16-437 Harnage v. Torres et al.



## UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT 

# SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JA NUARY 1, 2007, IS PE RMITTED AND IS GOVERNE D BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT = S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (W ITH THE NOTATION A SUMMARY ORDER @ ). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 5 th day of December, two thousand sixteen.

PRESENT: ROBERT A. KATZMANN, Chief Judge , RALPH K. WINTER, GUIDO CALABRESI, Circuit Judges.

_____________________________________ JAMES A. HARNAGE, Plaintiff-Appellant ,

v. 16-437

RAQUEL TORRES, Deputy Warden (Retired), ANTHONY COLETTI, Warden (Retired), JODI M. RELL, Former Governor, DANNEL P. MALLOY, Governor, MICHAEL LEWIS, Defendants-Appellees

.

_____________________________________2 FOR PLAINTIFF-APPELLANT: James A. Harnage, pro se, South Suffield, CT.

FOR DEFENDANTS-APPELLEES: No brief.

Appeal from a judgment of the United States District Court fo r the District of Connecticut (Thompson, J .).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED

. Plaintiff-Appellant James A. Harnage, proceedin g pro se, appeals from the district court’s judgment dismissing sua sponte his 42 U.S.C. § 1983 claims against prison and government officials as barred by the applicable three-year statute of limitations. We assume the parties’ familiarity with the underlying facts, the procedur al history of the case, and the issues on appeal. We review de novo a district court’s sua spont e dismissal of a complaint pursuant to 28 U.S.C. § 1915A. McEachin v. McGuinnis , 357 F.3d 197, 200 (2d Cir. 2004). In doing so, we accept as true all facts described in the complain t but need not accept “conclusory allegations or legal conclusions couched as factual [] allegations.” Nielsen v. Rabin , 746 F.3d 58, 62 (2d Cir. 2014) (internal quotation mark omitted). Section 1983 ac tions arising in Connecticut, like this one, are governed by the three-year limitations pe riod set forth in C onn. Gen. Stat. § 52-577. See Lounsbury v. Jeffries , 25 F.3d 131, 132–34 (2d Cir. 1994). “Federal law determines when a section 1983 cause of action accrues, and we have ruled th at accrual occurs when the plaintiff knows or has reason to know of the injury which is the basis of his action.” Hogan v. Fischer , 738 F.3d 509, 518 (2d Cir. 2013) (internal quotation marks omitted).3 Here, the district court properly concluded th at Mr. Harnage’s claims were barred by the statute of limitations. Mr. Harnage’s § 1983 cause of action accrued, at th e latest, in late 2009, when he alleged that he knew of the injuries givi ng rise to his claims. Because Mr. Harnage did not file his complaint until December 2015, more than three years after the st atute of limitations had run, his claims are time-barred. See Milan v. Wertheimer , 808 F.3d 961, 963–64 (2d Cir. 2015) (per curiam) (affirming sua sponte dismissal of claims based on statute of limitations). On appeal, Mr. Harnage argues th at his filing of a state cour t complaint based on the same facts alleged in his federal complaint should have tolled the statute of limitations for his federal claims. This argument is without merit. “[I]n section 1983 actions, we borrow not only a state’s limitations period but also its ‘tolling rules.’” Pearl v. City of Long Beach , 296 F.3d 76, 80 (2d Cir. 2002) (quoting Bd. of Regents of Univ. of State of N.Y. v. Tomanio , 446 U.S. 478, 484–86 (1980)).

Section 52-577 of the Connecticut General Statut es does not provide for tolling the statute of limitations during a state proceeding. See Conn. Gen. Stat. § 52-577. And the Connecticut “savings” statute, which allows for the commenceme nt of a new action when previous claims were dismissed for procedural reasons, see Conn. Gen. Stat. § 52-592, doe s not apply because Mr. Harnage’s state court action was dismissed on the merits. See Holt v. KMI-Cont’l, Inc. , 95 F.3d 123, 131 (2d Cir. 1996) (“[T]he [Conn ecticut] savings statut e only applies if the original claim was dismissed for procedural reas ons and not on the merits.”). Mr. Harnage also argues that his late f iling should be excused because the wrongdoing he alleges constitutes a continuing violation. See Shomo v. City of New York , 579 F.3d 176, 181 (2d Cir. 2009) (“The continuing violation doctr ine is an exception to the normal knew-or-should-have-known accrual date.” (inter nal quotation marks omitted)). This argument,4 too, is without merit. The continuing violation do ctrine is limited “to claims that by their nature accrue only after the plaintiff has been subjecte d to some threshold amount of mistreatment,” Gonzalez v. Hasty , 802 F.3d 212, 220 (2d Cir. 2015), and, when the doctrine does apply, “the limitations period begins to run when the defendant has ‘engaged in enough activity to make out an actionable . . . claim,’” id. (omission in original) (quoting Nat’l R.R. Passenger Corp. v. Morgan , 536 U.S. 101, 117 (2002)). Even assuming the doctrine could apply to this context, Mr. Harnage’s claims were ripe no later than 2009 when he became aware of the allegedly unlawful conduct giving rise to his claim. Nor c ould Mr. Harnage contend otherwise given that in 2010 he filed the aforementioned state court action premised on the same alleged misconduct. In this Circuit, pro se complaints should not be dismissed by the district court “without granting leave to amend at least once when a libe ral reading of the compla int gives any indication that a valid claim might be stated.” Shomo , 579 F.3d at 183 (internal quotation mark omitted). However, a district court need not grant leav e to amend when amendment would be “futile.” See,

e.g. , Cuoco v. Moritsugu , 222 F.3d 99, 112 (2d Cir. 2000). And nothing in Mr. Harnage’s complaint or his appellate brief s uggests that he could state a pl ausible claim that would not be

futile. We have considered Mr. Harnage’s remaini ng arguments and find in them no basis for reversal. Accordingly, we AFFIRM the judgment of the district court.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk