1 2 1

- 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 NO TATION

“ SUMMARY ORDER ” ). A PARTY CITING 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 1 Thurgood Marshall United States Courthouse , 40 Foley Square, in the City of New York, on the 2 1 s t da y of N o v e m b e r , two thousand twenty

- two

. 3

P resent : 4

B ARRINGTON D. P ARKER , 5 S USAN L. C ARNEY , 6 W ILLIAM J. N ARDINI , 7 Circuit Judges

. 8 9

_____________________________________ 10

COLIN B. MONTAGUE
, 11 Plaintiff

- Appellant
, 12

v. 2 1

- 1598

- pr 13
CITY OF ROCHESTER, JOHN DOES, 14 UNKNOWN OFFICERS OF THE TOWN OF 15 GREECE POLICE DEPARTMENT, JOHN DOES, 16 UNKNOWN OFFICERS OF THE DRUG 17 ENFORCEMENT AGENCY, JOHN DOES, 18 UNKNOWN OFFICERS OF THE CITY OF 19 ROCHESTER POLICE DEPARTMENT, L EON, 20 CITY OF ROCHESTER POLICE DEPARTMENT, 21 OFFICER PADGHAM, CITY OF ROCHESTER 22 POLICE DEPARTMENT, INVESTIGATOR 23 SINDONI, CITY OF ROCHESTER POLICE 24 DEPARTMENT, DEPUTY LOCKWOOD, CITY 25 OF ROCHESTER POLICE DEPARTMENT, 26 JOHN DOES, UNKNOWN OFFICERS OF THE 27 MONROE COU NTY SHERRIF'S 28 DEPARTMENT
, 29 30 Defendants

- Appellees
, 312 TOWN OF GREECE, ROCHESTER POLICE 1 DEPARTMENT, GREECE POLICE 2 DEPARTMENT, MONROE COUNTY SHERIFF'S 3 DEPARTMENT, OFFICER SHAUN MOORE, 4 TOWN OF GREECE POLICE DEPARTMENT, 5 AGENT ANDREW WOEPPEL, DRUG 6 ENFORCEMENT AGE NCY, INVESTIGATOR 7 DAVID SIMPSON, CITY OF ROCHESTER 8 POLICE DEPARTMENT, SERGEANT 9 BRINKERHOFF, CITY OF ROCHESTER 10 POLICE DEPARTMENT, OTHER OFFICERS 11 FROM GRANET KNOWN AND UNKNOWN, 12 LIEUTENANT JOHN HENDERSON, TOWN OF 13 GREECE POLICE DEPARTMENT, 14 LIEUTENANT MARK SUND QUIST, TOWN OF 15 GREECE POLICE DEPARTMENT, SERGEANT 16 PATRICK WELCH, TOWN OF GREECE POLICE 17 DEPARTMENT, SERGEANT JAMES CARRIS, 18 TOWN OF GREECE POLICE DEPARTMENT, 19 SERGEANT DAVID MANCUSO, TOWN OF 20 GREECE POLICE DEPARTMENT, SERGEANT 21 BRANDON WHITE, TOWN OF GREECE 22 POL ICE DEPARTMENT, OFFICER KEITH 23 BAER, TOWN OF GREECE POLICE 24 DEPARTMENT, OFFICER EDWARD CATON, 25 TOWN OF GREECE POLICE DEPARTMENT, 26 OFFICER DAVID D'AURELIO, TOWN OF 27 GREECE POLICE DEPARTMENT, 28 INVESTIGATOR PEARCE, CITY OF 29 ROCHESTER POLICE DEPARTMENT, THE 30 DRUG ENFO RCEMENT AGENCY, 31 Defendants. 32

_____________________________________ 33

For Plaintiff

- Appellant : Aaron M. Goldsmith
, Law Office of Aaron M. Goldsmith, P.C., New York
, NY.

For Defendants

- Appellees: No appearance s

.

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

York ( John L. Sinatra
, Jr., J udge ) , entered on May 14, 2021

. 35

UPON DUE CONSIDERATION , IT IS HEREBY ORD ERED, ADJUDGED, AND 36

DECREED that the judgment of the district court is AFFIRMED

. 373 Plaintiff

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

suit under 28 U.S.C. § 1915A

. Montague, pro se , sued the City of Rochester, the Town of Greece, 2
the police departments of Rochester and Gr eece, the Monroe County Sheriff’s Department, the 3
Drug Enforcement Administration , and several individual officers , named and unnamed, of the 4
police and sheriff’s d epartments and the DEA. 1 He sought relief under 42 U.S.C. § 1983 and 5

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

Fourteenth Amendment violations arising from alleged police harassment and false arrest

. On 7

November 10, 2020, t he district court dismissed Montague’s claims as barred by the applicable 8

statute s of limitations and sovereign immunity. On February 22, 2021, Monta gue filed an amended 9

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

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

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

We assume the parties’ familiarity with th e case

. 13

We review a district court’s denial of a motion to alter or amend judgement under Rule 14
59(e) or for relief from judgment under Rule 60 for abuse of discretion. Empresa Cubana del 15

Tabaco v . Culbro Corp ., 541 F.3d 476, 478 (2d Cir. 2008). Because Montague’s motion for 16
reconsideration merely reprised arguments already considered and rejected by the district court, 17
he failed to identify “controlling decisions or data that the court overlooked” and the district court 18
properly denied his motion. Shrader v. CSX Transp., Inc. , 70 F.3d 255, 257 (2d Cir. 1995). 19
For completeness’ sake, we also consider the underlying decision of the district court 20
dismissing Montague’s claims a s untimely. We review a district court’s sua sponte dismissal of a 21
complaint under § 1915A or § 1915(e)(2) de novo

. Zaleski v. Burns , 606 F.3d 51, 52 (2d Cir. 22

1 Montague does not appeal the dismissal of his claim against the DEA.4 2010) ; McEachin v. McGuinnis , 357 F.3d 197, 200 (2d Cir. 2004)

. As Montague concedes
, his 1

claims fell outside the statutes of limitations. “The statute of limitations for Bivens claims is 2
governed by the statute of limitations for New York state law personal injury claims not sounding 3
in intentional tort,” which is three years. Gonzalez v. Hasty , 802 F.3d 212, 219

– 20 (2d Cir. 2015) 4
(internal quotation marks omitted); New York Civil Practice Law and Rules § 214(5). A Bivens 5
claim accrues under federal law when a plaintiff “has knowledge of his or her claim or has enough 6

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

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

- year 8

statute of limitations. Hogan v. Fischer , 738 F.3d 509, 517 (2d Cir. 2013). Th e events Montague 9
describes in his complaint

— the allegedly unlawful stops and searches and his arrest and 10

indictment

— occurred in 2012, and the grand jury dismissed his original state indictment on May 11
20, 2013, more than seven years before he filed his first complaint, on June 11, 2020. 12

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

to extend a statute of limitations to avoid injustice in “rare and exceptional circumstances in which 14
a party is prevented in some extraordinary way from exercising his rights.” Zerilli

–

Edelglass v. 15
N.Y. City Transit Auth. , 333 F.3d 74, 80 (2d Cir. 2003) (cleaned up). The relevant question is 16
“whether a reasonable plai ntiff in the circumstances would have been aware of the existence of a 17

cause of action.” Veltri v. Bldg. Serv. 32B

– J Pension Fund , 393 F.3d 318, 323 (2d Cir. 2004). 18
Montague argues that a confluence of events meant he could not reasonably have 19

discovered he was harmed until 2018. First, he states that he was never notified by his attorney 20
that the grand jury had dismissed the charges against him; he became aware of this fact only in 21
2018 when, during his (unrelated) federal criminal trial, he asked his a ttorney to determine the 22
status of the earlier state charges. Second, he emphasizes that he has been in federal prison since 235 2014. Third, he notes that he was told, in May 2013, by the attorney representing him in connection 1
with the state charges that t he DEA was holding his possessions “pending further investigation.” 2

App’x 36. 3

None of these facts amounts to “extraordinary” circumstances, Zerilli

– Edelglass , 333 F.3d 4
at 80, or demonstrates that Montague exercised “all due diligence” in pursuing his claim s

. Valdez 5
ex rel. Donely v. United States , 518 F.3d 173, 182 (2d Cir. 2008) (internal quotation marks 6
omitted). The lack of a notification that the charges had been dismissed would not have prevented 7
Montague from inquiring about them b efore 2018. Montague was aware of his allegedly false 8
arrest as soon as it happened, and he provides no reason why he could not have challenged it at the 9

time. See Zerilli

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

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

incarceration. Zerilli

– Edelglass , 333 F.3d at 80 ; see also Walker v. Jastremski , 430 F.3d 560, 564 12
(2d Cir. 2005) (prisoner not entitled to equitable tolling of statute of limitations for § 1983 claim); 13

Hizbullahankhamon v. Walker , 255 F.3d 65, 75 (2d Cir. 2001) (solitary confinement insufficient 14
to toll statute of limitations where prisoner had other opportunities to file). Montague also points 15
to cases tolling the statute of limitations where law enforcement officers intentionally prevented a 16
complainant from filing his claim but provides no evidence that any of the defendants did so in his 17

case

. Montague is thus n ot entitled to equitable tolling, and the district court properly dismissed 18
his complaint as untimely. 19

* * * 20

T he judgment of the district court is AFFIRMED

. 21

FOR THE COURT: 22
Catherine O’Hagan Wolfe, Clerk 23