USCA1 Opinion
May 2, 1994
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 93-2233
JIMMY D. BATISTE,
Plaintiff, Appellant,
v.
CITY OF BOSTON, ET AL.,
Defendants, Appellees.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Edward F. Harrington, U.S. District Judge]
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Before
Breyer, Chief Judge,
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Cyr and Stahl, Circuit Judges.
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Jimmy D. Batiste on brief pro se.
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Albert W. Wallis, Corporation Counsel, and Thomas C. Tretter,
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Assistant Corporation Counsel, on brief for appellees.
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Per Curiam. Jimmy Batiste appeals pro se from a
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district court order dismissing his complaint on the ground
that it was barred by the applicable statute of limitations.
For the reasons that follow, we affirm.
I.
In December 1987, Batiste was arrested on charges of
assault and battery with a dangerous weapon. In January
1989, following a jury-waived trial in Boston Municipal
Court, he was convicted on one such count and was sentenced
to a thirty-month prison term, with one year to be served and
with probation to run through January 1991. The
Massachusetts Appeals Court summarily affirmed his
conviction, see Commonwealth v. Batiste, 30 Mass. App. Ct.
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1113 (1991), and the Supreme Judicial Court thereafter denied
further appellate review.
In September 1993, plaintiff filed the instant civil-
rights action for damages under 42 U.S.C. 1983, naming as
defendants the city of Boston, the mayor, the commissioner of
police, and seven police officers (two of whom were
identified only by badge number). He there alleged that
defendants had concealed exculpatory information and had
manufactured other evidence in order to effectuate his arrest
and to secure his wrongful conviction at trial--all in
violation of his rights to due process, equal protection, and
a fair trial. More particularly, he charged (among other
things) that defendants (1) suppressed a police report
prepared by the officers who first arrived at the crime scene
which stated that the victim had refused to identify her
assailant, (2) fabricated a second police report purportedly
obtained from the victim at the hospital which named Batiste
as the assailant, and (3) testified falsely with regard to
these facts both at the probable cause hearing and at
trial.1
Prior to service on defendants, the district court
reviewed the in forma pauperis complaint and dismissed it sua
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sponte as frivolous under 28 U.S.C. 1915(d). It concluded
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that the complaint, even when construed liberally, involved
events that had transpired more than three years prior to the
date of filing, with the result that the action was time-
barred. Batiste now appeals.
II.
"We have squarely held that 'a complaint which states a
claim that appears to have expired under the applicable
statute of limitations may be dismissed as frivolous' under
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1. The record before us does not reveal the extent to which
any other evidence of Batiste's guilt--apart from such
allegedly falsified reports and testimony--was presented at
trial; it is unclear, for example, whether the victim
testified. It is likewise unclear to what extent Batiste
raised such allegations of police misconduct in the state
courts. He states only that his attorney was aware of
defendants' misconduct but refused to challenge it, that he
(Batiste) complained of their actions in a pro se brief
separately filed on appeal, and that the Massachusetts
Appeals Court failed to address the issue.
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section 1915(d)." Johnson v. Rodriguez, 943 F.2d 104, 107
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(1st Cir. 1991), cert. denied, 112 S. Ct. 948 (1992) (quoting
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Street v. Vose, 936 F.2d 38, 39 (1st Cir. 1991) (per curiam),
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cert. denied, 112 S. Ct. 948 (1992)). At the same time, in
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light of the truncated procedures commonly attending a
1915(d) dismissal, we have cautioned that district courts
should consider issuing an order to show cause in such
circumstances in order to permit the plaintiff to demonstrate
whether any tolling provisions might apply. See Street, 936
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F.2d at 41 n.5. No such opportunity was afforded Batiste
here. As a result, his arguments on appeal--in which he sets
forth several reasons why the limitations period should be
extended--were neither raised nor addressed below.
Nonetheless, a careful review of Batiste's appellate
submissions, along with his complaint, permits us to conclude
that his contentions are misplaced.
It is undisputed that the instant 1983 action is
subject to the three-year limitations period prescribed by
Mass. G.L. c. 260, 2A (along with any state tolling rules
not at odds with federal law). See, e.g., Street, 936 F.2d
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at 39-40. It is likewise agreed that the question of when a
cause of action accrues remains a matter of federal law.
See, e.g., Rodriguez Narvaez v. Nazario, 895 F.2d 38, 41 n.5
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(1st Cir. 1990). Batiste filed his complaint here on
September 7, 1993--well over three years after the events of
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which he complains.2 In an attempt to sidestep the
limitations bar, he advances two contentions: (1) that his
wrongful conviction and incarceration constituted a
continuing wrong which persisted through the end of his
probation on January 9, 1991, with the result that his cause
of action did not accrue until that date; and (2) that the
limitations period should be extended because defendants
concealed relevant information. Neither argument proves
persuasive.
As to the former, we need not decide the extent to which
the "continuing violation" doctrine--an equitable principle
most often invoked in the Title VII context, see, e.g.,
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Johnson, 943 F.2d at 107-08--might apply to 1983 claims.
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See generally Hunt v. Bennett, ___ F.3d ___, 1994 WL 47751,
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at *2 (10th Cir. 1994). Even if this principle were
otherwise applicable, Batiste's argument overlooks "the
'critical distinction' between a continuing act and a
singular act that brings continuing consequences" for
purposes of the limitations period. Gilbert v. City of
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Cambridge, 932 F.2d 51, 58-59 (1st Cir.), cert. denied, 112
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S. Ct. 192 (1991) (quoted in Johnson, 943 F.2d at 108). It
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has been specifically held that, where an individual alleges
to have been wrongfully incarcerated because of false arrest
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2. As mentioned, his arrest occurred in December 1987 and
his three-day trial took place in January 1989.
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or some other tortious activity, such incarceration
constitutes a continuing ill effect from the earlier
misconduct rather than a continuing tort in and of itself.
See, e.g., McCune v. City of Grand Rapids, 842 F.2d 903, 906
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(6th Cir. 1988); Sandutch v. Muroski, 684 F.2d 252, 254 (3d
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Cir. 1982); cf. Street, 936 F.2d at 40-41 & n.4 (noting that,
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under a 1987 Massachusetts statute, imprisonment no longer
tolls the statute of limitations--a legislative judgment "not
inconsistent with federal policy").
Batiste's second argument rests on firmer legal ground
but is devoid of factual support. He is correct that the
accrual period in a 1983 case does not start until "the
plaintiff knows, or has reason to know, of the injury on
which the action is based." Rivera-Muriente v. Agosto-
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Alicea, 959 F.2d 349, 353 (1st Cir. 1992); accord, e.g.,
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Torres v. Superintendent of Police, 893 F.2d 404, 407 (1st
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Cir. 1990). He is likewise correct that the limitations
period may be equitably tolled where a plaintiff "can show
'excusable ignorance' of the statute of limitations caused by
some misconduct of the defendant[s]." Id. at 407; accord,
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e.g., Puritan Med. Center, Inc. v. Cashman, 413 Mass. 167,
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175 (1992) (applying Mass. G.L. c. 260, 12); Cherella v.
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Phoenix Technologies Ltd., 32 Mass. App. Ct. 919, 920 (1992)
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(tolling may apply where defendant "encourages or cajoles the
potential plaintiff into inaction"). Yet Batiste has made no
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factual allegations that would warrant extending the
limitations period. He complains in this regard only that
the police department refused to divulge the names of the
officers responding to the crime scene. See Brief at 10;
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Reply Brief at 4-6. He acknowledges, however, that by the
time of his trial in January 1989, he knew that he had been
arrested "without a warrant" and that defendants had
"misrepresented and concealed material facts actually known
to them to a state court judge." Brief at 9; accord Reply
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Brief at 4, 6 n.1.
Such knowledge was sufficient to trigger the running of
the limitations period.3 See, e.g., Compton v. Ide, 732
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F.2d 1429, 1433 (9th Cir. 1984) ("When a plaintiff has notice
of wrongful conduct, it is not necessary that he have
knowledge of all the details or all of the persons involved
in order for his cause of action to accrue."); Messere v.
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Murphy, 32 Mass. App. Ct. 917, 918 (1992) (in civil rights
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action in which plaintiff complained that defendants had
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3. On the other hand, to the extent Batiste's complaint is
construed as setting forth a 1983 claim for malicious
prosecution, his action is arguably premature. It has been
held that such a claim does not accrue until the underlying
criminal proceedings have terminated in favor of the accused
(which is an element of the offense of malicious prosecution
at common law). See, e.g., Brummett v. Camble, 946 F.2d
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1178, 1183-84 (5th Cir. 1991), cert. denied, 112 S. Ct. 2323
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(1992). The criminal proceedings here, of course, have not
terminated in Batiste's favor. We need not now decide
whether, in the event such a development were to occur, he
might then be able to advance a claim for malicious
prosecution.
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conspired to conceal evidence, give false testimony and
intimidate witnesses, "plaintiff's criminal trial,
conviction, and incarceration certainly were events likely to
put him on notice of the alleged wrongs") (internal quotation
omitted). Similarly, Batiste's allegations provide no
plausible basis for invoking the equitable tolling doctrine.
The police department, simply because of its alleged refusal
to identify certain officers, cannot be said to have
"actively misle[d]" Batiste in any fashion. Torres, 893 F.2d
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at 407. "In short, there was no detrimental reliance ...."
Rivera-Gomez v. de Castro, 900 F.2d 1, 3 (1st Cir. 1990).
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Affirmed.
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