”       Smith v. Campbell,

782 F.3d at 101 (emphasis added); see Wallace v. Kato, 549 U.S. at 393 (stating “Heck

rule for deferred accrual is called into play only when there exists a conviction or

sentence that has not been invalidated, that is to say, an outstanding criminal judgment”

(emphasis in original) (alteration and internal quotation marks omitted)).     Here, once all

charges against Thompson were dismissed on July 19, 2012, by which time he had

already been released from prison, there was no longer any existing criminal conviction

that could be called into question by his § 1983 action.

       The Attorney General’s 2014 letter was not, as Thompson asserts without citation

to any supporting authority, “[t]he last event in the criminal proceeding” against him.

Appellant Br. at 14.    Rather, the letter was issued in connection with a separate civil

proceeding following the favorable termination of his criminal prosecution.       Cf. Spak v.


                                             5
Phillips, 857 F.3d at 466 (rejecting argument that § 1983 claims accrued not upon entry

of nolle prosequi but upon subsequent erasure of records pursuant to Connecticut

administrative statute).    Even if Thompson could not satisfy state law requirements for

compensation until receipt of the letter, those requirements have no bearing on the instant

federal claims.      DiBlasio v. City of New York, 102 F.3d 654 (2d Cir. 1996), supports no

different conclusion.      See id. at 656–57 (affirming dismissal of § 1983 malicious

prosecution cause of action “for failure to state a claim” because favorable termination

“element[]” of “common law tort for malicious prosecution” not adequately alleged).       In

stating there that the disposition of a criminal case must be consistent with innocence to

support a § 1983 claim for malicious prosecution, this court was addressing the favorable

termination requirement that is a substantive element of the claim, see id. at 657–59,

which is distinct from favorable termination for purposes of accrual, see Spak v. Phillips,

857 F.3d at 462–63.        In sum, the authorities cited by Thompson do not support his

argument that his complaint is timely.

2.     Equitable Tolling

       Alternatively, Thompson argues that, because “exculpatory information was

wrongfully withheld” by defendants, he is entitled to equitable tolling.    Appellant Br. at

21.   We review the district court’s denial of equitable tolling for abuse of discretion, see

A.Q.C. ex rel. Castillo v. United States, 656 F.3d 135, 144 (2d Cir. 2011), which we do

not identify here.




                                               6
       To secure equitable tolling, Thompson had to establish (1) diligent pursuit of his

rights, and (2) extraordinary circumstances standing in the way of timely filing.       See

Watson v. United States, 865 F.3d 123, 132 (2d Cir. 2017).      Thompson cannot carry this

burden.

       Even if defendants wrongfully withheld exculpatory DNA information during the

pendency of Thompson’s appeals and habeas petitions, Thompson does not argue that

any such information was still withheld once the criminal charges against him were

dismissed and the statute of limitations began to run.       Nor could he.   The complaint

itself alleges that, by the time the charges were dismissed, DNA testing had been

conducted and revealed a match for a known felon, leading to Thompson’s release from

incarceration.   Because the statute of limitations did not begin to run until the allegedly

withheld exculpatory DNA information was revealed, Thompson cannot show that the

withholding of information “caused him to miss the original filing deadline.”            Id.

(emphasis in original) (internal quotation marks omitted).

       That conclusion is reinforced, as the district court noted, by Thompson’s filing of

his state compensation claim for wrongful incarceration on August 3, 2012, only weeks

after the dismissal of criminal charges against him.   Thompson offers no explanation as

to why defendants’ withholding of exculpatory information would have prevented him

from filing the instant action within three years of dismissal of the criminal charges, but

did not prevent him from filing the state claim.       Cf. id. (rejecting equitable tolling

argument in civil action against government where asserted grounds for tolling “did not


                                             7
inhibit” plaintiff from “mount[ing] a vigorous case” in “immigration proceeding based on

identical facts”).      Accordingly, we identify no error in the denial of tolling.

3.     Conclusion

       We have considered Thompson’s other arguments and conclude that they are

without merit.       Accordingly, we AFFIRM the judgment of the district court.

                                             FOR THE COURT:
                                             Catherine O’Hagan Wolfe, Clerk of Court




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