17‐296‐cv

McDonough v. Smith

1 In the 

2 United States Court of Appeals 

3 For the Second Circuit 

4 

5 

6 August Term, 2017

7 No. 17‐296‐cv

8 

9 EDWARD G. MCDONOUGH,

10 Plaintiff‐Appellant,

11 

12 v.

13 

14 YOUEL SMITH, INDIVIDUALLY AND AS SPECIAL DISTRICT ATTORNEY FOR

15 THE COUNTY OF RENSSELAER, NEW YORK, AKA TREY SMITH,

16 Defendant‐Appellee,

17 

18 JOHN J. OGDEN, RICHARD MCNALLY JR., KEVIN MCGRATH, ALAN

19 ROBILLARD, COUNTY OF RENSSELAER, JOHN F. BROWN, WILLIAM A.

20 MCINERNEY, KEVIN F. OʹMALLEY, DANIEL B. BROWN, ANTHONY J.

21 RENNA,

Defendants.

* 22 

23 

24 

25 Appeal from the United States District Court

26 for the Northern District of New York.

27 No. 15‐cv‐1505 ― Mae A. DʹAgostino, Judge.

28 

29 

 

* The Clerk is directed to amend the caption to conform to the above.  
2

1 ARGUED: NOVEMBER 29, 2017

2 DECIDED: AUGUST 3, 2018

3 

4 

5 Before: JACOBS, RAGGI, and DRONEY, Circuit Judges.

6 

7 

8 Interlocutory appeal from a judgment of the United States

9 District Court for the Northern District of New York (DʹAgostino, J.)

10 dismissing the Plaintiff‐Appellantʹs claims under 42 U.S.C. § 1983.

11 The Plaintiff‐Appellant alleged that his right to due process had been

12 violated because fabricated evidence was used against him in state

13 criminal proceedings. He also alleged a malicious prosecution claim

14 against the prosecutor. We conclude that his due process claim was

15 untimely as it was filed beyond the applicable limitations period. We

16 also conclude that the prosecutor was entitled to absolute immunity

17 for the malicious prosecution claim. We therefore AFFIRM the

18 judgment of the district court.

19 

20    

21 BRIAN D. PREMO, Premo Law Firm

22 PLLC, Albany, NY, for Plaintiff‐

23 Appellant.

24 

25 THOMAS J. OʹCONNOR, Napierski,

26 VanDenburgh, Napierski &

27 OʹConnor, LLP, Albany, NY, for

28 Defendant‐Appellee Youel Smith.

29 

30 Andrew D. Bing, Deputy Solicitor

31 General, Jennifer L. Clark, Assistant

32 Solicitor General, for Barbara D.
3

1 Underwood, Attorney General of the

2 State of New York, for Defendant John

3 G. Ogden.

4 

5 DRONEY, Circuit Judge:

6 Plaintiff‐Appellant Edward G. McDonough, the former

7 Democratic Commissioner of the Rensselaer County Board of

8 Elections, was acquitted in New York state court of forging absentee

9 ballots in a local primary election. He appeals from two subsequent

10 decisions of the United States District Court for the Northern District

11 of New York (DʹAgostino, J.) dismissing his claims against

12 Defendant‐Appellee Youel Smith under 42 U.S.C. § 1983 related to

13 that prosecution. He alleged (1) denial of due process based on

14 fabricated evidence and (2) malicious prosecution. The district court

15 determined that (1) McDonoughʹs due process claim was untimely

and dismissed it as to all Defendants1 16 and (2) Smith, a Special District

 

1 The Defendants are primarily individuals allegedly associated with either the

purported fraudulent scheme that formed the basis for McDonoughʹs prosecution

or members of law enforcement responsible for his investigation and prosecution.

McDonough has alleged conspiracies involving both types of defendants.  
4

1 Attorney who prosecuted McDonough, was entitled to absolute

2 prosecutorial immunity on McDonoughʹs malicious prosecution

claim and therefore dismissed that claim with respect to Smith. 2 3 

4 Pursuant to Federal Rule of Civil Procedure 54(b), the district

5 court entered judgment as to Smith and certified the decisions

6 dismissing the two claims against him for interlocutory appeal by

McDonough.3 7   

8 For the reasons that follow, we agree with the district courtʹs

9 conclusion that McDonoughʹs due process claim was untimely, and

10 thus barred by the applicable statute of limitations. We also agree

 

2 McDonoughʹs claims against Smith were brought against him in his official and

individual capacities. The district court dismissed the former on the basis of

Eleventh Amendment immunity. That decision is not challenged in this appeal.

Thus, it is only the individual capacity claims that we address.  

3 Defendant John J. Ogden, a New York State Police Trooper who worked with

Smith as an investigator in the criminal case against McDonough, has filed a brief

in this court arguing that the district court correctly concluded that McDonoughʹs

due process claim was time‐barred. Although this Court previously granted

Ogdenʹs motion to intervene for the purpose of seeking a stay pending a

reconsideration motion in the district court, the judgment entered by the district

court under Federal Rule of Civil Procedure 54(b) and authorization for

interlocutory appeal only applied to Defendant‐Appellee Smith.  
5

1 with the district court that Smith is entitled to absolute immunity as

2 to the malicious prosecution claim. We therefore AFFIRM the

3 dismissal of those claims.

4 BACKGROUND

5 During the 2009 Working Families Party primary election in the

6 City of Troy, New York, several individuals associated with the

7 Democratic and Working Families Parties forged signatures and

8 provided false information on absentee ballot applications and

9 absentee ballots in order to affect the outcome of that primary. Those

10 individuals then submitted the forged absentee ballot applications to

11 McDonough. McDonough, as a commissioner of the Rensselaer

12 County elections board, was responsible for processing those

applications. 13 4 McDonough approved the forged applications, but

14 subsequently claimed he did not know that they had been falsified.  

 

4 McDonough, as the Democratic Rensselaer County Elections Commissioner, is

responsible for ensuring that all qualified voters may exercise their right to vote.

See Board of Elections, www.rensco.com/departments/board‐of‐elections/ (last

visited Jun. 20, 2018). Part of the responsibilities of a Board of Elections, and by
6

1 The plot to influence the primary was eventually discovered.

2 Defendant Richard McNally, the elected District Attorney for

3 Rensselaer County, was disqualified from the ensuing investigation

4 because certain of those allegedly involved in the scheme had worked

5 on his prior campaign. The state court then appointed Smith as a

6 Special District Attorney to lead the investigation and potential

7 prosecution. McDonough claimed that Smith then engaged in an

8 elaborate scheme to frame McDonough for the crimes by, among

9 other things, fabricating evidence. This alleged scheme included

10 using forged affidavits, offering false testimony, and using faulty

11 DNA methods for analyzing materials used in processing the ballot

12 applications, all despite Smith knowing that McDonough was

13 innocent.  

 

extension, a Commissioner, is to receive applications for absentee ballots and

determine whether the applicants are qualified to vote. N.Y. Elec. Law § 8‐402(1).

McDonough, as an elections commissioner, was a full‐time employee of

Rensselaer County.  
7

1 McDonough claims that Smith presented the fabricated

2 evidence to a grand jury. The grand jury subsequently indicted

3 McDonough on more than three dozen state law counts of felony

4 forgery in the second degree and a similar number of counts of felony

5 criminal possession of a forged instrument in the second degree. See

6 N.Y. Penal Law §§ 170.10, 170.25. The case against McDonough

7 proceeded to trial but ended in a mistrial. McDonough was then

8 retried, again with Smith as the prosecutor. That trial ended in

9 McDonoughʹs acquittal on December 21, 2012.

10 On December 18, 2015, McDonough filed this action under 42

11 U.S.C. § 1983, claiming that the Defendants (including Smith) (1) had

12 violated his right to due process by fabricating evidence and later

13 using it against him before the grand jury and in his two trials and (2)

14 were liable for malicious prosecution.

15 Several Defendants filed motions to dismiss McDonoughʹs due

16 process claim. They argued, in part, that it was barred by the
8

1 applicable three‐year statute of limitations because the allegedly

2 fabricated evidence had been disclosed to McDonough, and his claim

therefore accrued, well before the second jury acquitted him.5 3   

4 In opposing the Defendantsʹ motions, McDonough argued that

5 because his fabrication of evidence claim was based on the actions of

6 Smith, a prosecutor, it was analogous to a malicious prosecution

7 claim, and therefore did not accrue until the second trial terminated

8 in his favor. McDonough also contended that his due process claim

9 did not accrue until the termination of the second trial under the

10 Supreme Courtʹs decision in Heck v. Humphrey, 512 U.S. 477 (1994). He

11 argued that his fabrication of evidence claim would challenge the

12 validity of the pending criminal proceedings against him, and thus,

13 under Heck, did not accrue until he was acquitted.  

 

5 Although Smith filed a motion to dismiss McDonoughʹs complaint, he did not

argue that McDonoughʹs due process claim was untimely. Nonetheless, the district

court concluded, as other Defendants had raised untimeliness issues as to the

fabrication of evidence claim, that the claim was also untimely as to Smith. Plaintiff

does not challenge that Smith may assert the untimeliness of that claim in this

appeal.  
9

1 In two decisions, dated September 30, 2016 and December 30,

2 2016, the district court dismissed McDonoughʹs due process claims

3 against all Defendants as untimely and his malicious prosecution

claim against Smith on the basis of absolute prosecutorial immunity.6 4   

5 As to the due process claim, the district court reasoned that

6 McDonoughʹs claim was ʺbased upon the fabrication of evidenceʺ and

7 it ʺaccrued when he knew or should have known that such evidence

8 was being used against him and not upon his acquittal in his criminal

9 case.ʺ  J. App. 155. As the district court indicated, McDonoughʹs

10 complaint had alleged ʺthat all of the fabricated evidence was either

11 presented at grand jury proceedings or during his two trials, all of

12 which occurredʺ more than three years before he filed suit. J. App.

13 156.  

 

6 The district court also determined that McDonoughʹs malicious prosecution

claim was timely because it had not accrued until his acquittal. That claim is still

proceeding in the district court as to other Defendants.
10

1 The district court also concluded that Smith was protected by

2 absolute immunity as to the malicious prosecution claim.  

3 DISCUSSION

4 I. Standard of Review

5 ʺWe review de novo the grant of a motion to dismiss, accepting

6 all factual allegations in the complaint as true and drawing inferences

7 from those allegations in the light most favorable to the plaintiff.ʺ 

8 Bascunan v. Elsaca, 874 F.3d 806, 810 (2d Cir. 2017) (alterations and

9 internal quotation marks omitted); see also Deutsche Bank Nat’l Tr. Co.

10 v. Quicken Loans Inc., 810 F.3d 861, 865 (2d Cir. 2015) (ʺWe review de

11 novo a district courtʹs grant of a motion to dismiss, including its legal

12 interpretation and application of a statute of limitations . . . .ʺ).

13 II. The Due Process Claim

14 McDonough argues that his due process claim is timely because

15 he alleged that Smith fabricated evidence in order to file baseless

16 charges against him, and thus his claim is most analogous to a
11

1 malicious prosecution action, which does not accrue until favorable

2 termination of the prosecution, here the verdict of acquittal. See

3 Poventud v. City of New York, 750 F.3d 121, 131 (2d Cir. 2014). In the

4 alternative, McDonough asserts (1) that his claim is timely in light of

5 Heck v. Humphrey, and (2) that the use of fabricated evidence against

6 him constituted a continuing violation that renders his claim timely.   

7 We conclude that the nature of McDonoughʹs due process claim

8 is different from a malicious prosecution claim, and that it accrued

9 when (1) McDonough learned that the evidence was false and was

10 used against him during the criminal proceedings; and (2) he suffered

11 a loss of liberty as a result of that evidence.  Because both occurred

12 more than three years prior to McDonough filing this action, we agree

13 with the district court that McDonoughʹs due process claim is time‐
12

barred. 1 7 We also reject McDonoughʹs additional arguments as to the

2 due process claim.  

3 a. The Accrual of § 1983 Actions for Fabrication of Evidence

4 and Malicious Prosecution

5 

6 The statute of limitation for claims brought under 42 U.S.C.

7 § 1983 is generally ʺthe statute of limitations for the analogous claim

8 under the law of the state where the cause of action accrued.ʺ Spak v.

9 Phillips, 857 F.3d 458, 462 (2d Cir. 2017). It is undisputed that the

10 applicable statute here is New Yorkʹs three‐year limitations period for

11 personal injury claims. See Smith v. Campbell, 782 F.3d 93, 100 (2d Cir.

12 2015) (applying three‐year personal injury limitations period to

13 retaliatory prosecution claim); see also N.Y. C.P.L.R. § 214(5) (personal

14 injury statute of limitations).

15 ʺHowever, the time at which a claim . . . under [§] 1983 accrues

16 is a question of federal law that is not resolved by reference to state

 

7 At times, McDonough characterizes the fabrication of evidence claim against

Smith as a conspiracy to fabricate evidence with other Defendants. That does not

affect our conclusion as to the accrual of that claim.
13

1 law.ʺ Spak, 857 F.3d at 462 (quoting Wallace v. Kato, 549 U.S. 384, 388

2 (2007)) (emphasis in original). Instead, federal ʺcourts apply general

3 common‐law tort principles to determine the accrual date of a [§] 1983

4 claim.ʺ Spak, 857 F.3d at 462 (alterations and internal quotation marks

5 omitted). It ʺis the standard rule that accrual occurs when a plaintiff

6 has a complete and present cause of action, that is, when the plaintiff

7 can file suit and obtain relief.ʺ  Smith, 782 F.3d at 100 (internal

8 quotation marks omitted). Put other ways, an action accrues ʺwhen

9 the wrongful act or omission results in damages,ʺ id., and ʺonce the

10 plaintiff knows or has reason to know of the injury which is the basis

11 of his action,ʺ Veal v. Geraci, 23 F.3d 722, 724 (2d Cir. 1994) (internal

12 quotation marks omitted).  

13 We next consider the accrual rules for the two types of claims

14 that McDonough has brought against Smith in this case: fabrication

15 of evidence and malicious prosecution.

16 Under the Fifth and Fourteenth Amendmentsʹ  Due Process
14

1 Clauses, individuals have ʺthe right not to be deprived of liberty as a

2 result of the fabrication of evidence by a government officer . . . .ʺ 

3 Zahrey v. Coffey, 221 F.3d 342, 349 (2d Cir. 2000). The forwarding by

4 an investigating officer to a prosecutor of fabricated evidence, or in

5 this instance, the alleged creation or use of such evidence by both

6 investigating officers and the prosecutor,  ʺworks an unacceptable

7 ʹcorruption of the truth‐seeking function of the trial process.ʹʺ Ricciuti

8 v. N.Y.C. Transit Auth., 124 F.3d 123, 130 (2d Cir. 1997) (quoting United

9 States v. Agurs, 427 U.S. 97, 104 (1976)).

10 Applying our standard accrual rules, a fabrication of evidence

11 claim accrues (1) when a plaintiff learns of the fabrication and it is

12 used against him, see Veal, 23 F.3d at 724, and (2) his liberty has been

13 deprived in some way, see Zahrey, 221 F.3d at 348. Because there is no

14 dispute in this case that McDonough suffered a liberty deprivation

15 because of that evidence when he was arrested and stood trial, we

16 focus our attention on the first prong. See id.
15

1 The statute of limitations begins to run on a fabrication of

2 evidence claim against law enforcement officials under § 1983 when

3 the plaintiff has ʺʹreason to know of the injury which is the basis of his

4 action.ʹʺ Veal, 23 F.3d at 724 (quoting Singleton v. New York, 632 F.2d

5 185, 191 (2d Cir. 1980)). ʺThe reference to ʹknow[ledge] of the injuryʹ 

6 does not suggest that the statute does not begin to run until the

7 claimant has received judicial verification that the defendantsʹ  acts

8 were wrongful.ʺ Id. (second alteration in original).  

9 In Veal, a police detective manipulated a lineup by arranging

10 for the witness to view the criminal defendant (later the plaintiff in

11 the § 1983 fabrication of evidence lawsuit) entering the police station

12 in handcuffs prior to conducting the lineup. Id. at 723–24. However,

13 at the time of the lineup, the defendant had already been arrested for

14 the crime based on the same witnessʹs identification of him from a

15 prior photo array. Id. at 725. The evidence of the identification from

16 the lineup was later used at trial and the defendant was convicted. Id.
16

1 at 724. The Appellate Division of the New York Supreme Court

2 reversed the conviction because of the use of the suggestive lineup

3 and the resulting in‐court identification. Id.  

4 Veal brought his § 1983 due process claim within three years of

5 the decision by the Appellate Division but more than three years after

6 he had been sentenced following his trial. Id. We concluded that the

7 statute of limitations had expired before the suit was instituted

8 because Veal was made aware of the tainted lineup when its

9 circumstances were disclosed before his trial (and he moved to

10 suppress its use at trial), more than three years before suit was

11 brought. Id. at 724–25. The date of the reversal of the conviction by the

12 Appellate Division was not the accrual date of the due process

13 violation;   rather it was as early as when the circumstances of the

14 lineup were disclosed at the pretrial hearing, and certainly no later

15 than the date of conviction and sentencing, because those later dates

16 were when the liberty deprivation occurred based on the effect of the
17

tainted evidence at trial. Id. at 725–26.8 1   

2 We acknowledge that the Third, Ninth, and Tenth Circuits have

3 held that the due process fabrication cause of action accrues only after

4 criminal proceedings have terminated because those circuits have

5 concluded that fabrication of evidence claims are analogous to claims

6 of malicious prosecution, which require termination of the criminal

7 proceeding in the defendantʹs favor before suit may be brought. See

8 Floyd v. Attorney Gen. of Pennsylvania, 722 F. Appʹx. 112, 114 (3d Cir.

9 Jan. 8, 2018); Bradford v. Scherschligt, 803 F.3d 382, 388–89 (9th Cir.

10 2015) (ʺTo determine the proper date of accrual, we look to the

11 common law tort most analogous to Bradfordʹs claim. As we have

12 explained, the right at issue. . . is the right to be free from [criminal]

13 charges based on a claim of deliberately fabricated evidence. In this

14 regard, it is like the tort of malicious prosecution, which involves the

 

8 District courts in this Circuit have followed Veal and concluded that a § 1983 claim

based on fabricated evidence  ʺaccrues when the plaintiff learns or should have

learned that the evidence was fabricated and such conduct causes the claimant

some injury.ʺ Mitchell v. Home, 377 F. Supp. 2d 361, 373 (S.D.N.Y. 2005)
18

1 right to be free from the use of legal process that is motivated by

2 malice and unsupported by probable cause.ʺ) (second alteration in

3 original) (internal citation and quotation marks omitted); Mondragon

4 v. Thompson, 519 F.3d 1078, 1083 (10th Cir. 2008) (ʺAfter the institution

5 of legal process, any remaining constitutional claim is analogous to a

6 malicious prosecution claim. . . . Because the statute of limitations

7 does not start running before the elements of a claim are satisfied, the

8 statute of limitations for this due process claim cannot start until the

9 plaintiff has achieved a favorable result in the original action.ʺ). We

10 disagree with those decisions. Because the injury for this

11 constitutional violation occurs at the time the evidence is used against

12 the defendant to deprive him of his liberty, whether it be at the time

13 he is arrested, faces trial, or is convicted, it is when he becomes aware

14 of that tainted evidence and its improper use that the harm is

15 complete and the cause of action accrues. Indeed, the harm—and the

16 due process violation—is in the use of the fabricated evidence to cause
19

1 a liberty deprivation, not in the eventual resolution of the criminal

2 proceeding.

3 We thus conclude that, under the circumstances here, the

4 § 1983 action based on fabrication of evidence accrued when

5 McDonough (1) learned of the fabrication of the evidence and its use

6 against him in criminal proceedings, and (2) was deprived of a liberty

7 interest by his arrest and trial. For McDonough, this was, at the

8 earliest, when he was indicted and arrested and, at the latest, by the

9 end of his first trial, after all of the prosecutionʹs evidence had been

presented.9 10   ʺ[J]udicial verification that the defendantsʹ  acts were

11 wrongfulʺ  is not required, and thus accrual did not have to await

12 McDonoughʹs acquittal. Veal, 23 F.3d at 724.  

13 In contrast, we have long held that malicious prosecution

14 claims brought pursuant to § 1983 do not accrue until the underlying

15 criminal proceedings against the plaintiff terminate in his favor.

 

9 McDonough does not allege that fabricated evidence was used against him in the

second trial that was not presented in the first.  
20

1 Manganiello v. City of New York, 612 F.3d 149, 161 (2d Cir. 2010).

2 Favorable termination is an element of malicious prosecution under

3 New York law and also for the Constitution‐based tort. Id. A plaintiff

4 therefore cannot have a complete cause of action unless and until the

criminal proceedings against him terminate favorably. 5 10 Accordingly,

6 the district court properly concluded that the malicious prosecution

claims were timely.11 7 

8 That McDonough alleged that a prosecutor, rather than a law

9 enforcement officer, fabricated evidence does not delay the accrual of

10 his due process claim until accrual of his malicious prosecution claim.

11 The constitutional right violated by fabricated evidence is the right

12 not to be arrested or to face trial based on such evidence. See Zahrey,

 

10 The elements of a malicious prosecution claim require a plaintiff to establish that

ʺ(1) the defendant initiated a prosecution against [the] plaintiff, (2) without

probable cause to believe the proceeding can succeed, (3) the proceeding was

begun with malice and, (4) the matter terminated in plaintiffʹs favor.ʺ Ricciuti, 124

F.3d at 130. The elements are the same for the New York tort and the constitutional

one. See id.; Colon v. City of New York, 60. N.Y.2d 78, 82 (1983).

11 The district court, however, concluded that Smith was entitled to absolute

immunity from the malicious prosecution claim. That decision is addressed later

in this opinion.  
21

1 221 F.3d at 348. That violation and its harm were complete when the

2 fabricated evidence was used by Smith against McDonough in those

3 ways. It matters not, in the circumstances here, whether it was Smith

4 or a law enforcement officer who created and used the allegedly false

5 evidence; whoever causes that deprivation of liberty is a proper

6 defendant for this constitutional cause of action. But the defendantʹs

7 role makes no difference when the claim accrues. The separate and

8 distinct harm that malicious prosecution claims are designed to

9 address afforded McDonough a remedy to the extent that he alleged

10 that fabricated evidence was created to prosecute him maliciously

and without probable cause. 11 12 See id. (discussing claim based on

12 prosecutorʹs fabrication of evidence).

13 McDonough argues that, notwithstanding its date of accrual,

14 his due process claim is timely as a result of the Supreme Court’s

 

12 As one district court in this Circuit aptly explained: ʺA right to a fair trial claim is

distinct from a malicious prosecution claim.ʺ Bailey v. City of New York, 79 F. Supp.

3d 424, 446 (E.D.N.Y. 2015) (emphasis added).
22

1 decision in Heck, 512 U.S. at 486–87 (concluding that civil complaint

2 must be dismissed in a malicious prosecution‐type case if a judgment

3 in favor of the plaintiff would “imply the invalidity of his

4 conviction”). That argument, however, is foreclosed by the Supreme

5 Courtʹs subsequent decision in Wallace, 549 U.S. at 393–94.  In Wallace,

6 the plaintiff brought a false arrest claim under § 1983. The conviction

7 following that arrest was reversed by the state appeals court because

8 the arrest was without probable cause, thus invalidating a subsequent

9 confession admitted at trial. Id. at 386–87. The Supreme Court held

10 that the civil false arrest claim accrued at the time of the initial arrest

11 and the ultimate reversal of the conviction was not necessary to

12 complete the false arrest constitutional tort. Id. at 394. Even though

13 the false arrest claim might impugn a future conviction, Heck did not

14 delay its accrual date, and the civil action could proceed even though
23

the criminal case had not been resolved at that time.13 1 Id. at 393. Thus,

2 the Court clarified that, ʺthe Heck rule for deferred accrual is called

3 into play only when there exists a conviction or sentence that has not

4 been invalidated, that is to say, an outstanding criminal judgment.ʺ 

5 Wallace, 549 U.S. at 393 (internal punctuation and quotation marks

6 omitted) (emphasis in original). McDonough was never convicted, so

7 Heck is not ʺcalled into play.ʺ Id.

8 Finally, McDonough argues that his due process claim is timely

9 because his  ʺwrongful prosecution [constituted] a continuing

10 violation,ʺ that only ceased on his acquittal. Appellantʹs Br. 50.   We

11 are not persuaded. As we have explained:  ʺCharacterizing

12 defendantsʹ  separate wrongful acts as having been committed in

13 furtherance of a conspiracy or as a single series of interlocking events

14 does not postpone accrual of claims based on individual wrongful

 

13 The Supreme Court in Wallace stated that there may be circumstances where the

district court might exercise its discretion to stay the civil action until the criminal

case is resolved, but that is not relevant here. Wallace, 594 U.S. at 393–94.
24

1 acts.ʺ  Pinaud v. County of Suffolk, 52 F.3d 1139, 1156 (2d Cir. 1995)

2 (internal quotation marks omitted). Smith allegedly fabricated

3 evidence, then presented that evidence to a grand jury, and later used

4 it at McDonoughʹs trials. The cause of action accrued when

5 McDonough became aware of the fabricated evidence, which was, at

6 the latest, during the first trial. The continuation of the prosecution

7 does not, by itself, constitute a continuing violation that would

postpone the running of the statute of limitations until his acquittal.14 8 

9 III. The Malicious Prosecution Claim

10 Prosecutors are protected by absolute immunity for their acts

11 that are ʺintimately associated with the judicial phase of the criminal

 

14 We are also not persuaded by McDonoughʹs reliance on the Supreme Courtʹs

recent decision in Manuel v. City of Joliet, Ill., which held that a plaintiff (formerly

a criminal defendant) may seek damages under 42 U.S.C. § 1983 concerning his

pretrial detention on the ground that it violated the Fourth Amendment for the

period of pretrial detention after his arrest. 137 S. Ct. 911, 914 (2017).  That a claim

under the Fourth Amendment may be based on events occurring after an arrest

does not affect our conclusion that McDonoughʹs due process claim accrued well

before his acquittal, and the Supreme Court stated in Manuel that its recognition

that the Fourth Amendment applies to a period after the arrest did not necessarily

alter the accrual date of that and other causes of action, and left the question for

the Courts of Appeals to resolve.Id. at 922.
25

1 processʺ and their role as advocates, but they receive only qualified

2 immunity for acts that are investigatory in nature. Simon v. City of New

3 York, 727 F.3d 167, 171–72 (2d Cir. 2013) (internal quotation marks

4 omitted). The district court concluded that Smith was entitled to

5 absolute immunity from McDonoughʹs malicious prosecution claim

6 because even though McDonoughʹs complaint suggests that, at times,

7 Smith was acting in an investigatory capacity,  ʺthe distinction

8 between a prosecutorʹs investigative and prosecutorial functions is

9 immaterial to a malicious prosecution claim, since prosecutors are

10 generally immune from such claims.ʺ J. App. 204; see also Shmueli v.

11 New York, 424 F.3d 231, 238 (2d Cir. 2005). We agree. Although

12 prosecutors may be eligible only for qualified immunity when

13 functioning in an investigative capacity, they are entitled to absolute

14 immunity when acting as advocates for the state, such as initiating

15 prosecutions or at trial. See Zahrey, 221 F.3d at 346 (holding, in § 1983

16 cases, that prosecutorial  ʺ[a]ctions taken as an advocate enjoy
26

1 absolute immunity, while actions taken as an investigator enjoy only

2 qualified immunityʺ (internal citation omitted)); see also Shmueli, 424

3 F.3d at 237 (ʺ[T]he initiation and pursuit of a criminal prosecution are

4 quintessential prosecutorial functions . . . .ʺ). As the malicious

5 prosecution claim relates only to Smithʹs prosecutorial function, it is

barred by absolute immunity.15 6 

7    

 

15 McDonough also asserts on appeal that Smithʹs appointment as Special District

Attorney was invalid under New York law and that the conduct McDonough was

charged with in the indictment could not meet the elements of the various state

criminal statutes. In order to strip Smith of his absolute prosecutorial immunity,

McDonough would be required to show Smith proceeded despite a “clear absence

of all jurisdiction” for the prosecution. Barr v. Abrams, 810 F.2d 358, 361 (2d Cir.

1987). He has not done so. Also, as to the claim that Smith was not properly

appointed, the correct forum for such a claim would be in the New York courts. In

Working Families Party v. Fisher, 23 N.Y.3d 539 (2014), the New York Court of

Appeals held that the method for challenging the appointment of a special

prosecutor is through a N.Y. C.P.L.R. Article 78 proceeding. McDonough did not

pursue the Article 78 course to invalidate Smithʹs appointment. Rather,

McDonough alleged in his complaint that he sought to have Smith disqualified by

petitioning the County to file an action in the state courts to nullify Smithʹs

appointment, and later filing a motion in his criminal case to dismiss the charges

on the basis that Smithʹs appointment was unlawful. That motion was denied. As

to the claim concerning the New York criminal statutes, the appropriate forum for

challenging the application of the state criminal statutes to McDonoughʹs alleged

conduct was in McDonoughʹs two state criminal trials, not during this subsequent

civil action under § 1983. To the extent he argues that this should support his

malicious prosecution claim, the argument does not affect Smithʹs absolute
27

1 CONCLUSION

2 McDonoughʹs due process claim accrued when (1) the

3 purportedly fabricated evidence was used against him and he had

4 knowledge of that use, and (2) he was deprived of a liberty interest.  

5 Because that occurred more than three years before he filed suit, we

6 AFFIRM the decision of the district court dismissing that claim. We

7 also AFFIRM the decision of the district court that Smith was entitled

8 to absolute immunity for the malicious prosecution claim.

 

immunity for his prosecutorial conduct, as it is the heartland of such a protection.

See Imbler v. Pachtman, 424 U.S. 409, 430–31 (1976) (holding that absolute immunity

protects prosecutors for their conduct “intimately associated with the judicial

phase of the criminal process . . . .”).