20-1099-cv; 20-1331-cv Smalls v. Collins et al.; Daniel v. Taylor et al.

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2020 (Argued: March 08, 2021 Decided: August 20, 2021) Docket Nos. 20-1099-cv/20-1331-cv

ANDREW SMALLS, Plaintiff-Appellant,

v.

POLICE OFFICER RICHARD COLLINS AND POLICE OFFICER DAVID TETA, Defendants-Appellees,

CITY OF NEW YORK, POLICE OFFICER ERIC CABRERA, POLICE OFFICER JESSICA ALVARADO, SERGEANT BRIAN STAMM AND POLICE OFFICER ALVAREZ, Defendants.

DESHAWN DANIEL, Plaintiff-Appellant,

v.

DETECTIVE BRIAN TAYLOR, DETECTIVE NEIL MAGLIANO, DETECTIVE JAMES CLEARY, SERGEANT WESLEY FRADERA, Defendants-Appellees,

CITY OF NEW YORK, JOHN AND JANE DOES 1-5, NEIL C. MAGLIANO, Defendants.

Before: SACK, MENASHI, Circuit Judges, AND KAPLAN, District Judge. *

*Judge Lewis A. Kaplan, of the United States District Court for the Southern District of New York, sitting by designation. 20-1099-cv; 20-1331-cv Smalls v. Collins et al.; Daniel v. Taylor et al.

In these tandem appeals, the plaintiffs-appellants Andrew Smalls and Deshawn Daniel each filed suit under

(in the United States District Courts for the Eastern and Southern Districts of New York, respectively), asserting that the defendants-appellees deprived them of their rights to a fair trial by fabricating evidence against them. Daniel also asserted other claims under section 1983 and claims under

and sought equitable tolling of the statute of limitations applicable to some of his section 1983 claims. Smalls's case proceeded to trial, and a jury found that Police Officers Richard Collins and David Teta had violated Smalls's constitutional rights and awarded him damages. In Daniel's case, following briefing on the defendants' motion to dismiss and Daniel's motion for equitable tolling, the district court denied Daniel's motion for tolling and dismissed all his claims aside from his section 1983 fabricated-evidence claim. Following the Supreme Court's decision in McDonough v. Smith,

(2019), the defendants in Daniel's case again moved to dismiss the fabricated-evidence claim, contending that Daniel could not establish a favorable termination indicative of innocence – which, they asserted, McDonough requires. The defendants in Smalls's case moved for an order vacating the judgment and granting them judgment as a matter of law on the same basis. The district courts (Carol Bagley Amon and Ronnie Abrams, Judges, respectively) granted the defendants' motions, concluding that Smalls and Daniel could not establish favorable terminations within the meaning of McDonough. Smalls and Daniel now appeal. We conclude that (1) the district courts erred in dismissing Smalls's and Daniel's section 1983 fabricated-evidence claims and entering judgment for the defendants; (2) Daniel's section 1981 claims were properly dismissed; and (3) Daniel's equitable tolling motion was properly denied. We therefore

REVERSE the judgments of the district courts with respect to the fair-trial claims, AFFIRM the dismissal of Daniel's other claims, and REMAND for further proceedings consistent with this opinion.

JOEL B. RUDIN (Matthew A. Wasserman, Jacob Loup, Law Offices of Joel B. Rudin, P.C., New York, NY, and Jon L. Norinsberg, Law Offices of Jon L. 20-1099-cv; 20-1331-cv Smalls v. Collins et al.; Daniel v. Taylor et al.

Norinsberg, New York, NY, on the brief), for Plaintiff-Appellant Andrew Smalls;

GREGORY ANTOLLINO, Antollino, PLLC, New York, NY, and STEPHEN BERGSTEIN, Bergstein & Ullrich, New Paltz, NY, for Plaintiff-Appellant Deshawn Daniel;

JOHN MOORE (Richard Paul Dearing, Devin Slack, on the brief), for James E. Johnson, Corporation Counsel of the City of New York, New York, NY, for Defendants- Appellees.

SACK, Circuit Judge:

Although these appeals come to us in different procedural postures, they

present similar material facts and closely related legal questions and were

therefore heard, and are decided, in tandem.

Plaintiffs-appellants Andrew Smalls and Deshawn Daniel were each

prosecuted in state court for criminal possession of a weapon (and, in Smalls's

case, also for trespass); in each case, the criminal proceedings terminated without

an extant criminal conviction or any remaining pending charges. Smalls was

initially convicted of three counts, two of which were later dismissed on appeal

and the third on remand. Daniel's charge was resolved by an adjournment in

contemplation of dismissal, and his case was ultimately dismissed in its entirety.

3 20-1099-cv; 20-1331-cv Smalls v. Collins et al.; Daniel v. Taylor et al.

Both subsequently filed civil suits against the defendants 1 (Smalls in the

United States District Court for the Eastern District of New York, and Daniel in

the Southern District). They asserted claims under

, each alleging

that the defendants-appellees had deprived him of a fair trial by fabricating

evidence. Daniel also asserted claims under

and 1983 for racial

discrimination, unlawful search and seizure, excessive force, failure to intervene,

for municipal liability pursuant to Monell v. Department of Social Services of the City

of New York,

(1978), and supervisory liability. Daniel further sought

equitable tolling of the statute of limitations applicable to his claims.

Smalls's section 1983 fabricated-evidence claim proceeded to trial and a

jury found Police Officers Richard Collins and David Teta (the "Smalls

defendants") liable. The Smalls defendants subsequently moved for an order

vacating the judgment and entering judgment in their favor based on the

Supreme Court's decision in McDonough v. Smith,

(2019), which

held that section 1983 fabricated-evidence claims do not accrue (and therefore

cannot be brought) until a criminal proceeding has ended in the defendant's

favor or a resulting conviction has been invalidated within the meaning of Heck

1Unless otherwise noted, "defendants" refers collectively to the defendants-appellees in both appeals now before us. 4 20-1099-cv; 20-1331-cv Smalls v. Collins et al.; Daniel v. Taylor et al.

v. Humphrey,

(1994). McDonough,

. The district

court (Carol Bagley Amon, Judge) granted the Smalls defendants' motion,

reasoning that McDonough's favorable-termination requirement for section 1983

fabricated-evidence claims is identical to that required for malicious-prosecution

claims. In the context of malicious-prosecution claims, a plaintiff must

demonstrate that the underlying criminal proceeding ended in a manner that

affirmatively indicates her innocence. See Lanning v. City of Glens Falls,

(2d Cir. 2018). The district court concluded that Smalls could not meet this

standard and that his claim was therefore barred.

Daniel's case proceeded through two rounds of motions to dismiss.

Following the first such motion, the district court (Ronnie Abrams, Judge)

dismissed Daniel's section 1981 claims, dismissed Daniel's claims for failure to

intervene, supervisory liability, and municipal liability, and dismissed as

untimely Daniel's section 1983 illegal search and excessive force claims. The

district court also denied Daniel's cross-motion for equitable tolling of the statute

of limitations applicable to his claims. In the wake of the district court's decision,

only Daniel's section 1983 fabricated-evidence claim remained. The Daniel

defendants moved to dismiss this claim based on McDonough. The district court

5 20-1099-cv; 20-1331-cv Smalls v. Collins et al.; Daniel v. Taylor et al.

granted the motion. As in Smalls, the district court decided that the case law

governing malicious-prosecution claims should guide its analysis. Because an

adjournment in contemplation of dismissal does not constitute a favorable

termination for malicious-prosecution claims, see Rothstein v. Carriere,

(2d Cir. 2004), the district court concluded that Daniel's adjournment

in contemplation of dismissal was not a favorable termination within the

meaning of McDonough and that his fabricated-evidence claim was therefore

barred.

Smalls and Daniel both appeal. They contend that the district courts erred

in dismissing their respective section 1983 fabricated-evidence claims because

McDonough does not require a termination indicative of innocence, and their

criminal proceedings terminated in their favor within the meaning of

McDonough. Daniel also argues that the district court erred in dismissing his

section 1981 claims and denying his motion for equitable tolling. For the reasons

that follow, we conclude that (1) the district courts erred in dismissing Smalls's

and Daniel's section 1983 fabricated-evidence claims and entering judgment for

the defendants; (2) Daniel's section 1981 claims were properly dismissed; and (3)

Daniel's equitable tolling motion was properly denied. We therefore reverse the

6 20-1099-cv; 20-1331-cv Smalls v. Collins et al.; Daniel v. Taylor et al.

district courts' judgments with respect to the fair-trial claims, affirm the dismissal

of Daniel's other claims, and remand each matter for further proceedings

consistent with this opinion.

BACKGROUND

I. Smalls

A. Smalls's State Criminal Proceedings

Plaintiff-appellant Andrew Smalls was indicted in the Supreme Court of

the State of New York, Queens County, on two counts of criminal possession of a

weapon (a firearm) and one count of criminal trespass. Smalls filed a pre-trial

motion to suppress the firearm from use as evidence.

At the suppression hearing, police officers testified that, while in uniform,

they were on foot patrol at a New York City public housing project when they

heard a gunshot. They walked to the rear of a building from or near which the

gunshots appeared to emanate. There, they saw a group of five youths (four

males and one female), including Smalls, walking away from the building. The

officers followed them for several blocks. When, eventually, the youths became

aware of the officers' presence, they began to run. The police gave chase and

followed the group further into the public housing complex, which had "no

7 20-1099-cv; 20-1331-cv Smalls v. Collins et al.; Daniel v. Taylor et al.

trespassing" signs displayed, and up the stairs to the roof of one of the buildings.

The officers testified that during the chase, they saw Smalls hand a pistol to a

member of the group who turned out to be his brother, Ronnie; that the gun fell

into the stairwell; and that the officers recovered the weapon one or two feet

away from Ronnie. Following the hearing, the trial court denied Smalls's motion

to suppress.

The case then proceeded to a jury trial. Smalls was convicted on all three

counts. He was subsequently sentenced to twelve years' imprisonment on the

first weapons charge for criminal possession of a weapon in the second degree,

four years' imprisonment on the second weapons charge for criminal possession

of a weapon in the third degree (to be served concurrently with the sentence for

the first weapons charge), and time served on the trespass charge.

On appeal, the Appellate Division, Second Department, reversed Smalls's

conviction. The court held that the trial court should have granted Smalls's

motion to suppress the "physical evidence" – i.e., the firearm – because the police

"lacked reasonable suspicion" to pursue Smalls. People v. Smalls,

(2d Dep't 2011). The court further found that "there [wa]s no evidence that,

during the pursuit, the police had any basis for believing that [Smalls] . . . did not

8 20-1099-cv; 20-1331-cv Smalls v. Collins et al.; Daniel v. Taylor et al.

in fact live in the public housing complex."

Accordingly, the court dismissed

the two counts charging criminal possession of a weapon and ordered a new trial

on the trespass count.

On remand, the trial court dismissed the remaining trespass count. After

reopening the suppression hearing, the court concluded "that the observations

made by the officers regarding [Smalls's] entry into and presence inside the

subject public housing building, which were made during the illegal chase, are

the fruits of an impermissible seizure." Smalls JA.36. 2 Because the court

suppressed the officers' purported observations and there was no other evidence

to support the trespass count, the court dismissed the indictment.

Smalls served two years, one month, and fourteen days in jail as a result of

being charged and convicted of the criminal possession of a weapon counts. 3

2As cited herein, "Smalls JA" refers to the Joint Appendix submitted in connection with Smalls's appeal. "Daniel JA" refers to the Joint Appendix submitted in connection with Daniel's appeal.

3According to Smalls, he was detained before trial and also for a period following his conviction in connection with another case that was ultimately dismissed. The parties stipulated in this case that Smalls's damages would therefore be based solely upon the portion of his imprisonment that was attributable exclusively to his convictions on the criminal possession of a weapon charges. 9 20-1099-cv; 20-1331-cv Smalls v. Collins et al.; Daniel v. Taylor et al.

B. Smalls's Section 1983 Action

After the dismissal of the criminal charges, on April 10, 2014, Smalls filed

suit in the United States District Court for the Eastern District of New York,

asserting – pursuant to

– claims for malicious prosecution and

deprivation of a fair trial through the introduction of fabricated evidence. After

discovery and motion practice, the case proceeded to trial on a single claim: "that

Officers Collins and Teta deprived Smalls of his right to a fair trial by fabricating

evidence against him suggesting that he possessed a firearm." Smalls v. Collins,

No. 14 Civ. 02326 (CBA) (RML),

, at *1 (E.D.N.Y. Mar. 16, 2020).

At trial, the police officers' version of events (differing somewhat from the

facts elicited in connection with the state criminal proceedings) was as follows:

On the evening of May 19, 2006, after they heard a gunshot, the police pursued

four men, including Smalls and his brothers Ronnie and Cedric, into a building

located at 81-05 Rockaway Beach Boulevard, Queens, New York. Officer Collins

testified that he saw Smalls hand a gun to Ronnie as the two were running up the

stairs of the building. Officer Collins then followed Smalls and Ronnie to the

roof, where Collins found a gun and proceeded to arrest them. Officers Collins

and Teta testified that Smalls was wearing a black jacket.

10 20-1099-cv; 20-1331-cv Smalls v. Collins et al.; Daniel v. Taylor et al.

Smalls contested the officers' version of events, testifying that he was not

present when the police were chasing his brothers and allegedly saw him

holding a gun. Smalls stated that he was playing cards in the apartment of a

friend, Lindsey Johnson, when their mutual friend William Davis knocked on the

door and told Smalls that his brothers Ronnie and Cedric were being arrested.

Smalls went downstairs, where he saw his brothers being placed in a police car.

Smalls then got into a verbal altercation with the officers, who slammed him

against a wall, causing a cut above his eye, and then handcuffed him. Smalls

testified that he was wearing a gray hooded sweatshirt, but no jacket; it was too

warm for a jacket. Several witnesses – including Lindsey Johnson and William

Davis – testified on Smalls's behalf and corroborated his version of events.

Smalls's attorney also elicited evidence that appeared to undercut the

police officers' stories. For instance, the prisoner pedigree cards for Ronnie and

Cedric said they were apprehended on the roof, while Smalls's card listed the

arrest location only as 81-05 Rockaway Beach Boulevard – Officer Collins added

the word "roof" later. Smalls JA.89-90, JA.251. Smalls's card also indicated that

he was wearing a "grey hoodie," although Collins later crossed this out and

wrote in "black jacket." Smalls JA.90, JA.251. There were also several photos

11 20-1099-cv; 20-1331-cv Smalls v. Collins et al.; Daniel v. Taylor et al.

taken of Smalls the night of the incident; in each, he was wearing a gray hoodie

and not a black jacket. Moreover, Small's arrest photo listed resisting arrest, not

criminal possession of a weapon, as the principal charge.

On May 20, 2019, the jury found, by a preponderance of the evidence, that

Officers Collins and Teta deprived Smalls of his right to a fair trial by fabricating

evidence, and the jury awarded him $60,000 in compensatory damages. Smalls

filed a post-verdict motion for a new trial on damages only, arguing that $60,000

was "grossly inadequate" to compensate him for two years of incarceration. Pl.

Mem. of Law at 1, Smalls v. Collins, No. 14 Civ. 2326 (CBA) (RML) (E.D.N.Y. June

18, 2019), ECF No. 134. The Smalls defendants moved under Federal Rules of

Civil Procedure 50, 54, and 60 "for an order vacating the judgment in the case

and granting judgment in favor of defendants as a matter of law." Notice of

Motion, Smalls v. Collins, No. 14 Civ. 02326 (CBA) (RML) (E.D.N.Y. June 21, 2019),

ECF No. 135. They argued that they were entitled to this relief because the

Supreme Court had held in McDonough that section 1983 fair-trial claims have a

"favorable termination" requirement, which – according to the defendants –

requires plaintiffs asserting fabricated-evidence claims to show that "the

underlying criminal proceeding ended in a manner that affirmatively indicates

12 20-1099-cv; 20-1331-cv Smalls v. Collins et al.; Daniel v. Taylor et al.

[their] innocence." Defs. Mem. of Law at 2, Smalls v. Collins, No. 14 Civ. 02326

(CBA) (RML) (E.D.N.Y. June 21, 2019), ECF No. 135-1 (emphasis in original)

(internal quotation marks omitted).

On March 16, 2020, the district court granted the Smalls defendants'

motion. The court explained that it had authority under Federal Rule of Civil

Procedure 54(b) to reconsider a prior judgment at any time before the entry of

final judgment, and concluded that the Supreme Court's decision in McDonough

"constitute[d] an intervening change in controlling law warranting

reconsideration of its prior orders." Smalls,

, at *2. The court

acknowledged that the issue presented in McDonough "was the accrual date of a

fair-trial claim," but concluded that "the opinion's reasoning strongly suggests

that the Supreme Court would [also] hold that favorable termination is a

requirement of a fair-trial claim, at least in cases in which the plaintiff alleges a

deprivation of liberty resulting from the use of fabricated evidence in a criminal

proceeding."

. The court further "assume[d] that the standard for

assessing favorable termination for purposes of Smalls's fair-trial claim . . . is the

same as that for malicious prosecution."

. The court explained that in the

context of a malicious prosecution claim, "the plaintiff must demonstrate that the

13 20-1099-cv; 20-1331-cv Smalls v. Collins et al.; Daniel v. Taylor et al.

underlying criminal proceeding ended in a manner that affirmatively indicates

plaintiff's innocence."

(alterations and internal quotation marks omitted).

Applying this standard, the court held that "Smalls did not, and could not,

establish favorable termination at trial," because the reversal of his conviction for

criminal possession of a weapon based on suppression of the evidence was not

indicative of innocence.

. The district court therefore vacated the jury

verdict, entered judgment as a matter of law in favor of the Smalls defendants,

and denied as moot Smalls's motion for a new trial on damages.

.

The district court entered judgment for the defendants on March 17, 2020.

This appeal followed.

II. Daniel

A. Daniel's Allegations 4

1. Daniel's March 18, 2015 Arrest

Plaintiff-appellant Deshawn Daniel alleges that he has been the victim of

repeated police harassment. During one such incident, a police officer smashed

4Because Daniel's claims were dismissed at the motion-to-dismiss stage, we draw the following facts primarily from the allegations in the complaint, augmented by affidavits that Daniel submitted in opposition to the defendants' motion to dismiss and in support of his cross-motion for equitable tolling. We express no view as to the truth or falsity of Daniel's allegations. 14 20-1099-cv; 20-1331-cv Smalls v. Collins et al.; Daniel v. Taylor et al.

his hand with a boot, requiring medical attention. The incident caused a long-

term injury known as "Mallet Finger," which makes Daniel's right pinky droop

and results in sharp pain in his right hand. Daniel filed a police-misconduct

lawsuit relating to this incident; it was settled on undisclosed terms. Daniel

purchased a used Mercedes-Benz convertible with some of the settlement

proceeds.

Driving that car at night allegedly resulted in a false arrest. On March 18,

2015, officers observed Daniel driving his convertible onto Adam Clayton Powell

Boulevard from the Macombs Dam Bridge, which connects the Bronx and

Manhattan. The officers flashed their lights, sounded their siren, and pulled

Daniel over to the side of the road. After inspecting Daniel's license and

registration, they entered Daniel's information into their dash-computer. It

disclosed that Daniel had an earlier arrest – the one related to the lawsuit that he

had settled. They then directed Daniel to exit the vehicle, telling him that he had

made an illegal left turn.

Daniel argued that he could not have made an illegal left turn because a

left turn was the only legal turn available at that intersection. The officers

opened the door to the automobile, pulled Daniel out, and then searched the

15 20-1099-cv; 20-1331-cv Smalls v. Collins et al.; Daniel v. Taylor et al.

vehicle without Daniel's consent. One officer asked, "How you own a Mercedes

convertible?" Daniel JA.38 ¶ 30. While the officers found nothing incriminating

in the car, they brought Daniel to the local precinct, where they allegedly strip-

searched him without probable cause.

The officers locked Daniel in a cell for approximately two to three hours,

requiring that he remove his clothing. They then searched him and placed him

against a wall. One of the officers put on an unlubricated latex glove and tried to

perform an anal cavity check. When Daniel resisted, the officers slammed him

on a table and twisted his arm, which bled. Daniel alleges that this encounter

exacerbated his "Mallet Finger," such that he now cannot lift anything weighing

more than three pounds with his bad hand. He also alleges that pain now

radiates down that arm. The officers then allegedly falsified a charge, accusing

Daniel of possessing a dangerous weapon – specifically, a so-called butterfly

knife 5 – even though he, in fact, possessed no knife at all.

5 Wikipedia informs us that

[a] balisong, also known as a fan knife, butterfly knife or Batangas knife, is a type of folding pocketknife that originated in the Philippines. Its distinct features are two handles counter-rotating around the tang such that, when closed, the blade is concealed within grooves in the handles. A latch holds the handles together, typically mounted on the one facing the cutting edge (the "bite handle"). 16 20-1099-cv; 20-1331-cv Smalls v. Collins et al.; Daniel v. Taylor et al.

Based on the allegedly false evidence presented against him, Daniel was

arraigned in Criminal Court of the City of New York, County of New York, and

charged with criminal possession of a weapon. The charge was ultimately

resolved by an adjournment in contemplation of dismissal ("ACD") pursuant to

New York Criminal Procedure Law § 170.55. 6 On June 13, 2016, the case against

Daniel was dismissed in its entirety and the case file sealed.

2. Daniel Files His Section 1983 Action Over Three Years After His Arrest

Daniel alleges that, following his March 18, 2015 arrest, he complained to

the New York Police Department's Internal Affairs Board. He asserts that he was

told someone would get back to him, but no one did.

Butterfly knife, WIKIPEDIA, https://en.wikipedia.org/wiki/Butterfly_knife (last visited July 21, 2021).

6New York Criminal Procedure Law § 170.55(1) provides that "[u]pon or after arraignment in a local criminal court upon an information, a simplified information, a prosecutor's information or a misdemeanor complaint, and before entry of a plea of guilty thereto or commencement of a trial thereof, the court may, upon motion of the people or the defendant and with the consent of the other party, or upon the court's own motion with the consent of both the people and the defendant, order that the action be 'adjourned in contemplation of dismissal[.]'" "An adjournment in contemplation of dismissal is an adjournment of the action without date ordered with a view to ultimate dismissal of the accusatory instrument in furtherance of justice."

(2). 17 20-1099-cv; 20-1331-cv Smalls v. Collins et al.; Daniel v. Taylor et al.

Daniel further alleges that in December 2015, he was in an automobile

accident. After the accident, he met with a lawyer who told him that she would

represent him both in regard to the accident and his arrest. After engaging her as

his attorney, Daniel called her many times to inquire about the progress of the

case and requested that she initiate the action or turn over the case file.

Eventually, in November 2017, the attorney's office told Daniel that she was not

representing him.

Five months later, on April 27, 2018, Daniel filed suit in the United States

District Court for the Southern District of New York, represented by another

lawyer.

B. The District Court Proceedings

In the April 27th action, Daniel asserted various claims under

and 1983 for, inter alia, racial discrimination, unlawful search and seizure,

excessive force, failure to intervene, deprivation of a fair trial through the use of

fabricated evidence, and Monell and supervisory liability. On April 30, 2018, he

filed an amended complaint. On July 24, 2018, the Daniel defendants moved to

dismiss. Daniel cross-moved for equitable tolling of the statute of limitations

applicable to his claims.

18 20-1099-cv; 20-1331-cv Smalls v. Collins et al.; Daniel v. Taylor et al.

On March 31, 2019, the district court granted the motion to dismiss in part.

The district court dismissed Daniel's section 1981 claims on the grounds that,

"under the law of this Circuit, 'the express cause of action for damages created by

§ 1983 constitutes the exclusive federal remedy for violation of the rights

guaranteed in § 1981 by state governmental units.'" Daniels v. City of New York,

No. 18 Civ. 3717 (RA),

, at *2 (S.D.N.Y. Mar. 31, 2019) 7

(emphasis omitted) (quoting Duplan v. City of New York,

(2d Cir.

2018)). The district court also dismissed Daniel's claims for failure to intervene,

supervisory liability, and municipal liability. Id. at *3-5. And the district court

dismissed as untimely Daniel's section 1983 illegal search and excessive force

claims because Daniel filed the action outside the three-year limitations period.

Id. at *2. The district court declined, however, to dismiss Daniel's section 1983

fair-trial claim based on fabricated evidence because it found that the claim was

not clearly time-barred. Id. at *3.

In dismissing Daniel's section 1983 illegal search and excessive force claims

as untimely, the district court also denied Daniel's cross-motion for equitable

7 Daniel's lawyer erroneously referred to his client as Deshawn Daniels when he initially filed this case, and the district court's case caption therefore reflects this error. We retain the mistaken spelling only when citing the district court's decisions in the underlying case. 19 20-1099-cv; 20-1331-cv Smalls v. Collins et al.; Daniel v. Taylor et al.

tolling. Id. at *6. The district court acknowledged Daniel's argument that he was

entitled to equitable tolling because "(1) he never heard back from the IAB after

he filed a complaint with them in 2015, (2) he believed another attorney was

representing him for a portion of the limitations period, and (3) he suffered a

hand injury that prevented him from finding an attorney," but found that these

circumstances did not warrant tolling the statute of limitations. Id. The district

court explained that "the IAB's failure to provide [Daniel] with the results of its

investigation was neither extraordinary nor a circumstance that prevented

[Daniel] from timely filing a complaint in federal court." Id. The court further

explained that his attorney's failure to get back to him did not justify tolling

because, "[e]ven if [he] believed that this attorney had agreed to represent him[,] .

. . he did not display reasonable diligence in allowing her to represent him for

two years without ever filing a complaint." Id. In addition, the district court

wrote, "once [Daniel] affirmatively learned that the attorney was not

representing him, he still had five months before the close of the limitations

period to file a complaint," and he provided "no explanation for his failure to file

within that five-month time period." Id. Finally, the district court concluded that

Daniel's reliance on his hand injury was unconvincing because "[a] person acting

20 20-1099-cv; 20-1331-cv Smalls v. Collins et al.; Daniel v. Taylor et al.

with reasonable diligence under such circumstances would have, at some point

during the three-year limitations period, found a way to pursue his claims –

perhaps with the help of a friend or family member, or through the use of his

other hand." Id.

On April 29, 2019, Daniel filed a second amended complaint. The Daniel

defendants again moved to dismiss. On March 11, 2020, the district granted the

defendants' motion and dismissed the remaining fair-trial claim based on

McDonough. Daniels v. Taylor,

, 474, 479-80 (S.D.N.Y. 2020).

The district court decided that the case law governing malicious prosecution

claims should guide its analysis of Daniel's fair-trial claim and explained that, to

assert a malicious-prosecution claim, a plaintiff must demonstrate "that the

underlying criminal proceeding ended in a manner that affirmatively indicates

his innocence."

(internal quotation marks omitted). The district court

further noted that, in the context of malicious-prosecution claims, "an ACD is not

a favorable termination because it leaves open the question of the accused's

guilt."

(internal quotation marks omitted). The district court then concluded

that Daniel's acceptance of the ACD barred his fair-trial claim.

.

The district court entered judgment on March 27, 2020. Daniel appealed.

21 20-1099-cv; 20-1331-cv Smalls v. Collins et al.; Daniel v. Taylor et al.

DISCUSSION

I. Standard of Review

"We review de novo the district court's decision on a motion for judgment

as a matter of law," applying "the same standard that is required of the district

court." 8 Zellner v. Summerlin,

(2d Cir. 2007). "We 'consider the

evidence in the light most favorable to the party against whom the motion was

made and . . . give that party the benefit of all reasonable inferences that the jury

might have drawn in his favor from the evidence.'"

(ellipsis in original)

(quoting Black v. Finantra Cap., Inc.,

, 209 (2d Cir. 2005)). "[A] court

may grant a motion for judgment as a matter of law 'only if it can conclude that,

with credibility assessments made against the moving party and all inferences

drawn against the moving party, a reasonable juror would have been compelled

8Although the district court entertained the Smalls defendants' post-trial motion as a motion for reconsideration under Rule 54, it treated the motion as one for judgment as a matter of law notwithstanding the jury verdict. We therefore apply the standard of review applicable to such motions.

Even if we were to consider this motion under the standard of review applicable to motions for reconsideration, however, that would not change the result because, as explained below, the district court's decision in Smalls rests on a legal error and therefore constitutes an abuse of discretion. See RJE Corp. v. Northville Indus. Corp.,

(2d Cir. 2003) ("A court abuses its discretion when its decision rests on a legal error or a clearly erroneous factual finding, or when its decision does not fall within the range of permissible decisions."). 22 20-1099-cv; 20-1331-cv Smalls v. Collins et al.; Daniel v. Taylor et al.

to accept the view of the moving party.'"

(emphasis omitted)

(quoting Piesco v. Koch,

(2d Cir. 1993)).

"We review de novo a dismissal of a complaint for failure to state a claim

upon which relief may be granted." Kelleher v. Fred A. Cook, Inc.,

(2d Cir. 2019). "To survive a motion to dismiss, a complaint must contain

sufficient factual matter, accepted as true, to state a claim to relief that is

plausible on its face." Ashcroft v. Iqbal,

(2009) (internal quotation

marks omitted). "A claim has facial plausibility when the plaintiff pleads factual

content that allows the court to draw the reasonable inference that the defendant

is liable for the misconduct alleged."

"[W]e accept only [the complaint's]

factual allegations, and the reasonable inferences that can be drawn therefrom, as

true." Krys v. Pigott,

(2d Cir. 2014); Chambers v. Time Warner,

Inc.,

(2d Cir. 2002).

II. Daniel's and Smalls's Section 1983 Fabricated-Evidence Claims

The plaintiffs argue on appeal that the district courts erred in granting the

defendants' motions because (1) McDonough does not require plaintiffs asserting

section 1983 fair-trial claims based on fabricated evidence to demonstrate that

their underlying criminal proceedings terminated in a manner indicative of

innocence; and (2) their underlying criminal proceedings were terminated in 23 20-1099-cv; 20-1331-cv Smalls v. Collins et al.; Daniel v. Taylor et al.

such a way that satisfies McDonough's accrual rule. For the reasons explained

below, we agree.

A. Applicable Law

1. Elements of a Fair-Trial Claim Based on Fabricated Evidence Prior to McDonough

Prior to McDonough, we held that to establish a section 1983 fair-trial claim

based on fabrication of evidence, a plaintiff must demonstrate that "an (1)

investigating official (2) fabricates information (3) that is likely to influence a

jury's verdict, (4) forwards that information to prosecutors, and (5) the plaintiff

suffers a deprivation of life, liberty, or property as a result." Garnett v. Undercover

Officer C0039,

(2d Cir. 2016). "[T]o succeed on a claim for a

denial of the right to a fair trial against a police officer based on an allegation that

the officer falsified information, an arrestee must [therefore] prove by a

preponderance of the evidence that the officer created false information, the

officer forwarded the false information to prosecutors, and the false information

was likely to influence a jury's decision."

.

In contrast to malicious prosecution claims, which require a plaintiff to

demonstrate "that the underlying criminal proceeding ended in a manner that

affirmatively indicates his innocence," Lanning,

, we have long held

24 20-1099-cv; 20-1331-cv Smalls v. Collins et al.; Daniel v. Taylor et al.

"that Section 1983 liability attaches for knowingly falsifying evidence even where

there simultaneously exists a lawful basis for [the] deprivation of liberty" that the

plaintiff suffered. Victory v. Pataki,

(2d Cir. 2016); see also Ricciuti

v. N.Y.C. Transit Auth.,

(2d Cir. 1997). The same is true of other

types of section 1983 fair-trial claims, such as those alleging the withholding of

exculpatory or other impeachment material in violation of Brady v. Maryland,

(1963). See Poventud v. City of New York,

(2d Cir. 2014)

(en banc) (Because Brady ensures a fair trial and "proof of the constitutional

violation need not be at odds with [the defendant's] guilt," "a defendant's right to

pre-trial disclosure under Brady is not conditioned on his ability to demonstrate

that he would or even probably would prevail at trial if the evidence was

disclosed, much less that he is in fact innocent." (emphases and internal

quotation marks omitted)). This is because malicious-prosecution and fair-trial

claims "arise out of different constitutional rights, protect against different

constitutional injuries, and implicate different constitutional concerns." Simon v.

City of New York, No. 16 Civ. 1017 (NGG) (RML),

, at *6

(E.D.N.Y. Mar. 19, 2020).

25 20-1099-cv; 20-1331-cv Smalls v. Collins et al.; Daniel v. Taylor et al.

Malicious-prosecution claims "essentially allege[] a violation of the

plaintiff's right under the Fourth Amendment to be free from unreasonable

seizure," the "touchstone" of which is "reasonableness." Lanning,

(internal quotation marks omitted); see also U.S. Const. amend. IV ("The right of

the people to be secure in their persons, houses, papers, and effects, against

unreasonable searches and seizures, shall not be violated[.]" (emphasis added)).

The "essence" of such a claim "is the alleged groundless prosecution[.]" Singleton

v. City of New York,

(2d Cir. 1980). A favorable termination of

the underlying criminal proceeding indicative of innocence is therefore necessary

to establish a viable claim because, "absent an affirmative indication that the

person is innocent of the offense charged, the government's failure to proceed

does not necessarily 'impl[y] a lack of reasonable grounds for the prosecution.'"

Lanning,

(alteration in original) (quoting Conway v. Vill. of Mt. Kisco,

, 215 (2d Cir. 1984)); see also Singleton,

(a plaintiff does

not have a viable claim for malicious prosecution where the prosecution was

based on probable cause but resulted in a hung jury).

A section 1983 fair-trial claim, by contrast, will not be defeated by evidence

of probable cause because it "cover[s] kinds of police misconduct not addressed

26 20-1099-cv; 20-1331-cv Smalls v. Collins et al.; Daniel v. Taylor et al.

by . . . malicious prosecution claims" and vindicates a different constitutional

right – the right to due process protected by the Fifth and Fourteenth

Amendments. Garnett,

. The due process clauses of the Fifth and

Fourteenth Amendments prohibit the government from "depriv[ing] any person

of life, liberty, or property, without due process of law," U.S. Const. amend. XIV,

§ 2; accord U.S. Const. amend. V, and thus, unlike a plaintiff asserting a Fourth

Amendment violation, a plaintiff may assert a violation of her due process rights

even where the relevant deprivation was otherwise "[]reasonable," U.S. Const.

amend. IV. "Like a prosecutor's knowing use of false evidence to obtain a tainted

conviction, a police officer's fabrication and forwarding to prosecutors of known

false evidence works an unacceptable 'corruption of the truth-seeking function of

the trial process,'" and deprivation of life, liberty, or property under such

circumstances violates the accused's right to due process. Ricciuti,

(quoting United States v. Agurs,

(1976)); Garnett,

("[T]here is a due process right not to have police deliberately fabricate evidence

and use it to frame and bring false charges against an arrestee." (internal

quotation marks omitted)). "No arrest, no matter how lawful or objectively

reasonable, gives an arresting officer or his fellow officers license to deliberately

27 20-1099-cv; 20-1331-cv Smalls v. Collins et al.; Daniel v. Taylor et al.

manufacture false evidence against an arrestee." Ricciuti,

; see also

Poventud,

("[E]ven [a] guilty man is entitled to a fair trial." (second

alteration in original) (internal quotation marks omitted)). To hold otherwise

"would make a mockery of the notion that Americans enjoy the protection of due

process of the law and fundamental justice." Ricciuti,

. We have

therefore never required that a plaintiff alleging a section 1983 fair-trial claim

establish a favorable termination indicative of innocence. See Garnett,

; Poventud,

(rejecting the view that "the State could violate

Poventud's Brady rights only if Poventud is an innocent man").

2. Evolution of the Accrual Rule for Section 1983 Fair-Trial Claims

Even where a plaintiff meets all the elements of a section 1983 claim, the

plaintiff must also establish that the claim has accrued for purposes of the statute

of limitations. Although we "look to state law for the length of the limitations

period, the time at which a § 1983 claim accrues is a question of federal law,

conforming in general to common-law tort principles." McDonough,

(internal quotation marks omitted). Where the claim has not yet accrued,

the claim is not cognizable and the plaintiff may not bring an action. See Heck,

28 20-1099-cv; 20-1331-cv Smalls v. Collins et al.; Daniel v. Taylor et al.

(Section 1983 claim had "not yet arisen" because it had not yet

accrued; dismissal was therefore appropriate).

In Heck, the Supreme Court announced an accrual rule for section 1983

actions involving an underlying criminal conviction. The plaintiff there was

serving a sentence on an underlying conviction; while the appeal from his

conviction was pending, the plaintiff filed a section 1983 action challenging the

legality of his conviction.

. The district court dismissed his claim

and the Seventh Circuit affirmed.

. The Supreme Court affirmed,

concluding that Heck's claim was barred because "a § 1983 cause of action for

damages attributable to an unconstitutional conviction or sentence does not

accrue until the conviction or sentence has been invalidated." Id. at 489-90.

The Supreme Court explained that section 1983 "creates a species of tort

liability" and therefore looked to the common law of torts for guidance. Id. at 483

(internal quotation marks omitted). The Court concluded that the "common-law

cause of action for malicious prosecution provide[d] the closest analogy to claims

of the type considered [in Heck] because, unlike the related cause of action for

false arrest or imprisonment, it permits damages for confinement imposed

pursuant to legal process." Id. at 484. It noted that to prove malicious

29 20-1099-cv; 20-1331-cv Smalls v. Collins et al.; Daniel v. Taylor et al.

prosecution, it is necessary to establish "termination of the prior criminal

proceeding in favor of the accused." Id. This requirement, the Court explained,

"avoids parallel litigation over the issues of probable cause and guilt . . . and it

precludes the possibility of the claimant [sic] succeeding in the tort action after

having been convicted in the underlying criminal prosecution, in contravention

of a strong judicial policy against the creation of two conflicting resolutions

arising out of the same or identical transaction." Id. (alteration in original)

(internal quotation marks omitted). With these "concerns for finality and

consistency" in mind, the Court concluded that section 1983 damages actions

"that necessarily require the plaintiff to prove the unlawfulness of his conviction

or confinement" are "not appropriate vehicles for challenging the validity of

outstanding criminal judgments." Id. at 485-86.

Accordingly, "when a state prisoner seeks damages in a § 1983 suit, the

district court must consider whether a judgment in favor of the plaintiff would

necessarily imply the invalidity of his conviction or sentence; if it would, the

complaint must be dismissed unless the plaintiff can demonstrate that the

conviction or sentence has already been invalidated." Id. at 487. If, however, "the

district court determines that the plaintiff's action, even if successful, will not

30 20-1099-cv; 20-1331-cv Smalls v. Collins et al.; Daniel v. Taylor et al.

demonstrate the invalidity of any outstanding criminal judgment against the

plaintiff, the action should be allowed to proceed, in the absence of some other

bar to the suit." Id. (emphasis in original) (internal footnote omitted). The

Supreme Court then provided several examples of ways in which a section 1983

plaintiff could meet this accrual rule, explaining that this requirement would be

satisfied if "the conviction or sentence has been reversed on direct appeal,

expunged by executive order, declared invalid by a state tribunal authorized to

make such determination, or called into question by a federal court's issuance of

a writ of habeas corpus,

."

.

In McDonough, the Supreme Court extended the rule announced in Heck to

ongoing criminal prosecutions. McDonough arose "out of an investigation into

forged absentee ballots that were submitted in a primary election in Troy, New

York, in 2009." McDonough,

. The plaintiff, Edward

McDonough, processed the ballots in his capacity as commissioner of the county

board of elections and maintained that he was unaware that they had been

forged.

Youel Smith was appointed to investigate and prosecute the matter;

he prosecuted McDonough over the course of two trials: the first ended in a

mistrial and the second in acquittal.

. Just under three years after his

31 20-1099-cv; 20-1331-cv Smalls v. Collins et al.; Daniel v. Taylor et al.

acquittal, McDonough sued Smith and other defendants under section 1983,

alleging that they had fabricated evidence in violation of his right to a fair trial.

Both the district court and the Second Circuit concluded that McDonough's

fabricated-evidence claim was untimely.

The Second Circuit held that

McDonough's fabricated-evidence claim accrued "'when (1) McDonough learned

that the evidence was false and was used against him during the criminal

proceedings; and (2) he suffered a loss of liberty as a result of that evidence.'"

(quoting McDonough v. Smith,

(2d Cir. 2018), rev'd,

(2019)). Because both occurred more than three years prior to the date

McDonough filed suit, the Second Circuit concluded that McDonough's claim

was barred by the three-year statute of limitations. See McDonough,

. The Supreme Court granted certiorari to resolve a split among the Courts of

Appeals regarding when the statute of limitations begins to run for a fabricated-

evidence claim. Id. at 2154-55. In resolving this question, the Court "assume[d]

without deciding that the Second Circuit's articulations of the right at issue and

its contours [we]re sound, having not granted certiorari to resolve those separate

questions." Id. at 2155.

32 20-1099-cv; 20-1331-cv Smalls v. Collins et al.; Daniel v. Taylor et al.

Relying extensively on its prior decision in Heck, the Court found it useful

to analogize McDonough's fabricated-evidence claim to the common-law tort of

malicious prosecution, noting that malicious prosecution's favorable-termination

requirement "is rooted in pragmatic concerns with avoiding parallel criminal and

civil litigation over the same subject matter and the related possibility of

conflicting judgments." Id. at 2156-57. The Court explained that "similar

concerns for finality and consistency" had motivated it to limit the "avenues for

collateral attack on criminal judgments through civil tort vehicles such as § 1983"

and to adopt Heck's "favorable-termination requirement." Id. at 2157 (internal

quotation marks omitted). Although McDonough differed from Heck because the

plaintiff in Heck had been convicted while the plaintiff in McDonough was

acquitted, the Court reasoned that McDonough's claims challenged the validity

of the criminal proceedings against him "in essentially the same manner" as the

plaintiff in Heck. Id. at 2157-58.

A criminal defendant therefore cannot "bring a fabricated-evidence

challenge to criminal proceedings while those criminal proceedings are ongoing."

Id. at 2158. "Only once the criminal proceeding has ended in the defendant's

favor, or a resulting conviction has been invalidated within the meaning of Heck,

33 20-1099-cv; 20-1331-cv Smalls v. Collins et al.; Daniel v. Taylor et al.

will the statute of limitations begin to run." Id. (internal citation omitted).

Applying this newly formulated rule, the Court reversed the judgment of the

Second Circuit, concluding that the statute of limitations for McDonough's

section 1983 fabricated-evidence claim did not begin to run until the criminal

proceedings against him "terminated in his favor – that is, when he was acquitted

at the end of his second trial." Id. at 2161.

B. McDonough's Favorable-Termination Requirement Does Not Require a Termination Indicative of Innocence

McDonough did not alter the substantive elements of a fabricated-evidence

claim as it is understood in this Circuit. To the contrary, in McDonough, the

question was limited to determining "when the statute of limitations began to

run" and the Supreme Court "assume[d] without deciding that the Second

Circuit's articulations of the right at issue and its contours are sound, having not

granted certiorari to resolve those separate questions." Id. at 2155. McDonough

thus left intact our jurisprudence surrounding the elements of fabricated-

evidence claims.

McDonough did, however, announce a new accrual rule for fabricated-

evidence claims. Relying on Heck's "favorable-termination requirement," the

Supreme Court concluded that "[t]here is not a complete and present cause of

34 20-1099-cv; 20-1331-cv Smalls v. Collins et al.; Daniel v. Taylor et al.

action to bring a fabricated-evidence challenge to criminal proceedings while

those criminal proceedings are ongoing." Id. at 2157-58 (emphasis added)

(internal quotation marks and citation omitted). "Only once the criminal

proceeding has ended in the defendant's favor, or a resulting conviction has been

invalidated within the meaning of Heck, will the statute of limitations begin to

run." Id. at 2158 (internal citation omitted). To bring a fabricated-evidence claim,

a plaintiff must therefore establish – as a condition precedent to suit – that the

claim has accrued within the meaning of McDonough.

The core question at the heart of these appeals is what constitutes a

favorable termination sufficient to trigger McDonough's accrual rule for

fabricated-evidence claims. The defendants point out that McDonough's accrual

rule for fabricated-evidence claims was premised on an analogy to malicious-

prosecution claims and argue that McDonough's favorable-termination

requirement should thus be interpreted to be coextensive with malicious

prosecution's favorable-termination requirement, under which a plaintiff must

establish that the proceeding ended in a manner indicative of innocence. This

argument is inconsistent with the reasoning and holding of McDonough and, we

think, lacks merit.

35 20-1099-cv; 20-1331-cv Smalls v. Collins et al.; Daniel v. Taylor et al.

The starting point for understanding the force and effect of McDonough is

Heck, upon which McDonough relied heavily to determine the appropriate accrual

rule for fabricated-evidence claims. See McDonough,

. In

Heck, the plaintiff filed a section 1983 action while he was still in prison for his

underlying conviction. See Heck,

. The Court expressed

concern that allowing a section 1983 plaintiff to seek damages while still serving

a sentence on the underlying conviction would promote an end-run around

Congress's choice that habeas corpus, with its strict procedural rules, be the sole

basis for challenging the constitutional validity of an outstanding state criminal

conviction. See

. In determining whether such an action had accrued,

the Court analogized to malicious prosecution's favorable-termination

requirement as "illustrative of the common-law principle barring tort plaintiffs

from mounting collateral attacks on their outstanding criminal convictions."

Heck,

n.4. Malicious prosecution's favorable-termination

requirement, the Court explained, "avoids parallel litigation over the issues of

probable cause and guilt . . . and it precludes the possibility of the claimant [sic]

succeeding in the tort action after having been convicted in the underlying

criminal prosecution, in contravention of a strong judicial policy against the

36 20-1099-cv; 20-1331-cv Smalls v. Collins et al.; Daniel v. Taylor et al.

creation of two conflicting resolutions arising out of the same or identical

transaction."

(alteration in original) (internal quotation marks omitted).

The Court noted that similar concerns for "finality and consistency" were

implicated on the facts of Heck and accordingly concluded that section 1983 tort

actions "are not appropriate vehicles for challenging the validity of outstanding

criminal judgments[.]"

.

Notably, Heck's analogy to malicious prosecution did not result in the

Supreme Court's adoption of a termination-indicative-of-innocence requirement

for all section 1983 claims premised on an underlying conviction. Rather, to

guard against parallel litigation and promote finality and consistency, the Court

adopted an accrual rule designed to avoid inconsistent results and new avenues

of collateral attack. See

. Under the Heck Court's favorable-

termination requirement,9 if a section 1983 plaintiff establishes – before bringing

suit – that the "action, even if successful, will not demonstrate the invalidity of

any outstanding criminal judgment against the plaintiff, the action should be

9 Although the Heck Court did not itself refer to its rule as a "favorable-termination" requirement, it has become widely referred to and recognized as such. See, e.g., McDonough,

(referring to the Heck rule as a "favorable-termination requirement"); Muhammad v. Close,

(2004) (discussing "Heck's favorable termination requirement"); McKithen v. Brown,

, 101 n.13 (2d Cir. 2007) ("[T]he Heck rule has come to be known as the 'favorable termination' requirement."). 37 20-1099-cv; 20-1331-cv Smalls v. Collins et al.; Daniel v. Taylor et al.

allowed to proceed, in the absence of some other bar to the suit." Id. at 487 (first

emphasis in original, second emphasis added) (footnote omitted). A plaintiff

may satisfy this requirement by demonstrating "that the conviction or sentence

has been reversed on direct appeal, expunged by executive order, declared

invalid by a state tribunal authorized to make such determination, or called into

question by a federal court's issuance of a writ of habeas corpus,

."

None of these resolutions requires an affirmative showing of

innocence. See Savory v. Cannon,

(7th Cir. 2020) (en banc) (noting

that all of Heck's favorable "outcomes can occur without a declaration of a

defendant's innocence."); see also Roberts v. City of Fairbanks,

, 1201

n.11 (9th Cir. 2020) (rejecting the argument that "Heck establishes an exact replica

of the favorable-termination rule from the malicious-prosecution context.").

Interpreting McDonough to essentially graft malicious prosecution's

distinctive favorable-termination requirement onto fabricated-evidence claims, as

the defendants request, would thus require us to conclude that McDonough has

overruled Heck. But McDonough did no such thing. To the contrary, the

McDonough Court found itself confronted with a set of facts that raised concerns

similar to those present in Heck and simply extended Heck's reach to section 1983

38 20-1099-cv; 20-1331-cv Smalls v. Collins et al.; Daniel v. Taylor et al.

lawsuits brought during pending criminal prosecutions. See McDonough,

("Heck explains why favorable termination is both relevant and

required for a claim analogous to malicious prosecution that would impugn a

conviction, and that rationale extends to an ongoing prosecution as well: The

alternative would impermissibly risk parallel litigation and conflicting

judgments."). Although the McDonough plaintiff's claims did not fall within Heck

because, unlike the plaintiff in Heck, he had been acquitted and there was

therefore no outstanding conviction, the Supreme Court decided that the

"pragmatic considerations" underlying the Heck rule apply with equal force to

"ongoing" criminal proceedings. See

(emphasis added).

The McDonough Court explained that imposing "a ticking limitations clock

on criminal defendants as soon as they become aware that fabricated evidence

has been used against them" would require criminal defendants to make "an

untenable choice between (1) letting their claims expire and (2) filing a civil suit

against the very person who is in the midst of prosecuting them."

.

The first option "[wa]s obviously undesirable," while the latter course was also

"fraught with peril" because the defendant "risks tipping his hand as to his

defense strategy, undermining his privilege against self-incrimination, and

39 20-1099-cv; 20-1331-cv Smalls v. Collins et al.; Daniel v. Taylor et al.

taking on discovery obligations not required in the criminal context."

Moreover, "the parallel civil litigation that would result if plaintiffs chose the

second option would run counter to core principles of federalism, comity,

consistency, and judicial economy."

The Supreme Court therefore held that

"[o]nly once the criminal proceeding has ended in the defendant's favor, or a

resulting conviction has been invalidated within the meaning of Heck, will the

statute of limitations begin to run."

(internal citation omitted). In reaffirming

the Heck rule while extending it to ongoing prosecutions, McDonough no more

required an affirmative indication of innocence than Heck did.

Indeed, the notion that McDonough established malicious prosecution's

favorable-termination requirement as the accrual rule for section 1983 fair-trial

claims is inconsistent with the rule announced in McDonough. The Supreme

Court phrased its accrual rule disjunctively, making clear that invalidation of a

conviction within the meaning of Heck or termination of an ongoing criminal

proceeding in the defendant's favor would be sufficient to trigger the statute of

limitations. Id.; see also Roberts,

n.11. Further, while the Court

had "no occasion to address the broader range of ways a criminal prosecution (as

opposed to a conviction) might end favorably to the accused" because the

40 20-1099-cv; 20-1331-cv Smalls v. Collins et al.; Daniel v. Taylor et al.

plaintiff's "acquittal was unquestionably a favorable termination," it suggested

that a "context-specific and more capacious understanding of what constitutes

'favorable' termination" might be appropriate for fabricated-evidence claims in

light of prosecutors' broad discretion over "the terms on which pleas will be

offered or whether charges will be dropped[.]" McDonough,

n.10. This language undercuts any suggestion that McDonough's accrual rule is

merely coextensive with malicious prosecution's favorable-termination

requirement.

Requiring a plaintiff alleging fabricated-evidence claims to establish that

the underlying criminal proceeding ended in a manner that affirmatively

indicates his innocence would also be fundamentally inconsistent with our

longstanding distinction between section 1983 fair-trial and malicious-

prosecution claims. As noted above, malicious-prosecution and fair-trial claims

assert the violation of different constitutional rights and protect against different

constitutional injuries. It makes sense to require a favorable termination

indicative of innocence in the context of malicious prosecution claims where the

essence of such a claim "is the alleged groundless prosecution[.]" See Singleton,

. Absent affirmative indications of innocence, the termination of

41 20-1099-cv; 20-1331-cv Smalls v. Collins et al.; Daniel v. Taylor et al.

the proceeding does not necessarily mean that the government lacked reasonable

grounds for initiating the prosecution; a favorable termination indicative of

innocence is therefore critical to determining whether the plaintiff has a viable

claim. See Lanning,

. A section 1983 fair-trial claim, by contrast,

focuses on the constitutionality of the process and addresses a different

constitutional injury – deprivation of life, liberty, or property due to corruption

of due process by official misconduct. See Ricciuti,

; Frost v. N.Y.C.

Police Dep't,

(2d Cir. 2020). Whether the proceeding was

terminated in a manner indicative of innocence therefore is not dispositive in the

context of a section 1983 fair-trial claim, and we have never required that a

plaintiff alleging such a claim establish a favorable termination indicative of

innocence.

Accordingly, McDonough's accrual rule does not import malicious

prosecution's favorable-termination requirement onto section 1983 fair-trial

claims. Where the plaintiff asserts a section 1983 fair-trial claim based on

fabricated evidence, all that is required is that the underlying criminal

proceeding be terminated in such a manner that the lawsuit does not impugn an

ongoing prosecution or outstanding conviction. See McDonough,

,

42 20-1099-cv; 20-1331-cv Smalls v. Collins et al.; Daniel v. Taylor et al.

2160; Heck,

; see also Savory,

(the

plaintiff's pardon constituted a favorable termination within the meaning of Heck

and McDonough because the plaintiff's "conviction was set aside with this

pardon."). This requirement may be satisfied where a criminal conviction has

been invalidated or a criminal prosecution has been terminated in the criminal

defendant's favor because, in such circumstances, there is no risk that a section

1983 plaintiff's claim will impugn an existing conviction or the basis for an

ongoing prosecution.

C. Smalls's Criminal Proceeding Terminated in his Favor

McDonough holds that a fabricated-evidence claim may accrue where a

"criminal proceeding has ended in the defendant's favor, or a resulting

conviction has been invalidated within the meaning of Heck[.]" McDonough,

. A conviction is invalidated within the meaning of Heck if it was

"reversed on direct appeal" because, under those circumstances, the "plaintiff's

action, even if successful, will not demonstrate the invalidity of any outstanding

criminal judgment against the plaintiff[.]" Heck,

. A criminal

proceeding likewise ends in the defendant's favor where any remaining charges

are dismissed on remand following the vacatur or reversal of a judgment of

43 20-1099-cv; 20-1331-cv Smalls v. Collins et al.; Daniel v. Taylor et al.

conviction on appeal, because, in such circumstances, there is no ongoing

prosecution that poses an impermissible risk of parallel litigation and conflicting

judgments. See McDonough,

.

Both occurred here and we are therefore presented with two potential

accrual dates: (1) the date the Appellate Division reversed Smalls's judgment of

conviction on direct appeal and dismissed the weapons-possession counts; or (2)

the date the trial court dismissed the trespass count on remand, following the

Appellate Division's reversal of Smalls's conviction. Smalls contends that the

accrual of his claim should run from the date the Appellate Division reversed his

judgment of conviction and dismissed the weapons-possession charges, because

his section 1983 fair-trial claim was based solely on the allegedly fabricated

evidence used to convict him of those weapons charges. While the trespass

charge remained after his judgment of conviction was reversed and the criminal

possession of a weapon charges were dismissed, he argues that this did not affect

the accrual of his claim because success on his fabricated-evidence claim would

not impugn the independent basis for the trespass prosecution. We need not

decide which date triggered the accrual of Smalls's fabricated-evidence claim for

44 20-1099-cv; 20-1331-cv Smalls v. Collins et al.; Daniel v. Taylor et al.

purposes of this appeal because, in any event, his underlying criminal

proceeding terminated in his favor and has therefore accrued.

Indeed, even assuming arguendo that Smalls's fabricated-evidence claim

accrued on the later date —when Smalls's trespass count was dismissed – there is

no question that Smalls's claim does not implicate the concerns outlined in

McDonough. Smalls's section 1983 fabricated-evidence claim poses no risk of

demonstrating the invalidity of any outstanding criminal judgment because

there is no such judgment. And his lawsuit does not run parallel to, nor does it

impugn, any pending prosecution or existing conviction because there is no

conviction and there are no pending charges. Smalls has therefore satisfied

McDonough and there is no bar to his suit. 10

10The Smalls defendants argue that, even if a termination indicative of innocence is not required, a plaintiff asserting a section 1983 fair-trial claim based on fabricated evidence must at least demonstrate that the underlying criminal proceeding did not end in a manner that includes affirmative indications of the plaintiff's guilt. They point out that Smalls's trial attorney claimed that Smalls possessed the gun police recovered in order to establish standing to request a suppression hearing and that the Appellate Division assumed this to be true for purposes of resolving Smalls's motion. The defendants contend that Smalls therefore cannot establish a favorable termination as required by McDonough.

This argument is unpersuasive for the same reasons explained above. Neither McDonough nor Heck says anything about requiring a favorable termination that excludes any suggestion of guilt. To the contrary, Heck – upon which McDonough relies and reaffirms – expressly provides that there will be no bar to suit if the plaintiff "can demonstrate that the conviction or sentence has already been invalidated." Heck, 512 45 20-1099-cv; 20-1331-cv Smalls v. Collins et al.; Daniel v. Taylor et al.

D. Daniel's Criminal Proceeding Terminated in his Favor

1. Daniel's Fabricated-Evidence Claim Arises Under the Due Process Clause

Relying on Manuel v. City of Joliet,

(2017), the Daniel

defendants argue that, even if a termination indicative of innocence is not

required under McDonough, Daniel's claim – which involves a pretrial

deprivation of liberty – is governed by the Fourth Amendment and therefore

collapses into a malicious-prosecution claim. According to the Daniel

defendants, this means that Daniel must demonstrate that his underlying

criminal case was resolved in a manner indicative of innocence as is required for

malicious-prosecution claims.

The Daniel defendants essentially assert that, in Manuel, the Supreme Court

categorically precluded due process fabricated-evidence claims seeking damages

U.S. at 487. This rule may be satisfied where "the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus."

These resolutions do not inquire into the plaintiff's guilt. Indeed, a plaintiff's conviction may be overturned on direct appeal, expunged by virtue of a pardon, or called into question by a federal court's issuance of a writ of habeas corpus due to constitutional violations or evidentiary errors despite evidence indicative of the plaintiff's guilt. McDonough, like Heck, is not concerned with the guilt or innocence of the plaintiff; rather, McDonough's favorable-termination requirement is intended to prevent parallel proceedings and inconsistent civil and criminal judgments that result when there is a pending prosecution or outstanding conviction. Neither is present here.

46 20-1099-cv; 20-1331-cv Smalls v. Collins et al.; Daniel v. Taylor et al.

for pretrial detention. They argue that the Supreme Court held that such claims

may only be brought under the Fourth Amendment and that, as a result, a

fabricated-evidence claim seeking damages for pretrial detention is subsumed

under the elements of a malicious-prosecution claim. But in Manuel, the

Supreme Court granted certiorari to decide only whether a section 1983 claim

based on a "pretrial detention following the start of legal process" could "give rise

to a Fourth Amendment claim." Manuel,

. The Court

answered this question in the affirmative.

("[T]hose objecting to a

pretrial deprivation of liberty may invoke the Fourth Amendment when . . . that

deprivation occurs after legal process commences.").

We have held that Manuel did not rule out the possibility that, in such

circumstances, the Constitution also permits a due process claim that the plaintiff

was deprived of life, liberty, or property as a result of the use of fabricated

evidence. In Frost v. New York City Police Department,

(2d Cir. 2020),

we concluded that the district court erred in granting the defendants' motion for

summary judgment as to Frost's section 1983 fair-trial claim, which was

premised on his pretrial detention.

. In reaching this conclusion,

the majority rejected the dissent's argument that Frost's claim failed as a matter

47 20-1099-cv; 20-1331-cv Smalls v. Collins et al.; Daniel v. Taylor et al.

of law because, under Manuel, it arose under the Fourth Amendment and there

was "ample probable cause for Frost's arrest, [pretrial] detention, and

prosecution." See

;

(Kearse, J., dissenting). The dissent – like

the Daniel defendants – essentially argued that Frost's fair-trial claim was more

accurately described as arising under the Fourth Amendment, rather than the

Due Process Clause, because the allegedly fabricated evidence was only used to

initiate pretrial proceedings against Frost (and was not, in fact, introduced at

trial). See

The majority found this argument unpersuasive, concluding that

our precedent established that, in this context, "the (perhaps imprecisely named)

fair trial right protects against deprivation of liberty that results when a police

officer fabricates and forwards evidence to a prosecutor that would be likely to

influence a jury's decision, were that evidence presented to the jury."

(emphasis in original). Accordingly, "[n]otwithstanding the nomenclature, a

criminal defendant's right to a fair trial protects more than the fairness of the trial

itself[;] [i]ndeed, a criminal defendant can bring a fair trial claim even when no

trial occurs at all."

.

The majority in Frost reconciled this result with Manuel, explaining:

The Supreme Court's holding in Manuel v. City of Joliet . . . does not compel a different result. In Manuel, the Supreme Court held that a § 1983 plaintiff

48 20-1099-cv; 20-1331-cv Smalls v. Collins et al.; Daniel v. Taylor et al.

could challenge his pretrial detention based on purportedly fabricated evidence under the Fourth Amendment, even after a judge determined that this evidence constituted probable cause. But just as a Fourth Amendment claim survives the initiation of "legal process," our precedents establish that a fair trial claim under the Due Process Clause may accrue before the trial itself. Accordingly, the holding of Manuel does not preclude Frost's fair trial claim.

Id. at 251 n.14 (internal citations omitted).

The defendants' argument is therefore foreclosed by Frost. Under our

precedent, Daniel may assert a fabricated-evidence claim related to his pretrial

detention under the Due Process Clause.

2. Daniel's ACD Constitutes a Favorable Termination Under McDonough

In McDonough, the Court declined to provide further guidance concerning

"the broader range of ways a criminal prosecution (as opposed to a conviction)

might end favorably to the accused" because the plaintiff's acquittal there "was

unquestionably a favorable termination[.]" McDonough,

n.10.

While the Court suggested that a "context-specific and more capacious

understanding of what constitutes 'favorable' termination" might be appropriate

to take account of prosecutors' broad discretion over "the terms on which pleas

will be offered or whether charges will be dropped," it did not enumerate the

types of terminations that would be sufficient to trigger McDonough's accrual

49 20-1099-cv; 20-1331-cv Smalls v. Collins et al.; Daniel v. Taylor et al.

rule.

It is therefore an open question as to whether the dismissal of Daniel's

charges pursuant to an ACD constitutes a favorable termination for purposes of

McDonough.

The pragmatic concerns animating McDonough counsel in favor of

concluding that it does. As explained above, McDonough extended Heck to

section 1983 fabricated-evidence claims filed during an ongoing prosecution

because allowing such suits would impugn the basis for a pending prosecution

and "impermissibly risk parallel litigation and conflicting judgments."

. These concerns are not implicated where, as here, the charges against the

plaintiff are dismissed pursuant to an ACD. When a defendant accepts an ACD

in New York state court, his criminal prosecution is "adjourn[ed] . . . without [a]

date ordered" for it to resume.

(2). While the

government retains the right to move to "restore the case to the calendar," it must

make such a motion within "six months" – or in some cases "one year" – after the

defendant accepts the ACD.

If the government does not move within the

prescribed time period, "the accusatory instrument is, at the expiration of such

period, deemed to have been dismissed by the court in furtherance of justice"

and "the arrest and prosecution shall be deemed a nullity."

§ 170.55(2), (8). In

50 20-1099-cv; 20-1331-cv Smalls v. Collins et al.; Daniel v. Taylor et al.

such circumstances, there is no risk of parallel litigation because the charges have

been dismissed. Nor is there any risk of conflicting judgments because no

determination of guilt or innocence was made, and no judgment was entered.

Rather, once the charges against Daniel were dismissed, any concerns about the

possibility of "two-track litigation" dissipated. See McDonough,

;

see also Simon,

, at *6 ("A jury verdict that Cruz violated

Plaintiff's due process right to a fair trial by falsifying evidence would not

conflict with or challenge the validity of the dismissal of charges against Plaintiff

in the interest of justice.").

This conclusion is reinforced by the rationales underlying our enduring

distinction between malicious-prosecution and fair-trial claims. While a

termination indicative of innocence is necessary in the context of malicious-

prosecution claims to ensure that there were no reasonable grounds for the

prosecution, see Lanning,

, depriving an individual of life, liberty, or

property by fabricating evidence violates due process regardless of whether

there was probable cause because "[n]o arrest, no matter how lawful or

objectively reasonable, gives an arresting officer or his fellow officers license to

deliberately manufacture false evidence against an arrestee." Ricciuti,

20-1099-cv; 20-1331-cv Smalls v. Collins et al.; Daniel v. Taylor et al.

130. In contrast to a malicious-prosecution claim, which focuses on the validity

of the initiation of the prosecution, a section 1983 fair-trial claim predicated on

fabricated evidence guards against the deprivation of life, liberty, or property as

a result of the corruption of due process, 11 and therefore does not require a

favorable termination indicative of innocence. See

("Like a prosecutor's

knowing use of false evidence to obtain a tainted conviction, a police officer's

fabrication and forwarding to prosecutors of known false evidence works an

unacceptable 'corruption of the truth-seeking function of the trial process.'"). 12

11We note that, for this reason, our precedents limit Daniel's claim to one that seeks redress for "deprivation[s] of life, liberty, or property" that occurred "as a result" of an investigating official's "forward[ing fabricated] information to prosecutors." Garnett,

. While Daniel's complaint recounts an abusive detention immediately following his arrest – and alleges that the Daniel defendants fabricated the allegation that he had a butterfly knife – it is unclear whether the complaint alleges a deprivation of life, liberty, or property resulting from the defendants' decision to "forward" that fabricated "information to prosecutors."

Because the parties agree, for purposes of this appeal, that Daniel has adequately alleged that he was deprived of liberty as a result of the use of fabricated evidence, Transcript of Oral Argument at 7:12-8:8, 10:13- 11:3, Daniel v. Taylor et al., (No. 20-1331-cv), we leave it to the district court on remand to determine, if necessary, whether Daniel has adequately alleged the requisite elements of a fabricated-evidence claim.

12The Daniel defendants suggest that these rationales are inapplicable to Daniel's claim because he challenges the use of fabricated evidence in pretrial proceedings instead of at trial and his is therefore not "a true 'fair trial' claim." See Daniel Defs. Br. at 20-21. But, as noted above, we have held that a plaintiff may bring a section 1983 fair-trial claim challenging the use of fabricated evidence during pretrial proceedings even where no trial occurs. Frost,

. Moreover, the constitutional tort's objectives of ensuring that a criminal defendant receives due process and deterring 52 20-1099-cv; 20-1331-cv Smalls v. Collins et al.; Daniel v. Taylor et al.

Consistent with this distinction, it is well-settled that acceptance of an

ACD bars a malicious-prosecution claim because it leaves the question of

innocence or guilt unanswered and is thus not a termination indicative of

innocence. See Rothstein,

; Singleton,

. And it

was similarly well-accepted, prior to McDonough, that an ACD did not preclude a

fair-trial claim. See Apostol v. City of New York, No. 11 Civ. 3851 (RRM) (CLP),

, at *5 (E.D.N.Y. Mar. 26, 2014) (acceptance of an adjournment in

contemplation of dismissal "does not preclude a fair trial claim" (collecting

cases)), aff'd,

(2d Cir. 2015) (summary order). McDonough did

not impose malicious prosecution's favorable-termination requirement onto fair

trial claims or overrule our precedent concerning the contours of fabricated-

evidence claims. See McDonough,

. Rather, as explained above,

McDonough simply extended Heck's favorable termination requirement to

ongoing prosecutions under circumstances that implicate Heck's pragmatic

fabrication of evidence are just as equally served by lawsuits challenging the use of fabricated evidence as a basis to initiate and sustain a prosecution (even where that case does not ultimately go to trial) as they are by lawsuits challenging the introduction of fabricated evidence to secure a conviction. See

(due process clause protects against deprivation of life, liberty, or property resulting from use of fabricated evidence both pre-trial and during trial). 53 20-1099-cv; 20-1331-cv Smalls v. Collins et al.; Daniel v. Taylor et al.

concerns for finality and consistency. Such concerns are not present where, as

here, the charges against Daniel were dismissed pursuant to an ACD.

The Daniel defendants' arguments to the contrary are unavailing. They

first assert that allowing Daniel's fabricated-evidence claim to proceed would be

inconsistent with McDonough because Daniel's "claim that his prosecution was

entirely the result of fabricated evidence necessarily impugns that prosecution."

Daniel Defs. Br. at 23. But, by that logic, the plaintiff in McDonough – who

contended that his indictment, prosecution, and trial were the result of fabricated

evidence – also necessarily impugned the prosecution and therefore should have

been barred from bringing suit. Yet the Supreme Court allowed his claim to

proceed. Indeed, interpreting McDonough to bar a section 1983 claim wherever

the claim challenges the integrity of any underlying criminal proceeding would

gut the force and effect of section 1983, because section 1983 claims asserting a

violation of the Fifth Amendment necessarily involve such challenges. Such a

result would be inconsistent with McDonough, the broad remedial purpose of

section 1983, and our understanding of Heck and related cases as a narrow

"exception from § 1983's otherwise broad scope[.]" See McKithen v. Brown,

(2d Cir. 2007) (internal quotation marks omitted). McDonough was

54 20-1099-cv; 20-1331-cv Smalls v. Collins et al.; Daniel v. Taylor et al.

concerned with allowing section 1983 lawsuits that would impugn an ongoing

prosecution or outstanding conviction. There is no ongoing prosecution or

outstanding conviction here. To the contrary, Daniel's "arrest and prosecution

[have] be[en] deemed a nullity."

(8).

The Daniel defendants also argue that there are strong practical reasons to

require a plaintiff alleging fabrication of evidence to demonstrate that the

underlying criminal prosecution ended in a manner indicative of innocence.

According to the Daniel defendants, adopting a contrary rule would

disincentivize prosecutors from offering ACDs in order to foreclose section 1983

lawsuits. We are not convinced. District courts in this circuit have previously

held that an ACD does not bar a section 1983 fair-trial claim and such negative

ramifications have, as far as we are aware, yet to occur. Moreover, it is not the

job of prosecutors to insulate the City of New York from liability. Their

obligation is to seek justice and to "take precautions to avoid convicting innocent

individuals." Friedman v. Rehal,

(2d Cir. 2010). We will not

presume that prosecutors will violate these ethical and professional obligations

simply to assist the City in avoiding civil liability. See Cowles v. Brownell,

(N.Y. 1989) ("Insulation from civil liability is not the duty of the

55 20-1099-cv; 20-1331-cv Smalls v. Collins et al.; Daniel v. Taylor et al.

prosecutor. The prosecutor's obligation is to represent the People and to that

end, to exercise independent judgment in deciding to prosecute or refrain from

prosecution. This obligation cannot be fulfilled when the prosecutor undertakes

also to represent a police officer for reasons divorced from any criminal justice

concern."); see also Berger v. United States,

(1935) ("[W]hile [a

prosecutor] may strike hard blows, he is not at liberty to strike foul ones. It is as

much his duty to refrain from improper methods calculated to produce a

wrongful conviction as it is to use every legitimate means to bring about a just

one.").

For all these reasons, we conclude that a defendant's fair-trial claim

accrues (and may be brought) once her charges are conclusively dismissed

pursuant to an ACD. The dismissal of Daniel's charges pursuant to an ACD

therefore constituted a favorable termination within the meaning of McDonough

and McDonough poses no bar to suit.

III. Daniel's Section 1981 Claims

Daniel also argues that he should be permitted to bring claims under

section 1981 because there is nothing in section 1981 that, as a textual matter,

precludes such a claim, particularly where the plaintiff is alleging race

56 20-1099-cv; 20-1331-cv Smalls v. Collins et al.; Daniel v. Taylor et al.

discrimination. Daniel acknowledges that we rejected this argument only three

years ago in Duplan v. City of New York,

(2d Cir. 2018), but

argues that Duplan should be reconsidered because (1) Duplan "does not comport

with the Supreme Court's approach in reading statutes textually rather than

through the lens of Congressional intent"; and (2) Duplan "is caught in a circuit

split." Daniel Pl. Br. at 36-39. These arguments are without merit.

In Duplan, we expressly held that "

provides the sole cause

of action available against state actors alleged to have violated § 1981." Duplan,

. In reaching this conclusion, we acknowledged the Ninth

Circuit's contrary holding in Federation of African American Contractors v. City of

Oakland,

(9th Cir. 1996) – upon which Daniel relies in his brief – but

found it unpersuasive. See Duplan,

. Indeed, "[e]very subsequent

Circuit to consider the issue . . . has declined to follow Federation's reasoning."

at 620 & n.2. Moreover, as we explained, the Supreme Court – in Jett v. Dallas

Independent School District,

(1989) – "held that 'the express cause of

action for damages created by § 1983 constitutes the exclusive federal remedy for

violation of the rights guaranteed in § 1981 by state governmental units.'"

Duplan,

(emphasis in original) (quoting Jett,

).

57 20-1099-cv; 20-1331-cv Smalls v. Collins et al.; Daniel v. Taylor et al.

Although Congress amended section 1981 after Jett was issued, the legislative

history underlying the amendment made no reference to Jett while it expressly

overruled other Supreme Court cases. This suggests that the amendment was

not intended to overrule Jett. Id. at 620. In addition, "[b]ecause § 1983 already

provides a remedy against state actors, there is no reason to infer from the rights-

conferring language of § 1981(c) that it creates an additional, and duplicative,

remedy." Id. at 620-21. Lastly, we noted that "since Federation was decided, the

Supreme Court has increasingly discouraged the recognition of implied rights of

actions without a clear indication of congressional intent." Id. at 621. We

therefore joined nine other Circuits "in concluding that § 1981 does not provide a

separate private right of action against state actors." Id.

"[G]enerally a decision of a panel of this Court is binding unless and until

it is overruled by the Court en banc or by the Supreme Court," or there is "an

intervening Supreme Court decision . . . [that] casts doubt on our controlling

precedent[.]" United States v. Hightower,

(2d Cir. 2020) (internal

quotation marks omitted); Deem v. DiMella-Deem,

(2d Cir. 2019).

This Court's decision in Duplan has not been overruled, and Daniel points to no

intervening decision that casts doubt on its holding. Daniel has provided no

58 20-1099-cv; 20-1331-cv Smalls v. Collins et al.; Daniel v. Taylor et al.

legitimate basis for revisiting this Court's binding precedent in Duplan. We

therefore affirm the district court's dismissal of Daniel's section 1981 claims.

IV. Daniel's Motion for Equitable Tolling

"'Generally, a litigant seeking equitable tolling bears the burden of

establishing two elements: (1) that he has been pursuing his rights diligently, and

(2) that some extraordinary circumstance stood in his way.'" Watson v. United

States,

(2d Cir. 2017) (quoting Mottahedeh v. United States,

(2d Cir. 2015)). "The term 'extraordinary' refers not to the

uniqueness of a party's circumstances, but rather to the severity of the obstacle

impeding compliance with a limitations period." Harper v. Ercole,

(2d Cir. 2011). Moreover, "[t]o secure equitable tolling, it is not enough for a

party to show that he experienced extraordinary circumstances[;] [h]e must

further demonstrate that those circumstances caused him to miss the original

filing deadline."

In addition, even if a party demonstrates a causal

relationship between the extraordinary circumstances and the lateness of his

filing, the party seeking equitable tolling is "required to show reasonable

diligence in pursuing his claim throughout the period he seeks to have tolled."

. This showing cannot be made if the party, "acting with reasonable

59 20-1099-cv; 20-1331-cv Smalls v. Collins et al.; Daniel v. Taylor et al.

diligence, could have filed on time notwithstanding" the extraordinary

circumstances. Bolarinwa v. Williams,

(2d Cir. 2010). We review

the district court's equitable tolling ruling for abuse of discretion. Watson,

.

Daniel argues that the district abused its discretion in denying his motion

for equitable tolling because extraordinary circumstances prevented him from

filing his section 1983 claims. As evidence of diligence and extraordinary

circumstances, Daniel points out that (1) he filed a charge with the Internal

Affairs Board, but never heard back from them; (2) an attorney agreed to

represent him but never filed an action, ignored and did not return his repeated

phone calls, and refused to turn over the case file to him; and (3) he had a hand

injury, which allegedly made it difficult for him to find an attorney through

Internet searches or by phone. These arguments are unpersuasive.

Even assuming the conduct of Daniel's initial attorney rose to the level of

extraordinary circumstances, 13 it did not cause Daniel to miss the filing deadline.

13"[A]ttorney error normally will not constitute the extraordinary circumstances required to toll the . . . limitations period . . . [but] at some point, an attorney's behavior may be so outrageous or so incompetent as to render it extraordinary." Baldayaque v. United States,

(2d Cir. 2003) (emphasis omitted). While "ordinary" attorney mistakes concerning, for example, the deadlines for filing suit do not constitute extraordinary circumstances,

an attorney "who willfully ignore[s] the express 60 20-1099-cv; 20-1331-cv Smalls v. Collins et al.; Daniel v. Taylor et al.

"A court may conclude that such causation is lacking where the identified

extraordinary circumstances arose and concluded early within the limitations

period." Harper,

. Here, as the district court noted, the attorney

notified Daniel in November 2017 – nearly five months before the close of the

limitations period on March 18, 2018 – that she was not representing him.

During this five-month period, we think that a reasonably diligent person could

have retained an attorney and filed suit.

Daniel also cannot establish that he demonstrated reasonable diligence

throughout the period that he seeks to toll. First, as the district court noted, the

IAB's failure to provide Daniel with the results of its investigation did not

"prevent[] [him] from timely filing a complaint in federal court." Daniels,

, at *6. Daniel's "failure to follow up with the IAB, or to otherwise

pursue his claims in the absence of learning the results of the investigation,

supports the conclusion that he did not pursue his claims with reasonable

diligence through the limitations period."

Indeed, Daniel did not retain

counsel until around December 2015 – nine months after his arrest – when he got

instructions of his client, d[oes] not conduct any legal research on his client's behalf, and never sp[eaks] to or me[ets] with his client" or who fails to file a habeas petition on behalf of a petitioner, "despite explicit directions from the prisoner to do so," constitutes extraordinary circumstances. Dillon v. Conway,

(2d Cir. 2011). 61 20-1099-cv; 20-1331-cv Smalls v. Collins et al.; Daniel v. Taylor et al.

into a car accident and met a paralegal at the scene who introduced him to his

initial attorney. Daniel JA.85 ¶ 2. Moreover, as previously noted, "once Daniel

affirmatively learned that [the attorney] was not representing him, he still had

five months before the close of the limitations period to file a complaint[.]"

Daniels,

, at *6.

Daniel's reliance on his hand injury to explain this delay is unpersuasive.

As the district court explained, while Daniel had a hand injury "that made it

difficult for him to type or make phone calls," "[a] person acting with reasonable

diligence under such circumstances would have . . . found a way to pursue his

claims – perhaps with the help of a friend or family member, or through the use

of his other hand."

Accordingly, the district court did not abuse its discretion in denying

Daniel's motion for equitable tolling.

CONCLUSION

We have considered the parties' remaining arguments on appeal and

conclude that they are without merit. We therefore REVERSE the district courts'

judgments with respect to the fair-trial claims, AFFIRM the dismissal of Daniel's

62 20-1099-cv; 20-1331-cv Smalls v. Collins et al.; Daniel v. Taylor et al.

other claims, and REMAND each case for further proceedings consistent with

this opinion.

63