17

‐ 296

‐ cv

McDonough v. Smith



## In the 1 

# United States Court of Appeals 2



## For the Second Circuit 3

4

5

August Term, 2017 6

No. 17

‐ 296

‐ cv 7

8

E DWARD G. M C D ONOUGH

, 9

Plaintiff

‐ Appellant

, 10

11

v. 12

13

Y OUEL S MITH

, INDIVIDUALLY AND AS S PECIAL D ISTRICT A TTORNEY FOR 14

THE C OUNTY OF R ENSSELAER

, N EW Y ORK

, AKA T REY S MITH

, 15

Defendant

‐ Appellee

, 16

17

J OHN J. O GDEN

, R ICHARD M C N ALLY J R

., K EVIN M C G RATH

, A LAN 18

R OBILLARD

, C OUNTY OF R ENSSELAER

, J OHN F. B ROWN

, W ILLIAM A. 19

M C I NERNEY

, K EVIN F. O ʹ M ALLEY

, D ANIEL B. B ROWN

, A NTHONY J. 20

R ENNA

, 21

Defendants

. * 22

23

24

Appeal from the United States District Court 25

for the Northern District of New York. 26

No. 15

‐ cv

‐ 1505

― Mae A. D ʹ Agostino, Judge

. 27

28

29

* The Clerk is directed to amend the caption to conform to the above.2 A RGUED : N OVEMBER 29, 2017 1

D ECIDED : A UGUST 3, 2018 2

3

4

Before: J ACOBS

, R AGGI

, and D RONEY

, Circuit Judges

. 5

6

7

Interlocutory appeal from a judgment of the United States 8

District Court for the Northern District of New York (D ʹ Agostino, J. ) 9

dismissing the Plaintiff

‐ Appellant ʹ s claims under 42 U.S.C. § 1983. 10

The Plaintiff

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

violated because fabricated evidence was used against him in state 12

criminal proceedings. He also alleged a malicious prosecution claim 13

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

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

also conclude that the prosecutor was entitled to absolute immunity 16

for the malicious prosecution claim. We therefore AFFIRM the 17

judgment of the district court. 18

19

20

B RIAN D. P REMO

, Premo Law Firm 21

PLLC, Albany, NY, for Plaintiff

‐ 22

Appellant

. 23

24

T HOMAS J. O ʹ C ONNOR

, Napierski, 25

VanDenburgh, Napierski & 26

O ʹ Connor, LLP, Albany, NY, for 27

Defendant

‐ Appellee Youel Smith

. 28

29

Andrew D. Bing, Deputy Solicitor 30

General, Jennifer L. Clark, Assistant 31

Solicitor General, for Barbara D. 323 Underwood, Attorney General of the 1

State of New York, for Defendant John 2

G. Ogden

. 3

4

D RONEY

, Circuit Judge : 5

Plaintiff

‐ Appellant Edward G. McDonough, the former 6

Democratic Commissioner of the Rensselaer County Board of 7

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

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

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

of New York (D ʹ Agostino, J. ) dismissing his claims against 11

Defendant

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

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

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

determined that (1) McDonough ʹ s due process claim was untimely 15

and dismissed it as to all Defendants 1 and (2) Smith, a Special District 16

1 The Defendants are primarily individuals allegedly associated with either the

purported fraudulent scheme that formed the basis for McDonough ʹ s prosecution

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

McDonough has alleged conspiracies involving both types of defendants.4 Attorney who prosecuted McDonough, was entitled to absolute 1

prosecutorial immunity on McDonough ʹ s malicious prosecution 2

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

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

court entered judgment as to Smith and certified the decisions 5

dismissing the two claims against him for interlocutory appeal by 6

McDonough. 3 7

For the reasons that follow, we agree with the district court ʹ s 8

conclusion that McDonough ʹ s due process claim was untimely, and 9

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

2 McDonough ʹ s 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 McDonough ʹ s

due process claim was time

‐ barred. Although this Court previously granted

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

to the malicious prosecution claim. We therefore AFFIRM the 2

dismissal of those claims. 3

BACKGROUND 4

During the 2009 Working Families Party primary election in the 5

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

Democratic and Working Families Parties forged signatures and 7

provided false information on absentee ballot applications and 8

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

individuals then submitted the forged absentee ballot applications to 10

McDonough. McDonough, as a commissioner of the Rensselaer 11

County elections board, was responsible for processing those 12

applications. 4 McDonough approved the forged applications, but 13

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

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 by6 The plot to influence the primary was eventually discovered. 1

Defendant Richard McNally, the elected District Attorney for 2

Rensselaer County, was disqualified from the ensuing investigation 3

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

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

Special District Attorney to lead the investigation and potential 6

prosecution. McDonough claimed that Smith then engaged in an 7

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

other things, fabricating evidence. This alleged scheme included 9

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

DNA methods for analyzing materials used in processing the ballot 11

applications, all despite Smith knowing that McDonough was 12

innocent. 13

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 McDonough claims that Smith presented the fabricated 1

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

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

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

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

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

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

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

McDonough ʹ s acquittal on December 21, 2012. 9

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

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

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

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

were liable for malicious prosecution. 14

Several Defendants filed motions to dismiss McDonough ʹ s due 15

process claim. They argued, in part, that it was barred by the 168 applicable three

‐ year statute of limitations because the allegedly 1

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

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

In opposing the Defendants ʹ motions, McDonough argued that 4

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

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

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

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

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

Supreme Court ʹ s decision in Heck v. Humphrey

, 512 U.S. 477 (1994). He 10

argued that his fabrication of evidence claim would challenge the 11

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

under Heck

, did not accrue until he was acquitted. 13

5 Although Smith filed a motion to dismiss McDonough ʹ s complaint, he did not

argue that McDonough ʹ s 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 In two decisions, dated September 30, 2016 and December 30, 1

2016, the district court dismissed McDonough ʹ s due process claims 2

against all Defendants as untimely and his malicious prosecution 3

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

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

McDonough ʹ s claim was ʺ based upon the fabrication of evidence ʺ and 6

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

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

case. ʺ J. App. 155. As the district court indicated, McDonough ʹ s 9

complaint had alleged ʺ that all of the fabricated evidence was either 10

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

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

156. 13

6 The district court also determined that McDonough ʹ s 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 The district court also concluded that Smith was protected by 1

absolute immunity as to the malicious prosecution claim. 2

DISCUSSION 3

I. Standard of Review 4

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

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

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

Bascunan v. Elsaca

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

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

v. Quicken Loans Inc.

, 810 F.3d 861, 865 (2d Cir. 2015) ( ʺ We review de 10

novo a district court ʹ s grant of a motion to dismiss, including its legal 11

interpretation and application of a statute of limitations

. . . . ʺ ). 12

II. The Due Process Claim 13

McDonough argues that his due process claim is timely because 14

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

charges against him, and thus his claim is most analogous to a 1611 malicious prosecution action, which does not accrue until favorable 1

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

Poventud v. City of New York

, 750 F.3d 121, 131 (2d Cir. 2014). In the 3

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

Heck v. Humphrey

, and (2) that the use of fabricated evidence against 5

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

We conclude that the nature of McDonough ʹ s due process claim 7

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

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

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

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

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

with the district court that McDonough ʹ s due process claim is time

‐ 1312 barred. 7 We also reject McDonough ʹ s additional arguments as to the 1

due process claim. 2

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

and Malicious Prosecution 4

5

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

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

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

Phillips

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

applicable statute here is New York ʹ s three

‐ year limitations period for 10

personal injury claims. See Smith v. Campbell

, 782 F.3d 93, 100 (2d Cir. 11

2015) (applying three

‐ year personal injury limitations period to 12

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

injury statute of limitations). 14

ʺ However, the time at which a claim

. . . under [§] 1983 accrues 15

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

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 law. ʺ Spak

, 857 F.3d at 462 (quoting Wallace v. Kato

, 549 U.S. 384, 388 1

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

common

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

claim. ʺ Spak

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

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

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

can file suit and obtain relief. ʺ Smith

, 782 F.3d at 100 (internal 7

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

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

, and ʺ once the 9

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

of his action, ʺ Veal v. Geraci

, 23 F.3d 722, 724 (2d Cir. 1994) (internal 11

quotation marks omitted). 12

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

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

of evidence and malicious prosecution. 15

Under the Fifth and Fourteenth Amendments ʹ Due Process 1614 Clauses, individuals have ʺ the right not to be deprived of liberty as a 1

result of the fabrication of evidence by a government officer

. . . . ʺ 2

Zahrey v. Coffey

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

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

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

investigating officers and the prosecutor, ʺ works an unacceptable 6

ʹ corruption of the truth

‐ seeking function of the trial process. ʹʺ Ricciuti 7

v. N.Y.C. Transit Auth.

, 124 F.3d 123, 130 (2d Cir. 1997) (quoting United 8

States v. Agurs

, 427 U.S. 97, 104 (1976)). 9

Applying our standard accrual rules, a fabrication of evidence 10

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

used against him, see Veal

, 23 F.3d at 724, and (2) his liberty has been 12

deprived in some way, see Zahrey

, 221 F.3d at 348. Because there is no 13

dispute in this case that McDonough suffered a liberty deprivation 14

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

focus our attention on the first prong. See id. 1615 The statute of limitations begins to run on a fabrication of 1

evidence claim against law enforcement officials under § 1983 when 2

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

action. ʹʺ Veal

, 23 F.3d at 724 (quoting Singleton v. New York

, 632 F.2d 4

185, 191 (2d Cir. 1980)). ʺ The reference to ʹ know[ledge] of the injury ʹ 5

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

claimant has received judicial verification that the defendants ʹ acts 7

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

In Veal

, a police detective manipulated a lineup by arranging 9

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

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

in handcuffs prior to conducting the lineup. Id

. at 723–24. However, 12

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

the crime based on the same witness ʹ s identification of him from a 14

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

the lineup was later used at trial and the defendant was convicted. Id. 1616 at 724. The Appellate Division of the New York Supreme Court 1

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

and the resulting in

‐ court identification. Id. 3

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

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

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

statute of limitations had expired before the suit was instituted 7

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

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

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

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

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

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

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

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

were when the liberty deprivation occurred based on the effect of the 1617 tainted evidence at trial. Id. at 725–26. 8 1

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

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

criminal proceedings have terminated because those circuits have 4

concluded that fabrication of evidence claims are analogous to claims 5

of malicious prosecution, which require termination of the criminal 6

proceeding in the defendant ʹ s favor before suit may be brought. See 7

Floyd v. Attorney Gen. of Pennsylvania

, 722 F. App ʹ x. 112, 114 (3d Cir. 8

Jan. 8, 2018); Bradford v. Scherschligt

, 803 F.3d 382, 388–89 (9th Cir. 9

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

common law tort most analogous to Bradford ʹ s claim. As we have 11

explained, the right at issue.

. . is the right to be free from [criminal] 12

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

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

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

based on fabricated evidence ʺ accrues 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 right to be free from the use of legal process that is motivated by 1

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

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

v. Thompson

, 519 F.3d 1078, 1083 (10th Cir. 2008) ( ʺ After the institution 4

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

malicious prosecution claim.

. . . Because the statute of limitations 6

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

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

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

disagree with those decisions. Because the injury for this 10

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

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

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

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

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

due process violation—is in the use of the fabricated evidence to cause 1619 a liberty deprivation, not in the eventual resolution of the criminal 1

proceeding. 2

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

§ 1983 action based on fabrication of evidence accrued when 4

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

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

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

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

end of his first trial, after all of the prosecution ʹ s evidence had been 9

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

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

McDonough ʹ s acquittal. Veal

, 23 F.3d at 724. 12

In contrast, we have long held that malicious prosecution 13

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

criminal proceedings against the plaintiff terminate in his favor. 15

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

second trial that was not presented in the first.20 Manganiello v. City of New York

, 612 F.3d 149, 161 (2d Cir. 2010). 1

Favorable termination is an element of malicious prosecution under 2

New York law and also for the Constitution

‐ based tort. Id. A plaintiff 3

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

criminal proceedings against him terminate favorably. 10 Accordingly, 5

the district court properly concluded that the malicious prosecution 6

claims were timely. 11 7

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

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

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

The constitutional right violated by fabricated evidence is the right 11

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

, 12

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 plaintiff ʹ s 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.21 221 F.3d at 348. That violation and its harm were complete when the 1

fabricated evidence was used by Smith against McDonough in those 2

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

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

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

defendant for this constitutional cause of action. But the defendant ʹ s 6

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

distinct harm that malicious prosecution claims are designed to 8

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

that fabricated evidence was created to prosecute him maliciously 10

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

prosecutor ʹ s fabrication of evidence). 12

McDonough argues that, notwithstanding its date of accrual, 13

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

12 As one district court in this Circuit aptly explained: ʺ A 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 decision in Heck

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

must be dismissed in a malicious prosecution

‐ type case if a judgment 2

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

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

Court ʹ s subsequent decision in Wallace

, 549 U.S. at 393–94. In Wallace

, 5

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

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

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

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

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

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

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

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

delay its accrual date, and the civil action could proceed even though 1423 the criminal case had not been resolved at that time. 13 Id. at 393. Thus, 1

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

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

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

Wallace

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

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

Heck is not ʺ called into play. ʺ Id. 7

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

because his ʺ wrongful prosecution [constituted] a continuing 9

violation, ʺ that only ceased on his acquittal. Appellant ʹ s Br. 50. We 10

are not persuaded. As we have explained: ʺ Characterizing 11

defendants ʹ separate wrongful acts as having been committed in 12

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

does not postpone accrual of claims based on individual wrongful 14

13 T he 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 acts. ʺ Pinaud v. County of Suffolk

, 52 F.3d 1139, 1156 (2d Cir. 1995) 1

(internal quotation marks omitted). Smith allegedly fabricated 2

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

it at McDonough ʹ s trials. The cause of action accrued when 4

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

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

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

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

III. The Malicious Prosecution Claim 9

Prosecutors are protected by absolute immunity for their acts 10

that are ʺ intimately associated with the judicial phase of the criminal 11

14 We are also not persuaded by McDonough ʹ s reliance on the Supreme Court ʹ s

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 McDonough ʹ s 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 process ʺ and their role as advocates, but they receive only qualified 1

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

York

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

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

absolute immunity from McDonough ʹ s malicious prosecution claim 5

because even though McDonough ʹ s complaint suggests that, at times, 6

Smith was acting in an investigatory capacity, ʺ the distinction 7

between a prosecutor ʹ s investigative and prosecutorial functions is 8

immaterial to a malicious prosecution claim, since prosecutors are 9

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

New York

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

prosecutors may be eligible only for qualified immunity when 12

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

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

prosecutions or at trial. See Zahrey

, 221 F.3d at 346 (holding, in § 1983 15

cases, that prosecutorial ʺ [a]ctions taken as an advocate enjoy 1626 absolute immunity, while actions taken as an investigator enjoy only 1

qualified immunity ʺ (internal citation omitted)); see also Shmueli

, 424 2

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

quintessential prosecutorial functions

. . . . ʺ ). As the malicious 4

prosecution claim relates only to Smith ʹ s prosecutorial function, it is 5

barred by absolute immunity. 15 6

7

15 McDonough also asserts on appeal that Smith ʹ s 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 Smith ʹ s 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 Smith ʹ s

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

on the basis that Smith ʹ s 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 McDonough ʹ s alleged

conduct was in McDonough ʹ s 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 Smith ʹ s absolute27 CONCLUSION 1

McDonough ʹ s due process claim accrued when (1) the 2

purportedly fabricated evidence was used against him and he had 3

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

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

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

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

to absolute immunity for the malicious prosecution claim. 8

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

. . . .”).