Nieves v. McSweeney, 241 F.3d 46, 1st Cir. (2001)
Nieves v. McSweeney, 241 F.3d 46, 1st Cir. (2001)
Nieves v. McSweeney, 241 F.3d 46, 1st Cir. (2001)
2001)
cognizable claim. Their appeal contends that the lower court misunderstood
both the operation of the statute of limitations in civil conspiracy cases and the
circumstances under which 42 U.S.C. 1983 provides a vehicle for the
maintenance of malicious prosecution claims. Finding these contentions
unpersuasive, we affirm the district court's entry of summary judgment.
I. BACKGROUND
2
On the evening of May 12, 1994, a disturbance erupted at the appellants' home
in Ayer, Massachusetts. The police learned of the tumult from Rebecca's
mother (Angel's ex-wife), who telephoned to report that Angel was abusing
Rebecca. Officers Terence McSweeney and Dana Beauvais responded to the
call. Although the details of what transpired are murky, at least two things are
clear: (1) a melee developed involving the appellants and the police officers;
and (2) both appellants sustained injuries.
As the fracas ended, two more police officers, Bradley Madge and Leon Avery,
arrived at the scene. The appellants were arrested without a warrant and taken
to the police station. The authorities detained them for approximately two
hours, at which point Angel was released on a $25 bond and Rebecca was
released on her own recognizance.
The next day, Officer Edward Denmark, acting on reports filed by McSweeney
and Beauvais, swore out criminal complaints against the appellants. One such
complaint charged Angel with assault with intent to murder, assault and battery
by dangerous weapon, assault and battery on a police officer (two counts), and
being a disorderly person. The second charged Rebecca with two counts of
assault and battery on a police officer and one count of being a disorderly
person. The appellants were promptly arraigned and then released on their own
recognizance.
Nearly three years later, on October 9, 1997, the appellants brought suit in the
United States District Court for the District of Massachusetts against
McSweeney, Beauvais, Madge, Avery, Denmark, the chief of police, and the
town of Ayer (the Town). The gravamen of their complaint was the
The appellants advance two principal theses in their endeavor to blunt the
swing of the summary judgment ax. First, they posit that the entire panoply of
events that began on the evening of the arrest and ended with the completion of
their criminal trial constituted a single, ongoing conspiracy. Building on this
foundation, they argue that the statute of limitations did not begin to run until
the commission of the last overt act incident to that conspiracy -- the officers'
allegedly false testimony at the criminal trial. Since that act took place within
the three-year limitation period, the appellants assert that their claims are
timely. As a fallback, the appellants argue that even if some of their claims are
time-barred, their malicious prosecution claim is not. This claim, they suggest,
comprises a viable constitutional cause of action grounded in the Fourth
Amendment.
In the sections that follow, we parse the complaint and then measure each of
these theories against a familiar standard of review. After all, summary
judgment is appropriate only when "the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). In applying
this screen, we construe the record and all reasonable inferences from it in
favor of the party who lost below. Grant's Dairy-Me., LLC v. Comm'r of Me.
Dep't of Agric., Food & Rural Res., 232 F.3d 8, 14 (1st Cir. 2000); Houlton
Citizens' Coalition v. Town of Houlton, 175 F.3d 178, 184 (1st Cir. 1999). In
the process, we afford no special deference to the lower court's views. See
Houlton Citizens' Coalition, 175 F.3d at 184 (explaining that the court of
appeals reviews the entry of summary judgment de novo).
9
A. The Complaint.
10
We grapple with only two of the ten counts in the complaint: counts 1 and 2.
These counts are both premised on 42 U.S.C. 1983. They charge Officers
McSweeney, Beauvais, and Madge with participating in a conspiracy to violate
the appellants' civil rights.1 We briefly explain why the remaining counts need
not concern us.
11
12
13
B. Conspiracy.
15
The appellants allege the existence of a single ongoing conspiracy that extended
over a period of more than four months (May 12 through October 27, 1994)
and encompassed the officers' excessive use of force, the false arrest, and the
ensuing malicious prosecution. Because of the appellants' delay in bringing
suit, we must determine when the limitation period began to run on this civil
rights conspiracy claim.
16
17
The parties do not agree, however, on when the limitation period began to run.
As said, the confrontation between the officers and the appellants occurred on
May 12, 1994, yet no suit was commenced until October 9, 1997. The
appellants asseverate that this elapsed time is not fatal: because they configured
their claims as arising within the contours of an ongoing conspiracy, the clock
did not begin to tick until the conclusion of the criminal trial (October 27,
1994), thus rendering their civil suit timely. The appellees say that this
reasoning elevates form over substance. Since the triggering events occurred on
May 12, 1994, they maintain that the limitation period expired well before the
appellants started suit. For the most part, the district court agreed with the
appellees. See Nieves, 73 F. Supp. 2d at 103-04. So do we.
18
This court determined more than two decades ago that, in the context of a
continuing conspiracy to violate civil rights, the statute of limitations runs
separately from the occurrence of each civil rights violation that causes actual
damage to the plaintiff (as long as the plaintiff knows or should have known of
the injury). Hernandez Jimenez v. Calero Toledo, 576 F.2d 402, 404 (1st Cir.
1978). In so holding, we explicitly repudiated the notion, loudly bruited by the
appellants in this case, that the statute of limitations for civil conspiracy should
run from the date of the last overt act that causes damage to the plaintiff. We
stated:
19
We recognize that some courts have spoken of the "last overt act" of a civil
rights conspiracy as the time from which the statute begins to run, but do not
believe those courts meant to depart from the traditional rule in civil
conspiracies that the mere fact of a conspiracy does not toll the statute of
limitations with respect to earlier clear-cut violations of rights that have not
been concealed from the plaintiff.
20
Id. at 404 n.1 (citation omitted).2 As the appellants do not suggest that the
violations that transpired in the course of this alleged conspiracy (such as the
excessive use of force and the false arrest) were concealed from them,
Hernandez Jimenez controls. See United States v. Wogan, 938 F.2d 1446, 1449
(1st Cir. 1991) (holding that in a multi-panel circuit, prior panel decisions
generally are binding upon newly-constituted panels).
21
22
The most important distinction between these two cases is that, in Robinson,
the conspiratorial agreement arose before the arrest; Robinson contended that
the defendants formulated an elaborate plan to frame him for the murder of a
police officer and then arrested him in furtherance of that plan.3 Id. at 655. This
sequencing meant that the arrest was encompassed within the malicious
prosecution conspiracy, and the statute of limitations therefore began to run on
all acts (including the arrest) only when the criminal proceedings were
terminated in Robinson's favor.
23
the appellants' own theory of the case, the malicious prosecution conspiracy did
not antedate the arrest, but, rather, arose afterwards, sparked by the officers'
perceived need to cover up their unwarranted brutality.
24
25
26
Following this scheme, it is pellucid that all claims based on the officers'
physical abuse or arrest of the appellants accrued at the time that those events
occurred -- May 12, 1994 -- because the appellants had ample reason to know
of the injury then and there.4 See Beck v. City of Muskogee Police Dep't, 195
F.3d 553, 558 (10th Cir. 1999) (explaining that claims arising from police
action toward a criminal suspect, such as arrest and seizure, are presumed to
accrue when the actions occur); Sneed v. Rybicki, 146 F.3d 478, 481 (7th Cir.
1998) (observing that a section 1983 false arrest claim accrues on the day of the
arrest regardless of later proceedings); McIntosh, 71 F.3d at 34 (determining
that plaintiff's section 1983 claims for assault and false arrest accrued on the
date that the events occurred); Singleton v. City of New York, 632 F.2d 185,
191 (2d Cir. 1980) (similar). The statute of limitations on these claims expired
three years later -- months before the appellants filed suit. Accordingly, we
uphold the district court's conclusion that the alleged civil rights violations
predicated on excessive force and false arrest are time-barred.
27
C. Malicious Prosecution.
28
Although two of the appellants' claims have foundered on the shoals of the
statute of limitations, one claim escapes this prohibition. As we noted earlier, a
cause of action for malicious prosecution does not accrue until the termination
of the criminal proceedings. See Heck, 512 U.S. at 489. Since the appellants
filed their civil suit within three years of the verdict that marked the end of the
criminal case, this differing accrual rule enables them to board the lifeboat of a
section 1983 malicious prosecution claim and see how far that craft takes them.
29
30
The fact that a plaintiff styles her claim as a conspiracy to prosecute her
maliciously does not diminish her need to show a constitutional deprivation.
Singer v. Fulton County Sheriff, 63 F.3d 110, 119 (2d Cir. 1995). In order to
make out an actionable conspiracy under section 1983, a plaintiff has to prove
not only a conspiratorial agreement but also an actual abridgment of some
federally-secured right. Earle v. Benoit, 850 F.2d 836, 844 (1st Cir. 1988);
Landrigan, 628 F.2d at 742. Moreover, it is the plaintiff's burden to identify the
specific constitutional right infringed. SeeAlbright v. Oliver, 510 U.S. 266, 271
(1994). In the end, this requirement scuttles the appellants' claim.
31
It is perfectly clear that the Due Process Clause cannot serve to ground the
appellants' federal malicious prosecution claim. No procedural due process
claim can flourish in this soil because Massachusetts provides an adequate
remedy for malicious prosecution. See Roche, 81 F.3d at 256 (citing, inter alia,
Beecy v. Pucciarelli, 441 N.E.2d 1035, 1038-39 (Mass. 1982)). Similarly, a
plurality of the Supreme Court has concluded that "substantive due process may
not furnish the constitutional peg on which to hang" a federal malicious
prosecution tort. Albright, 510 U.S. at 271 n.4. We have followed the Court's
lead in this respect, see, e.g., Roche, 81 F.3d at 256 (holding that there is no
substantive due process right under the Fourteenth Amendment to be free from
33
The Fourth Amendment provides that "[t]he right of the people to be secure in
their persons, houses, papers, and effects, against unreasonable searches and
seizures, shall not be violated . . . ." U.S. Const. amend. IV. For a public official
to transgress the Fourth Amendment through the initiation and pursuit of
criminal charges, the prosecution of those charges must at a bare minimum
have occasioned a deprivation of liberty consistent with the concept of a
seizure. Britton, 196 F.2d at 28; Singer, 63 F.3d at 116.
34
The appellants assert that they were "seized" for Fourth Amendment purposes
from the time of their arrest through the end of their criminal trial. But this
assertion rests on a flawed premise. The tort of malicious prosecution permits
damages for a deprivation of liberty -- a seizure -- pursuant tolegal process.
Heck, 512 U.S. at 484; Calero-Colon, 68 F.3d at 3. Generally, the offending
legal process comes either in the form of an arrest warrant (in which case the
arrest would constitute the seizure) or a subsequent charging document (in
which case the sum of post-arraignment deprivations would comprise the
seizure). Singer, 63 F.3d at 117. The first of these variations has no bearing
here. The appellants were arrested without a warrant and, thus, their arrests -which antedated any legal process -- cannot be part of the Fourth Amendment
seizure upon which they base their section 1983 claims.
35
Meehan aptly illustrates this point. There, the plaintiff attempted to base a
section 1983 malicious prosecution claim on his warrantless arrest. 167 F.3d at
89. We rejected this initiative, stating:
36
Meehan may not bring a malicious prosecution claim based upon his arrest
because his arrest does not constitute the "initiation of proceedings" against
Meehan. . . . Meehan's arrest was not made pursuant to an arrest warrant.
38
This leaves the appellants with the task of showing some post-arraignment
deprivation of liberty, caused by the application of legal process, that
approximates a Fourth Amendment seizure. Following a thoughtful analysis,
the district court concluded that the appellants could not vault this hurdle.
Nieves, 73 F. Supp. 2d at 105. We agree.
39
It is undisputed that the first time the appellants were subject to legal process
was on May 13, 1994 (when criminal complaints against them issued). Taking
the facts from the standpoint most favorable to the appellants, as we must,
seeHoulton Citizens' Coalition, 175 F.3d at 184, the following events occurred
after that time: the appellants were released on their own recognizance; they
suffered the stress and anxiety of knowing not only that serious criminal
charges were pending against them, but also that their reputations had been
sullied; they appeared before the criminal court a number of times in the
pretrial period; and they endured the trial. The question thus becomes: do these
strictures, in the aggregate, constitute a Fourth Amendment seizure sufficient to
ground a section 1983 malicious prosecution claim?
40
41
deprivation of liberty that a seizure of the person entails. Since "[a] seizure is a
single act, and not a continuous fact," Hodari D., 499 U.S. at 625 (quoting
Thompson v. Whitman, 85 U.S. (18 Wall.) 457, 471 (1873)), run-of-the-mill
conditions of pretrial release do not fit comfortably within the recognized
parameters of the term.
42
43
44
45
This court, too, has declined to embrace the whole of Justice Ginsburg's view.
See Britton, 196 F.3d at 29-30. In that case, a plaintiff alleging a section 1983
malicious prosecution claim argued that he was seized for Fourth Amendment
purposes because he had received a summons in the mail. Id. at 29. Although
Justice Ginsburg clearly would have accepted this contention, see Albright, 510
U.S. at 279 (Ginsburg, J., concurring) (observing that a defendant is "seized"
when bound to appear for trial by a summons), we spurned it, writing:
46
Absent any evidence that Britton was arrested, detained, restricted in his travel,
or otherwise subject to a deprivation of his liberty before the charges against
him were dismissed, the fact that he was given a date to appear in court is
insufficient to establish a seizure within the meaning of the Fourth Amendment.
47
Britton, 196 F.3d at 30. In making this determination, we relied on cases such
as Brower v. County of Inyo, 489 U.S. 593 (1989), in which the Court held that
"[v]iolation of the Fourth Amendment requires an intentional acquisition of
physical control," id. at 596, and that a Fourth Amendment seizure occurs "only
when there is a governmental termination of freedom of movement through
means intentionally applied," id. at 597 (emphasis omitted). We were unable to
reconcile the limited demands that the summons imposed on Britton with
concepts such as "physical control" and "termination of freedom of movement."
48
The case before us, though somewhat stronger, bears a family resemblance to
Britton. Canvassing the relevant time frame, we find no evidence that the
appellants were held after the initiation of criminal proceedings, required to
post a monetary bond upon arraignment, subjected to restrictions on their travel,
or otherwise exposed to any significant deprivation of liberty. While the
imposition upon the appellants here was marginally greater than the imposition
upon Britton -- they were required to appear several times at the court's behest
(including an appearance for trial) -- the fact remains that the conditions of
pretrial release to which they were subjected simply do not approach the level
necessary to constitute a Fourth Amendment seizure.
49
interest enough to render him seized under the Fourth Amendment. Id. at 861.
50
The appellants' other two cases are cut from much the same cloth. In Gallo v.
City of Philadelphia, 161 F.3d 217 (3d Cir. 1998), the court, calling it a "close
question," decided that a section 1983 plaintiff had been seized in the
constitutional sense where he was required to post a $10,000 bond, attend all
court hearings including his trial, contact pretrial services weekly, and refrain
from traveling outside New Jersey and Pennsylvania. Id. at 222. So too Murphy
v. Lynn, 118 F.3d 938 (2d Cir. 1997), a two-to-one decision in which the panel
determined that a plaintiff's obligation to attend court appointments, combined
with a prohibition against leaving New York, constituted a seizure within the
meaning of the Fourth Amendment. Id. at 945.
51
We need not comment upon the soundness of these decisions. For present
purposes, it suffices to say that they are materially distinguishable. To mention
the most glaring difference, all three cases involved definitive restrictions on
the right to travel, and each of the courts in question placed heavy emphasis on
the salience of such a restriction as a linchpin of a seizure. See Evans, 168 F.3d
at 861-62; Gallo, 161 F.3d at 224; Murphy, 118 F.3d at 945-46. Conversely, no
such restriction was in force vis-a-vis the appellants. For this reason, and
because the aggregate deprivations involved in Evans, Gallo, and Murphy
substantially exceeded the overall deprivation imposed here, we regard the
cases as inapposite.
52
That ends this aspect of the matter. Given the relatively benign nature of the
pretrial release conditions involved in this case, we hold that the appellants did
not suffer a post-arraignment seizure within the meaning of the Fourth
Amendment. It follows inexorably that, in the absence of an anchoring
constitutional violation, the appellants' section 1983 malicious prosecution
claim topples.
III. CONCLUSION
53
We need go no further.7 A ripe civil rights suit was left to rot. Most of the
appellants' claims are barred by the operation of the statute of limitations; those
that are not fail for lack of a constitutionally significant deprivation. We
therefore affirm the district court's entry of summary judgment on the
appellants' federal claims.
54
Affirmed.
Notes:
1
The principal authority that the appellants cite in support of their "last overt
act" theory is Buford v. Tremayne, 747 F.2d 445, 448 (8th Cir. 1984) (opining
that in a conspiracy action "the statute of limitations begins to run from the
occurrence of the last overt act resulting in damage to the plaintiff"). Although
this decision postdates Hernandez Jimenez, it nonetheless falls squarely within
the class of cases contemplated by footnote 1 of the Hernandez Jimenez
opinion.
We deal here with the mine-run, acknowledging, however, that there may be
rare and exotic circumstances in which a section 1983 claim based on a
warrantless arrest will not accrue at the time of the arrest. See Calero-Colon, 68
F.3d at 4-5 (Lynch, J., concurring). We are not faced with any such situation
today.
Of course, the jury convicted Angel Nieves on one count: being a disorderly
person. The parties hotly dispute whether an acquittal on all counts but one is a
termination of the criminal proceedings in Angel's favor (and, thus, satisfies the
second prong of the four-part framework for malicious prosecution). Given our
ultimate conclusion that no constitutional deprivation occurred, however, we
need not resolve this dispute.
Justice Ginsburg went to some lengths to make this point, as Albright itself
involved a defendant who had been required to post bond and had been placed
under travel restrictions. Albright, 510 U.S. at 268.
The appellants also complain that the district court frustrated their efforts
during pretrial discovery to question McSweeney about other incidents of
police brutality. They claim that they had a good-faith basis for the queries (a
1997 investigatory report concluded that McSweeney had demonstrated a
pattern of needless provocation and excessive force in making arrests) and that
the information sought was relevant. But we have concluded that the grant of