09-0630-pr
Rochester v. Sixth Precinct Police Station


                                     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 Daniel Patrick Moynihan United States
Courthouse, 500 Pearl Street, in the City of New York, on the 25th
day of March, two thousand ten.

PRESENT:
            ROBERT A. KATZMANN,
            PETER W. HALL,
                   Circuit Judges,
            JED S. RAKOFF,
                   District Judge.*
_______________________________________________

Charles Rochester,

                                        Plaintiff-Appellant,

                    v.                                                           09-0630-pr

Sixth Precinct Police Station, Franco Frantellizzi, Police
Officer Badge #4182, Dylan Friedlander, Police Officer
Badge #4945, Anthony Schwarz, Police Officer Badge
#4130,

                                        Defendants-Appellees.

______________________________________________

FOR APPELLANT:                          Charles Rochester, pro se, Bronx, N.Y.


               *
              Jed S. Rakoff, of the United States District Court for the Southern District of New York,
     sitting by designation.
FOR APPELLEE:                  Arlene S. Zwilling, County Attorneys’ Office, Suffolk County,
                               Hauppauge, N.Y.


       Appeal from the United States District Court for the Eastern District of New York (Bianco,
J.).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the district court’s judgment is AFFIRMED, in part, and the appeal is

DISMISSED WITHOUT PREJUDICE, in part, to reinstatement.

       Appellant Charles Rochester, pro se, appeals from the judgment of the United States District

Court for the Eastern District of New York (Bianco, J.), pursuant to a partial order of dismissal and a

jury verdict, dismissing his 42 U.S.C. § 1983 action. We assume the parties’ familiarity with the

underlying facts, the procedural history of the case, and the issues on appeal.

I.     Motion to Dismiss

        “We review de novo a district court’s dismissal of a complaint pursuant to Rule

12(b)(6), construing the complaint liberally, accepting all factual allegations in the complaint as true,

and drawing all reasonable inferences in the plaintiff’s favor.” Chambers v. Time Warner, Inc., 282

F.3d 147, 152 (2d Cir. 2002); see also Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292, 300 (2d

Cir. 2003). A complaint must plead “enough facts to state a claim to relief that is plausible on its

face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Section 1983 actions arising in New

York State are governed by a three-year period of limitations. Owens v. Okure, 488 U.S. 235, 250-

51 (1989). Where the original complaint was filed within the statute of limitations, an amended

complaint “relates back” to the date of the original pleading when: (1) the law that provides the

statute of limitations allows relation back; (2) the amendment asserts a claim or defense that arose

out of the conduct in the original pleading; or (3) the amendment changes the party or the naming of


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the party against whom a claim is asserted. See Fed. R. Civ. P. 15(c)(1).

        Moreover, “[u]nder the doctrine of equitable tolling, a court may, under compelling

circumstances, make narrow exceptions to the statute of limitations in order ‘to prevent inequity.’” In

re U.S. Lines, Inc., 318 F.3d 432, 436 (2d Cir. 2003). In New York, “[a] plaintiff seeking to invoke

either the doctrines of equitable estoppel or equitable tolling is required to demonstrate that the

failure to timely commence the lawsuit is not attributable to a lack of diligence on his or her part.”

Kotylarsky v. N.Y. Post, 757 N.Y.S.2d 703, 707 (N.Y. Sup. Ct. 2003); see also O’Hara v. Bayliner,

89 N.Y.2d 636, 646-47 (1997) (setting forth the “limited circumstances” for equitable tolling).

Typically, the statute of limitations is equitably tolled when a defendant fraudulently conceals from a

plaintiff the fact that the plaintiff has a cause of action, or when the plaintiff is induced by the

defendant to forego a lawsuit until the statute of limitations has expired. See Pearl v. City of Long

Beach, 296 F.3d 76, 82-83 (2d Cir. 2002) (discussing the New York state courts’ application of

equitable estoppel and the federal courts’ use of equitable tolling and equitable estoppel).

        Having conducted an independent and de novo review, we conclude, for substantially the

same reasons stated by the district court, that Appellant’s § 1983 claims, pled in his amended

complaint, are time-barred. Although Appellant’s claims are similar to those raised in his original

complaint—namely, police misconduct and harassment—the claims are nevertheless unrelated

because they did not arise out of the same conduct set forth in his original complaint, and, instead,

involve a different factual predicate based on events occurring in March and October 2003. See

Slayton v. Am. Express Co., 460 F.3d 215, 228 (2d Cir. 2006) (noting that “even where an amended

complaint tracks the legal theory of the first complaint, claims that are based on an ‘entirely distinct

set’ of factual allegations will not relate back”) (quoting Nettis v. Levitt, 241 F.3d 186, 193 (2d Cir.

2001)). Accordingly, we affirm the judgment of the district court with respect to its dismissal of

Appellant’s time-barred claims.
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II.     Jury Verdict

        It is Appellant’s duty to “order from the reporter a transcript of such parts of the proceedings

not already on file as the appellant considers necessary [or] . . . file a certificate stating that no

transcript will be ordered.” Fed. R. App. P. 10(b)(1)(A) and (B). Additionally, where, as here, an

appellant “intends to urge on appeal that a finding or conclusion is unsupported by the evidence or is

contrary to the evidence, the appellant must include in the record a transcript of all evidence relevant

to that finding or conclusion.” Fed. R. App. P. 10(b)(2). As the trial transcripts are necessary for

meaningful appellate review of the district court’s judgment, that portion of the appeal challenging

the jury verdict is DISMISSED WITHOUT PREJUDICE to reinstatement provided that

Appellant, within 30 days of the date of this order, provides this Court with: (1) the trial transcript;

(2) proof that he has ordered the trial transcript; or (3) proof that he has moved in the district court

for a free trial transcript. Upon timely filing of a transcript in the record on appeal, the appeal will be

reinstated.

        For the reasons stated above, the district court’s judgment is AFFIRMED, in part, and the

appeal is DISMISSED, in part, WITHOUT PREJUDICE to reinstatement.


                                                FOR THE COURT:
                                                Catherine O’Hagan Wolfe, Clerk




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