
USCA1 Opinion

	




          May 2, 1994                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 93-2233                                   JIMMY D. BATISTE,                                Plaintiff, Appellant,                                          v.                               CITY OF BOSTON, ET AL.,                                Defendants, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Edward F. Harrington, U.S. District Judge]                                               ___________________                                 ____________________                                        Before                                 Breyer, Chief Judge,                                         ___________                            Cyr and Stahl, Circuit Judges.                                           ______________                                 ____________________            Jimmy D. Batiste on brief pro se.            ________________            Albert  W. Wallis,  Corporation Counsel,  and Thomas  C.  Tretter,            _________________                             ___________________        Assistant Corporation Counsel, on brief for appellees.                                 ____________________                                 ____________________                 Per  Curiam.    Jimmy  Batiste  appeals pro  se  from  a                 ___________            district court  order dismissing his complaint  on the ground            that it was barred by  the applicable statute of limitations.            For the reasons that follow, we affirm.                                          I.                 In  December 1987,  Batiste was  arrested on  charges of            assault  and battery  with a  dangerous weapon.    In January            1989,  following  a  jury-waived  trial in  Boston  Municipal            Court, he was convicted  on one such count and  was sentenced            to a thirty-month prison term, with one year to be served and            with   probation  to   run   through  January   1991.     The            Massachusetts   Appeals   Court   summarily    affirmed   his            conviction, see  Commonwealth v.  Batiste, 30 Mass.  App. Ct.                        ___  ____________     _______            1113 (1991), and the Supreme Judicial Court thereafter denied            further appellate review.                 In  September 1993, plaintiff  filed the  instant civil-            rights action for damages  under 42 U.S.C.   1983,  naming as            defendants the city of Boston, the mayor, the commissioner of            police,  and   seven  police  officers  (two   of  whom  were            identified  only by  badge number).    He there  alleged that            defendants  had  concealed  exculpatory information  and  had            manufactured other evidence in order to effectuate his arrest            and  to  secure  his  wrongful conviction  at  trial--all  in            violation of his rights to due process, equal protection, and            a fair  trial.   More particularly,  he charged (among  other            things)  that  defendants  (1)  suppressed  a  police  report            prepared by the officers who first arrived at the crime scene            which  stated that  the victim  had refused  to identify  her            assailant,  (2) fabricated a second police report purportedly            obtained from the victim at  the hospital which named Batiste            as the  assailant, and (3)  testified falsely with  regard to            these  facts  both at  the  probable  cause  hearing  and  at            trial.1                 Prior  to  service  on  defendants,  the district  court            reviewed the in forma pauperis complaint and dismissed it sua                                                                      ___            sponte  as frivolous under 28 U.S.C.   1915(d).  It concluded            ______            that the complaint, even  when construed liberally,  involved            events that had transpired more than three years prior to the            date of filing,  with the  result that the  action was  time-            barred.  Batiste now appeals.                                         II.                 "We have squarely held that 'a complaint  which states a            claim  that  appears to  have  expired  under the  applicable            statute of  limitations may be dismissed  as frivolous' under                                            ____________________            1.  The  record before us does not reveal the extent to which            any  other  evidence  of  Batiste's  guilt--apart  from  such            allegedly falsified  reports and testimony--was  presented at            trial;  it  is  unclear,  for  example,  whether  the  victim            testified.   It  is likewise unclear  to what  extent Batiste            raised  such allegations  of police  misconduct in  the state            courts.   He  states  only that  his  attorney was  aware  of            defendants' misconduct  but refused to challenge  it, that he            (Batiste)  complained of  their  actions in  a  pro se  brief            separately  filed  on  appeal,  and  that  the  Massachusetts            Appeals Court failed to address the issue.                                              -3-            section 1915(d)."   Johnson v. Rodriguez,  943 F.2d 104,  107                                _______    _________            (1st Cir. 1991), cert. denied, 112 S. Ct. 948 (1992) (quoting                             ____________            Street v. Vose, 936 F.2d 38, 39 (1st Cir. 1991) (per curiam),            ______    ____            cert.  denied, 112 S. Ct. 948 (1992)).   At the same time, in            _____________            light  of the  truncated  procedures commonly  attending a               1915(d)  dismissal, we  have cautioned  that district  courts            should consider  issuing  an  order to  show  cause  in  such            circumstances in order to permit the plaintiff to demonstrate            whether any  tolling provisions might apply.  See Street, 936                                                          ___ ______            F.2d at 41  n.5.   No such opportunity  was afforded  Batiste            here.  As a result, his arguments on appeal--in which he sets            forth several  reasons why  the limitations period  should be            extended--were   neither   raised   nor    addressed   below.            Nonetheless,   a  careful   review  of   Batiste's  appellate            submissions, along with his complaint, permits us to conclude            that his contentions are misplaced.                 It is  undisputed  that the  instant    1983  action  is            subject  to the  three-year limitations period  prescribed by            Mass.  G.L. c. 260,   2A (along  with any state tolling rules            not at odds with federal  law).  See, e.g., Street, 936  F.2d                                             ___  ____  ______            at 39-40.  It is likewise  agreed that the question of when a            cause of  action accrues  remains  a matter  of federal  law.            See,  e.g., Rodriguez Narvaez v. Nazario, 895 F.2d 38, 41 n.5            ___   ____  _________________    _______            (1st  Cir.  1990).    Batiste  filed  his  complaint here  on            September 7, 1993--well  over three years after the events of                                         -4-            which  he  complains.2    In  an   attempt  to  sidestep  the            limitations bar,  he advances  two contentions: (1)  that his            wrongful   conviction   and   incarceration   constituted   a            continuing  wrong  which persisted  through  the  end of  his            probation  on January 9, 1991, with the result that his cause            of action did  not accrue until that  date; and (2) that  the            limitations  period should  be  extended  because  defendants            concealed  relevant  information.    Neither  argument proves            persuasive.                  As to the former, we need not decide the extent to which            the "continuing violation"  doctrine--an equitable  principle            most  often invoked  in  the Title  VII  context, see,  e.g.,                                                              ___   ____            Johnson, 943 F.2d  at 107-08--might apply  to   1983  claims.            _______            See generally Hunt v.  Bennett, ___ F.3d ___, 1994  WL 47751,            _____________ ____     _______            at  *2 (10th  Cir.  1994).    Even  if  this  principle  were            otherwise  applicable,  Batiste's  argument   overlooks  "the            'critical  distinction'  between  a  continuing  act  and   a            singular  act   that  brings  continuing   consequences"  for            purposes  of  the limitations  period.   Gilbert  v.  City of                                                     _______      _______            Cambridge, 932 F.2d  51, 58-59 (1st Cir.), cert.  denied, 112            _________                                  _____________            S. Ct. 192  (1991) (quoted in Johnson, 943 F.2d  at 108).  It                                          _______            has been specifically held  that, where an individual alleges            to have been wrongfully  incarcerated because of false arrest                                            ____________________            2.  As mentioned,  his arrest  occurred in December  1987 and            his three-day trial took place in January 1989.                                           -5-            or   some   other  tortious   activity,   such  incarceration            constitutes   a  continuing  ill   effect  from  the  earlier            misconduct rather  than a continuing  tort in and  of itself.            See, e.g., McCune v. City of Grand Rapids, 842 F.2d  903, 906            ___  ____  ______    ____________________            (6th Cir. 1988); Sandutch  v. Muroski, 684 F.2d 252,  254 (3d                             ________     _______            Cir. 1982); cf. Street, 936 F.2d at 40-41 & n.4 (noting that,                        ___ ______            under a  1987 Massachusetts  statute, imprisonment  no longer            tolls the statute of limitations--a legislative judgment "not            inconsistent with federal policy").                 Batiste's second  argument rests on  firmer legal ground            but is  devoid of factual  support.   He is correct  that the            accrual period  in a    1983 case does  not start  until "the            plaintiff  knows, or  has reason  to know,  of the  injury on            which  the  action is  based."    Rivera-Muriente v.  Agosto-                                              _______________     _______            Alicea,  959 F.2d  349,  353 (1st  Cir. 1992);  accord, e.g.,            ______                                          ______  ____            Torres v. Superintendent  of Police, 893  F.2d 404, 407  (1st            ______    _________________________            Cir. 1990).    He is  likewise correct  that the  limitations            period may  be equitably tolled  where a plaintiff  "can show            'excusable ignorance' of the statute of limitations caused by            some  misconduct of the  defendant[s]."  Id.  at 407; accord,                                                     ___          ______            e.g., Puritan  Med. Center, Inc.  v. Cashman, 413  Mass. 167,            ____  __________________________     _______            175  (1992) (applying Mass. G.L.  c. 260,    12); Cherella v.                                                              ________            Phoenix Technologies Ltd., 32 Mass.  App. Ct. 919, 920 (1992)            _________________________            (tolling may apply where defendant "encourages or cajoles the            potential plaintiff into inaction").  Yet Batiste has made no                                         -6-            factual   allegations  that   would  warrant   extending  the            limitations  period.  He  complains in this  regard only that            the police  department refused  to divulge  the names  of the            officers responding to  the crime  scene.  See  Brief at  10;                                                       ___            Reply  Brief at 4-6.   He acknowledges, however,  that by the            time of his  trial in January 1989, he knew  that he had been            arrested  "without   a  warrant"  and  that   defendants  had            "misrepresented  and concealed material  facts actually known            to them  to a state court  judge."  Brief at  9; accord Reply                                                             ______            Brief at 4, 6 n.1.                   Such knowledge was sufficient  to trigger the running of            the  limitations period.3   See,  e.g., Compton  v. Ide,  732                                        ___   ____  _______     ___            F.2d 1429, 1433 (9th Cir. 1984) ("When a plaintiff has notice            of  wrongful  conduct,  it  is not  necessary  that  he  have            knowledge of all the  details or all of the  persons involved            in order for  his cause  of action to  accrue."); Messere  v.                                                              _______            Murphy,  32 Mass. App. Ct.  917, 918 (1992)  (in civil rights            ______            action  in  which plaintiff  complained  that defendants  had                                            ____________________            3.  On the other hand,  to the extent Batiste's  complaint is            construed  as setting  forth  a    1983  claim for  malicious            prosecution, his action  is arguably premature.  It  has been            held that such a  claim does not accrue until  the underlying            criminal proceedings have terminated  in favor of the accused            (which is an element of the offense  of malicious prosecution            at  common law).   See,  e.g., Brummett  v. Camble,  946 F.2d                               ___   ____  ________     ______            1178,  1183-84 (5th Cir. 1991), cert. denied, 112 S. Ct. 2323                                            ____________            (1992).  The  criminal proceedings here, of  course, have not            terminated  in  Batiste's  favor.   We  need  not now  decide            whether,  in the event such  a development were  to occur, he            might   then  be  able  to  advance  a  claim  for  malicious            prosecution.                                           -7-            conspired  to  conceal  evidence,  give false  testimony  and            intimidate    witnesses,    "plaintiff's   criminal    trial,            conviction, and incarceration certainly were events likely to            put him on notice of the alleged wrongs") (internal quotation            omitted).    Similarly,  Batiste's  allegations   provide  no            plausible basis for invoking  the equitable tolling doctrine.            The police department, simply  because of its alleged refusal            to  identify  certain  officers,   cannot  be  said  to  have            "actively misle[d]" Batiste in any fashion.  Torres, 893 F.2d                                                         ______            at 407.  "In  short, there was no detrimental  reliance ...."            Rivera-Gomez v. de Castro, 900 F.2d 1, 3 (1st Cir. 1990).            ____________    _________                 Affirmed.                 _________                                         -8-
