Smalls v. Collins Daniel v. Taylor
This text of Smalls v. Collins Daniel v. Taylor (Smalls v. Collins Daniel v. Taylor) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
20-1099-cv; 20-1331-cv Smalls v. Collins et al.; Daniel v. Taylor et al.
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2020 (Argued: March 08, 2021 Decided: August 20, 2021) Docket Nos. 20-1099-cv/20-1331-cv
ANDREW SMALLS, Plaintiff-Appellant,
v.
POLICE OFFICER RICHARD COLLINS AND POLICE OFFICER DAVID TETA, Defendants-Appellees,
CITY OF NEW YORK, POLICE OFFICER ERIC CABRERA, POLICE OFFICER JESSICA ALVARADO, SERGEANT BRIAN STAMM AND POLICE OFFICER ALVAREZ, Defendants.
DESHAWN DANIEL, Plaintiff-Appellant,
DETECTIVE BRIAN TAYLOR, DETECTIVE NEIL MAGLIANO, DETECTIVE JAMES CLEARY, SERGEANT WESLEY FRADERA, Defendants-Appellees,
CITY OF NEW YORK, JOHN AND JANE DOES 1-5, NEIL C. MAGLIANO, Defendants.
Before: SACK, MENASHI, Circuit Judges, AND KAPLAN, District Judge. *
*Judge Lewis A. Kaplan, of the United States District Court for the Southern District of New York, sitting by designation. 20-1099-cv; 20-1331-cv Smalls v. Collins et al.; Daniel v. Taylor et al.
In these tandem appeals, the plaintiffs-appellants Andrew Smalls and Deshawn Daniel each filed suit under 42 U.S.C. § 1983 (in the United States District Courts for the Eastern and Southern Districts of New York, respectively), asserting that the defendants-appellees deprived them of their rights to a fair trial by fabricating evidence against them. Daniel also asserted other claims under section 1983 and claims under 42 U.S.C. § 1981 and sought equitable tolling of the statute of limitations applicable to some of his section 1983 claims. Smalls's case proceeded to trial, and a jury found that Police Officers Richard Collins and David Teta had violated Smalls's constitutional rights and awarded him damages. In Daniel's case, following briefing on the defendants' motion to dismiss and Daniel's motion for equitable tolling, the district court denied Daniel's motion for tolling and dismissed all his claims aside from his section 1983 fabricated-evidence claim. Following the Supreme Court's decision in McDonough v. Smith, 139 S. Ct. 2149 (2019), the defendants in Daniel's case again moved to dismiss the fabricated-evidence claim, contending that Daniel could not establish a favorable termination indicative of innocence – which, they asserted, McDonough requires. The defendants in Smalls's case moved for an order vacating the judgment and granting them judgment as a matter of law on the same basis. The district courts (Carol Bagley Amon and Ronnie Abrams, Judges, respectively) granted the defendants' motions, concluding that Smalls and Daniel could not establish favorable terminations within the meaning of McDonough. Smalls and Daniel now appeal. We conclude that (1) the district courts erred in dismissing Smalls's and Daniel's section 1983 fabricated-evidence claims and entering judgment for the defendants; (2) Daniel's section 1981 claims were properly dismissed; and (3) Daniel's equitable tolling motion was properly denied. We therefore
REVERSE the judgments of the district courts with respect to the fair-trial claims, AFFIRM the dismissal of Daniel's other claims, and REMAND for further proceedings consistent with this opinion.
JOEL B. RUDIN (Matthew A. Wasserman, Jacob Loup, Law Offices of Joel B. Rudin, P.C., New York, NY, and Jon L. Norinsberg, Law Offices of Jon L. 20-1099-cv; 20-1331-cv Smalls v. Collins et al.; Daniel v. Taylor et al.
Norinsberg, New York, NY, on the brief), for Plaintiff-Appellant Andrew Smalls;
GREGORY ANTOLLINO, Antollino, PLLC, New York, NY, and STEPHEN BERGSTEIN, Bergstein & Ullrich, New Paltz, NY, for Plaintiff-Appellant Deshawn Daniel;
JOHN MOORE (Richard Paul Dearing, Devin Slack, on the brief), for James E. Johnson, Corporation Counsel of the City of New York, New York, NY, for Defendants- Appellees.
SACK, Circuit Judge:
Although these appeals come to us in different procedural postures, they
present similar material facts and closely related legal questions and were
therefore heard, and are decided, in tandem.
Plaintiffs-appellants Andrew Smalls and Deshawn Daniel were each
prosecuted in state court for criminal possession of a weapon (and, in Smalls's
case, also for trespass); in each case, the criminal proceedings terminated without
an extant criminal conviction or any remaining pending charges. Smalls was
initially convicted of three counts, two of which were later dismissed on appeal
and the third on remand. Daniel's charge was resolved by an adjournment in
contemplation of dismissal, and his case was ultimately dismissed in its entirety.
3 20-1099-cv; 20-1331-cv Smalls v. Collins et al.; Daniel v. Taylor et al.
Both subsequently filed civil suits against the defendants 1 (Smalls in the
United States District Court for the Eastern District of New York, and Daniel in
the Southern District). They asserted claims under 42 U.S.C. § 1983, each alleging
that the defendants-appellees had deprived him of a fair trial by fabricating
evidence. Daniel also asserted claims under 42 U.S.C. §§ 1981 and 1983 for racial
discrimination, unlawful search and seizure, excessive force, failure to intervene,
for municipal liability pursuant to Monell v. Department of Social Services of the City
of New York, 436 U.S. 658 (1978), and supervisory liability. Daniel further sought
equitable tolling of the statute of limitations applicable to his claims.
Smalls's section 1983 fabricated-evidence claim proceeded to trial and a
jury found Police Officers Richard Collins and David Teta (the "Smalls
defendants") liable. The Smalls defendants subsequently moved for an order
vacating the judgment and entering judgment in their favor based on the
Supreme Court's decision in McDonough v. Smith, 139 S. Ct. 2149 (2019), which
held that section 1983 fabricated-evidence claims do not accrue (and therefore
cannot be brought) until a criminal proceeding has ended in the defendant's
favor or a resulting conviction has been invalidated within the meaning of Heck
1Unless otherwise noted, "defendants" refers collectively to the defendants-appellees in both appeals now before us. 4 20-1099-cv; 20-1331-cv Smalls v. Collins et al.; Daniel v. Taylor et al.
v. Humphrey, 512 U.S. 477 (1994). McDonough, 139 S. Ct. at 2158. The district
court (Carol Bagley Amon, Judge) granted the Smalls defendants' motion,
reasoning that McDonough's favorable-termination requirement for section 1983
fabricated-evidence claims is identical to that required for malicious-prosecution
claims. In the context of malicious-prosecution claims, a plaintiff must
demonstrate that the underlying criminal proceeding ended in a manner that
affirmatively indicates her innocence. See Lanning v. City of Glens Falls, 908 F.3d
19, 22 (2d Cir. 2018). The district court concluded that Smalls could not meet this
standard and that his claim was therefore barred.
Free access — add to your briefcase to read the full text and ask questions with AI
20-1099-cv; 20-1331-cv Smalls v. Collins et al.; Daniel v. Taylor et al.
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2020 (Argued: March 08, 2021 Decided: August 20, 2021) Docket Nos. 20-1099-cv/20-1331-cv
ANDREW SMALLS, Plaintiff-Appellant,
v.
POLICE OFFICER RICHARD COLLINS AND POLICE OFFICER DAVID TETA, Defendants-Appellees,
CITY OF NEW YORK, POLICE OFFICER ERIC CABRERA, POLICE OFFICER JESSICA ALVARADO, SERGEANT BRIAN STAMM AND POLICE OFFICER ALVAREZ, Defendants.
DESHAWN DANIEL, Plaintiff-Appellant,
DETECTIVE BRIAN TAYLOR, DETECTIVE NEIL MAGLIANO, DETECTIVE JAMES CLEARY, SERGEANT WESLEY FRADERA, Defendants-Appellees,
CITY OF NEW YORK, JOHN AND JANE DOES 1-5, NEIL C. MAGLIANO, Defendants.
Before: SACK, MENASHI, Circuit Judges, AND KAPLAN, District Judge. *
*Judge Lewis A. Kaplan, of the United States District Court for the Southern District of New York, sitting by designation. 20-1099-cv; 20-1331-cv Smalls v. Collins et al.; Daniel v. Taylor et al.
In these tandem appeals, the plaintiffs-appellants Andrew Smalls and Deshawn Daniel each filed suit under 42 U.S.C. § 1983 (in the United States District Courts for the Eastern and Southern Districts of New York, respectively), asserting that the defendants-appellees deprived them of their rights to a fair trial by fabricating evidence against them. Daniel also asserted other claims under section 1983 and claims under 42 U.S.C. § 1981 and sought equitable tolling of the statute of limitations applicable to some of his section 1983 claims. Smalls's case proceeded to trial, and a jury found that Police Officers Richard Collins and David Teta had violated Smalls's constitutional rights and awarded him damages. In Daniel's case, following briefing on the defendants' motion to dismiss and Daniel's motion for equitable tolling, the district court denied Daniel's motion for tolling and dismissed all his claims aside from his section 1983 fabricated-evidence claim. Following the Supreme Court's decision in McDonough v. Smith, 139 S. Ct. 2149 (2019), the defendants in Daniel's case again moved to dismiss the fabricated-evidence claim, contending that Daniel could not establish a favorable termination indicative of innocence – which, they asserted, McDonough requires. The defendants in Smalls's case moved for an order vacating the judgment and granting them judgment as a matter of law on the same basis. The district courts (Carol Bagley Amon and Ronnie Abrams, Judges, respectively) granted the defendants' motions, concluding that Smalls and Daniel could not establish favorable terminations within the meaning of McDonough. Smalls and Daniel now appeal. We conclude that (1) the district courts erred in dismissing Smalls's and Daniel's section 1983 fabricated-evidence claims and entering judgment for the defendants; (2) Daniel's section 1981 claims were properly dismissed; and (3) Daniel's equitable tolling motion was properly denied. We therefore
REVERSE the judgments of the district courts with respect to the fair-trial claims, AFFIRM the dismissal of Daniel's other claims, and REMAND for further proceedings consistent with this opinion.
JOEL B. RUDIN (Matthew A. Wasserman, Jacob Loup, Law Offices of Joel B. Rudin, P.C., New York, NY, and Jon L. Norinsberg, Law Offices of Jon L. 20-1099-cv; 20-1331-cv Smalls v. Collins et al.; Daniel v. Taylor et al.
Norinsberg, New York, NY, on the brief), for Plaintiff-Appellant Andrew Smalls;
GREGORY ANTOLLINO, Antollino, PLLC, New York, NY, and STEPHEN BERGSTEIN, Bergstein & Ullrich, New Paltz, NY, for Plaintiff-Appellant Deshawn Daniel;
JOHN MOORE (Richard Paul Dearing, Devin Slack, on the brief), for James E. Johnson, Corporation Counsel of the City of New York, New York, NY, for Defendants- Appellees.
SACK, Circuit Judge:
Although these appeals come to us in different procedural postures, they
present similar material facts and closely related legal questions and were
therefore heard, and are decided, in tandem.
Plaintiffs-appellants Andrew Smalls and Deshawn Daniel were each
prosecuted in state court for criminal possession of a weapon (and, in Smalls's
case, also for trespass); in each case, the criminal proceedings terminated without
an extant criminal conviction or any remaining pending charges. Smalls was
initially convicted of three counts, two of which were later dismissed on appeal
and the third on remand. Daniel's charge was resolved by an adjournment in
contemplation of dismissal, and his case was ultimately dismissed in its entirety.
3 20-1099-cv; 20-1331-cv Smalls v. Collins et al.; Daniel v. Taylor et al.
Both subsequently filed civil suits against the defendants 1 (Smalls in the
United States District Court for the Eastern District of New York, and Daniel in
the Southern District). They asserted claims under 42 U.S.C. § 1983, each alleging
that the defendants-appellees had deprived him of a fair trial by fabricating
evidence. Daniel also asserted claims under 42 U.S.C. §§ 1981 and 1983 for racial
discrimination, unlawful search and seizure, excessive force, failure to intervene,
for municipal liability pursuant to Monell v. Department of Social Services of the City
of New York, 436 U.S. 658 (1978), and supervisory liability. Daniel further sought
equitable tolling of the statute of limitations applicable to his claims.
Smalls's section 1983 fabricated-evidence claim proceeded to trial and a
jury found Police Officers Richard Collins and David Teta (the "Smalls
defendants") liable. The Smalls defendants subsequently moved for an order
vacating the judgment and entering judgment in their favor based on the
Supreme Court's decision in McDonough v. Smith, 139 S. Ct. 2149 (2019), which
held that section 1983 fabricated-evidence claims do not accrue (and therefore
cannot be brought) until a criminal proceeding has ended in the defendant's
favor or a resulting conviction has been invalidated within the meaning of Heck
1Unless otherwise noted, "defendants" refers collectively to the defendants-appellees in both appeals now before us. 4 20-1099-cv; 20-1331-cv Smalls v. Collins et al.; Daniel v. Taylor et al.
v. Humphrey, 512 U.S. 477 (1994). McDonough, 139 S. Ct. at 2158. The district
court (Carol Bagley Amon, Judge) granted the Smalls defendants' motion,
reasoning that McDonough's favorable-termination requirement for section 1983
fabricated-evidence claims is identical to that required for malicious-prosecution
claims. In the context of malicious-prosecution claims, a plaintiff must
demonstrate that the underlying criminal proceeding ended in a manner that
affirmatively indicates her innocence. See Lanning v. City of Glens Falls, 908 F.3d
19, 22 (2d Cir. 2018). The district court concluded that Smalls could not meet this
standard and that his claim was therefore barred.
Daniel's case proceeded through two rounds of motions to dismiss.
Following the first such motion, the district court (Ronnie Abrams, Judge)
dismissed Daniel's section 1981 claims, dismissed Daniel's claims for failure to
intervene, supervisory liability, and municipal liability, and dismissed as
untimely Daniel's section 1983 illegal search and excessive force claims. The
district court also denied Daniel's cross-motion for equitable tolling of the statute
of limitations applicable to his claims. In the wake of the district court's decision,
only Daniel's section 1983 fabricated-evidence claim remained. The Daniel
defendants moved to dismiss this claim based on McDonough. The district court
5 20-1099-cv; 20-1331-cv Smalls v. Collins et al.; Daniel v. Taylor et al.
granted the motion. As in Smalls, the district court decided that the case law
governing malicious-prosecution claims should guide its analysis. Because an
adjournment in contemplation of dismissal does not constitute a favorable
termination for malicious-prosecution claims, see Rothstein v. Carriere, 373 F.3d
275, 286-87 (2d Cir. 2004), the district court concluded that Daniel's adjournment
in contemplation of dismissal was not a favorable termination within the
meaning of McDonough and that his fabricated-evidence claim was therefore
barred.
Smalls and Daniel both appeal. They contend that the district courts erred
in dismissing their respective section 1983 fabricated-evidence claims because
McDonough does not require a termination indicative of innocence, and their
criminal proceedings terminated in their favor within the meaning of
McDonough. Daniel also argues that the district court erred in dismissing his
section 1981 claims and denying his motion for equitable tolling. For the reasons
that follow, we conclude that (1) the district courts erred in dismissing Smalls's
and Daniel's section 1983 fabricated-evidence claims and entering judgment for
the defendants; (2) Daniel's section 1981 claims were properly dismissed; and (3)
Daniel's equitable tolling motion was properly denied. We therefore reverse the
6 20-1099-cv; 20-1331-cv Smalls v. Collins et al.; Daniel v. Taylor et al.
district courts' judgments with respect to the fair-trial claims, affirm the dismissal
of Daniel's other claims, and remand each matter for further proceedings
consistent with this opinion.
BACKGROUND
I. Smalls
A. Smalls's State Criminal Proceedings
Plaintiff-appellant Andrew Smalls was indicted in the Supreme Court of
the State of New York, Queens County, on two counts of criminal possession of a
weapon (a firearm) and one count of criminal trespass. Smalls filed a pre-trial
motion to suppress the firearm from use as evidence.
At the suppression hearing, police officers testified that, while in uniform,
they were on foot patrol at a New York City public housing project when they
heard a gunshot. They walked to the rear of a building from or near which the
gunshots appeared to emanate. There, they saw a group of five youths (four
males and one female), including Smalls, walking away from the building. The
officers followed them for several blocks. When, eventually, the youths became
aware of the officers' presence, they began to run. The police gave chase and
followed the group further into the public housing complex, which had "no
7 20-1099-cv; 20-1331-cv Smalls v. Collins et al.; Daniel v. Taylor et al.
trespassing" signs displayed, and up the stairs to the roof of one of the buildings.
The officers testified that during the chase, they saw Smalls hand a pistol to a
member of the group who turned out to be his brother, Ronnie; that the gun fell
into the stairwell; and that the officers recovered the weapon one or two feet
away from Ronnie. Following the hearing, the trial court denied Smalls's motion
to suppress.
The case then proceeded to a jury trial. Smalls was convicted on all three
counts. He was subsequently sentenced to twelve years' imprisonment on the
first weapons charge for criminal possession of a weapon in the second degree,
four years' imprisonment on the second weapons charge for criminal possession
of a weapon in the third degree (to be served concurrently with the sentence for
the first weapons charge), and time served on the trespass charge.
On appeal, the Appellate Division, Second Department, reversed Smalls's
conviction. The court held that the trial court should have granted Smalls's
motion to suppress the "physical evidence" – i.e., the firearm – because the police
"lacked reasonable suspicion" to pursue Smalls. People v. Smalls, 83 A.D.3d 1103,
1104 (2d Dep't 2011). The court further found that "there [wa]s no evidence that,
during the pursuit, the police had any basis for believing that [Smalls] . . . did not
8 20-1099-cv; 20-1331-cv Smalls v. Collins et al.; Daniel v. Taylor et al.
in fact live in the public housing complex." Id. Accordingly, the court dismissed
the two counts charging criminal possession of a weapon and ordered a new trial
on the trespass count.
On remand, the trial court dismissed the remaining trespass count. After
reopening the suppression hearing, the court concluded "that the observations
made by the officers regarding [Smalls's] entry into and presence inside the
subject public housing building, which were made during the illegal chase, are
the fruits of an impermissible seizure." Smalls JA.36. 2 Because the court
suppressed the officers' purported observations and there was no other evidence
to support the trespass count, the court dismissed the indictment.
Smalls served two years, one month, and fourteen days in jail as a result of
being charged and convicted of the criminal possession of a weapon counts. 3
2As cited herein, "Smalls JA" refers to the Joint Appendix submitted in connection with Smalls's appeal. "Daniel JA" refers to the Joint Appendix submitted in connection with Daniel's appeal.
3According to Smalls, he was detained before trial and also for a period following his conviction in connection with another case that was ultimately dismissed. The parties stipulated in this case that Smalls's damages would therefore be based solely upon the portion of his imprisonment that was attributable exclusively to his convictions on the criminal possession of a weapon charges. 9 20-1099-cv; 20-1331-cv Smalls v. Collins et al.; Daniel v. Taylor et al.
B. Smalls's Section 1983 Action
After the dismissal of the criminal charges, on April 10, 2014, Smalls filed
suit in the United States District Court for the Eastern District of New York,
asserting – pursuant to 42 U.S.C. § 1983 – claims for malicious prosecution and
deprivation of a fair trial through the introduction of fabricated evidence. After
discovery and motion practice, the case proceeded to trial on a single claim: "that
Officers Collins and Teta deprived Smalls of his right to a fair trial by fabricating
evidence against him suggesting that he possessed a firearm." Smalls v. Collins,
No. 14 Civ. 02326 (CBA) (RML), 2020 WL 2563393, at *1 (E.D.N.Y. Mar. 16, 2020).
At trial, the police officers' version of events (differing somewhat from the
facts elicited in connection with the state criminal proceedings) was as follows:
On the evening of May 19, 2006, after they heard a gunshot, the police pursued
four men, including Smalls and his brothers Ronnie and Cedric, into a building
located at 81-05 Rockaway Beach Boulevard, Queens, New York. Officer Collins
testified that he saw Smalls hand a gun to Ronnie as the two were running up the
stairs of the building. Officer Collins then followed Smalls and Ronnie to the
roof, where Collins found a gun and proceeded to arrest them. Officers Collins
and Teta testified that Smalls was wearing a black jacket.
10 20-1099-cv; 20-1331-cv Smalls v. Collins et al.; Daniel v. Taylor et al.
Smalls contested the officers' version of events, testifying that he was not
present when the police were chasing his brothers and allegedly saw him
holding a gun. Smalls stated that he was playing cards in the apartment of a
friend, Lindsey Johnson, when their mutual friend William Davis knocked on the
door and told Smalls that his brothers Ronnie and Cedric were being arrested.
Smalls went downstairs, where he saw his brothers being placed in a police car.
Smalls then got into a verbal altercation with the officers, who slammed him
against a wall, causing a cut above his eye, and then handcuffed him. Smalls
testified that he was wearing a gray hooded sweatshirt, but no jacket; it was too
warm for a jacket. Several witnesses – including Lindsey Johnson and William
Davis – testified on Smalls's behalf and corroborated his version of events.
Smalls's attorney also elicited evidence that appeared to undercut the
police officers' stories. For instance, the prisoner pedigree cards for Ronnie and
Cedric said they were apprehended on the roof, while Smalls's card listed the
arrest location only as 81-05 Rockaway Beach Boulevard – Officer Collins added
the word "roof" later. Smalls JA.89-90, JA.251. Smalls's card also indicated that
he was wearing a "grey hoodie," although Collins later crossed this out and
wrote in "black jacket." Smalls JA.90, JA.251. There were also several photos
11 20-1099-cv; 20-1331-cv Smalls v. Collins et al.; Daniel v. Taylor et al.
taken of Smalls the night of the incident; in each, he was wearing a gray hoodie
and not a black jacket. Moreover, Small's arrest photo listed resisting arrest, not
criminal possession of a weapon, as the principal charge.
On May 20, 2019, the jury found, by a preponderance of the evidence, that
Officers Collins and Teta deprived Smalls of his right to a fair trial by fabricating
evidence, and the jury awarded him $60,000 in compensatory damages. Smalls
filed a post-verdict motion for a new trial on damages only, arguing that $60,000
was "grossly inadequate" to compensate him for two years of incarceration. Pl.
Mem. of Law at 1, Smalls v. Collins, No. 14 Civ. 2326 (CBA) (RML) (E.D.N.Y. June
18, 2019), ECF No. 134. The Smalls defendants moved under Federal Rules of
Civil Procedure 50, 54, and 60 "for an order vacating the judgment in the case
and granting judgment in favor of defendants as a matter of law." Notice of
Motion, Smalls v. Collins, No. 14 Civ. 02326 (CBA) (RML) (E.D.N.Y. June 21, 2019),
ECF No. 135. They argued that they were entitled to this relief because the
Supreme Court had held in McDonough that section 1983 fair-trial claims have a
"favorable termination" requirement, which – according to the defendants –
requires plaintiffs asserting fabricated-evidence claims to show that "the
underlying criminal proceeding ended in a manner that affirmatively indicates
12 20-1099-cv; 20-1331-cv Smalls v. Collins et al.; Daniel v. Taylor et al.
[their] innocence." Defs. Mem. of Law at 2, Smalls v. Collins, No. 14 Civ. 02326
(CBA) (RML) (E.D.N.Y. June 21, 2019), ECF No. 135-1 (emphasis in original)
(internal quotation marks omitted).
On March 16, 2020, the district court granted the Smalls defendants'
motion. The court explained that it had authority under Federal Rule of Civil
Procedure 54(b) to reconsider a prior judgment at any time before the entry of
final judgment, and concluded that the Supreme Court's decision in McDonough
"constitute[d] an intervening change in controlling law warranting
reconsideration of its prior orders." Smalls, 2020 WL 2563393, at *2. The court
acknowledged that the issue presented in McDonough "was the accrual date of a
fair-trial claim," but concluded that "the opinion's reasoning strongly suggests
that the Supreme Court would [also] hold that favorable termination is a
requirement of a fair-trial claim, at least in cases in which the plaintiff alleges a
deprivation of liberty resulting from the use of fabricated evidence in a criminal
proceeding." Id. at *3. The court further "assume[d] that the standard for
assessing favorable termination for purposes of Smalls's fair-trial claim . . . is the
same as that for malicious prosecution." Id. at *7. The court explained that in the
context of a malicious prosecution claim, "the plaintiff must demonstrate that the
13 20-1099-cv; 20-1331-cv Smalls v. Collins et al.; Daniel v. Taylor et al.
underlying criminal proceeding ended in a manner that affirmatively indicates
plaintiff's innocence." Id. at *6 (alterations and internal quotation marks omitted).
Applying this standard, the court held that "Smalls did not, and could not,
establish favorable termination at trial," because the reversal of his conviction for
criminal possession of a weapon based on suppression of the evidence was not
indicative of innocence. Id. at *7-8. The district court therefore vacated the jury
verdict, entered judgment as a matter of law in favor of the Smalls defendants,
and denied as moot Smalls's motion for a new trial on damages. Id. at *9.
The district court entered judgment for the defendants on March 17, 2020.
This appeal followed.
II. Daniel
A. Daniel's Allegations 4
1. Daniel's March 18, 2015 Arrest
Plaintiff-appellant Deshawn Daniel alleges that he has been the victim of
repeated police harassment. During one such incident, a police officer smashed
4Because Daniel's claims were dismissed at the motion-to-dismiss stage, we draw the following facts primarily from the allegations in the complaint, augmented by affidavits that Daniel submitted in opposition to the defendants' motion to dismiss and in support of his cross-motion for equitable tolling. We express no view as to the truth or falsity of Daniel's allegations. 14 20-1099-cv; 20-1331-cv Smalls v. Collins et al.; Daniel v. Taylor et al.
his hand with a boot, requiring medical attention. The incident caused a long-
term injury known as "Mallet Finger," which makes Daniel's right pinky droop
and results in sharp pain in his right hand. Daniel filed a police-misconduct
lawsuit relating to this incident; it was settled on undisclosed terms. Daniel
purchased a used Mercedes-Benz convertible with some of the settlement
proceeds.
Driving that car at night allegedly resulted in a false arrest. On March 18,
2015, officers observed Daniel driving his convertible onto Adam Clayton Powell
Boulevard from the Macombs Dam Bridge, which connects the Bronx and
Manhattan. The officers flashed their lights, sounded their siren, and pulled
Daniel over to the side of the road. After inspecting Daniel's license and
registration, they entered Daniel's information into their dash-computer. It
disclosed that Daniel had an earlier arrest – the one related to the lawsuit that he
had settled. They then directed Daniel to exit the vehicle, telling him that he had
made an illegal left turn.
Daniel argued that he could not have made an illegal left turn because a
left turn was the only legal turn available at that intersection. The officers
opened the door to the automobile, pulled Daniel out, and then searched the
15 20-1099-cv; 20-1331-cv Smalls v. Collins et al.; Daniel v. Taylor et al.
vehicle without Daniel's consent. One officer asked, "How you own a Mercedes
convertible?" Daniel JA.38 ¶ 30. While the officers found nothing incriminating
in the car, they brought Daniel to the local precinct, where they allegedly strip-
searched him without probable cause.
The officers locked Daniel in a cell for approximately two to three hours,
requiring that he remove his clothing. They then searched him and placed him
against a wall. One of the officers put on an unlubricated latex glove and tried to
perform an anal cavity check. When Daniel resisted, the officers slammed him
on a table and twisted his arm, which bled. Daniel alleges that this encounter
exacerbated his "Mallet Finger," such that he now cannot lift anything weighing
more than three pounds with his bad hand. He also alleges that pain now
radiates down that arm. The officers then allegedly falsified a charge, accusing
Daniel of possessing a dangerous weapon – specifically, a so-called butterfly
knife 5 – even though he, in fact, possessed no knife at all.
5 Wikipedia informs us that
[a] balisong, also known as a fan knife, butterfly knife or Batangas knife, is a type of folding pocketknife that originated in the Philippines. Its distinct features are two handles counter-rotating around the tang such that, when closed, the blade is concealed within grooves in the handles. A latch holds the handles together, typically mounted on the one facing the cutting edge (the "bite handle"). 16 20-1099-cv; 20-1331-cv Smalls v. Collins et al.; Daniel v. Taylor et al.
Based on the allegedly false evidence presented against him, Daniel was
arraigned in Criminal Court of the City of New York, County of New York, and
charged with criminal possession of a weapon. The charge was ultimately
resolved by an adjournment in contemplation of dismissal ("ACD") pursuant to
New York Criminal Procedure Law § 170.55. 6 On June 13, 2016, the case against
Daniel was dismissed in its entirety and the case file sealed.
2. Daniel Files His Section 1983 Action Over Three Years After His Arrest
Daniel alleges that, following his March 18, 2015 arrest, he complained to
the New York Police Department's Internal Affairs Board. He asserts that he was
told someone would get back to him, but no one did.
Butterfly knife, WIKIPEDIA, https://en.wikipedia.org/wiki/Butterfly_knife (last visited July 21, 2021).
6New York Criminal Procedure Law § 170.55(1) provides that "[u]pon or after arraignment in a local criminal court upon an information, a simplified information, a prosecutor's information or a misdemeanor complaint, and before entry of a plea of guilty thereto or commencement of a trial thereof, the court may, upon motion of the people or the defendant and with the consent of the other party, or upon the court's own motion with the consent of both the people and the defendant, order that the action be 'adjourned in contemplation of dismissal[.]'" "An adjournment in contemplation of dismissal is an adjournment of the action without date ordered with a view to ultimate dismissal of the accusatory instrument in furtherance of justice." N.Y. Crim. Proc. Law § 170.55(2). 17 20-1099-cv; 20-1331-cv Smalls v. Collins et al.; Daniel v. Taylor et al.
Daniel further alleges that in December 2015, he was in an automobile
accident. After the accident, he met with a lawyer who told him that she would
represent him both in regard to the accident and his arrest. After engaging her as
his attorney, Daniel called her many times to inquire about the progress of the
case and requested that she initiate the action or turn over the case file.
Eventually, in November 2017, the attorney's office told Daniel that she was not
representing him.
Five months later, on April 27, 2018, Daniel filed suit in the United States
District Court for the Southern District of New York, represented by another
lawyer.
B. The District Court Proceedings
In the April 27th action, Daniel asserted various claims under 42 U.S.C.
§§ 1981 and 1983 for, inter alia, racial discrimination, unlawful search and seizure,
excessive force, failure to intervene, deprivation of a fair trial through the use of
fabricated evidence, and Monell and supervisory liability. On April 30, 2018, he
filed an amended complaint. On July 24, 2018, the Daniel defendants moved to
dismiss. Daniel cross-moved for equitable tolling of the statute of limitations
applicable to his claims.
18 20-1099-cv; 20-1331-cv Smalls v. Collins et al.; Daniel v. Taylor et al.
On March 31, 2019, the district court granted the motion to dismiss in part.
The district court dismissed Daniel's section 1981 claims on the grounds that,
"under the law of this Circuit, 'the express cause of action for damages created by
§ 1983 constitutes the exclusive federal remedy for violation of the rights
guaranteed in § 1981 by state governmental units.'" Daniels v. City of New York,
No. 18 Civ. 3717 (RA), 2019 WL 1437586, at *2 (S.D.N.Y. Mar. 31, 2019) 7
(emphasis omitted) (quoting Duplan v. City of New York, 888 F.3d 612, 619 (2d Cir.
2018)). The district court also dismissed Daniel's claims for failure to intervene,
supervisory liability, and municipal liability. Id. at *3-5. And the district court
dismissed as untimely Daniel's section 1983 illegal search and excessive force
claims because Daniel filed the action outside the three-year limitations period.
Id. at *2. The district court declined, however, to dismiss Daniel's section 1983
fair-trial claim based on fabricated evidence because it found that the claim was
not clearly time-barred. Id. at *3.
In dismissing Daniel's section 1983 illegal search and excessive force claims
as untimely, the district court also denied Daniel's cross-motion for equitable
7 Daniel's lawyer erroneously referred to his client as Deshawn Daniels when he initially filed this case, and the district court's case caption therefore reflects this error. We retain the mistaken spelling only when citing the district court's decisions in the underlying case. 19 20-1099-cv; 20-1331-cv Smalls v. Collins et al.; Daniel v. Taylor et al.
tolling. Id. at *6. The district court acknowledged Daniel's argument that he was
entitled to equitable tolling because "(1) he never heard back from the IAB after
he filed a complaint with them in 2015, (2) he believed another attorney was
representing him for a portion of the limitations period, and (3) he suffered a
hand injury that prevented him from finding an attorney," but found that these
circumstances did not warrant tolling the statute of limitations. Id. The district
court explained that "the IAB's failure to provide [Daniel] with the results of its
investigation was neither extraordinary nor a circumstance that prevented
[Daniel] from timely filing a complaint in federal court." Id. The court further
explained that his attorney's failure to get back to him did not justify tolling
because, "[e]ven if [he] believed that this attorney had agreed to represent him[,] .
. . he did not display reasonable diligence in allowing her to represent him for
two years without ever filing a complaint." Id. In addition, the district court
wrote, "once [Daniel] affirmatively learned that the attorney was not
representing him, he still had five months before the close of the limitations
period to file a complaint," and he provided "no explanation for his failure to file
within that five-month time period." Id. Finally, the district court concluded that
Daniel's reliance on his hand injury was unconvincing because "[a] person acting
20 20-1099-cv; 20-1331-cv Smalls v. Collins et al.; Daniel v. Taylor et al.
with reasonable diligence under such circumstances would have, at some point
during the three-year limitations period, found a way to pursue his claims –
perhaps with the help of a friend or family member, or through the use of his
other hand." Id.
On April 29, 2019, Daniel filed a second amended complaint. The Daniel
defendants again moved to dismiss. On March 11, 2020, the district granted the
defendants' motion and dismissed the remaining fair-trial claim based on
McDonough. Daniels v. Taylor, 443 F. Supp. 3d 471, 474, 479-80 (S.D.N.Y. 2020).
The district court decided that the case law governing malicious prosecution
claims should guide its analysis of Daniel's fair-trial claim and explained that, to
assert a malicious-prosecution claim, a plaintiff must demonstrate "that the
underlying criminal proceeding ended in a manner that affirmatively indicates
his innocence." Id. at 478 (internal quotation marks omitted). The district court
further noted that, in the context of malicious-prosecution claims, "an ACD is not
a favorable termination because it leaves open the question of the accused's
guilt." Id. (internal quotation marks omitted). The district court then concluded
that Daniel's acceptance of the ACD barred his fair-trial claim. Id. at 478-80.
The district court entered judgment on March 27, 2020. Daniel appealed.
21 20-1099-cv; 20-1331-cv Smalls v. Collins et al.; Daniel v. Taylor et al.
DISCUSSION
I. Standard of Review
"We review de novo the district court's decision on a motion for judgment
as a matter of law," applying "the same standard that is required of the district
court." 8 Zellner v. Summerlin, 494 F.3d 344, 371 (2d Cir. 2007). "We 'consider the
evidence in the light most favorable to the party against whom the motion was
made and . . . give that party the benefit of all reasonable inferences that the jury
might have drawn in his favor from the evidence.'" Id. (ellipsis in original)
(quoting Black v. Finantra Cap., Inc., 418 F.3d 203, 209 (2d Cir. 2005)). "[A] court
may grant a motion for judgment as a matter of law 'only if it can conclude that,
with credibility assessments made against the moving party and all inferences
drawn against the moving party, a reasonable juror would have been compelled
8Although the district court entertained the Smalls defendants' post-trial motion as a motion for reconsideration under Rule 54, it treated the motion as one for judgment as a matter of law notwithstanding the jury verdict. We therefore apply the standard of review applicable to such motions.
Even if we were to consider this motion under the standard of review applicable to motions for reconsideration, however, that would not change the result because, as explained below, the district court's decision in Smalls rests on a legal error and therefore constitutes an abuse of discretion. See RJE Corp. v. Northville Indus. Corp., 329 F.3d 310, 316 (2d Cir. 2003) ("A court abuses its discretion when its decision rests on a legal error or a clearly erroneous factual finding, or when its decision does not fall within the range of permissible decisions."). 22 20-1099-cv; 20-1331-cv Smalls v. Collins et al.; Daniel v. Taylor et al.
to accept the view of the moving party.'" Id. at 370-71 (emphasis omitted)
(quoting Piesco v. Koch, 12 F.3d 332, 343 (2d Cir. 1993)).
"We review de novo a dismissal of a complaint for failure to state a claim
upon which relief may be granted." Kelleher v. Fred A. Cook, Inc., 939 F.3d 465, 467
(2d Cir. 2019). "To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to state a claim to relief that is
plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation
marks omitted). "A claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the defendant
is liable for the misconduct alleged." Id. "[W]e accept only [the complaint's]
factual allegations, and the reasonable inferences that can be drawn therefrom, as
true." Krys v. Pigott, 749 F.3d 117, 128 (2d Cir. 2014); Chambers v. Time Warner,
Inc., 282 F.3d 147, 152 (2d Cir. 2002).
II. Daniel's and Smalls's Section 1983 Fabricated-Evidence Claims
The plaintiffs argue on appeal that the district courts erred in granting the
defendants' motions because (1) McDonough does not require plaintiffs asserting
section 1983 fair-trial claims based on fabricated evidence to demonstrate that
their underlying criminal proceedings terminated in a manner indicative of
innocence; and (2) their underlying criminal proceedings were terminated in 23 20-1099-cv; 20-1331-cv Smalls v. Collins et al.; Daniel v. Taylor et al.
such a way that satisfies McDonough's accrual rule. For the reasons explained
below, we agree.
A. Applicable Law
1. Elements of a Fair-Trial Claim Based on Fabricated Evidence Prior to McDonough
Prior to McDonough, we held that to establish a section 1983 fair-trial claim
based on fabrication of evidence, a plaintiff must demonstrate that "an (1)
investigating official (2) fabricates information (3) that is likely to influence a
jury's verdict, (4) forwards that information to prosecutors, and (5) the plaintiff
suffers a deprivation of life, liberty, or property as a result." Garnett v. Undercover
Officer C0039, 838 F.3d 265, 279 (2d Cir. 2016). "[T]o succeed on a claim for a
denial of the right to a fair trial against a police officer based on an allegation that
the officer falsified information, an arrestee must [therefore] prove by a
preponderance of the evidence that the officer created false information, the
officer forwarded the false information to prosecutors, and the false information
was likely to influence a jury's decision." Id. at 279-80.
In contrast to malicious prosecution claims, which require a plaintiff to
demonstrate "that the underlying criminal proceeding ended in a manner that
affirmatively indicates his innocence," Lanning, 908 F.3d at 22, we have long held
24 20-1099-cv; 20-1331-cv Smalls v. Collins et al.; Daniel v. Taylor et al.
"that Section 1983 liability attaches for knowingly falsifying evidence even where
there simultaneously exists a lawful basis for [the] deprivation of liberty" that the
plaintiff suffered. Victory v. Pataki, 814 F.3d 47, 64 (2d Cir. 2016); see also Ricciuti
v. N.Y.C. Transit Auth., 124 F.3d 123, 130 (2d Cir. 1997). The same is true of other
types of section 1983 fair-trial claims, such as those alleging the withholding of
exculpatory or other impeachment material in violation of Brady v. Maryland, 373
U.S. 83 (1963). See Poventud v. City of New York, 750 F.3d 121, 133 (2d Cir. 2014)
(en banc) (Because Brady ensures a fair trial and "proof of the constitutional
violation need not be at odds with [the defendant's] guilt," "a defendant's right to
pre-trial disclosure under Brady is not conditioned on his ability to demonstrate
that he would or even probably would prevail at trial if the evidence was
disclosed, much less that he is in fact innocent." (emphases and internal
quotation marks omitted)). This is because malicious-prosecution and fair-trial
claims "arise out of different constitutional rights, protect against different
constitutional injuries, and implicate different constitutional concerns." Simon v.
City of New York, No. 16 Civ. 1017 (NGG) (RML), 2020 WL 1323114, at *6
(E.D.N.Y. Mar. 19, 2020).
25 20-1099-cv; 20-1331-cv Smalls v. Collins et al.; Daniel v. Taylor et al.
Malicious-prosecution claims "essentially allege[] a violation of the
plaintiff's right under the Fourth Amendment to be free from unreasonable
seizure," the "touchstone" of which is "reasonableness." Lanning, 908 F.3d at 28
(internal quotation marks omitted); see also U.S. Const. amend. IV ("The right of
the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated[.]" (emphasis added)).
The "essence" of such a claim "is the alleged groundless prosecution[.]" Singleton
v. City of New York, 632 F.2d 185, 195 (2d Cir. 1980). A favorable termination of
the underlying criminal proceeding indicative of innocence is therefore necessary
to establish a viable claim because, "absent an affirmative indication that the
person is innocent of the offense charged, the government's failure to proceed
does not necessarily 'impl[y] a lack of reasonable grounds for the prosecution.'"
Lanning, 908 F.3d at 28 (alteration in original) (quoting Conway v. Vill. of Mt. Kisco,
750 F.2d 205, 215 (2d Cir. 1984)); see also Singleton, 632 F.2d at 195 (a plaintiff does
not have a viable claim for malicious prosecution where the prosecution was
based on probable cause but resulted in a hung jury).
A section 1983 fair-trial claim, by contrast, will not be defeated by evidence
of probable cause because it "cover[s] kinds of police misconduct not addressed
26 20-1099-cv; 20-1331-cv Smalls v. Collins et al.; Daniel v. Taylor et al.
by . . . malicious prosecution claims" and vindicates a different constitutional
right – the right to due process protected by the Fifth and Fourteenth
Amendments. Garnett, 838 F.3d at 278. The due process clauses of the Fifth and
Fourteenth Amendments prohibit the government from "depriv[ing] any person
of life, liberty, or property, without due process of law," U.S. Const. amend. XIV,
§ 2; accord U.S. Const. amend. V, and thus, unlike a plaintiff asserting a Fourth
Amendment violation, a plaintiff may assert a violation of her due process rights
even where the relevant deprivation was otherwise "[]reasonable," U.S. Const.
amend. IV. "Like a prosecutor's knowing use of false evidence to obtain a tainted
conviction, a police officer's fabrication and forwarding to prosecutors of known
false evidence works an unacceptable 'corruption of the truth-seeking function of
the trial process,'" and deprivation of life, liberty, or property under such
circumstances violates the accused's right to due process. Ricciuti, 124 F.3d at 130
(quoting United States v. Agurs, 427 U.S. 97, 104 (1976)); Garnett, 838 F.3d at 278-79
("[T]here is a due process right not to have police deliberately fabricate evidence
and use it to frame and bring false charges against an arrestee." (internal
quotation marks omitted)). "No arrest, no matter how lawful or objectively
reasonable, gives an arresting officer or his fellow officers license to deliberately
27 20-1099-cv; 20-1331-cv Smalls v. Collins et al.; Daniel v. Taylor et al.
manufacture false evidence against an arrestee." Ricciuti, 124 F.3d at 130; see also
Poventud, 750 F.3d at 137 ("[E]ven [a] guilty man is entitled to a fair trial." (second
alteration in original) (internal quotation marks omitted)). To hold otherwise
"would make a mockery of the notion that Americans enjoy the protection of due
process of the law and fundamental justice." Ricciuti, 124 F.3d at 130. We have
therefore never required that a plaintiff alleging a section 1983 fair-trial claim
establish a favorable termination indicative of innocence. See Garnett, 838 F.3d at
278-79; Poventud, 750 F.3d at 134 (rejecting the view that "the State could violate
Poventud's Brady rights only if Poventud is an innocent man").
2. Evolution of the Accrual Rule for Section 1983 Fair-Trial Claims
Even where a plaintiff meets all the elements of a section 1983 claim, the
plaintiff must also establish that the claim has accrued for purposes of the statute
of limitations. Although we "look to state law for the length of the limitations
period, the time at which a § 1983 claim accrues is a question of federal law,
conforming in general to common-law tort principles." McDonough, 139 S. Ct. at
2155 (internal quotation marks omitted). Where the claim has not yet accrued,
the claim is not cognizable and the plaintiff may not bring an action. See Heck,
28 20-1099-cv; 20-1331-cv Smalls v. Collins et al.; Daniel v. Taylor et al.
512 U.S. at 483 (Section 1983 claim had "not yet arisen" because it had not yet
accrued; dismissal was therefore appropriate).
In Heck, the Supreme Court announced an accrual rule for section 1983
actions involving an underlying criminal conviction. The plaintiff there was
serving a sentence on an underlying conviction; while the appeal from his
conviction was pending, the plaintiff filed a section 1983 action challenging the
legality of his conviction. Id. at 478-79. The district court dismissed his claim
and the Seventh Circuit affirmed. Id. at 479-80. The Supreme Court affirmed,
concluding that Heck's claim was barred because "a § 1983 cause of action for
damages attributable to an unconstitutional conviction or sentence does not
accrue until the conviction or sentence has been invalidated." Id. at 489-90.
The Supreme Court explained that section 1983 "creates a species of tort
liability" and therefore looked to the common law of torts for guidance. Id. at 483
(internal quotation marks omitted). The Court concluded that the "common-law
cause of action for malicious prosecution provide[d] the closest analogy to claims
of the type considered [in Heck] because, unlike the related cause of action for
false arrest or imprisonment, it permits damages for confinement imposed
pursuant to legal process." Id. at 484. It noted that to prove malicious
29 20-1099-cv; 20-1331-cv Smalls v. Collins et al.; Daniel v. Taylor et al.
prosecution, it is necessary to establish "termination of the prior criminal
proceeding in favor of the accused." Id. This requirement, the Court explained,
"avoids parallel litigation over the issues of probable cause and guilt . . . and it
precludes the possibility of the claimant [sic] succeeding in the tort action after
having been convicted in the underlying criminal prosecution, in contravention
of a strong judicial policy against the creation of two conflicting resolutions
arising out of the same or identical transaction." Id. (alteration in original)
(internal quotation marks omitted). With these "concerns for finality and
consistency" in mind, the Court concluded that section 1983 damages actions
"that necessarily require the plaintiff to prove the unlawfulness of his conviction
or confinement" are "not appropriate vehicles for challenging the validity of
outstanding criminal judgments." Id. at 485-86.
Accordingly, "when a state prisoner seeks damages in a § 1983 suit, the
district court must consider whether a judgment in favor of the plaintiff would
necessarily imply the invalidity of his conviction or sentence; if it would, the
complaint must be dismissed unless the plaintiff can demonstrate that the
conviction or sentence has already been invalidated." Id. at 487. If, however, "the
district court determines that the plaintiff's action, even if successful, will not
30 20-1099-cv; 20-1331-cv Smalls v. Collins et al.; Daniel v. Taylor et al.
demonstrate the invalidity of any outstanding criminal judgment against the
plaintiff, the action should be allowed to proceed, in the absence of some other
bar to the suit." Id. (emphasis in original) (internal footnote omitted). The
Supreme Court then provided several examples of ways in which a section 1983
plaintiff could meet this accrual rule, explaining that this requirement would be
satisfied if "the conviction or sentence has been reversed on direct appeal,
expunged by executive order, declared invalid by a state tribunal authorized to
make such determination, or called into question by a federal court's issuance of
a writ of habeas corpus, 28 U.S.C. § 2254." Id. at 486-87.
In McDonough, the Supreme Court extended the rule announced in Heck to
ongoing criminal prosecutions. McDonough arose "out of an investigation into
forged absentee ballots that were submitted in a primary election in Troy, New
York, in 2009." McDonough, 139 S. Ct. at 2153. The plaintiff, Edward
McDonough, processed the ballots in his capacity as commissioner of the county
board of elections and maintained that he was unaware that they had been
forged. Id. Youel Smith was appointed to investigate and prosecute the matter;
he prosecuted McDonough over the course of two trials: the first ended in a
mistrial and the second in acquittal. Id. at 2154. Just under three years after his
31 20-1099-cv; 20-1331-cv Smalls v. Collins et al.; Daniel v. Taylor et al.
acquittal, McDonough sued Smith and other defendants under section 1983,
alleging that they had fabricated evidence in violation of his right to a fair trial.
Id. Both the district court and the Second Circuit concluded that McDonough's
fabricated-evidence claim was untimely. Id. The Second Circuit held that
McDonough's fabricated-evidence claim accrued "'when (1) McDonough learned
that the evidence was false and was used against him during the criminal
proceedings; and (2) he suffered a loss of liberty as a result of that evidence.'" Id.
(quoting McDonough v. Smith, 898 F.3d 259, 265 (2d Cir. 2018), rev'd, 139 S. Ct.
2149 (2019)). Because both occurred more than three years prior to the date
McDonough filed suit, the Second Circuit concluded that McDonough's claim
was barred by the three-year statute of limitations. See McDonough, 898 F.3d at
265. The Supreme Court granted certiorari to resolve a split among the Courts of
Appeals regarding when the statute of limitations begins to run for a fabricated-
evidence claim. Id. at 2154-55. In resolving this question, the Court "assume[d]
without deciding that the Second Circuit's articulations of the right at issue and
its contours [we]re sound, having not granted certiorari to resolve those separate
questions." Id. at 2155.
32 20-1099-cv; 20-1331-cv Smalls v. Collins et al.; Daniel v. Taylor et al.
Relying extensively on its prior decision in Heck, the Court found it useful
to analogize McDonough's fabricated-evidence claim to the common-law tort of
malicious prosecution, noting that malicious prosecution's favorable-termination
requirement "is rooted in pragmatic concerns with avoiding parallel criminal and
civil litigation over the same subject matter and the related possibility of
conflicting judgments." Id. at 2156-57. The Court explained that "similar
concerns for finality and consistency" had motivated it to limit the "avenues for
collateral attack on criminal judgments through civil tort vehicles such as § 1983"
and to adopt Heck's "favorable-termination requirement." Id. at 2157 (internal
quotation marks omitted). Although McDonough differed from Heck because the
plaintiff in Heck had been convicted while the plaintiff in McDonough was
acquitted, the Court reasoned that McDonough's claims challenged the validity
of the criminal proceedings against him "in essentially the same manner" as the
plaintiff in Heck. Id. at 2157-58.
A criminal defendant therefore cannot "bring a fabricated-evidence
challenge to criminal proceedings while those criminal proceedings are ongoing."
Id. at 2158. "Only once the criminal proceeding has ended in the defendant's
favor, or a resulting conviction has been invalidated within the meaning of Heck,
33 20-1099-cv; 20-1331-cv Smalls v. Collins et al.; Daniel v. Taylor et al.
will the statute of limitations begin to run." Id. (internal citation omitted).
Applying this newly formulated rule, the Court reversed the judgment of the
Second Circuit, concluding that the statute of limitations for McDonough's
section 1983 fabricated-evidence claim did not begin to run until the criminal
proceedings against him "terminated in his favor – that is, when he was acquitted
at the end of his second trial." Id. at 2161.
B. McDonough's Favorable-Termination Requirement Does Not Require a Termination Indicative of Innocence
McDonough did not alter the substantive elements of a fabricated-evidence
claim as it is understood in this Circuit. To the contrary, in McDonough, the
question was limited to determining "when the statute of limitations began to
run" and the Supreme Court "assume[d] without deciding that the Second
Circuit's articulations of the right at issue and its contours are sound, having not
granted certiorari to resolve those separate questions." Id. at 2155. McDonough
thus left intact our jurisprudence surrounding the elements of fabricated-
evidence claims.
McDonough did, however, announce a new accrual rule for fabricated-
evidence claims. Relying on Heck's "favorable-termination requirement," the
Supreme Court concluded that "[t]here is not a complete and present cause of
34 20-1099-cv; 20-1331-cv Smalls v. Collins et al.; Daniel v. Taylor et al.
action to bring a fabricated-evidence challenge to criminal proceedings while
those criminal proceedings are ongoing." Id. at 2157-58 (emphasis added)
(internal quotation marks and citation omitted). "Only once the criminal
proceeding has ended in the defendant's favor, or a resulting conviction has been
invalidated within the meaning of Heck, will the statute of limitations begin to
run." Id. at 2158 (internal citation omitted). To bring a fabricated-evidence claim,
a plaintiff must therefore establish – as a condition precedent to suit – that the
claim has accrued within the meaning of McDonough.
The core question at the heart of these appeals is what constitutes a
favorable termination sufficient to trigger McDonough's accrual rule for
fabricated-evidence claims. The defendants point out that McDonough's accrual
rule for fabricated-evidence claims was premised on an analogy to malicious-
prosecution claims and argue that McDonough's favorable-termination
requirement should thus be interpreted to be coextensive with malicious
prosecution's favorable-termination requirement, under which a plaintiff must
establish that the proceeding ended in a manner indicative of innocence. This
argument is inconsistent with the reasoning and holding of McDonough and, we
think, lacks merit.
35 20-1099-cv; 20-1331-cv Smalls v. Collins et al.; Daniel v. Taylor et al.
The starting point for understanding the force and effect of McDonough is
Heck, upon which McDonough relied heavily to determine the appropriate accrual
rule for fabricated-evidence claims. See McDonough, 139 S. Ct. at 2156-61. In
Heck, the plaintiff filed a section 1983 action while he was still in prison for his
underlying conviction. See Heck, 512 U.S. at 478-79. The Court expressed
concern that allowing a section 1983 plaintiff to seek damages while still serving
a sentence on the underlying conviction would promote an end-run around
Congress's choice that habeas corpus, with its strict procedural rules, be the sole
basis for challenging the constitutional validity of an outstanding state criminal
conviction. See id. at 480-84. In determining whether such an action had accrued,
the Court analogized to malicious prosecution's favorable-termination
requirement as "illustrative of the common-law principle barring tort plaintiffs
from mounting collateral attacks on their outstanding criminal convictions."
Heck, 512 U.S. at 486 n.4. Malicious prosecution's favorable-termination
requirement, the Court explained, "avoids parallel litigation over the issues of
probable cause and guilt . . . and it precludes the possibility of the claimant [sic]
succeeding in the tort action after having been convicted in the underlying
criminal prosecution, in contravention of a strong judicial policy against the
36 20-1099-cv; 20-1331-cv Smalls v. Collins et al.; Daniel v. Taylor et al.
creation of two conflicting resolutions arising out of the same or identical
transaction." Id. at 484 (alteration in original) (internal quotation marks omitted).
The Court noted that similar concerns for "finality and consistency" were
implicated on the facts of Heck and accordingly concluded that section 1983 tort
actions "are not appropriate vehicles for challenging the validity of outstanding
criminal judgments[.]" Id. at 485-86.
Notably, Heck's analogy to malicious prosecution did not result in the
Supreme Court's adoption of a termination-indicative-of-innocence requirement
for all section 1983 claims premised on an underlying conviction. Rather, to
guard against parallel litigation and promote finality and consistency, the Court
adopted an accrual rule designed to avoid inconsistent results and new avenues
of collateral attack. See id. at 486-89. Under the Heck Court's favorable-
termination requirement,9 if a section 1983 plaintiff establishes – before bringing
suit – that the "action, even if successful, will not demonstrate the invalidity of
any outstanding criminal judgment against the plaintiff, the action should be
9 Although the Heck Court did not itself refer to its rule as a "favorable-termination" requirement, it has become widely referred to and recognized as such. See, e.g., McDonough, 139 S. Ct. at 2157 (referring to the Heck rule as a "favorable-termination requirement"); Muhammad v. Close, 540 U.S. 749, 754 (2004) (discussing "Heck's favorable termination requirement"); McKithen v. Brown, 481 F.3d 89, 101 n.13 (2d Cir. 2007) ("[T]he Heck rule has come to be known as the 'favorable termination' requirement."). 37 20-1099-cv; 20-1331-cv Smalls v. Collins et al.; Daniel v. Taylor et al.
allowed to proceed, in the absence of some other bar to the suit." Id. at 487 (first
emphasis in original, second emphasis added) (footnote omitted). A plaintiff
may satisfy this requirement by demonstrating "that the conviction or sentence
has been reversed on direct appeal, expunged by executive order, declared
invalid by a state tribunal authorized to make such determination, or called into
question by a federal court's issuance of a writ of habeas corpus, 28 U.S.C.
§ 2254." Id. None of these resolutions requires an affirmative showing of
innocence. See Savory v. Cannon, 947 F.3d 409, 429 (7th Cir. 2020) (en banc) (noting
that all of Heck's favorable "outcomes can occur without a declaration of a
defendant's innocence."); see also Roberts v. City of Fairbanks, 947 F.3d 1191, 1201
n.11 (9th Cir. 2020) (rejecting the argument that "Heck establishes an exact replica
of the favorable-termination rule from the malicious-prosecution context.").
Interpreting McDonough to essentially graft malicious prosecution's
distinctive favorable-termination requirement onto fabricated-evidence claims, as
the defendants request, would thus require us to conclude that McDonough has
overruled Heck. But McDonough did no such thing. To the contrary, the
McDonough Court found itself confronted with a set of facts that raised concerns
similar to those present in Heck and simply extended Heck's reach to section 1983
38 20-1099-cv; 20-1331-cv Smalls v. Collins et al.; Daniel v. Taylor et al.
lawsuits brought during pending criminal prosecutions. See McDonough, 139 S.
Ct. at 2160 ("Heck explains why favorable termination is both relevant and
required for a claim analogous to malicious prosecution that would impugn a
conviction, and that rationale extends to an ongoing prosecution as well: The
alternative would impermissibly risk parallel litigation and conflicting
judgments."). Although the McDonough plaintiff's claims did not fall within Heck
because, unlike the plaintiff in Heck, he had been acquitted and there was
therefore no outstanding conviction, the Supreme Court decided that the
"pragmatic considerations" underlying the Heck rule apply with equal force to
"ongoing" criminal proceedings. See id. at 2157-58 (emphasis added).
The McDonough Court explained that imposing "a ticking limitations clock
on criminal defendants as soon as they become aware that fabricated evidence
has been used against them" would require criminal defendants to make "an
untenable choice between (1) letting their claims expire and (2) filing a civil suit
against the very person who is in the midst of prosecuting them." Id. at 2158.
The first option "[wa]s obviously undesirable," while the latter course was also
"fraught with peril" because the defendant "risks tipping his hand as to his
defense strategy, undermining his privilege against self-incrimination, and
39 20-1099-cv; 20-1331-cv Smalls v. Collins et al.; Daniel v. Taylor et al.
taking on discovery obligations not required in the criminal context." Id.
Moreover, "the parallel civil litigation that would result if plaintiffs chose the
second option would run counter to core principles of federalism, comity,
consistency, and judicial economy." Id. The Supreme Court therefore held that
"[o]nly once the criminal proceeding has ended in the defendant's favor, or a
resulting conviction has been invalidated within the meaning of Heck, will the
statute of limitations begin to run." Id. (internal citation omitted). In reaffirming
the Heck rule while extending it to ongoing prosecutions, McDonough no more
required an affirmative indication of innocence than Heck did.
Indeed, the notion that McDonough established malicious prosecution's
favorable-termination requirement as the accrual rule for section 1983 fair-trial
claims is inconsistent with the rule announced in McDonough. The Supreme
Court phrased its accrual rule disjunctively, making clear that invalidation of a
conviction within the meaning of Heck or termination of an ongoing criminal
proceeding in the defendant's favor would be sufficient to trigger the statute of
limitations. Id.; see also Roberts, 947 F.3d at 1201 n.11. Further, while the Court
had "no occasion to address the broader range of ways a criminal prosecution (as
opposed to a conviction) might end favorably to the accused" because the
40 20-1099-cv; 20-1331-cv Smalls v. Collins et al.; Daniel v. Taylor et al.
plaintiff's "acquittal was unquestionably a favorable termination," it suggested
that a "context-specific and more capacious understanding of what constitutes
'favorable' termination" might be appropriate for fabricated-evidence claims in
light of prosecutors' broad discretion over "the terms on which pleas will be
offered or whether charges will be dropped[.]" McDonough, 139 S. Ct. at 2161
n.10. This language undercuts any suggestion that McDonough's accrual rule is
merely coextensive with malicious prosecution's favorable-termination
requirement.
Requiring a plaintiff alleging fabricated-evidence claims to establish that
the underlying criminal proceeding ended in a manner that affirmatively
indicates his innocence would also be fundamentally inconsistent with our
longstanding distinction between section 1983 fair-trial and malicious-
prosecution claims. As noted above, malicious-prosecution and fair-trial claims
assert the violation of different constitutional rights and protect against different
constitutional injuries. It makes sense to require a favorable termination
indicative of innocence in the context of malicious prosecution claims where the
essence of such a claim "is the alleged groundless prosecution[.]" See Singleton,
632 F.2d at 195. Absent affirmative indications of innocence, the termination of
41 20-1099-cv; 20-1331-cv Smalls v. Collins et al.; Daniel v. Taylor et al.
the proceeding does not necessarily mean that the government lacked reasonable
grounds for initiating the prosecution; a favorable termination indicative of
innocence is therefore critical to determining whether the plaintiff has a viable
claim. See Lanning, 908 F.3d at 28. A section 1983 fair-trial claim, by contrast,
focuses on the constitutionality of the process and addresses a different
constitutional injury – deprivation of life, liberty, or property due to corruption
of due process by official misconduct. See Ricciuti, 124 F.3d at 130; Frost v. N.Y.C.
Police Dep't, 980 F.3d 231, 250 (2d Cir. 2020). Whether the proceeding was
terminated in a manner indicative of innocence therefore is not dispositive in the
context of a section 1983 fair-trial claim, and we have never required that a
plaintiff alleging such a claim establish a favorable termination indicative of
innocence.
Accordingly, McDonough's accrual rule does not import malicious
prosecution's favorable-termination requirement onto section 1983 fair-trial
claims. Where the plaintiff asserts a section 1983 fair-trial claim based on
fabricated evidence, all that is required is that the underlying criminal
proceeding be terminated in such a manner that the lawsuit does not impugn an
ongoing prosecution or outstanding conviction. See McDonough, 139 S. Ct. at 2158,
42 20-1099-cv; 20-1331-cv Smalls v. Collins et al.; Daniel v. Taylor et al.
2160; Heck, 512 U.S. at 486-87; see also Savory, 947 F.3d at 417-18, 429-30 (the
plaintiff's pardon constituted a favorable termination within the meaning of Heck
and McDonough because the plaintiff's "conviction was set aside with this
pardon."). This requirement may be satisfied where a criminal conviction has
been invalidated or a criminal prosecution has been terminated in the criminal
defendant's favor because, in such circumstances, there is no risk that a section
1983 plaintiff's claim will impugn an existing conviction or the basis for an
ongoing prosecution.
C. Smalls's Criminal Proceeding Terminated in his Favor
McDonough holds that a fabricated-evidence claim may accrue where a
"criminal proceeding has ended in the defendant's favor, or a resulting
conviction has been invalidated within the meaning of Heck[.]" McDonough, 139
S. Ct. at 2158. A conviction is invalidated within the meaning of Heck if it was
"reversed on direct appeal" because, under those circumstances, the "plaintiff's
action, even if successful, will not demonstrate the invalidity of any outstanding
criminal judgment against the plaintiff[.]" Heck, 512 U.S. at 487. A criminal
proceeding likewise ends in the defendant's favor where any remaining charges
are dismissed on remand following the vacatur or reversal of a judgment of
43 20-1099-cv; 20-1331-cv Smalls v. Collins et al.; Daniel v. Taylor et al.
conviction on appeal, because, in such circumstances, there is no ongoing
prosecution that poses an impermissible risk of parallel litigation and conflicting
judgments. See McDonough, 139 S. Ct. at 2160.
Both occurred here and we are therefore presented with two potential
accrual dates: (1) the date the Appellate Division reversed Smalls's judgment of
conviction on direct appeal and dismissed the weapons-possession counts; or (2)
the date the trial court dismissed the trespass count on remand, following the
Appellate Division's reversal of Smalls's conviction. Smalls contends that the
accrual of his claim should run from the date the Appellate Division reversed his
judgment of conviction and dismissed the weapons-possession charges, because
his section 1983 fair-trial claim was based solely on the allegedly fabricated
evidence used to convict him of those weapons charges. While the trespass
charge remained after his judgment of conviction was reversed and the criminal
possession of a weapon charges were dismissed, he argues that this did not affect
the accrual of his claim because success on his fabricated-evidence claim would
not impugn the independent basis for the trespass prosecution. We need not
decide which date triggered the accrual of Smalls's fabricated-evidence claim for
44 20-1099-cv; 20-1331-cv Smalls v. Collins et al.; Daniel v. Taylor et al.
purposes of this appeal because, in any event, his underlying criminal
proceeding terminated in his favor and has therefore accrued.
Indeed, even assuming arguendo that Smalls's fabricated-evidence claim
accrued on the later date —when Smalls's trespass count was dismissed – there is
no question that Smalls's claim does not implicate the concerns outlined in
McDonough. Smalls's section 1983 fabricated-evidence claim poses no risk of
demonstrating the invalidity of any outstanding criminal judgment because
there is no such judgment. And his lawsuit does not run parallel to, nor does it
impugn, any pending prosecution or existing conviction because there is no
conviction and there are no pending charges. Smalls has therefore satisfied
McDonough and there is no bar to his suit. 10
10The Smalls defendants argue that, even if a termination indicative of innocence is not required, a plaintiff asserting a section 1983 fair-trial claim based on fabricated evidence must at least demonstrate that the underlying criminal proceeding did not end in a manner that includes affirmative indications of the plaintiff's guilt. They point out that Smalls's trial attorney claimed that Smalls possessed the gun police recovered in order to establish standing to request a suppression hearing and that the Appellate Division assumed this to be true for purposes of resolving Smalls's motion. The defendants contend that Smalls therefore cannot establish a favorable termination as required by McDonough.
This argument is unpersuasive for the same reasons explained above. Neither McDonough nor Heck says anything about requiring a favorable termination that excludes any suggestion of guilt. To the contrary, Heck – upon which McDonough relies and reaffirms – expressly provides that there will be no bar to suit if the plaintiff "can demonstrate that the conviction or sentence has already been invalidated." Heck, 512 45 20-1099-cv; 20-1331-cv Smalls v. Collins et al.; Daniel v. Taylor et al.
D. Daniel's Criminal Proceeding Terminated in his Favor
1. Daniel's Fabricated-Evidence Claim Arises Under the Due Process Clause
Relying on Manuel v. City of Joliet, 137 S. Ct. 911 (2017), the Daniel
defendants argue that, even if a termination indicative of innocence is not
required under McDonough, Daniel's claim – which involves a pretrial
deprivation of liberty – is governed by the Fourth Amendment and therefore
collapses into a malicious-prosecution claim. According to the Daniel
defendants, this means that Daniel must demonstrate that his underlying
criminal case was resolved in a manner indicative of innocence as is required for
malicious-prosecution claims.
The Daniel defendants essentially assert that, in Manuel, the Supreme Court
categorically precluded due process fabricated-evidence claims seeking damages
U.S. at 487. This rule may be satisfied where "the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus." Id. These resolutions do not inquire into the plaintiff's guilt. Indeed, a plaintiff's conviction may be overturned on direct appeal, expunged by virtue of a pardon, or called into question by a federal court's issuance of a writ of habeas corpus due to constitutional violations or evidentiary errors despite evidence indicative of the plaintiff's guilt. McDonough, like Heck, is not concerned with the guilt or innocence of the plaintiff; rather, McDonough's favorable-termination requirement is intended to prevent parallel proceedings and inconsistent civil and criminal judgments that result when there is a pending prosecution or outstanding conviction. Neither is present here.
46 20-1099-cv; 20-1331-cv Smalls v. Collins et al.; Daniel v. Taylor et al.
for pretrial detention. They argue that the Supreme Court held that such claims
may only be brought under the Fourth Amendment and that, as a result, a
fabricated-evidence claim seeking damages for pretrial detention is subsumed
under the elements of a malicious-prosecution claim. But in Manuel, the
Supreme Court granted certiorari to decide only whether a section 1983 claim
based on a "pretrial detention following the start of legal process" could "give rise
to a Fourth Amendment claim." Manuel, 137 S. Ct. at 916-17. The Court
answered this question in the affirmative. Id. at 917-18 ("[T]hose objecting to a
pretrial deprivation of liberty may invoke the Fourth Amendment when . . . that
deprivation occurs after legal process commences.").
We have held that Manuel did not rule out the possibility that, in such
circumstances, the Constitution also permits a due process claim that the plaintiff
was deprived of life, liberty, or property as a result of the use of fabricated
evidence. In Frost v. New York City Police Department, 980 F.3d 231 (2d Cir. 2020),
we concluded that the district court erred in granting the defendants' motion for
summary judgment as to Frost's section 1983 fair-trial claim, which was
premised on his pretrial detention. Id. at 237, 245-51. In reaching this conclusion,
the majority rejected the dissent's argument that Frost's claim failed as a matter
47 20-1099-cv; 20-1331-cv Smalls v. Collins et al.; Daniel v. Taylor et al.
of law because, under Manuel, it arose under the Fourth Amendment and there
was "ample probable cause for Frost's arrest, [pretrial] detention, and
prosecution." See id. at 249; id. at 258-63 (Kearse, J., dissenting). The dissent – like
the Daniel defendants – essentially argued that Frost's fair-trial claim was more
accurately described as arising under the Fourth Amendment, rather than the
Due Process Clause, because the allegedly fabricated evidence was only used to
initiate pretrial proceedings against Frost (and was not, in fact, introduced at
trial). See id. The majority found this argument unpersuasive, concluding that
our precedent established that, in this context, "the (perhaps imprecisely named)
fair trial right protects against deprivation of liberty that results when a police
officer fabricates and forwards evidence to a prosecutor that would be likely to
influence a jury's decision, were that evidence presented to the jury." Id. at 250
(emphasis in original). Accordingly, "[n]otwithstanding the nomenclature, a
criminal defendant's right to a fair trial protects more than the fairness of the trial
itself[;] [i]ndeed, a criminal defendant can bring a fair trial claim even when no
trial occurs at all." Id. at 249.
The majority in Frost reconciled this result with Manuel, explaining:
The Supreme Court's holding in Manuel v. City of Joliet . . . does not compel a different result. In Manuel, the Supreme Court held that a § 1983 plaintiff
48 20-1099-cv; 20-1331-cv Smalls v. Collins et al.; Daniel v. Taylor et al.
could challenge his pretrial detention based on purportedly fabricated evidence under the Fourth Amendment, even after a judge determined that this evidence constituted probable cause. But just as a Fourth Amendment claim survives the initiation of "legal process," our precedents establish that a fair trial claim under the Due Process Clause may accrue before the trial itself. Accordingly, the holding of Manuel does not preclude Frost's fair trial claim.
Id. at 251 n.14 (internal citations omitted).
The defendants' argument is therefore foreclosed by Frost. Under our
precedent, Daniel may assert a fabricated-evidence claim related to his pretrial
detention under the Due Process Clause.
2. Daniel's ACD Constitutes a Favorable Termination Under McDonough
In McDonough, the Court declined to provide further guidance concerning
"the broader range of ways a criminal prosecution (as opposed to a conviction)
might end favorably to the accused" because the plaintiff's acquittal there "was
unquestionably a favorable termination[.]" McDonough, 139 S. Ct. at 2160 n.10.
While the Court suggested that a "context-specific and more capacious
understanding of what constitutes 'favorable' termination" might be appropriate
to take account of prosecutors' broad discretion over "the terms on which pleas
will be offered or whether charges will be dropped," it did not enumerate the
types of terminations that would be sufficient to trigger McDonough's accrual
49 20-1099-cv; 20-1331-cv Smalls v. Collins et al.; Daniel v. Taylor et al.
rule. Id. It is therefore an open question as to whether the dismissal of Daniel's
charges pursuant to an ACD constitutes a favorable termination for purposes of
McDonough.
The pragmatic concerns animating McDonough counsel in favor of
concluding that it does. As explained above, McDonough extended Heck to
section 1983 fabricated-evidence claims filed during an ongoing prosecution
because allowing such suits would impugn the basis for a pending prosecution
and "impermissibly risk parallel litigation and conflicting judgments." Id. at
2160. These concerns are not implicated where, as here, the charges against the
plaintiff are dismissed pursuant to an ACD. When a defendant accepts an ACD
in New York state court, his criminal prosecution is "adjourn[ed] . . . without [a]
date ordered" for it to resume. N.Y. Crim. Proc. Law § 170.55(2). While the
government retains the right to move to "restore the case to the calendar," it must
make such a motion within "six months" – or in some cases "one year" – after the
defendant accepts the ACD. Id. If the government does not move within the
prescribed time period, "the accusatory instrument is, at the expiration of such
period, deemed to have been dismissed by the court in furtherance of justice"
and "the arrest and prosecution shall be deemed a nullity." Id. § 170.55(2), (8). In
50 20-1099-cv; 20-1331-cv Smalls v. Collins et al.; Daniel v. Taylor et al.
such circumstances, there is no risk of parallel litigation because the charges have
been dismissed. Nor is there any risk of conflicting judgments because no
determination of guilt or innocence was made, and no judgment was entered.
Rather, once the charges against Daniel were dismissed, any concerns about the
possibility of "two-track litigation" dissipated. See McDonough, 139 S. Ct. at 2158;
see also Simon, 2020 WL 1323114, at *6 ("A jury verdict that Cruz violated
Plaintiff's due process right to a fair trial by falsifying evidence would not
conflict with or challenge the validity of the dismissal of charges against Plaintiff
in the interest of justice.").
This conclusion is reinforced by the rationales underlying our enduring
distinction between malicious-prosecution and fair-trial claims. While a
termination indicative of innocence is necessary in the context of malicious-
prosecution claims to ensure that there were no reasonable grounds for the
prosecution, see Lanning, 908 F.3d at 28, depriving an individual of life, liberty, or
property by fabricating evidence violates due process regardless of whether
there was probable cause because "[n]o arrest, no matter how lawful or
objectively reasonable, gives an arresting officer or his fellow officers license to
deliberately manufacture false evidence against an arrestee." Ricciuti, 124 F.3d at
51 20-1099-cv; 20-1331-cv Smalls v. Collins et al.; Daniel v. Taylor et al.
130. In contrast to a malicious-prosecution claim, which focuses on the validity
of the initiation of the prosecution, a section 1983 fair-trial claim predicated on
fabricated evidence guards against the deprivation of life, liberty, or property as
a result of the corruption of due process, 11 and therefore does not require a
favorable termination indicative of innocence. See id. ("Like a prosecutor's
knowing use of false evidence to obtain a tainted conviction, a police officer's
fabrication and forwarding to prosecutors of known false evidence works an
unacceptable 'corruption of the truth-seeking function of the trial process.'"). 12
11We note that, for this reason, our precedents limit Daniel's claim to one that seeks redress for "deprivation[s] of life, liberty, or property" that occurred "as a result" of an investigating official's "forward[ing fabricated] information to prosecutors." Garnett, 838 F.3d at 279. While Daniel's complaint recounts an abusive detention immediately following his arrest – and alleges that the Daniel defendants fabricated the allegation that he had a butterfly knife – it is unclear whether the complaint alleges a deprivation of life, liberty, or property resulting from the defendants' decision to "forward" that fabricated "information to prosecutors." Id. Because the parties agree, for purposes of this appeal, that Daniel has adequately alleged that he was deprived of liberty as a result of the use of fabricated evidence, Transcript of Oral Argument at 7:12-8:8, 10:13- 11:3, Daniel v. Taylor et al., (No. 20-1331-cv), we leave it to the district court on remand to determine, if necessary, whether Daniel has adequately alleged the requisite elements of a fabricated-evidence claim.
12The Daniel defendants suggest that these rationales are inapplicable to Daniel's claim because he challenges the use of fabricated evidence in pretrial proceedings instead of at trial and his is therefore not "a true 'fair trial' claim." See Daniel Defs. Br. at 20-21. But, as noted above, we have held that a plaintiff may bring a section 1983 fair-trial claim challenging the use of fabricated evidence during pretrial proceedings even where no trial occurs. Frost, 980 F.3d at 249-50. Moreover, the constitutional tort's objectives of ensuring that a criminal defendant receives due process and deterring 52 20-1099-cv; 20-1331-cv Smalls v. Collins et al.; Daniel v. Taylor et al.
Consistent with this distinction, it is well-settled that acceptance of an
ACD bars a malicious-prosecution claim because it leaves the question of
innocence or guilt unanswered and is thus not a termination indicative of
innocence. See Rothstein, 373 F.3d at 286-87; Singleton, 632 F.2d at 193-94. And it
was similarly well-accepted, prior to McDonough, that an ACD did not preclude a
fair-trial claim. See Apostol v. City of New York, No. 11 Civ. 3851 (RRM) (CLP),
2014 WL 1271201, at *5 (E.D.N.Y. Mar. 26, 2014) (acceptance of an adjournment in
contemplation of dismissal "does not preclude a fair trial claim" (collecting
cases)), aff'd, 607 F. App'x 105 (2d Cir. 2015) (summary order). McDonough did
not impose malicious prosecution's favorable-termination requirement onto fair
trial claims or overrule our precedent concerning the contours of fabricated-
evidence claims. See McDonough, 139 S. Ct. at 2155. Rather, as explained above,
McDonough simply extended Heck's favorable termination requirement to
ongoing prosecutions under circumstances that implicate Heck's pragmatic
fabrication of evidence are just as equally served by lawsuits challenging the use of fabricated evidence as a basis to initiate and sustain a prosecution (even where that case does not ultimately go to trial) as they are by lawsuits challenging the introduction of fabricated evidence to secure a conviction. See id. (due process clause protects against deprivation of life, liberty, or property resulting from use of fabricated evidence both pre-trial and during trial). 53 20-1099-cv; 20-1331-cv Smalls v. Collins et al.; Daniel v. Taylor et al.
concerns for finality and consistency. Such concerns are not present where, as
here, the charges against Daniel were dismissed pursuant to an ACD.
The Daniel defendants' arguments to the contrary are unavailing. They
first assert that allowing Daniel's fabricated-evidence claim to proceed would be
inconsistent with McDonough because Daniel's "claim that his prosecution was
entirely the result of fabricated evidence necessarily impugns that prosecution."
Daniel Defs. Br. at 23. But, by that logic, the plaintiff in McDonough – who
contended that his indictment, prosecution, and trial were the result of fabricated
evidence – also necessarily impugned the prosecution and therefore should have
been barred from bringing suit. Yet the Supreme Court allowed his claim to
proceed. Indeed, interpreting McDonough to bar a section 1983 claim wherever
the claim challenges the integrity of any underlying criminal proceeding would
gut the force and effect of section 1983, because section 1983 claims asserting a
violation of the Fifth Amendment necessarily involve such challenges. Such a
result would be inconsistent with McDonough, the broad remedial purpose of
section 1983, and our understanding of Heck and related cases as a narrow
"exception from § 1983's otherwise broad scope[.]" See McKithen v. Brown, 481
F.3d 89, 101 (2d Cir. 2007) (internal quotation marks omitted). McDonough was
54 20-1099-cv; 20-1331-cv Smalls v. Collins et al.; Daniel v. Taylor et al.
concerned with allowing section 1983 lawsuits that would impugn an ongoing
prosecution or outstanding conviction. There is no ongoing prosecution or
outstanding conviction here. To the contrary, Daniel's "arrest and prosecution
[have] be[en] deemed a nullity." N.Y. Crim. Proc. Law § 170.55(8).
The Daniel defendants also argue that there are strong practical reasons to
require a plaintiff alleging fabrication of evidence to demonstrate that the
underlying criminal prosecution ended in a manner indicative of innocence.
According to the Daniel defendants, adopting a contrary rule would
disincentivize prosecutors from offering ACDs in order to foreclose section 1983
lawsuits. We are not convinced. District courts in this circuit have previously
held that an ACD does not bar a section 1983 fair-trial claim and such negative
ramifications have, as far as we are aware, yet to occur. Moreover, it is not the
job of prosecutors to insulate the City of New York from liability. Their
obligation is to seek justice and to "take precautions to avoid convicting innocent
individuals." Friedman v. Rehal, 618 F.3d 142, 159 (2d Cir. 2010). We will not
presume that prosecutors will violate these ethical and professional obligations
simply to assist the City in avoiding civil liability. See Cowles v. Brownell, 73
N.Y.2d 382, 386 (N.Y. 1989) ("Insulation from civil liability is not the duty of the
55 20-1099-cv; 20-1331-cv Smalls v. Collins et al.; Daniel v. Taylor et al.
prosecutor. The prosecutor's obligation is to represent the People and to that
end, to exercise independent judgment in deciding to prosecute or refrain from
prosecution. This obligation cannot be fulfilled when the prosecutor undertakes
also to represent a police officer for reasons divorced from any criminal justice
concern."); see also Berger v. United States, 295 U.S. 78, 88 (1935) ("[W]hile [a
prosecutor] may strike hard blows, he is not at liberty to strike foul ones. It is as
much his duty to refrain from improper methods calculated to produce a
wrongful conviction as it is to use every legitimate means to bring about a just
one.").
For all these reasons, we conclude that a defendant's fair-trial claim
accrues (and may be brought) once her charges are conclusively dismissed
pursuant to an ACD. The dismissal of Daniel's charges pursuant to an ACD
therefore constituted a favorable termination within the meaning of McDonough
and McDonough poses no bar to suit.
III. Daniel's Section 1981 Claims
Daniel also argues that he should be permitted to bring claims under
section 1981 because there is nothing in section 1981 that, as a textual matter,
precludes such a claim, particularly where the plaintiff is alleging race
56 20-1099-cv; 20-1331-cv Smalls v. Collins et al.; Daniel v. Taylor et al.
discrimination. Daniel acknowledges that we rejected this argument only three
years ago in Duplan v. City of New York, 888 F.3d 612, 616 (2d Cir. 2018), but
argues that Duplan should be reconsidered because (1) Duplan "does not comport
with the Supreme Court's approach in reading statutes textually rather than
through the lens of Congressional intent"; and (2) Duplan "is caught in a circuit
split." Daniel Pl. Br. at 36-39. These arguments are without merit.
In Duplan, we expressly held that "42 U.S.C. § 1983 provides the sole cause
of action available against state actors alleged to have violated § 1981." Duplan,
888 F.3d at 616. In reaching this conclusion, we acknowledged the Ninth
Circuit's contrary holding in Federation of African American Contractors v. City of
Oakland, 96 F.3d 1204 (9th Cir. 1996) – upon which Daniel relies in his brief – but
found it unpersuasive. See Duplan, 888 F.3d at 620. Indeed, "[e]very subsequent
Circuit to consider the issue . . . has declined to follow Federation's reasoning." Id.
at 620 & n.2. Moreover, as we explained, the Supreme Court – in Jett v. Dallas
Independent School District, 491 U.S. 701 (1989) – "held that 'the express cause of
action for damages created by § 1983 constitutes the exclusive federal remedy for
violation of the rights guaranteed in § 1981 by state governmental units.'"
Duplan, 888 F.3d at 619 (emphasis in original) (quoting Jett, 491 U.S. at 733).
57 20-1099-cv; 20-1331-cv Smalls v. Collins et al.; Daniel v. Taylor et al.
Although Congress amended section 1981 after Jett was issued, the legislative
history underlying the amendment made no reference to Jett while it expressly
overruled other Supreme Court cases. This suggests that the amendment was
not intended to overrule Jett. Id. at 620. In addition, "[b]ecause § 1983 already
provides a remedy against state actors, there is no reason to infer from the rights-
conferring language of § 1981(c) that it creates an additional, and duplicative,
remedy." Id. at 620-21. Lastly, we noted that "since Federation was decided, the
Supreme Court has increasingly discouraged the recognition of implied rights of
actions without a clear indication of congressional intent." Id. at 621. We
therefore joined nine other Circuits "in concluding that § 1981 does not provide a
separate private right of action against state actors." Id.
"[G]enerally a decision of a panel of this Court is binding unless and until
it is overruled by the Court en banc or by the Supreme Court," or there is "an
intervening Supreme Court decision . . . [that] casts doubt on our controlling
precedent[.]" United States v. Hightower, 950 F.3d 33, 36 (2d Cir. 2020) (internal
quotation marks omitted); Deem v. DiMella-Deem, 941 F.3d 618, 623 (2d Cir. 2019).
This Court's decision in Duplan has not been overruled, and Daniel points to no
intervening decision that casts doubt on its holding. Daniel has provided no
58 20-1099-cv; 20-1331-cv Smalls v. Collins et al.; Daniel v. Taylor et al.
legitimate basis for revisiting this Court's binding precedent in Duplan. We
therefore affirm the district court's dismissal of Daniel's section 1981 claims.
IV. Daniel's Motion for Equitable Tolling
"'Generally, a litigant seeking equitable tolling bears the burden of
establishing two elements: (1) that he has been pursuing his rights diligently, and
(2) that some extraordinary circumstance stood in his way.'" Watson v. United
States, 865 F.3d 123, 132 (2d Cir. 2017) (quoting Mottahedeh v. United States, 794
F.3d 347, 352 (2d Cir. 2015)). "The term 'extraordinary' refers not to the
uniqueness of a party's circumstances, but rather to the severity of the obstacle
impeding compliance with a limitations period." Harper v. Ercole, 648 F.3d 132,
137 (2d Cir. 2011). Moreover, "[t]o secure equitable tolling, it is not enough for a
party to show that he experienced extraordinary circumstances[;] [h]e must
further demonstrate that those circumstances caused him to miss the original
filing deadline." Id. In addition, even if a party demonstrates a causal
relationship between the extraordinary circumstances and the lateness of his
filing, the party seeking equitable tolling is "required to show reasonable
diligence in pursuing his claim throughout the period he seeks to have tolled."
Id. at 134. This showing cannot be made if the party, "acting with reasonable
59 20-1099-cv; 20-1331-cv Smalls v. Collins et al.; Daniel v. Taylor et al.
diligence, could have filed on time notwithstanding" the extraordinary
circumstances. Bolarinwa v. Williams, 593 F.3d 226, 231 (2d Cir. 2010). We review
the district court's equitable tolling ruling for abuse of discretion. Watson, 865
F.3d at 131.
Daniel argues that the district abused its discretion in denying his motion
for equitable tolling because extraordinary circumstances prevented him from
filing his section 1983 claims. As evidence of diligence and extraordinary
circumstances, Daniel points out that (1) he filed a charge with the Internal
Affairs Board, but never heard back from them; (2) an attorney agreed to
represent him but never filed an action, ignored and did not return his repeated
phone calls, and refused to turn over the case file to him; and (3) he had a hand
injury, which allegedly made it difficult for him to find an attorney through
Internet searches or by phone. These arguments are unpersuasive.
Even assuming the conduct of Daniel's initial attorney rose to the level of
extraordinary circumstances, 13 it did not cause Daniel to miss the filing deadline.
13"[A]ttorney error normally will not constitute the extraordinary circumstances required to toll the . . . limitations period . . . [but] at some point, an attorney's behavior may be so outrageous or so incompetent as to render it extraordinary." Baldayaque v. United States, 338 F.3d 145, 152 (2d Cir. 2003) (emphasis omitted). While "ordinary" attorney mistakes concerning, for example, the deadlines for filing suit do not constitute extraordinary circumstances, id., an attorney "who willfully ignore[s] the express 60 20-1099-cv; 20-1331-cv Smalls v. Collins et al.; Daniel v. Taylor et al.
"A court may conclude that such causation is lacking where the identified
extraordinary circumstances arose and concluded early within the limitations
period." Harper, 648 F.3d at 137. Here, as the district court noted, the attorney
notified Daniel in November 2017 – nearly five months before the close of the
limitations period on March 18, 2018 – that she was not representing him.
During this five-month period, we think that a reasonably diligent person could
have retained an attorney and filed suit.
Daniel also cannot establish that he demonstrated reasonable diligence
throughout the period that he seeks to toll. First, as the district court noted, the
IAB's failure to provide Daniel with the results of its investigation did not
"prevent[] [him] from timely filing a complaint in federal court." Daniels, 2019
WL 1437586, at *6. Daniel's "failure to follow up with the IAB, or to otherwise
pursue his claims in the absence of learning the results of the investigation,
supports the conclusion that he did not pursue his claims with reasonable
diligence through the limitations period." Id. Indeed, Daniel did not retain
counsel until around December 2015 – nine months after his arrest – when he got
instructions of his client, d[oes] not conduct any legal research on his client's behalf, and never sp[eaks] to or me[ets] with his client" or who fails to file a habeas petition on behalf of a petitioner, "despite explicit directions from the prisoner to do so," constitutes extraordinary circumstances. Dillon v. Conway, 642 F.3d 358, 363 (2d Cir. 2011). 61 20-1099-cv; 20-1331-cv Smalls v. Collins et al.; Daniel v. Taylor et al.
into a car accident and met a paralegal at the scene who introduced him to his
initial attorney. Daniel JA.85 ¶ 2. Moreover, as previously noted, "once Daniel
affirmatively learned that [the attorney] was not representing him, he still had
five months before the close of the limitations period to file a complaint[.]"
Daniels, 2019 WL 1437586, at *6.
Daniel's reliance on his hand injury to explain this delay is unpersuasive.
As the district court explained, while Daniel had a hand injury "that made it
difficult for him to type or make phone calls," "[a] person acting with reasonable
diligence under such circumstances would have . . . found a way to pursue his
claims – perhaps with the help of a friend or family member, or through the use
of his other hand." Id.
Accordingly, the district court did not abuse its discretion in denying
Daniel's motion for equitable tolling.
CONCLUSION
We have considered the parties' remaining arguments on appeal and
conclude that they are without merit. We therefore REVERSE the district courts'
judgments with respect to the fair-trial claims, AFFIRM the dismissal of Daniel's
62 20-1099-cv; 20-1331-cv Smalls v. Collins et al.; Daniel v. Taylor et al.
other claims, and REMAND each case for further proceedings consistent with
this opinion.
Related
Cite This Page — Counsel Stack
Smalls v. Collins Daniel v. Taylor, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smalls-v-collins-daniel-v-taylor-ca2-2021.