Wahad v. City of New York, 1999 WL 608772 (S.D.N.Y.1999)

MEMORANDUM & ORDER

HELLERSTEIN, J.

*1 Plaintiff, formerly an active member of the Black Panther Party, filed this action on December 1, 1975, almost twenty-four years ago. He sued New York City, the United States of America and various appointed City and Federal officers, alleging a conspiracy to violate, and various substantive violations of, his constitutional rights. Plaintiff cited the United States Constitution, Amendments One, Five, Six and Fourteen, and 42 U.S.C. §§ 1983, 1985 and 1986 as the sources of the rights of which he sought vindication and damages.

By the time this case came to be transferred to me, only the City and Michael Codd, a former Inspector and Commissioner with the New York City Police Department, remained as defendants; the United States and various individual defendants had settled with plaintiff or been dropped. A motion for summary judgment filed by the City on November 4, 1996 was pending. I held oral argument on May 6, 1999.

The most recent amended complaint, the Fifth Amended Complaint ("Compl."), [n. 1] alleges that the Black Panther Party for Self Defense was founded in 1967, (Compl.¶ 11), that plaintiff was a high-ranking member of the Black Panther Party, a field lieutenant (Compl.¶ 14), and a defendant in the Panther 21 criminal trial in New York State Supreme Court, (Compl.¶ 20). Plaintiff alleges that in 1967, the FBI instituted a counterintelligence program, COINTELPRO, designed to "expose, disrupt and otherwise neutralize" black organizations, their members and leaders. (Compl.¶ 10). The complaint further alleges that at the same time, the New York City Police Department conducted its own intelligence, investigative and disruptive activities having similar goals. (Compl.¶¶ 13-14). 

n. 1. At the time this motion was filed, a different pleading was the operative complaint in this matter. The subsequent amendments do not affect the issues resolved herein. 

In general, plaintiff alleges that the United States and the City worked together to silence members of the Black Panther Party, to spread dissension and disunity among its members and to create factions within the organization, ultimately weakening and isolating it. The acts alleged to have been conducted include sharing information and coordinating activities, including wiretapping, burglaries of offices, dissemination of false and inflammatory information, harassment and intimidation of supporters, attempting to prevent dissemination of the Black Panther Party newspaper, using agents provocateur, launching a large-scale criminal investigation to justify the dissemination of false and fraudulent information through press conferences and pre-trial incarcerations to silence specific individuals. (Compl.¶¶ 16-24). Plaintiff claims that these activities ultimately caused other members to distrust him, which in turn lead to his demotion. (Compl.¶ 25). Chaos and violence within the Black Panther Party resulted. (Compl.¶ 28). Plaintiff believed his life was in danger, and he fled the jurisdiction during the Panther 21 trial. (Compl.¶ 29).

After the defendants in the Panther 21 trial were acquitted, plaintiff alleges that the efforts directed against him intensified with the aim of either "effectuating his death or permanent incarceration." (Compl.¶ 30). Approximately one week after the acquittals, two police offices were murdered, and two were almost killed in two different shooting incidents. (Compl.¶ 31). In connection with the attempted murders, plaintiff claims that the United States and the City conspired to wrongfully convict him of the shootings. (Comp.¶¶ 32-38). More specifically, plaintiff claims that the City and the United States unlawfully withheld exculpatory information, and that the City failed adequately to train its employees as to the proper discharge of their obligations to disclose exculpatory evidence. (Compl. ¶¶ 34-36 & 40-41).

*2 In February 1973, plaintiff was convicted of attempted murder in the shootings of the two police officers. (Compl.¶ 42). Fifteen year later, on April 8, 1988, plaintiff filed a motion to vacate his sentence, and on March 15, 1990, the motion was granted and plaintiff was released from custody after seventeen years of imprisonment. (Compl.¶ 47). After further appeals and remands, the decision vacating his conviction became final on July 26, 1994. (Compl.¶ 48). On January 18, 1995, the indictment against plaintiff was dismissed with prejudice. (Compl.¶ 49).

Plaintiff claims, on the bases of these allegations, that he was deprived of his rights to speak, associate and petition for redress of grievances in violation of the First Amendment (Compl.¶ 57); that his rights to due process of law and equal protection of the laws under the Fifth and Fourteenth Amendments were violated (Compl.¶ 58); and that he suffered damage because of defendants' acts of negligence, false imprisonment and malicious prosecution (Compl. ¶¶ 59, 60 & 61). Defendants' motion for summary judgment was directed against all of these claims.

I heard argument concerning all these issues on May 6, 1999. For the reasons stated on the record, I resolved the motion as follows:

(1) I held that plaintiff's claims against the City under the Fifth and Fourteenth Amendment presented issues of fact under Monell v. Department of Social Servs., 436 U.S. 658 (1978) requiring trial on the issue of whether the City adequately trained its representatives on their duty to disclose exculpatory evidence; hence, that portion of defendant's motion was denied;

(2) I dismissed plaintiff's claim based on negligence because it was not included in a timely filed Notice of Claim with the City; however, I held that plaintiff's claims based upon malicious prosecution and false imprisonment were properly included within his Notice of Claim; hence, the portion of defendant's motion directed to these issues was granted in part and denied in part;

(3) I dismissed all claims against defendant Michael Codd because, pursuant to Unicorn Tales, Inc. v. Banerjee, 138 F.3d 467 (2d Cir.1998), a proper Suggestion of Death had been filed and plaintiff did not move in a timely manner to substitute the estate; [n. 2] and 

n. 2. At the oral argument, I granted plaintiff leave to consider whether he wished to file a motion pursuant to Federal Rule of Civil

Procedure 6(b) seeking permission to file a late notice of substitution. By letter dated may 24, 1999, plaintiff informed the Court that he would not file such a motion.  

(4) I held, following an earlier decision of the Honorable Mary Johnson Lowe in this matter, see Wahad v. Federal Bureau of Investigation, 813 F.Supp. 224, 233 (S.D.N.Y.1993), that plaintiff's claim that the City and the United States had engaged in a conspiracy to violate his constitutional rights presented issues of fact, and I therefore denied that portion of defendant's motion. In light of my ruling below, however, I now grant defendant's motion and grant plaintiff the right to re-plead.

During argument, I reserved decision on plaintiff's claims based on alleged violations of the First Amendment, and asked the parties for further submissions with regard to the issue of timeliness of suit. I received the following submissions from the parties, and order that they are to be considered part of the record on defendant's motion for summary judgment: (1) Plaintiff's letter dated May 24, 1999; (2) The City's letter dated May 24, 1999, enclosing eleven newspaper articles; (3) The City's letter dated June 30, 1999, enclosing three newspaper articles; (4) Plaintiff's letter dated July 7, 1999, enclosing three teletypes; and (5) the City's letter dated July 13, 1999. I have considered these additional submissions, and for the reasons set forth below, that portion of defendants' motion is granted

I. The Statute of Limitations

*3 Plaintiff brings this particular cause of action pursuant to 42 U . S.C. § 1983. The relevant statute of limitations, derived from state law, is three years. See, e.g., Owens v. Okure, 488 U.S. 235, 251 (1989); Jackson v. Suffolk County Homicide Bureau, 135 F.3d 254, 256 (2d Cir.1998); Ormiston v. Nelson, 117 F.3d 69, 71 (2d Cir.1997). This motion raises two issues. First, whether plaintiff's cause of action accrued more than three years prior to the date he filed suit, i.e., prior to December 1, 1972. Second, assuming that it did, whether the statute of limitations should be tolled because of plaintiff's participation in a class action arising from similar events.

In brief, I find that plaintiff was aware, or should reasonably have been aware, prior to December 1, 1972, that the FBI and the New York City Police Department were working together in a manner (if plaintiff's allegations are to be credited) that seriously affected the cohesiveness of the Black Panther organization, the sense of unity among its members and their respect for and willingness to speak and listen to one another--that is, plaintiff's First Amendment rights. I further hold that the statute of limitations on plaintiff's First Amendment claims was not tolled. Hence, plaintiff's claims under the First Amendment are barred by the statute of limitations and I thus grant that portion of defendant's motion.

A. The Cause of Action Accrued Prior to December 1972

A cause of action under section 1983 accrues "when the plaintiff knows or has reason to know of the injury that is the basis of the action." Cullen v. Margiotta, 811 F.2d 698, 725 (2d Cir.), cert. denied, 483 U.S. 1021 (1987), overruled on other grounds, Agency Holding Corp. v. Malley-Duff & Assocs., 483 U.S. 143 (1987); Singleton v. City of New York, 632 F.2d 185, 191 (2d Cir.1980), cert. denied, 450 U.S. 920 (1981); Espinal v. Coughlin, No. 98 Civ. 2579(RPP), 1999 WL 387435, at *3 (S.D.N.Y. June 14, 1999); Sophon v. Hocky, No. 99 Civ. 2862(JG), 1999 WL 369950, at *1 (E.D.N.Y. June 1, 1999); DeVito v. Incorporated Village of Valley Stream, 991 F.Supp. 137, 140 (E.D.N.Y.1998). Thus, if plaintiff knew or had reason to know of the injury to his First Amendment rights prior to December 1, 1972, the cause of action accrued more than three years prior to the date suit was brought and the claim is time barred.

In 1969, plaintiff held the position of circulation manager, northeast region, for the Black Panther, the party's newspaper. At his deposition, plaintiff testified that he read and analyzed a number of daily newspapers. See City's May 24, 1999 Letter, at 3 . [n. 3] The City has submitted numerous newspaper articles from both the New York Times and the Black Panther which demonstrate that plaintiff either knew or had reason to know of the alleged injuries to his First Amendment rights prior to December 1972. See Devito, 991 F.Supp. at 141-45 (recognizing the propriety of resolving this type of issue on a motion for summary judgment). 

n. 3. Plaintiff's wife has testified that one of these newspapers was the New York Times. See City's May 24, 1999 Letter, at 3. 

*4 Many of the articles contain broad claims, made by the Black Panther Party, that the FBI was engaged in extensive efforts to infiltrate and gather information about the party. See, e.g., City's May 24, 1999 Letter; David Burnham, F.B.I.'s Informants and 'Bugs' Collect Data on Black Panthers, N.Y. Times, Dec. 14, 1969, at 1. Some articles contain specific charges that this gathering of information was performed for an unlawful purpose, including a claim by the party's general counsel that the Nixon Administration and the Attorney General were "out to commit genocide" on the Black Panthers, see id., as well as a claim that "there is a nationwide conspiracy to wipe out [the Black Panther Party's] leadership and destroy their organization." City's May 24, 1999 Letter; John Kifner, The Black Panther Toll is Now 28, N.Y. Times, December 7, 1969. Similarly, one article disclosed an FBI document which revealed that the stated purpose of the FBI's surveillance activities was to "enhance the paranoia endemic in these circles." City's May 24, 1999 Letter; Fred P. Graham, FBI Files Tell of Surveillance of Students, Blacks, War Foes, N.Y. Times, March 7, 1971, at 1.

There can be no doubt that the Black Panther Party viewed these surveillance activities as an unlawful and improper attempt to disrupt and destroy their party's First Amendment interests in association with one another, in freely speaking with one another and in presenting their views to the public. See City's June 30, 1999 Letter; Edith Evans Asbury, Accused Black Panthers Tell Jury Here That Their Party Is On Trial, N.Y. Times, October 21, 1970 (defense lawyers and two defendants in the Panther 21 trial referring to the trial as a "politically motivated conspiracy to destroy the party"); City's June 30, 1999 Letter; Edith Evans Asbury, 13 Panthers Here Found Not Guilty On All Counts, N.Y. Times, May 14, 1971, at 1 (defense lawyers in the Panther 21 trial "denounced the undercover agents [who testified at trial] as lying tools of a police department eager to wipe out the Panther Party and prevent militant blacks from joining together to improve conditions of black people"). [n. 4] 

n. 4. Again, plaintiff was a defendant in the Panther 21 criminal trial. (Compl.¶ 20). 

The same views and statements attributed to the Black Panther Party in the New York Times were expressed by the party in its newspaper--the Black Panther-- during the year (1969) that plaintiff was the paper's circulation manager. For example, the Black Panthers accused the New York City District Attorney's office of conspiring to destroy the party. See City's May 24, 1999 Letter, Free the N.Y. Panther 21, The Black Panther, May 4, 1969, at 4 ("If there is any talk at all about conspiracy in connection with the case of 21 members of the Black Panther Party, that talk should be centered around DA Frank Hogan's and the New York City power structure's conspiracy to frame the Panthers."). Similarly, another article indicated that the defendants in the Panther 21 trial perceived themselves as the "victims of a police conspiracy" and believed that their arrests were intended to "create a lynch-mob atmosphere in order to discredit the Panthers in the community." City's May 24, 1999 Letter, Free the New York Panther 21, The Black Panther, June 7, 1969, at 9. Finally, and perhaps most tellingly, plaintiff himself wrote an article in which he expressed the view that the United States and the City had infiltrated the party and were preventing it from "fighting" for the rights of black Americans:

*5 People of the Black community please look around you. What's happening? Why are all the people who are fighting for freedom of the Black colony disappearing? Why?--because you're allowing it. The FBI, CIA and BOSS [Bureau of Special Services of the New York City Police Department] are not employing new methods, it's the same old shit! Investigate and infiltrate, entrap and liquidate.

City's June 30, 1999 Letter; "I smell a Pig ..." Harlem Five Framed, The Black Panther, June 30, 1969, at 3.

These articles establish that plaintiff knew or had reason to know that defendants were attempting to prevent plaintiff from exercising his First Amendment rights of speech and association, as alleged in the complaint, well before December 1972. The articles, all of which are dated earlier than December 1972, are replete with accusations of a conspiracy to destroy and infiltrate the Black Panther Party and to disrupt the ability of the Black Panther Party to organize, advocate and speak. Plaintiff's own article, quoted above, accused the New York City Police Department of disrupting the Black Panther's First Amendment activities. See supra, "I smell a Pig ..." Harlem Five Framed, The Black Panther, June 30, 1969, at 3. Plaintiff's argument that these articles addressed only the Black Panther Party's concern over lawful surveillance activities, and not their perception of an insidious effort to affect their First Amendment rights of speech, association and organization, is without merit. The charged and broadly framed rhetoric indicate that plaintiff and the Black Panther Party believed that the surveillance activities were unlawful and were intended to destroy the Black Panther Party.

B. The Statute of Limitations Was Not Tolled

Plaintiff argues that if the cause of action accrued prior to December 1972, then it should be tolled because plaintiff was a member of a class action litigation. On or about May 18, 1971, a class action complaint was filed in Handschu v. Special Services Division raising allegations similar to those raised in this action for a class that included plaintiff. Class certification was granted on or about May 24, 1979. See Handschu v. Special Services Division, 605 F.Supp. 1384, 1388 (S.D.N.Y.1985), aff'd, 787 F.2d 828 (2d Cir.1986).

Plaintiff, however, did not rely on that class action, for he filed his own action, this lawsuit, on December 1, 1975. Nonetheless, plaintiff argues that under American Pipe and Construction Co. v. State of Utah, 414 U.S. 538 (1974), the statute of limitations on plaintiff's First Amendment claim was tolled between May 18, 1971 (the day the class action complaint was filed) and May 24, 1979 (the day class certification was granted). [n. 5] For the reasons that follow, this argument is rejected. 

n. 5. Because state law provides the applicable statute of limitations in a section 1983 cause of action, state law also provides the applicable equitable tolling principles. See Chardon v. Soto, 462 U.S. 650 (1983); Armstrong v. Martin Marietta Corp., 138 F.3d 1374, 1378 n. 2 (11th Cir.1998) (en banc), cert. denied, 119 S.Ct. 545 (1998); Cullen, 811 F.2d at 718-19. However, New York law recognizes the same tolling principles held applicable in American Pipe. See Cullen, 811 F.2d at 719-20. Thus, federal cases discussing tolling under American Pipe apply to New York tolling principles as well. 

American Pipe involved a class action litigation. Some time after the applicable statute of limitations expired, class certification was denied. Shortly thereafter, some members of the putative class moved to intervene. The Supreme Court held that the motions to intervene were not time barred, reasoning that unless the filing of the class action tolled the running of the statute of limitations, putative members of a class would be compelled to file motions to intervene simply to preserve their rights to participate in the litigation. This would frustrate the efficiency and economy goals of class action litigation. See American Pipe, 414 U.S. at 553-54. In Crown, Cork & Seal Co. v. Parker, 462 U.S. 345 (1983), this tolling rule was extended to situations where a putative member of the class files a separate and distinct action, as opposed to a motion to intervene. See id. at 350-51.

*6 Critical in both cases were notions of reliance and efficiency. More specifically, the statute of limitations is tolled because plaintiffs involved in a class action must be able to rely on the existence of the class, prior to a decision on certification, to protect their rights. If and when the class is not certified, and the statutes of limitations on the underlying claims have expired, the only efficient way to protect a plaintiff who has justifiably relied on the class is to grant a toll. See Crown, Cork, 462 U.S. at 350 ("The American Pipe Court recognized that unless the statute of limitations was tolled by the filing of the class action, class members would not be able to rely on the existence of the suit to protect their rights."). The alternative, permitting each plaintiff to file a separate action or a motion to intervene prior to the decision on certification, leads to inefficiency and wasted resources. See American Pipe, 414 U.S. at 551 & 553-54 (reasoning that tolling is intended to avoid "precisely the multiplicity of activity which Rule 23 was designed to avoid" and that permitting the filing of individual motions to intervene "would deprive Rule 23 class actions of the efficiency and economy of litigation which is a principal purpose of the procedure[,]" thus "breed[ing] needless duplication of motions").

Here, these fundamental cornerstones--reliance and efficiency--are lacking. Plaintiff did not rely on the class action. Rather than wait for the decision granting certification in May, 1979, plaintiff filed his own action in December, 1975. By filing his own lawsuit, plaintiff affirmatively demonstrated his choice not to rely on the class action mechanism. In fact, after filing, plaintiff objected to the settlement of the class action because he feared that it would adversely impact his own action. See Handschu v. Special Services Division, 787 F.2d 828, 834 (2d Cir.1986). In addition, by filing this action and not relying on the Handschu class, plaintiff created the very inefficiency that American Pipe sought to prevent--he generated more litigation and expense concerning the same issues that were litigated by a class of which he was a member. Accordingly, plaintiff is not entitled to the benefit of a toll under American Pipe.

In support of plaintiff's argument that American Pipe can be applied to a situation such as this one where class certification is granted, plaintiff cites three additional cases, see Plaintiff's May 24, 1999 Letter, at 2, all of which are distinguishable. See Oppenheimer-Palmieri Fund, L.P. v. Peat Marwick Main & Co. (In re Crazy Eddie Sec. Lit.), 802 F.Supp. 804, 812-13 (E.D.N.Y.1992) (effectively decertifying class after court concluded that named plaintiffs could not prove a critical element of their case, but where some members of the class may have still been able to prove such an element); Trief v. Dun & Bradstreet Corp., 144 F.R.D. 193, 202-03 (S.D.N.Y.1992) (motion to intervene in pending class action after class was certified because of concerns over the adequacy of representation by the named plaintiffs); West Haven School Dist. v. Owens-Corning Fiberglass Corp., 721 F.Supp. 1547, 1554-55 (D.Conn.1988) (filing of one class action, in which certification was granted, tolled the time to file a subsequent class action raising substantially the same issues). But cf. Tosti v. City of Los Angeles, 754 F.2d 1485 (9th Cir.1985) (plaintiff who opted out of a class where class was ultimately certified entitled to the benefit of a toll until the time plaintiff opted out).

II. Plaintiff's Conspiracy Claims

*7 At the oral argument, I denied the City's motion for summary judgment as to plaintiff's 42 U.S.C. § 1985 conspiracy claim. The Fifth Amended Complaint does not allege precisely what Constitutional right the City is accused of having conspired to violate. Because I have ruled that the First Amendment claims are time barred, and because the Federal Defendants are no longer parties to this action, it is not clear, based upon a reading of the complaint, what right(s) are alleged to have been violated by the alleged conspiracy between the City and the Federal Defendants. Nor is it clear why such a cause of action adds anything to the pleadings. Certainly, a claim of conspiracy is not related to a Monell claim. Accordingly, plaintiff's conspiracy claim is dismissed without prejudice to re-plead such a cause of action with some reasonable degree of clarity.

CONCLUSION

For the reasons set forth above and on the record at the oral argument, the Municipal Defendants' motion for summary judgment is resolved as follows: (1) as to the Fifth and Fourteenth Amendment claims (the so-called "Monell claims"), the motion is denied; (2) as to the negligence claim, the motion is granted and the claim is dismissed; (3) as to the causes of action for malicious prosecution and false imprisonment, the motion is denied; (4) all claims asserted against defendant Codd are dismissed with prejudice and without costs; (5) the First Amendment claims are dismissed as time barred; and (6) the conspiracy claims are dismissed without prejudice to plaintiff's right to amend the complaint solely as to this claim.

Counsel for both sides shall appear for a status conference in Courtroom 14 D at 3:30 on August 27, 1999. Any re-pleading may await that conference.

SO ORDERED.