Batiste v. City of Boston

Opinion

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                                [NOT FOR PUBLICATION]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.

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                     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.

____________________

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Per  Curiam.    Jimmy  Batiste  appeals pro  se  from  a
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            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

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            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.     

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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
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            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

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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

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            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

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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

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            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).
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                 Affirmed.
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