    16-437
    Harnage v. Torres et al.




                               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 ASUMMARY ORDER@). A PARTY CITING TO 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 5th day of December, two thousand sixteen.

    PRESENT:
                ROBERT A. KATZMANN,
                      Chief Judge,
                RALPH K. WINTER,
                GUIDO CALABRESI,
                      Circuit Judges.
    _____________________________________

    JAMES A. HARNAGE,

                                Plaintiff-Appellant,


                       v.                                                 16-437


    RAQUEL TORRES, Deputy Warden (Retired),
    ANTHONY COLETTI, Warden (Retired), JODI M.
    RELL, Former Governor, DANNEL P. MALLOY,
    Governor, MICHAEL LEWIS,

                                Defendants-Appellees.

    _____________________________________
FOR PLAINTIFF-APPELLANT:                      James A. Harnage, pro se, South Suffield, CT.

FOR DEFENDANTS-APPELLEES:                     No brief.


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

(Thompson, J.).


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

DECREED that the judgment of the district court is AFFIRMED.

       Plaintiff-Appellant James A. Harnage, proceeding pro se, appeals from the district court’s

judgment dismissing sua sponte his 42 U.S.C. § 1983 claims against prison and government

officials as barred by the applicable three-year statute of limitations. We assume the parties’

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

       We review de novo a district court’s sua sponte dismissal of a complaint pursuant to 28

U.S.C. § 1915A. McEachin v. McGuinnis, 357 F.3d 197, 200 (2d Cir. 2004). In doing so, we

accept as true all facts described in the complaint but need not accept “conclusory allegations or

legal conclusions couched as factual [] allegations.” Nielsen v. Rabin, 746 F.3d 58, 62 (2d Cir.

2014) (internal quotation mark omitted). Section 1983 actions arising in Connecticut, like this one,

are governed by the three-year limitations period set forth in Conn. Gen. Stat. § 52-577. See

Lounsbury v. Jeffries, 25 F.3d 131, 132–34 (2d Cir. 1994). “Federal law determines when a section

1983 cause of action accrues, and we have ruled that accrual occurs when the plaintiff knows or

has reason to know of the injury which is the basis of his action.” Hogan v. Fischer, 738 F.3d 509,

518 (2d Cir. 2013) (internal quotation marks omitted).




                                                 2
       Here, the district court properly concluded that Mr. Harnage’s claims were barred by the

statute of limitations. Mr. Harnage’s § 1983 cause of action accrued, at the latest, in late 2009,

when he alleged that he knew of the injuries giving rise to his claims. Because Mr. Harnage did not

file his complaint until December 2015, more than three years after the statute of limitations had

run, his claims are time-barred. See Milan v. Wertheimer, 808 F.3d 961, 963–64 (2d Cir. 2015)

(per curiam) (affirming sua sponte dismissal of claims based on statute of limitations).

       On appeal, Mr. Harnage argues that his filing of a state court complaint based on the same

facts alleged in his federal complaint should have tolled the statute of limitations for his federal

claims. This argument is without merit. “[I]n section 1983 actions, we borrow not only a state’s

limitations period but also its ‘tolling rules.’” Pearl v. City of Long Beach, 296 F.3d 76, 80 (2d Cir.

2002) (quoting Bd. of Regents of Univ. of State of N.Y. v. Tomanio, 446 U.S. 478, 484–86 (1980)).

Section 52-577 of the Connecticut General Statutes does not provide for tolling the statute of

limitations during a state proceeding. See Conn. Gen. Stat. § 52-577. And the Connecticut

“savings” statute, which allows for the commencement of a new action when previous claims were

dismissed for procedural reasons, see Conn. Gen. Stat. § 52-592, does not apply because Mr.

Harnage’s state court action was dismissed on the merits. See Holt v. KMI-Cont’l, Inc., 95 F.3d

123, 131 (2d Cir. 1996) (“[T]he [Connecticut] savings statute only applies if the original claim was

dismissed for procedural reasons and not on the merits.”).

       Mr. Harnage also argues that his late filing should be excused because the wrongdoing he

alleges constitutes a continuing violation. See Shomo v. City of New York, 579 F.3d 176, 181 (2d

Cir. 2009) (“The continuing violation doctrine is an exception to the normal

knew-or-should-have-known accrual date.” (internal quotation marks omitted)). This argument,


                                                  3
too, is without merit. The continuing violation doctrine is limited “to claims that by their nature

accrue only after the plaintiff has been subjected to some threshold amount of mistreatment,”

Gonzalez v. Hasty, 802 F.3d 212, 220 (2d Cir. 2015), and, when the doctrine does apply, “the

limitations period begins to run when the defendant has ‘engaged in enough activity to make out an

actionable . . . claim,’” id. (omission in original) (quoting Nat’l R.R. Passenger Corp. v. Morgan,

536 U.S. 101, 117 (2002)). Even assuming the doctrine could apply to this context, Mr. Harnage’s

claims were ripe no later than 2009 when he became aware of the allegedly unlawful conduct

giving rise to his claim. Nor could Mr. Harnage contend otherwise given that in 2010 he filed the

aforementioned state court action premised on the same alleged misconduct.

          In this Circuit, pro se complaints should not be dismissed by the district court “without

granting leave to amend at least once when a liberal reading of the complaint gives any indication

that a valid claim might be stated.” Shomo, 579 F.3d at 183 (internal quotation mark omitted).

However, a district court need not grant leave to amend when amendment would be “futile.” See,

e.g., Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000). And nothing in Mr. Harnage’s

complaint or his appellate brief suggests that he could state a plausible claim that would not be

futile.

          We have considered Mr. Harnage’s remaining arguments and find in them no basis for

reversal. Accordingly, we AFFIRM the judgment of the district court.

                                                FOR THE COURT:
                                                Catherine O’Hagan Wolfe, Clerk




                                                   4
