1

21-1598-pr

Montague v. City of Rochester

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 JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED 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 (WITH THE NOTATION 

“SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON 

ANY PARTY NOT REPRESENTED BY COUNSEL. 

1 At a stated term of the United States Court of Appeals for the Second Circuit, held at the 

2 Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 

1st 3 day of November, two thousand twenty-two.

4 Present:

5 BARRINGTON D. PARKER,

6 SUSAN L. CARNEY,

7 WILLIAM J. NARDINI,

8 Circuit Judges.

9

10 _____________________________________

11 COLIN B. MONTAGUE, 

12 Plaintiff-Appellant,

13 v. 21-1598-pr

14 CITY OF ROCHESTER, JOHN DOES, 

15 UNKNOWN OFFICERS OF THE TOWN OF 

16 GREECE POLICE DEPARTMENT, JOHN DOES, 

17 UNKNOWN OFFICERS OF THE DRUG 

18 ENFORCEMENT AGENCY, JOHN DOES, 

19 UNKNOWN OFFICERS OF THE CITY OF 

20 ROCHESTER POLICE DEPARTMENT, LEON, 

21 CITY OF ROCHESTER POLICE DEPARTMENT, 

22 OFFICER PADGHAM, CITY OF ROCHESTER 

23 POLICE DEPARTMENT, INVESTIGATOR 

24 SINDONI, CITY OF ROCHESTER POLICE 

25 DEPARTMENT, DEPUTY LOCKWOOD, CITY 

26 OF ROCHESTER POLICE DEPARTMENT, 

27 JOHN DOES, UNKNOWN OFFICERS OF THE 

28 MONROE COUNTY SHERRIF'S 

29 DEPARTMENT,

30

31 Defendants-Appellees,
2

1 TOWN OF GREECE, ROCHESTER POLICE 

2 DEPARTMENT, GREECE POLICE 

3 DEPARTMENT, MONROE COUNTY SHERIFF'S 

4 DEPARTMENT, OFFICER SHAUN MOORE, 

5 TOWN OF GREECE POLICE DEPARTMENT, 

6 AGENT ANDREW WOEPPEL, DRUG 

7 ENFORCEMENT AGENCY, INVESTIGATOR 

8 DAVID SIMPSON, CITY OF ROCHESTER 

9 POLICE DEPARTMENT, SERGEANT 

10 BRINKERHOFF, CITY OF ROCHESTER 

11 POLICE DEPARTMENT, OTHER OFFICERS 

12 FROM GRANET KNOWN AND UNKNOWN, 

13 LIEUTENANT JOHN HENDERSON, TOWN OF 

14 GREECE POLICE DEPARTMENT, 

15 LIEUTENANT MARK SUNDQUIST, TOWN OF 

16 GREECE POLICE DEPARTMENT, SERGEANT 

17 PATRICK WELCH, TOWN OF GREECE POLICE 

18 DEPARTMENT, SERGEANT JAMES CARRIS, 

19 TOWN OF GREECE POLICE DEPARTMENT, 

20 SERGEANT DAVID MANCUSO, TOWN OF 

21 GREECE POLICE DEPARTMENT, SERGEANT 

22 BRANDON WHITE, TOWN OF GREECE 

23 POLICE DEPARTMENT, OFFICER KEITH 

24 BAER, TOWN OF GREECE POLICE 

25 DEPARTMENT, OFFICER EDWARD CATON, 

26 TOWN OF GREECE POLICE DEPARTMENT, 

27 OFFICER DAVID D'AURELIO, TOWN OF 

28 GREECE POLICE DEPARTMENT, 

29 INVESTIGATOR PEARCE, CITY OF 

30 ROCHESTER POLICE DEPARTMENT, THE 

31 DRUG ENFORCEMENT AGENCY,

32 Defendants.

33 _____________________________________

For Plaintiff-Appellant: Aaron M. Goldsmith, Law Office of Aaron M. 

Goldsmith, P.C., New York, NY.

For Defendants-Appellees: No appearances.

34 Appeal from a judgment of the United States District Court for the Western District of New 

35 York (John L. Sinatra, Jr., Judge), entered on May 14, 2021.

36 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND 

37 DECREED that the judgment of the district court is AFFIRMED.
3

1 Plaintiff-Appellant Colin B. Montague appeals from the district court’s dismissal of his 

2 suit under 28 U.S.C. § 1915A. Montague, pro se, sued the City of Rochester, the Town of Greece, 

3 the police departments of Rochester and Greece, the Monroe County Sheriff’s Department, the 

4 Drug Enforcement Administration, and several individual officers, named and unnamed, of the 

police and sheriff’s departments and the DEA.1 5 He sought relief under 42 U.S.C. § 1983 and 

6 Bivens v. Six Unknown Named Agents, 403 U.S. 388, 398 (1971), alleging Fourth, Fifth, and 

7 Fourteenth Amendment violations arising from alleged police harassment and false arrest. On 

8 November 10, 2020, the district court dismissed Montague’s claims as barred by the applicable

9 statutes of limitations and sovereign immunity. On February 22, 2021, Montague filed an amended 

10 complaint, which the district court dismissed on May 4, 2021. Montague moved for 

11 reconsideration under Federal Rules of Civil Procedure 59(e) or 60, which the court denied on 

12 May 14, 2021. Montague, no longer pro se, now appeals the district court’s May 14, 2021, order. 

13 We assume the parties’ familiarity with the case. 

14 We review a district court’s denial of a motion to alter or amend judgement under Rule 

15 59(e) or for relief from judgment under Rule 60 for abuse of discretion. Empresa Cubana del 

16 Tabaco v. Culbro Corp., 541 F.3d 476, 478 (2d Cir. 2008). Because Montague’s motion for 

17 reconsideration merely reprised arguments already considered and rejected by the district court, 

18 he failed to identify “controlling decisions or data that the court overlooked” and the district court 

19 properly denied his motion. Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995). 

20 For completeness’ sake, we also consider the underlying decision of the district court 

21 dismissing Montague’s claims as untimely. We review a district court’s sua sponte dismissal of a 

22 complaint under § 1915A or § 1915(e)(2) de novo. Zaleski v. Burns, 606 F.3d 51, 52 (2d Cir. 

1 Montague does not appeal the dismissal of his claim against the DEA.
4

1 2010); McEachin v. McGuinnis, 357 F.3d 197, 200 (2d Cir. 2004). As Montague concedes, his 

2 claims fell outside the statutes of limitations. “The statute of limitations for Bivens claims is 

3 governed by the statute of limitations for New York state law personal injury claims not sounding 

4 in intentional tort,” which is three years. Gonzalez v. Hasty, 802 F.3d 212, 219–20 (2d Cir. 2015)

5 (internal quotation marks omitted); New York Civil Practice Law and Rules § 214(5). A Bivens

6 claim accrues under federal law when a plaintiff “has knowledge of his or her claim or has enough 

7 information that a reasonable person would investigate and discover the existence of a claim.” 

8 Gonzalez, 802 F.3d at 220. Section 1983 actions filed in New York are also subject to a three-year 

9 statute of limitations. Hogan v. Fischer, 738 F.3d 509, 517 (2d Cir. 2013). The events Montague 

10 describes in his complaint—the allegedly unlawful stops and searches and his arrest and 

11 indictment—occurred in 2012, and the grand jury dismissed his original state indictment on May 

12 20, 2013, more than seven years before he filed his first complaint, on June 11, 2020. 

13 Montague argues that his claims should be subject to equitable tolling, which allows a court 

14 to extend a statute of limitations to avoid injustice in “rare and exceptional circumstances in which 

15 a party is prevented in some extraordinary way from exercising his rights.” Zerilli–Edelglass v.

16 N.Y. City Transit Auth., 333 F.3d 74, 80 (2d Cir. 2003) (cleaned up). The relevant question is 

17 “whether a reasonable plaintiff in the circumstances would have been aware of the existence of a 

18 cause of action.” Veltri v. Bldg. Serv. 32B–J Pension Fund, 393 F.3d 318, 323 (2d Cir. 2004). 

19 Montague argues that a confluence of events meant he could not reasonably have 

20 discovered he was harmed until 2018. First, he states that he was never notified by his attorney 

21 that the grand jury had dismissed the charges against him; he became aware of this fact only in 

22 2018 when, during his (unrelated) federal criminal trial, he asked his attorney to determine the 

23 status of the earlier state charges. Second, he emphasizes that he has been in federal prison since 
5

1 2014. Third, he notes that he was told, in May 2013, by the attorney representing him in connection 

2 with the state charges that the DEA was holding his possessions “pending further investigation.” 

3 App’x 36. 

4 None of these facts amounts to “extraordinary” circumstances, Zerilli–Edelglass, 333 F.3d 

5 at 80, or demonstrates that Montague exercised “all due diligence” in pursuing his claims. Valdez 

6 ex rel. Donely v. United States, 518 F.3d 173, 182 (2d Cir. 2008) (internal quotation marks 

7 omitted). The lack of a notification that the charges had been dismissed would not have prevented 

8 Montague from inquiring about them before 2018. Montague was aware of his allegedly false 

9 arrest as soon as it happened, and he provides no reason why he could not have challenged it at the 

10 time. See Zerilli–Edelglass, 333 F.3d at 80. Nor is Montague’s status as a prisoner a “rare and 

11 exceptional circumstance[]” that prevented him from filing a petition either before or after his 

12 incarceration. Zerilli–Edelglass, 333 F.3d at 80; see also Walker v. Jastremski, 430 F.3d 560, 564 

13 (2d Cir. 2005) (prisoner not entitled to equitable tolling of statute of limitations for § 1983 claim); 

14 Hizbullahankhamon v. Walker, 255 F.3d 65, 75 (2d Cir. 2001) (solitary confinement insufficient 

15 to toll statute of limitations where prisoner had other opportunities to file). Montague also points 

16 to cases tolling the statute of limitations where law enforcement officers intentionally prevented a 

17 complainant from filing his claim but provides no evidence that any of the defendants did so in his 

18 case. Montague is thus not entitled to equitable tolling, and the district court properly dismissed 

19 his complaint as untimely.

20 * * *

21 The judgment of the district court is AFFIRMED.

22 FOR THE COURT:

23 Catherine O’Hagan Wolfe, Clerk