Spak v. Phillips
Filing
OPINION, affirming judgment of the district court, by JMW, JAC, R.M. BERMAN, FILED.[2039864] [15-3525]
Case 15-3525, Document 55-1, 05/22/2017, 2039864, Page1 of 16
15‐3525‐cv
Spak v. Phillips
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In the
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United States Court of Appeals
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For the Second Circuit
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________
AUGUST TERM, 2016
ARGUED: SEPTEMBER 27, 2016
DECIDED: MAY 22, 2017
No. 15‐3525‐cv
PAUL SPAK,
Plaintiff‐Appellant,
v.
SHANE PHILLIPS,
Defendant‐Appellee.
________
Appeal from the United States District Court
for the District of Connecticut.
No. 13 Civ. 1724 – Jeffrey A. Meyer, Judge.
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Before: WALKER and CABRANES, Circuit Judges, and BERMAN, District
Judge. *
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Judge Richard M. Berman, United States District Judge for the Southern District of New
York, sitting by designation.
*
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No. 15‐3525‐cv
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Plaintiff‐appellant Paul Spak appeals a decision of the United
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States District Court for the District of Connecticut (Jeffrey A. Meyer,
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J.) granting summary judgment in favor of the defendant‐appellee
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Shane Phillips, an officer with the Plainville Police Department in
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Plainville, Connecticut. In 2010, Spak was arrested by Phillips and
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charged under Conn. Gen. Stat. § 53a‐155 with destroying evidence
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related to the alleged discharge of illegal fireworks. The prosecuting
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attorney subsequently dismissed those charges by entering a nolle
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prosequi. More than three years after the entry of the nolle, Spak
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brought suit against Phillips for malicious prosecution in violation
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of the Fourth Amendment, under 42 U.S.C. § 1983. The district court
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held that Spak’s malicious prosecution claim accrued when the nolle
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prosequi was entered, and that as a result his suit was time‐barred.
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On appeal, Spak contends that his claim did not accrue when the
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prosecuting attorney nolled his case, but thirteen months later when
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all public records of his prosecution were erased pursuant to a
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Connecticut recordkeeping statute. We conclude that Spak’s claim
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accrued when the charges against him were nolled. We therefore
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AFFIRM the judgment of the district court.
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JOHN R. WILLIAMS, John R. Williams and
Associates, LLC, New Haven, CT, for Plaintiff‐
Appellant.
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No. 15‐3525‐cv
JAMES N. TALLBERG (Dennis M. Durao, on the
brief), Karsten & Tallberg, LLC, Rocky Hill, CT, for
Defendant‐Appellee.
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JOHN M. WALKER, JR., Circuit Judge:
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Plaintiff‐appellant Paul Spak appeals a decision of the United
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States District Court for the District of Connecticut (Jeffrey A. Meyer,
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J.) granting summary judgment in favor of the defendant‐appellee
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Shane Phillips, an officer with the Plainville Police Department in
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Plainville, Connecticut. In 2010, Spak was arrested by Phillips and
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charged under Conn. Gen. Stat. § 53a‐155 with destroying evidence
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related to the alleged discharge of illegal fireworks. The prosecuting
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attorney subsequently dismissed those charges by entering a nolle
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prosequi. More than three years after the entry of the nolle, Spak
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brought suit against Phillips for malicious prosecution in violation
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of the Fourth Amendment, under 42 U.S.C. § 1983. The district court
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held that Spak’s malicious prosecution claim accrued when the nolle
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prosequi was entered, and that as a result his suit was time‐barred.
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On appeal, Spak contends that his claim did not accrue when the
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prosecuting attorney nolled his case, but thirteen months later when
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all public records of his prosecution were erased pursuant to a
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Connecticut recordkeeping statute. We conclude that Spak’s claim
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No. 15‐3525‐cv
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accrued when the charges against him were nolled. We therefore
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AFFIRM the judgment of the district court.
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BACKGROUND
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The relevant facts in this appeal are not in dispute. On June 12,
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2010, Phillips responded to a complaint of fireworks being
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discharged in Spak’s neighborhood. When he arrived to investigate,
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he observed Spak burning the remnants of fireworks in a backyard
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fire pit, in what Phillips perceived as an attempt to destroy evidence.
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The following day, Phillips submitted a sworn affidavit to the
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Connecticut Superior Court seeking a warrant to arrest Spak on,
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inter alia, charges of tampering with or fabricating evidence. Based
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on Phillips’ sworn statement, the Connecticut Superior Court issued
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a warrant for Spak’s arrest on June 15, 2010, and based on that
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warrant Spak was arrested on June 24, 2010. On September 10, 2010,
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the prosecuting attorney unilaterally dismissed the charges against
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Spak by entering a nolle prosequi. A nolle prosequi is “a declaration of
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the prosecuting officer that he will not prosecute further at that time
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. . . Upon the entering of a nolle prosequi by the state’s attorney,
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there is no case.” State v. Winer, 286 Conn. 666, 685 (quoting State v.
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Ackerman, 27 Conn. Supp. 209, 211 (1967)). The state never instituted
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further charges against Spak subsequent to the nolle stemming from
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the June 12, 2010 incident.
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No. 15‐3525‐cv
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On October 29, 2013, Spak sued Phillips in Connecticut state
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court for malicious prosecution under Section 1983 and the Fourth
3
Amendment. Phillips removed the action to the District of
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Connecticut on November 18, 2013. On January 30, 2015, Phillips
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moved for summary judgment on several grounds, including that
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Spak’s action was untimely because he filed his complaint more than
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three years after the accrual of his claim. On October 14, 2015, the
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district court granted Phillips’ motion for summary judgment on
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that ground. Specifically, the district court held that Spak’s
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malicious prosecution claim accrued on September 10, 2010, when
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the charges against him were nolled, and therefore dismissed the suit
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as time‐barred. Spak now appeals.
DISCUSSION
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A district court’s grant of summary judgment is reviewed de
15
novo. Gallo v. Prudential Residential Servs., Ltd. Pʹship, 22 F.3d 1219,
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1224 (2d Cir. 1994). All legal conclusions by a district court are
17
reviewed de novo. United States v. Livecchi, 711 F.3d 345, 351 (2d Cir.
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2013) (per curiam).
19
On appeal, it is uncontested that Spak filed his complaint
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alleging malicious prosecution more than three years after the state’s
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attorney’s entry of a nolle prosequi. Spak concedes that if his claim for
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malicious prosecution accrued on the date that the state’s attorney
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nolled the charges against him, his suit is untimely. However, he
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argues that his claim did not accrue on the date that the charges
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against him were nolled, but thirteen months later when Connecticut
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law mandated that the records of his nolled prosecution be erased.
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I.
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Accrual of Section 1983 Claims
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In the absence of federal common law, the merits of a claim
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for malicious prosecution under Section 1983 are governed by state
8
law. Janetka v. Dabe, 892 F.2d 187, 189 (2d Cir. 1989).1 Likewise, the
9
applicable statute of limitations for a malicious prosecution claim is
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borrowed from the statute of limitations for the analogous claim
11
under the law of the state where the cause of action accrued, see
Under Connecticut law, a plaintiff asserting malicious prosecution must prove that: “(1)
the defendant initiated or procured the institution of criminal proceedings against the
plaintiff; (2) the criminal proceedings have terminated in favor of the plaintiff; (3) the
defendant acted without probable cause; and (4) the defendant acted with malice,
primarily for a purpose other than that of bringing an offender to justice.” Brooks v.
Sweeney, 299 Conn. 196, 210‐11 (2010). The United States Supreme Court has never
squarely held that a plaintiff may bring a suit under Section 1983 for malicious
prosecution based on an alleged violation of his Fourth Amendment rights. In Manuel v.
City of Joliet, 137 S. Ct. 911 (2017), the Supreme Court confirmed that plaintiffs can sustain
Section 1983 suits under the Fourth Amendment for deprivations of liberty suffered as a
result of improper or maliciously instituted legal process. Id. at 918 (“[T]hose objecting to
a pretrial deprivation of liberty may invoke the Fourth Amendment when . . . that
deprivation occurs after legal process commences.”). However, the Court’s opinion in
Manuel did not directly address the other “elements of, and rules associated with, an
action seeking damages for” an unlawful pretrial detention. Id. at 920. The rule in the
Second Circuit is that plaintiffs may bring what is in effect a state law suit for malicious
prosecution in federal court under Section 1983, so long as they are able to demonstrate a
deprivation of liberty amounting to a seizure under the Fourth Amendment. Singer v.
Fulton Cty. Sheriff, 63 F.3d 110, 116 (2d Cir. 1995). Under our precedent, such a suit is
proper where: (1) the defendant is a state actor, and (2) the plaintiff who was subject to
malicious prosecution was also subject to arrest or seizure within the meaning of the
Fourth Amendment. See Manganiello v. City of New York, 612 F.3d 149, 160‐61 (2d Cir.
2010).
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Lounsbury v. Jeffries, 25 F.3d 131, 133 (2d Cir. 1994); see also Wallace v.
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Kato, 549 U.S. 384, 387 (2007), which in Connecticut is three years, see
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Walker v. Jastremski, 430 F.3d 560, 562 (2d Cir. 2005).
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However, the time at which a claim for malicious prosecution
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under Section 1983 accrues is “a question of federal law that is not
6
resolved by reference to state law.” Wallace, 549 U.S. at 388. Federal
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courts apply “general . . . common‐law tort principles” to determine
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the accrual date of a Section 1983 claim. Id.; see also Manuel, 137 S. Ct.
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at 920 (“In defining the contours and prerequisites of a § 1983 claim,
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including its rule of accrual, courts are to look first to the common
11
law of torts.”). In malicious prosecution suits under Section 1983, the
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statute of limitations begins to run when the prosecution
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“terminate[s] in the plaintiff’s favor.” Poventud v. City of N.Y., 750
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F.3d 121, 130 (2d Cir. 2014) (en banc) (quoting Heck v. Humphrey, 512
15
U.S. 477, 489‐90 (1994)). A “favorable termination” does not occur
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until the prosecution against the plaintiff has “conclusively” ended.
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Murphy v. Lynn, 53 F.3d 547, 548 (2d Cir. 1995).
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One point of clarification regarding this accrual rule is in
19
order. The fact that the accrual of Section 1983 claims is analyzed
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under federal common law, while the merits of those claims are
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analyzed under the law of the state where the tort occurred, has led
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to some confusion concerning the standards used to define a
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“favorable termination” in the malicious prosecution context. This is
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because a malicious prosecution claim accrues when the underlying
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prosecution terminates in favor of the accused, id., but “favorable
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termination” is also a substantive element of a state law tort claim,
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see, e.g., Singleton v. City of New York, 632 F.2d 185, 193 (2d Cir. 1980).
5
While the same phrase—“favorable termination”—is used in both
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the accrual analysis and the merits analysis of a Section 1983 suit, it
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is analyzed under a different legal standard in each context.
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When the question before a federal court is at what point a
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malicious prosecution claim accrued, “favorable termination” is
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analyzed under federal common law, because the timing of accrual
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is a question of federal law. See, e.g., Wallace, 549 U.S. at 388. When,
12
by contrast, a federal court is analyzing the substantive merits of a
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plaintiff’s claim, the definition of “favorable termination” is
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analyzed under state law. See, e.g., Singleton, 632 F.2d at 193. What
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constitutes a “favorable termination” may turn out to be the same in
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each context, but not necessarily so. However, even if “favorable
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termination” in a particular case is unclear as a matter of state law, it
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can still be conclusively resolved as a matter of claim accrual under
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federal law. Thus, the fact that a nolle prosequi constitutes a favorable
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termination under Connecticut state law may be relevant to our
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accrual inquiry, but it is not dispositive. Unless a nolle also
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constitutes a “favorable termination” under federal common law,
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No. 15‐3525‐cv
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then Spak’s claim did not accrue for Section 1983 purposes upon
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entry of the nolle.
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II.
Effect of a Nolle Prosequi
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Under Connecticut law, a prosecutor may decline to prosecute
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a case by entering a nolle prosequi. Conn. Practice Book § 39‐31 (2017).
7
The effect of a nolle is to terminate a particular prosecution against
8
the defendant. However, a nolle prosequi is not the equivalent of a
9
dismissal of a criminal prosecution with prejudice, because jeopardy
10
does not attach. Roberts v. Babkiewicz, 582 F.3d 418, 420 (2d Cir. 2009)
11
(per curiam) (“A nolle prosequi is ‘a unilateral act by a prosecutor,
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which ends the pending proceedings without an acquittal and
13
without placing the defendant in jeopardy.’”) (quoting Cislo v. City of
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Shelton, 240 Conn. 590, 599 n.9 (1997)).
15
The statute of limitations on the nolled charge continues to run,
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and the prosecutor may choose to initiate a second prosecution at
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any time before the limitations period expires. Winer, 286 Conn. at
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684‐85. A prosecution can only be reinstituted following a nolle,
19
however, by the filing of a new charging document and a new
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arrest. Id. at 685. If a new prosecution is not commenced,
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Connecticut law requires that within thirteen months of the nolle “all
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police and court records and records of the state’s or prosecuting
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attorney” related to the prosecution be erased. Conn. Gen. Stat. § 54‐
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142a(c)(1); see also Martin v. Hearst Corp., 777 F.3d 546, 549 (2d Cir.
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2015).
3
III.
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The Nolle Prosequi Constituted a Favorable Termination
for Claim Accrual Purposes
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We agree with the district court that as a general matter a nolle
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prosequi constitutes a “favorable termination” for the purpose of
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determining when a Section 1983 claim accrues.2 The weight of
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authority on the common law of malicious prosecution supports this
10
conclusion. See, e.g., RESTATEMENT (SECOND) OF TORTS § 659 cmt. (c)
11
(AM. LAW INST. 1977) (“If the public prosecutor has power to make
12
such an entry [of nolle prosequi] without the consent of the court, the
13
entry constitutes a termination of the proceedings in favor of the
14
accused.”). Other federal courts have held that the entry of a nolle
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prosequi is sufficient to constitute a favorable termination. See, e.g.,
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Owens v. Balt. City Stateʹs Attorneys Office, 767 F.3d 379, 390 (4th Cir.
Our opinion in Roberts v. Babkiewicz, 582 F.3d 418 (2d Cir. 2009), did not settle this issue.
In Roberts, the district court granted judgment on the pleadings to the defendants on the
plaintiff’s Section 1983 malicious prosecution claim. Id. at 419‐20. The district court held
that the plaintiff had not demonstrated that the dismissal of criminal charges against him
by nolle prosequi constituted a “favorable termination” as a matter of state substantive
law, because the charges had been nolled as part of a plea agreement. Id. at 420. We
remanded the case to the district court for further proceedings, on the basis that the facts
in the complaint, construed in the light most favorable to the plaintiff, did not necessarily
demonstrate that the nolle was entered in exchange for a plea to a lesser charge. Id. at 421‐
22. However, our opinion in Roberts only dealt with the merits of the plaintiff’s
underlying state law claim. It did not address the question of whether a nolle constitutes a
favorable termination under federal common law.
2
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2014), cert. denied sub nom. Balt. City Police Depʹt v. Owens, 135 S. Ct.
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1893 (2015) (citing common law authorities to conclude that a nolle
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prosequi constitutes a favorable termination); Donahue v. Gavin, 280
4
F.3d 371, 383 (3d Cir. 2002); White v. Rockafellow, 181 F.3d 106, 106
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(6th Cir. 1999); Washington v. Summerville, 127 F.3d 552, 557 (7th Cir.
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1997).
7
To be sure, courts and common law authorities state that a
8
nolle does not constitute a favorable termination when it is entered
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for reasons that are “not indicative of the defendant’s innocence.”
10
Washington, 127 F.3d at 557. However, this qualifier is defined
11
narrowly. It generally only includes nolles that are caused by the
12
defendant—either by his fleeing the jurisdiction to make himself
13
unavailable for trial or delaying a trial by means of fraud. It also
14
includes any nolle entered in exchange for consideration offered by
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the defendant (e.g., cooperation). See generally RESTATEMENT
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(SECOND) OF TORTS § 660 (AM. LAW INST. 1977).
17
18
Murphy v. Lynn which states that the termination of a prosecution
19
must be “conclusive[]” in order to satisfy the favorable termination
20
requirement of a Section 1983 claim. 53 F.3d at 548. Murphy involved
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a malicious prosecution claim originating in New York, while Spak’s
22
claim accrued in Connecticut, but it is nonetheless relevant because
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favorable termination for accrual purposes is a matter of federal law
Spak disputes this conclusion, and cites our decision in
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which does not vary from state to state. Spak contends that a nolle
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prosequi is not a “conclusive” termination of a prosecution because
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jeopardy does not attach when a nolle is entered and the prosecuting
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attorney may file new charges against the same defendant for the
5
same criminal act at any time before the statute of limitations on the
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underlying crime has run.
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8
strictly speaking, a nolle prosequi only terminates a specific
9
prosecution by vacating a charging instrument; it does not prevent a
10
prosecutor from re‐charging the same defendant for the same
11
criminal conduct at some point in the future. Winer, 286 Conn. at
12
685. Under the common law, however, a termination of the existing
13
prosecution is sufficient for a malicious prosecution claim to accrue.
14
See W. PAGE KEETON, ET AL., PROSSER & KEETON ON TORTS § 119 (5th
15
ed. 1984) (noting that the entry of a nolle prosequi constitutes
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favorable termination for malicious prosecution charges when it
17
“h[as] the effect of ending the particular proceeding and requiring
18
new process or other official action to commence a new
19
prosecution”). So long as a particular prosecution has been
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“conclusively” terminated in favor of the accused, such that the
21
underlying indictment or criminal information has been vacated and
22
cannot be revived, then the plaintiff has a justiciable claim for
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malicious prosecution. At that point, all of the issues relevant to the
This argument misreads our holding in Murphy. It is true that,
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claim—such as malice and lack of probable cause, see, 299 Conn. at
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210‐11—are ripe for adjudication. Nothing in our opinion in Murphy
3
can be read to contravene this longstanding common law rule.
4
5
York, 102 F.3d 654, 658 (2d Cir. 1996), and the Supreme Court have
6
warned against the possibility of parallel civil and criminal litigation
7
arising from the state’s prosecution of the same defendant for the
8
same criminal offense, Heck, 512 U.S. at 484–86 (noting that favorable
9
termination requirement “avoids parallel litigation over the issues of
10
probable cause and guilt . . . and [] precludes the possibility of the
11
claimant [sic] succeeding in the tort action after having been
12
convicted in the underlying criminal prosecution, in contravention
13
of a strong judicial policy against the creation of two conflicting
14
resolutions arising out of the same or identical transaction”)
15
(quoting 8 S. SPEISER, C. KRAUSE, & A. GANS, AMERICAN LAW OF
16
TORTS § 28:5, p. 24 (1991)); accord Poventud, 750 F.3d at 130.
We are mindful that both our court, see DiBlasio v. City of New
17
However, we read our precedent and the Supreme Court’s
18
dicta in Heck v. Humphrey to counsel only against duplicative
19
litigation on issues of guilt and probable cause arising out of the
20
same accusatory instrument.3 Heck and its progeny generally deal
We are aware that the District of Connecticut has held in several instances that a nolle is
not sufficient to constitute favorable termination, and that a plaintiff must obtain either
an unqualified dismissal or an acquittal of charges in order to pursue a malicious
prosecution claim under Section 1983. See Simpson v. Denardo, No. 3:02CV1471(MRK),
3
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with Section 1983 suits that are filed by plaintiffs asserting that a
2
prior criminal conviction is invalid, and seeking to recover damages
3
for the state’s abuse of legal process. Those decisions thus require
4
that the plaintiff demonstrate that the outstanding conviction has
5
been conclusively invalidated in a manner that demonstrates his
6
innocence before he can pursue his civil claim. See, e.g., Heck, 512
7
U.S. at 484‐81; Pontevud, 750 F.3d at 131‐33; DiBlasio, 102 F.3d at 658‐
8
59. They do not address the type of termination at issue here, in
9
which a plaintiff was never convicted of a criminal offense, but the
10
charges against him were dismissed in a manner that did not
11
preclude future prosecution under a different charging instrument.
12
We do not read those opinions to prevent such a plaintiff from
13
bringing suit on the basis of vacated charges simply because he
14
might be prosecuted again in the future, even successfully. See, e.g.,
15
RESTATEMENT (SECOND) OF TORTS § 659, cmt. b (1977) (AM. LAW INST.
16
1977) (“In order that there may be a sufficient termination in favor of
17
the accused it is not necessary that the proceedings should have
2004 WL 1737444, at *10 (D. Conn. July 29, 2004) (“A nolle prosequi does not qualify as a
favorable termination for purposes of a malicious prosecution claim.”); Bacchiocchi v.
Chapman, No. 03:02CV1403, 2004 WL 202142, at *4‐5 (D. Conn. Jan. 26, 2004). These
holdings were based on the Second Circuit’s decision in Roesch v. Otarola, 980 F.2d 850,
853 (2d Cir. 1992), which stated that “[a] person who thinks there is not even probable
cause to believe he committed the crime with which he is charged must pursue the
criminal case to an acquittal or an unqualified dismissal, or else waive his section
1983 claim.” In Roesch, the prosecution against the plaintiff was not terminated by a nolle
prosequi, but rather by participation in a pre‐trial rehabilitation program. Id. at 851. To the
extent that district courts have read Roesch to imply that a nolle does not constitute a
favorable termination, this reading is mistaken.
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gone so far as to preclude further prosecution on the ground of
2
double jeopardy.”). Indeed, while it is theoretically possible that a
3
prosecutor could revive a nolled case, and obtain a criminal
4
conviction against a defendant who has already received a favorable
5
civil judgment in a malicious prosecution suit, we think that this is
6
highly unlikely to occur in practice. Cf. Uboh v. Reno, 141 F.3d 1000,
7
1005–06 (11th Cir. 1998) (holding that a prosecutor’s unilateral
8
dismissal of charges constituted a favorable termination, on the
9
grounds that it was “extraordinarily unlikely” that the prosecutor
10
would “renew[] [the charges] in a subsequent action”).
11
Moreover, preventing plaintiffs from bringing suit for
12
malicious prosecution once a nolle is entered would be inconsistent
13
with the purpose of Section 1983. See Manuel, 137 S. Ct. at 921 (“In
14
applying, selecting among, or adjusting common‐law approaches
15
[for determining when a claim under Section 1983 accrues], courts
16
must closely attend to the values and purposes of the constitutional
17
right at issue.”). When the state institutes criminal charges
18
maliciously and without probable cause and requires a defendant to
19
appear before a court and answer those charges, it violates the
20
Fourth Amendment’s guarantee against unlawful seizure. See
21
Murphy, 118 F.3d at 944. The accused is entitled to seek recovery for
22
such a wrongful seizure as soon as the charges are vacated. His day
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in court should not be delayed merely because the state remains free
2
to bring a similar prosecution in the future.
3
Lastly, Spak’s contention that his claim accrued not upon
4
entry of the nolle, but thirteen months later when records of the
5
charges against him were automatically erased pursuant to
6
Connecticut state law, see Conn. Gen. Stat. § 54‐142a(c)(1), is
7
meritless. Connecticut courts have made clear that the erasure
8
provision Spak cites is a purely administrative measure, Winer, 286
9
Conn. at 679–80 (holding that “the recording of nolles and later, the
10
erasure of criminal records,” are “administrative rather than
11
substantive in intent”). Moreover, the erasure of records pertaining
12
to a prosecution does not preclude the prosecuting attorney from
13
filing new charges against the same defendant at some point in the
14
future. See id. at 683 (noting that the erasure provision does not
15
“provide new substantive protections for defendants”). This statute
16
therefore provides no more “conclusive” bar to future criminal
17
proceedings than the nolle itself.
CONCLUSION
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19
We have considered Spak’s remaining arguments, and we
20
find them unavailing. We therefore AFFIRM the judgment of the
21
district court.
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