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holding that claims were time-barred despite allegations that the injuries were ongoing, explaining that a plaintiff "cannot postpone the accrual of her claims by arguing that each new injury resulting from the defendants' . . . actions extends the statute of limitations"
Summary of this case from Staton v. HolzbachOpinion
18-1483
06-20-2019
Molly Ann Mahany, Plaintiff-Appellant, v. City of Buffalo Police Department, State of New York, Erie County District Attorney's Office, State of New York, Defendants-Appellees.
For Plaintiff-Appellant: MOLLY ANN MAHANY, pro se, Sardinia, NY. For Defendant-Appellee City of Buffalo Police Department, State of New York: MAEVE E. HUGGINS, Assistant Corporation Counsel, for Timothy A. Ball, Corporation Counsel of the City of Buffalo, Buffalo, NY. For Defendant-Appellee Erie County District Attorney's Office, State of New York: Michelle M. Parker, First Assistant County Attorney, for Michael A. Siragusa, Erie County Attorney, Buffalo, NY.
SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION "SUMMARY ORDER"). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 20th day of June, two thousand nineteen. PRESENT: JON O. NEWMAN, PETER W. HALL, DENNY CHIN, Circuit Judges. For Plaintiff-Appellant: MOLLY ANN MAHANY, pro se, Sardinia, NY. For Defendant-Appellee City of Buffalo Police Department, State of New York: MAEVE E. HUGGINS, Assistant Corporation Counsel, for Timothy A. Ball, Corporation Counsel of the City of Buffalo, Buffalo, NY. For Defendant-Appellee Erie County District Attorney's Office, State of New York: Michelle M. Parker, First Assistant County Attorney, for Michael A. Siragusa, Erie County Attorney, Buffalo, NY.
Appeal from a judgment of the United States District Court for the Western District of New York (Arcara, J.; Schroeder, M.J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.
Appellant Molly Ann Mahany, pro se, sued the City of Buffalo Police Department ("BPD") and the Erie County District Attorney's Office ("ECDA") under 42 U.S.C. § 1983 for violations of her constitutional rights. She alleged that, in 2001, a BPD detective and an ECDA investigator manufactured evidence that discredited her, which caused the ECDA to stop prosecuting her ex-husband for harassment and BPD to fail to enforce her order of protection against her ex-husband. Ultimately, she alleged that the false evidence led to her losing her home, personal property, and custody of her children. The magistrate judge (Schroeder, M.J.) recommended dismissing the complaint, reasoning that the defendants could not be independently sued, Mahany failed to state a municipal liability claim, and her claims were time barred. The district court (Arcara, J.) adopted the recommendation. Mahany appeals. She also moves in this Court for an order to show cause why she should not be granted monetary and injunctive relief. We assume the parties' familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.
I. Motion to Dismiss
"We review the grant of a motion to dismiss de novo, accepting as true all factual claims in the complaint and drawing all reasonable inferences in the plaintiff's favor." Fink v. Time Warner Cable, 714 F.3d 739, 740-41 (2d Cir. 2013) (per curiam). Although we must construe pro se pleadings liberally, see Cruz v. Gomez, 202 F.3d 593, 597 (2d Cir. 2000), we may not "read into pro se submissions claims that are not 'consistent' with the pro se litigant's allegations" or excuse a pro se litigant from failing to comply "with relevant rules of procedural and substantive law," Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 477 (2d Cir. 2006) (per curiam) (internal quotation marks omitted).
The district court properly dismissed Mahany's complaint on the basis that her claims are untimely. "Section 1983 actions filed in New York are . . . subject to a three-year statute of limitations." Hogan v. Fischer, 738 F.3d 509, 517 (2d Cir. 2013). A § 1983 claim "accrues when the plaintiff knows or has reason to know of the harm." Eagleston v. Guido, 41 F.3d 865, 871 (2d Cir. 1994) (internal quotation marks omitted). Mahany filed her complaint in August 2014. Therefore, her claims must have accrued in August 2011 or later to be timely. But Mahany complains of acts that occurred in 2001.
Although Mahany argues that the injuries are ongoing, they stem from the defendants' alleged actions in 2001, as set forth repeatedly in the operative Amended Complaint. Mahany cannot "postpone the accrual" of her claims by arguing that each new injury resulting from the defendants' 2001 actions extends the statute of limitations. See Singleton v. City of New York, 632 F.2d 185, 192-93 (2d Cir. 1980) (concluding that plaintiff's assault and false arrest claims were untimely and that plaintiff could not "postpone the accrual" of claims by arguing that separate actionable conduct was "committed in furtherance of a conspiracy" that included later events).
Nor can she argue that her injuries are part of a continuous violation that has continued after August 2011. While the continuing violation doctrine can apply to § 1983 claims, see Shomo v. City of New York, 579 F.3d 176, 182 (2d Cir. 2009), Mahany complains of discrete acts—the alleged fabrication of evidence, production of false testimony, and the unlawful dissemination of that evidence via police databases, as well as the alleged denial of police protection and other legal safeguards, among other alleged deprivations—to which the continuing violation doctrine does not apply, see Gonzalez v. Hasty, 802 F.3d 212, 222 (2d Cir. 2015) (concluding that continuing violation doctrine did not apply to "discrete acts by the defendants, each of which would start the running of the statute of limitations for that act"); cf. Sherman v. Town of Chester, 752 F.3d 554, 567 (2d Cir. 2014) (applying continuing violation theory because complained of acts were "based on an unusual series of regulations and tactical maneuvers" that created an injury only "when considered together"). Accordingly, her claims are time barred.
II. Motion to Vacate Entry of Default
Mahany contends that the district court erred by granting ECDA's motion to vacate the entry of default based upon Mahany's defective proof of service of process. We review motions to vacate entry of a default for abuse of discretion. See Enron Oil Corp. v. Diakuhara, 10 F.3d 90, 95 (2d Cir. 1993) ("The dispositions of motions for entries of defaults and default judgments and relief from the same under Rule 55(c) are left to the sound discretion of a district court."). "A district court has abused its discretion if it based its ruling on an erroneous view of the law or on a clearly erroneous assessment of the evidence, or rendered a decision that cannot be located within the range of permissible decisions." Sims v. Blot, 534 F.3d 117, 132 (2d Cir. 2008) (internal quotation marks, citation, and alterations omitted).
Mahany identifies no abuse of discretion. In moving to vacate the judgment before the district court, the ECDA had argued that the server's affidavit, which merely indicated that the summons and complaint were served upon a "receptionist/ADA," did not comply with Fed. R. Civ. P. 5(b)(2)(ii) and rendered the ECDA without the ability to track down the papers. Dkt. 23-2 at 5. Mahany argues in substance that the ECDA's motion was frivolous and was made solely to avoid responding to the complaint, but she offers no reason that the district court was obligated to recognize that service of process was properly effected. Therefore, we are unable to find that the district court abused its discretion by vacating the entry of default.
III. Motion for an Order to Show Cause
Finally, we deny Mahany's motion for an order to show cause. She requests the same relief she sought in her complaint and reiterates the allegations made in her complaint. We construe the motion as either an attempt to circumvent the district court's dismissal and obtain damages, or as an addendum to her appellate brief. As discussed above, Mahany's claims are untimely. Therefore, the motion is denied.
We have reviewed the remainder of Mahany's arguments and find them to be without merit. For the foregoing reasons, the judgment of the district court is AFFIRMED and the motion for an order to show cause is DENIED.
FOR THE COURT:
Catherine O'Hagan Wolfe, Clerk of Court