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McDonough v. Smith

United States Court of Appeals, Second Circuit

August 3, 2018

Edward G. McDonough, Plaintiff-Appellant,
v.
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

          Appeal from the United States District Court for the Northern District of New York. No. 15-cv-1505 - Mae A. D'Agostino, Judge.

         Interlocutory 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 district court.

          Brian D. Premo, Premo Law Firm PLLC, Albany, NY, for Plaintiff- Appellant.

          Thomas J. O'Connor, Napierski, VanDenburgh, Napierski & O'Connor, LLP, Albany, NY, for Defendant-Appellee Youel Smith.

          Andrew 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

         Plaintiff-Appellant 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[1] 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. [2]

         Pursuant 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.[3]

         For the 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.

         BACKGROUND

         During 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.[4] McDonough approved the forged applications, but subsequently claimed he did not know that they had been falsified.

         The 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 was innocent.

         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.

         On 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 malicious prosecution.

         Several 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.[5]

         In 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 ...


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