Edward G. McDonough, Plaintiff-Appellant,
Youel Smith, individually and as Special District Attorney for the County of Rensselaer, New York, AKA Trey Smith, Defendant-Appellee, John J. Ogden, Richard McNally Jr., Kevin McGrath, Alan Robillard, County of Rensselaer, John F. Brown, William A. McInerney, Kevin F. O'Malley, Daniel B. Brown, Anthony J. Renna, Defendants.
Argued: November 29, 2017
from the United States District Court for the Northern
District of New York. No. 15-cv-1505 - Mae
A. D'Agostino, Judge.
appeal from a judgment of the United States District Court
for the Northern District of New York (D'Agostino, J.)
dismissing the Plaintiff-Appellant's claims under 42
U.S.C. § 1983. The Plaintiff-Appellant alleged that his
right to due process had been violated because fabricated
evidence was used against him in state criminal proceedings.
He also alleged a malicious prosecution claim against the
prosecutor. We conclude that his due process claim was
untimely as it was filed beyond the applicable limitations
period. We also conclude that the prosecutor was entitled to
absolute immunity for the malicious prosecution claim. We
therefore AFFIRM the judgment of the
D. Premo, Premo Law Firm PLLC, Albany, NY, for Plaintiff-
J. O'Connor, Napierski, VanDenburgh, Napierski &
O'Connor, LLP, Albany, NY, for Defendant-Appellee Youel
D. Bing, Deputy Solicitor General, Jennifer L. Clark,
Assistant Solicitor General, for Barbara D.
Underwood, Attorney General of the State of New York, for
Defendant John G. Ogden.
Before: Jacobs, Raggi, and Droney, Circuit Judges.
DRONEY, CIRCUIT JUDGE
Edward G. McDonough, the former Democratic Commissioner of
the Rensselaer County Board of Elections, was acquitted in
New York state court of forging absentee ballots in a local
primary election. He appeals from two subsequent decisions of
the United States District Court for the Northern District of
New York (D'Agostino, J.) dismissing his claims
against Defendant-Appellee Youel Smith under 42 U.S.C. §
1983 related to that prosecution. He alleged (1) denial of
due process based on fabricated evidence and (2) malicious
prosecution. The district court determined that (1)
McDonough's due process claim was untimely and dismissed
it as to all Defendants and (2) Smith, a Special District
Attorney who prosecuted McDonough, was entitled to absolute
prosecutorial immunity on McDonough's malicious
prosecution claim and therefore dismissed that claim with
respect to Smith. 
to Federal Rule of Civil Procedure 54(b), the district court
entered judgment as to Smith and certified the decisions
dismissing the two claims against him for interlocutory
appeal by McDonough.
reasons that follow, we agree with the district court's
conclusion that McDonough's due process claim was
untimely, and thus barred by the applicable statute of
limitations. We also agree with the district court that Smith
is entitled to absolute immunity as to the malicious
prosecution claim. We therefore AFFIRM the
dismissal of those claims.
the 2009 Working Families Party primary election in the City
of Troy, New York, several individuals associated with the
Democratic and Working Families Parties forged signatures and
provided false information on absentee ballot applications
and absentee ballots in order to affect the outcome of that
primary. Those individuals then submitted the forged absentee
ballot applications to McDonough. McDonough, as a
commissioner of the Rensselaer County elections board, was
responsible for processing those applications. McDonough
approved the forged applications, but subsequently claimed he
did not know that they had been falsified.
plot to influence the primary was eventually discovered.
Defendant Richard McNally, the elected District Attorney for
Rensselaer County, was disqualified from the ensuing
investigation because certain of those allegedly involved in
the scheme had worked on his prior campaign. The state court
then appointed Smith as a Special District Attorney to lead
the investigation and potential prosecution. McDonough
claimed that Smith then engaged in an elaborate scheme to
frame McDonough for the crimes by, among other things,
fabricating evidence. This alleged scheme included using
forged affidavits, offering false testimony, and using faulty
DNA methods for analyzing materials used in processing the
ballot applications, all despite Smith knowing that McDonough
claims that Smith presented the fabricated evidence to a
grand jury. The grand jury subsequently indicted McDonough on
more than three dozen state law counts of felony forgery in
the second degree and a similar number of counts of felony
criminal possession of a forged instrument in the second
degree. See N.Y. Penal Law §§ 170.10,
170.25. The case against McDonough proceeded to trial but
ended in a mistrial. McDonough was then retried, again with
Smith as the prosecutor. That trial ended in McDonough's
acquittal on December 21, 2012.
December 18, 2015, McDonough filed this action under 42
U.S.C. § 1983, claiming that the Defendants (including
Smith) (1) had violated his right to due process by
fabricating evidence and later using it against him before
the grand jury and in his two trials and (2) were liable for
Defendants filed motions to dismiss McDonough's due
process claim. They argued, in part, that it was barred by
the applicable three-year statute of limitations because the
allegedly fabricated evidence had been disclosed to
McDonough, and his claim therefore accrued, well before the
second jury acquitted him.
opposing the Defendants' motions, McDonough argued that
because his fabrication of evidence claim was based on the
actions of Smith, a prosecutor, it was analogous to a
malicious prosecution claim, and therefore did not accrue
until the second trial terminated in his favor. McDonough
also contended that his due process claim did not accrue
until the termination of the second trial under the Supreme
Court's decision in Heck v. Humphrey, 512 U.S.
477 (1994). He argued that his fabrication of evidence claim