Smith v. City of Rochester et al
DECISION AND ORDER. Defendants' Motion to Dismiss for Failure to State a Claim 2 is GRANTED and Plaintiff's Complaint 1 is DISMISSED WITH PREJUDICE. The Clerk of Court is directed to terminate this action. SO ORDERED. Signed by Hon. Frank P. Geraci, Jr. on 1/10/2017. (AFM)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
MARK A. SMITH,
Case # 16-CV-6097-FPG
DECISION AND ORDER
CITY OF ROCHESTER et al.,
Plaintiff Mark A. Smith (“Plaintiff”) brings this action pursuant to 42 U.S.C. § 1983
against the City of Rochester, Rochester Police Officer (“RPD”) Steven Swetman, in his official
and individual capacities, and John Does #1-10, intended to be unknown RPD officers. ECF No.
1. Plaintiff alleges that his Fourth Amendment rights were violated when Defendant Swetman
subjected him to an unreasonable search and seizure on May 27, 2011. Id. at ¶¶ 30-33.
On May 27, 2016, Defendants moved to dismiss the Complaint pursuant Federal Rule of
Civil Procedure 12(b)(6). ECF Nos. 2, 3, 4. After he was granted several extensions of time,
Plaintiff responded in opposition to Defendants’ Motion on September 9, 2016. ECF No. 8. For
the reasons that follow, Defendants’ Motion to Dismiss is GRANTED and this action is
DISMISSED WITH PREJUDICE.
On May 27, 2011 at approximately 1:00 a.m., Defendant Swetman was working as a
uniformed RPD officer in the City of Rochester when he responded to a 911 call that a man was
The following allegations are taken from Plaintiff’s Complaint (ECF No. 1) and are accepted as true for the
purpose of evaluating Defendants’ Motion to Dismiss.
selling drugs. ECF No. 1, at ¶ 10. Defendant Swetman arrived at the location and saw an
occupied vehicle with dark tinted windows. Id. at ¶¶ 11-12. When the vehicle drove away,
Defendant Swetman followed and stopped it based on the tinted window infraction. Id. at ¶¶ 1213. Plaintiff, the driver of the vehicle, informed Defendant Swetman that he did not have a
driver’s license. Id. at ¶ 14. Defendant Swetman asked Plaintiff to exit the vehicle and he pat
searched Plaintiff’s waist area. Id. at ¶¶ 15-16. When Defendant Swetman moved his hands
toward the back of Plaintiff’s waist, Plaintiff leaned forward. Id. at ¶ 17. Defendant Swetman
told Plaintiff to stand straight and handcuffed him before he continued pat searching the back of
his waist. Id. at ¶ 18. When Plaintiff leaned forward a second time, Defendant Swetman asked
Plaintiff if there was something in his pants that he “needed to know about.” Id. at ¶ 19.
Plaintiff did not respond to this question. Id. at ¶ 20. Plaintiff alleges that Defendant Swetman
then “pulled open the front of [Plaintiff]’s underwear and looked at his genital area and saw a
plastic bag in the bottom of [Plaintiff]’s underwear, which he retrieved.” Id. It was determined
that this bag contained crack cocaine. Id. at ¶ 21.
Based upon this incident, Plaintiff was charged with one count of Criminal Possession of
a Controlled Substance in the Third Degree and one count of Criminal Possession of a
Controlled Substance in the Fourth Degree in violation of the New York State Penal Law. Id. at
¶ 22. After Plaintiff was indicted on these charges, his attorney moved to suppress the drugs
found in his underwear. Id. at ¶ 23. After a suppression hearing, Monroe County Court Judge
James J. Piampiano denied Plaintiff’s motion to suppress and held that the search was legal. Id.
at ¶ 24. On May 16, 2012, Plaintiff pleaded guilty to both charges and was sentenced to an
aggregate term of six years incarceration plus two years of supervised release. Id. at ¶ 25.
Plaintiff filed a Notice of Appeal from Judge Piampiano’s decision to deny his motion to
suppress. Id. at ¶ 26. On December 23, 2015, the Appellate Division, Fourth Department,
unanimously reversed Plaintiff’s conviction, vacated his guilty plea, granted his motion to
suppress the drugs seized at the time of his arrest, and dismissed the indictment. Id. at ¶ 27.
Specifically, the Appellate Division held that Defendant Swetman’s search of Plaintiff was
“patently unreasonable” and that he violated Plaintiff’s Fourth Amendment right against
unreasonable search and seizure. Id. at ¶ 28. Plaintiff was incarcerated from May 27, 2011 until
December 24, 2015 based on the incidents described above. Id. at ¶ 29.
To succeed on a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the
defendant must show that the complaint contains insufficient facts to state a claim for relief that
is plausible on its face. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007). A complaint is
plausible when the plaintiff pleads sufficient facts that allow the Court to draw reasonable
inferences that the defendant is liable for the alleged conduct. Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009). Plausibility “is not akin to a probability requirement,” rather plausibility requires
“more than a sheer possibility that a defendant has acted unlawfully.” Id. (quotation marks
omitted). “Where a complaint pleads facts that are merely consistent with a defendant’s liability,
it stops short of the line between possibility and plausibility of entitlement to relief.” Id.
(quotation marks and citation omitted). A pleading that consists of “labels and conclusions” or
“a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at
555. Nor does a complaint suffice if it tenders “naked assertion[s]” devoid of “further factual
enhancement.” Id. at 557.
In considering the plausibility of a claim, the Court must accept factual allegations as true
and draw all reasonable inferences in the plaintiff’s favor. Faber v. Metro. Life Ins. Co., 648
F.3d 98, 104 (2d Cir. 2011). At the same time, the Court is not required to accord “[l]egal
conclusions, deductions, or opinions couched as factual allegations . . . a presumption of
truthfulness.” In re NYSE Specialists Sec. Litig., 503 F.3d 89, 95 (2d Cir. 2007) (quotation
marks omitted); see also Barr v. Abrams, 810 F.2d 358, 363 (2d Cir. 1987) (“As we have
repeatedly held, complaints relying on the civil rights statutes are insufficient unless they contain
some specific allegations of fact indicating a deprivation of rights, instead of a litany of general
conclusions that shock but have no meaning.”).
Defendants argue that Plaintiff’s case should be dismissed for several reasons, but their
primary argument is that the statute of limitations has expired. ECF No. 4, at 4-6. Plaintiff
contends that this action is timely because he is entitled to delayed accrual or equitable tolling.
ECF No. 8, at 4-6.
“The statute of limitations for actions under § 1983 is the statute of limitations applicable
to personal injuries occurring in the state in which the appropriate federal court sits.” Dory v.
Ryan, 999 F.2d 679, 681 (2d Cir. 1993). When that state has multiple limitations periods for
different personal injury claims, federal courts should apply the “general or residual” limitations
period. Pearl v. City of Long Beach, 296 F.3d 76, 79 (2d Cir. 2002) (quoting Owens v. Okure,
488 U.S. 235, 249-50 (1989)). The residual limitations period in New York State is three years.
N.Y. C.P.L.R. § 214(5); see also Pearl, 296 F.3d at 80.
Defendants assert that Plaintiff’s unlawful search claim accrued on May 27, 2011, when
the allegedly unlawful search and seizure occurred. ECF No. 4, at 4-6. Thus, Defendants
contend that Plaintiff was obligated to file suit within three years of this incident, by May 27,
2014. Id. at 5. Because Plaintiff did not bring this action until February 18, 2016, Defendants
maintain that it is time barred and should be dismissed. Id. at 6. Plaintiff asserts that delayed
accrual should apply in this case, and that his cause of action did not accrue until December 23,
2015, when the Appellate Division overturned his conviction. ECF No. 8, at 4-5.
Federal law governs the accrual date for § 1983 claims, and accrual occurs “when the
plaintiff knows or has reason to know of the injury which is the basis of his action.” Pearl, 296
F.3d at 80 (citation omitted).
In Wallace v. Kato, 549 U.S. 384, 397 (2007), the Supreme Court held that “the statute of
limitations upon a § 1983 claim seeking damages for a false arrest in violation of the Fourth
Amendment, where the arrest is followed by criminal proceedings, begins to run at the time the
claimant becomes detained pursuant to legal process.” There, the petitioner was arrested after he
confessed to a murder. Id. at 386. Before his trial, the petitioner unsuccessfully attempted to
suppress his station house statements as the product of an unlawful arrest. Id. He was convicted
of first-degree murder and sentenced to 26 years in prison. Id. On appeal, the Appellate Court
of Illinois held that the officers arrested the petitioner without probable cause in violation of the
Fourth Amendment. Id. (citation omitted). The petitioner’s case was ultimately remanded for a
new trial, but the prosecutor dropped the charges against him. Id. at 387.
Shortly after the charges were dropped but more than nine years after his arrest, the
petitioner filed a § 1983 suit against the city of Chicago and several Chicago police officers
seeking damages arising from his unlawful arrest. Id. Under Illinois law, the relevant statute of
limitations was two years. Id. The petitioner argued that his claim was timely because it accrued
on the date he was released from custody, as he sought damages up to that time. Id. 391. The
Supreme Court found, however, that the petitioner’s claim was time barred because it accrued
“when he appeared before the examining magistrate and was bound over for trial.” Id. at 391-92.
The Supreme Court noted that deferred accrual was not appropriate, which “is called into play
only when there exists ‘a conviction or sentence that has not been . . . invalidated,’ that is to say,
an ‘outstanding criminal judgment.’” Id. at 393 (quoting Heck v. Humphrey, 512 U.S. 477, 487
(1994) (emphasis and alterations in original)).
The facts in this case are remarkably similar. Plaintiff was arrested after Defendant
searched him and seized a bag of crack cocaine from him. Plaintiff unsuccessfully attempted to
suppress the evidence, but Judge Piampiano denied his motion and held that the search was legal.
Plaintiff pleaded guilty to the charges and was sentenced to a term of imprisonment. Thereafter,
the Appellate Division reversed Plaintiff’s conviction and found that the search and seizure
violated his Fourth Amendment rights. Plaintiff was released from prison the next day and filed
this suit shortly thereafter.
The Wallace ruling has been applied to allegedly unlawful searches and seizures. In
Mallard v. Potenza, No. 94-CV-223 (CBA), 2007 WL 4198246, at *3 (E.D.N.Y. Nov. 21, 2007),
aff’d, 376 F. App’x 132 (2d Cir. 2010), the court noted that “delayed accrual does not apply in
the pre-conviction context. This would be true whether the claim which could potentially call
into question the conviction arises from a false arrest or an improper search.” Accordingly, the
court found that the date of accrual was the date on which the property in question was seized,
because “a claim for an illegal search accrues when the property is taken (so long as the plaintiff
knows or has reason to know of the taking), because that is when the plaintiff’s rights have been
intruded upon and the time at which he has a complete and present cause of action.” Id. at *5.
Plaintiff argues that delayed accrual should apply here, because “the ruling in Mallard
has never been applied, or even cited, by the Court of Appeals for the Second Circuit, thus
rendering its persuasiveness questionable.” ECF No. 8, at 5. The Court rejects that argument,
however, because the Second Circuit affirmed the Mallard ruling. See Mallard v. Potenza, 376
F. App’x 132 (2d Cir. 2010) (summary order).
Accordingly, the Court finds that Plaintiff’s unlawful search claim accrued on May 27,
2011, the date on which he was searched and had property seized from him.
The statute of limitations may be tolled in a § 1983 action under “extraordinary
circumstances.” Walker v. Jastremski, 430 F.3d 560, 564 (2d Cir. 2005). The party who seeks
equitable tolling must establish “(1) that he has been pursuing his rights diligently, and (2) that
some extraordinary circumstance stood in his way.” A.Q.C. ex rel. Castillo v. U.S., 656 F.3d
135, 144 (2d Cir. 2011) (citing Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). However,
“[b]ecause statutes of limitations protect important social interests in certainty, accuracy, and
repose, equitable tolling is considered a drastic remedy applicable only in rare and exceptional
circumstances.” Castillo, 656 F.3d at 144 (internal alterations, quotation marks, and citations
Plaintiff contends that the statute of limitations should be tolled until December 23, 2015,
when the Appellate Division overturned his conviction and found that the search and seizure
were “patently unreasonable.” ECF No. 8, at 4-6. Specifically, Plaintiff asserts that the requisite
“extraordinary circumstances” are present here because “[a]s a result of the illegal search by
[Defendant] Swetman, [Plaintiff] was continuously incarcerated from May 27, 2011 until
December 24, 2015, one day after his conviction was overturned by the Appellate Division.” Id.
at 5. Plaintiff notes that “[t]his action was commenced less than two months after the Appellate
Division, for the first time in the four-year history of [Plaintiff]’s criminal case, held that
[Defendant] Swetman’s search of his underwear violated [Plaintiff]’s Fourth Amendment
rights.” Id. at 5-6. Plaintiff argues that “rather than sit on his rights, [he] sought legal counsel
and commenced a lawsuit almost immediately upon his release from state custody” after the
Appellate Division held that the search at issue violated his rights. Id. Plaintiff also contends
that tolling the statute of limitations would not be prejudicial to Defendants. Id. at 6.
Plaintiff has not shown that he was “pursuing his rights diligently” in relation to this
§ 1983 action while he was in prison, and imprisonment is not an “extraordinary circumstance”
that tolls the statute of limitations. Taylor v. Fresh Direct, No. 12 Civ.2084(GBD)(AJP), 2012
WL 6053712, at *5 (S.D.N.Y. Dec. 5, 2012) (citing Walker v. Jastremski, 159 F.3d 117, 119 (2d
Cir. 1988) (“[I]mprisonment simpliciter, like unawareness simpliciter, does not toll a statute of
limitations.”) and Perry v. Sony Music, 462 F. Supp. 2d 518, 520 (S.D.N.Y. 2006) (Plaintiff’s
“explanation that he was incarcerated during the period in question is not sufficient by itself to
support application of the [equitable tolling] doctrine.”)). Thus, the Court finds that Plaintiff has
not demonstrated that he is entitled to the drastic remedy of equitable tolling. See Wallace, 549
U.S. at 396 (“Equitable tolling is a rare remedy to be applied in unusual circumstances, not a
cure-all for an entirely common state of affairs.”).
Accordingly, because Plaintiff’s claim accrued on May 27, 2011 and there is no basis for
equitable tolling, Plaintiff was required to file suit by May 27, 2014. Because Plaintiff did not
commence this action until February 18, 2016, it is time barred and must be dismissed.
For the reasons stated, Defendants’ Motion to Dismiss (ECF Nos. 2, 3, 4) is GRANTED
and Plaintiff’s Complaint is DISMISSED WITH PREJUDICE (ECF No. 1). The Clerk of Court
is directed to terminate this action.
IT IS SO ORDERED.
Dated: January 10, 2017
Rochester, New York
HON. FRANK P. GERACI, JR.
United States District Court
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?