United States Court of Appeals, Second Circuit.: Docket No. 01-7914
United States Court of Appeals, Second Circuit.: Docket No. 01-7914
3d 76
Stephan H. Peskin, Tolmage, Peskin, Harris & Falick, New York, N.Y.
(Jonathan C. Moore, New York, NY; William H. Goodman, Center for
Constitutional Rights, New York, NY, on the brief), for PlaintiffAppellant.
Corey E. Klein, Acting Corporation Counsel, Long Beach, NY, for
Defendants-Appellees The City of Long Beach and Long Beach City
Police Department.
Orrit Hershkovitz, Snitow Kanfer Holtzer & Millus, LLP, New York, N.Y.
(Paul F. Millus, New York, NY, on the brief), for Defendant-Appellee
Leo Nolan.
Michael T. Hopkins, Hopkins & Kopilow, Garden City, NY, for
Defendant-Appellee Arthur Whitman.
Christine McInerney, Ruskin, Moscou, Evans & Faltischek, P.C.,
Uniondale, NY, submitted papers for Defendant-Appellee Vincent Milo.
Before WALKER, Chief Judge, NEWMAN, and KEARSE, Circuit
Judges.
JON O. NEWMAN, Circuit Judge.
This appeal illustrates, in a dramatic context, the tension between the judicial
system's instinct to provide a remedy for every wrong and the system's
recognition that the passage of time must leave some wrongs without a remedy.
David Pearl appeals from the July 18, 2001, judgment of the District Court for
the Eastern District of New York (Leonard D. Wexler, District Judge)
dismissing, as barred by the statute of limitations, his suit seeking damages for
police brutality allegedly inflicted upon him 35 years ago. Acknowledging the
normally applicable barrier of the statute of limitations, Pearl contends that he
may sue at this late date because the settlement of his prior timely lawsuit was
obtained by fraud, his currently pleaded causes of action were concealed by
fraud, and he can now establish the truth through the testimony of a consciencestricken police officer who admits that he participated in the brutality and that
he and the other defendants lied about Pearl's claim. We are obliged to agree
with the District Court that Pearl's evidence, accepted as true for purposes of
this appeal, does not permit his current suit to proceed. We therefore affirm.
Background
2
The alleged assault. Pearl alleges the following circumstances. In 1967, Pearl,
then sixteen years old, was stopped on the street and brutally attacked by four
City of Long Beach (Nassau County, N.Y.) police officers Appellees Leo J.
Nolan and Vincent F. Milo, Jr., and George F. Ellert and Sergeant James
Rosengrave, both now deceased. As detailed in Pearl's 1968 state court civil
complaint, on August 9, 1967, he was called over to a police car by Officer
Nolan. After asking Pearl a few questions, Nolan told him to get into the back
of the police car. In the course of being transported to the police station, Pearl
was repeatedly punched in the stomach and face by Nolan, while restrained by
Officer Milo. Officer Ellert drove the car. Nolan and the other officers
continued to hit and kick Pearl at the police station, causing Pearl to lose
consciousness for a period of time. Pearl's injuries required a ten-day period of
hospitalization and left him permanently blind in one eye.
The criminal case. The Nassau County prosecutor charged Pearl with assaulting
a police officer, resisting arrest, and disorderly conduct. Pearl was initially
convicted at a bench trial, but the conviction was overturned on appeal because
Pearl had unconstitutionally waived his right to a jury trial, which Pearl had
done in order to maintain juvenile offender status. People v. David P., 35
A.D.2d 584, 315 N.Y.S.2d 398 (2d Dep't 1970). The second trial ended in a
deadlocked jury and a mistrial. At each trial, all four officers involved in the
incident testified against him, as did Officer Whitman. Pearl was informed that
prosecutors would proceed with a third trial.
5
The state court civil case. Just prior to sentencing in the first trial, Pearl and his
mother, Florence Wexler, brought a civil suit in Nassau County Superior Court
under 42 U.S.C. 1983 against the City of Long Beach and Officers Nolan,
Milo, and Ellert, alleging excessive force by them, and recklessness on the part
of the City in allowing its officers to assault Pearl. In their pretrial depositions
for the civil case, the officers again gave their account of the episode. In 1972,
with the third criminal trial impending, Pearl and his mother chose to settle their
civil suit. At the settlement hearing, Pearl's mother made it clear that the sole
reason she agreed to settle was that the prosecutor had indicated that the
criminal charges would be dropped if Pearl settled. Pearl's attorney advised that
it would be an uphill battle to convince a jury in the civil trial and the
impending criminal trial that four police officers were lying on the stand. Pearl
also believed that his witnesses were intimidated by the police and failed to
fully support his defense. Pearl and his mother agreed to settle the civil case for
$30,000, an amount that did not cover his medical bills and the fees and
expenses of his criminal defense. The individual police officers and the City
were released with respect to "all actions and claims arising out of the incident
which occurred on August 9, 1967." The City paid the $30,000.
Milo's recantation. In June 1999, Milo, one of the officers involved in the 1967
episode, submitted a sworn statement to the Nassau County District Attorney,
stating that the officers' testimony in the Pearl case was fabrication. He
confessed that he "never saw Pearl throw a punch or kick any of the police
officers involved," and that "Nolan laid out the story as to what the reports
should say."
In a second affidavit given in May 2000, Milo recounted the extent of brutality
within the Long Beach Police Department: "[T]here existed a pattern of
brutality [within the Department] in which not all police officers participated
but in which all acquiesced"; "[b]eatings by senior officers, especially the
detectives to extract confessions were common place"; he recalled other
instances of suspects being beaten and that it was "nothing out of the ordinary,
just standard operating procedure"; and "[b]lackjacks, clubs and rubber hoses
and telephone books were all part of our `unofficial' equipment."
He also stated: "When we were sued by Mr. Pearl we insisted that the City hire
as our attorney Leon Stern. He was most familiar with the facts of the case as
he was allowed to be present in the Grand Jury room while the Pearl case was
being present[ed]. In fact, he gave us detailed accounts of each civilian
witness'[s] testimony so that we could adjust our presentation.... [H]e was `one
of the boys' while an Assistant District Attorney and understood the way we
operated." Milo also stated that he left the Long Beach Police Department and
transferred to the Long Beach Fire Department.
Pearl's current lawsuit. Milo's first affidavit prompted Pearl to institute the
instant lawsuit on January 19, 2000, asserting federal causes of action under 42
U.S.C. 1983 and RICO, 18 U.S.C. 1961 et seq., claims under the Fourth,
Fifth, Eighth, and Fourteenth Amendments, and state law claims. The
defendants are Nolan and Milo, the two officers still living who participated in
the episode, Whitman, who testified against Pearl, the City, and the Long
Beach Police Department. Pearl seeks to revive claims arguably extinguished
by the 1972 settlement, such as his excessive force claim against the individual
officers, and also seeks to assert, purportedly for the first time, claims that he
alleges became known to him only in 1999. The latter include: section 1983
claims against the officers for conspiracy to cover-up, against the City for
failure to protect, and against the City based on the Supreme Court's decision in
Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56
L.Ed.2d 611 (1978); false imprisonment, intentional and negligent infliction of
emotional distress and negligence under state law; fraud under state law; and a
RICO claim.
10
Discussion
11
Federal law determines when a section 1983 cause of action accrues, Heard v.
Sheahan, 253 F.3d 316, 317-18 (7th Cir.2001); Harvey v. Waldron, 210 F.3d
1008, 1013 (9th Cir.2000); Singleton v. City of New York, 632 F.2d 185, 191
(2d Cir.1980),2 and we have ruled that accrual occurs "`when the plaintiff
knows or has reason to know of the injury which is the basis of his action,'" id.
(quoting Bireline v. Seagondollar, 567 F.2d 260, 263 (4th Cir.1977)); see
Pinaud v. County of Suffolk, 52 F.3d 1139, 1156 (2d Cir.1995). As the ensuing
discussion will show, this concept of accrual, sometimes referred to as the
"discovery rule," e.g., TRW, Inc. v. Andrews, 534 U.S. 19, 122 S.Ct. 441, 44647, 151 L.Ed.2d 339 (2001), is related to and sometimes confused with the
concept of fraudulent concealment of a cause of action.
13
The Supreme Court has instructed that in section 1983 actions, we borrow not
only a state's limitations period but also its "tolling rules," Board of Regents v.
Tomanio, 446 U.S. 478, 484-86, 100 S.Ct. 1790, 64 L.Ed.2d 440 (1980); see
Keating v. Carey, 706 F.2d 377, 381-82 (2d Cir.1983), unless applying the
state's tolling rules "would defeat the goals of the federal statute at issue,"
Hardin v. Straub, 490 U.S. 536, 539, 109 S.Ct. 1998, 104 L.Ed.2d 582 (1989).
The seemingly clear-cut bifurcation between accrual, governed by federal law,
and tolling rules, governed by state law, obscures two matters. First, it is not
clear from Tomanio whether in section 1983 actions we are to borrow only a
state's "tolling rules" that have been incorporated into state statutes or, in
addition, other aspects of a state's common law concerning avoidance of a
statute of limitations that either have been labeled "tolling" or serve an
equivalent function, i.e., to relieve the plaintiff from the bar of a statute of
limitations. Second, it is not clear whether state or federal law applies where the
circumstances governing accrual are similar, if not identical to, circumstances
pertinent to a state tolling rule, a recurring issue in cases where tolling is sought
on the ground of fraudulent concealment.3
14
The first matter the scope of borrowed tolling rules is the easier of the
two. Tomanio noted that New York has by statute codified "a number of the
tolling rules developed at common law," 446 U.S. at 486, 100 S.Ct. 1790,
citing statutory provisions concerning the defendant's absence from the state or
residence under a false name, and the plaintiff's disability such as infancy,
insanity, or imprisonment, id. at 486 n. 6, 100 S.Ct. 1790 (citing N.Y. C.P.L.R.
207, 208 (McKinney 1972, Supp.1979-1980)). Because the Supreme Court
wanted section 1983 actions to be subject to state "tolling rules," it seems likely
that both statutory and common law rules are to be borrowed. See Shropshear v.
Corporation Counsel of Chicago, 275 F.3d 593, 596 (7th Cir.2001) (borrowing
state common law rule of equitable tolling); Wade v. Danek Medical, Inc., 182
F.3d 281, 288-90 (4th Cir.1999) (same).
15
The second matter the overlap between accrual and tolling based on
fraudulent concealment is more troublesome, in part because of the varying
uses of terminology. The taxonomy of tolling, in the context of avoiding a
statute of limitations, includes at least three phrases: equitable tolling,
fraudulent concealment of a cause of action, and equitable estoppel. The initial
difficulty encountered in trying to compare accrual, governed by federal law,
with tolling, governed by state law, is that the reported decisions of the federal
and state courts do not always mean the same thing by their use of these
phrases, and phrases to which some judges ascribe different meanings are used
interchangeably by other judges.
16
In the Seventh Circuit, Judge Posner has identified two "tolling doctrines":
"equitable estoppel" and "equitable tolling." Cada v. Baxter Healthcare Corp.,
920 F.2d 446, 450-51 (7th Cir.1990); see Shropshear, 275 F.3d at 595. He uses
"equitable estoppel" to mean a bar that prevents a defendant from relying on a
statute of limitations as a defense where "the defendant takes active steps to
prevent the plaintiff from suing in time, as by promising not to plead the statute
of limitations." Cada, 920 F.2d at 450-51. He notes that "equitable estoppel" is
sometimes called "fraudulent concealment," id. at 451, but "must not be
confused with efforts by a defendant in a fraud case to conceal the fraud," id.
(emphasis added). If successful, those efforts, he says, "postpone the date of
accrual [and] are thus within the domain of the discovery rule," id. (citation
omitted), i.e., the rule that determines when a cause of action accrues. 4
However, in his more recent discussion of the issue, he calls fraudulent
concealment "one instantiation" of "equitable estoppel." Shropshear, 275 F.3d
at 597. He uses "equitable tolling" to mean suspension of a statute of limitations
where the plaintiff "despite all due diligence ... is unable to obtain vital
information bearing on the existence of [a] claim ... [absent] a wrongful or
any effort by the defendant to prevent the plaintiff from suing." Cada, 920
F.2d at 451. In the Third Circuit, Judge Lewis has viewed fraudulent
concealment of a cause of action as one circumstance warranting "equitable
tolling," Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1387 (3d
Cir.1994);5 he has regarded the discovery rule (accrual) as concerned with a
plaintiff's awareness, actual or imputed, of "actual injury" and equitable tolling
18
New York appears to use the label "equitable estoppel" to cover both the
circumstances "where the defendant conceals from the plaintiff the fact that he
has a cause of action [and] where the plaintiff is aware of his cause of action,
but the defendant induces him to forego suit until after the period of limitations
has expired." Joseph M. McLaughlin, Practice Commentaries, N.Y. C.P.L.R.
C201:6, at 63 (McKinney 1990). See Simcuski v. Saeli, 44 N.Y.2d 442, 406
N.Y.S.2d 259, 377 N.E.2d 713 (1978) (equitable estoppel because of
concealment of cause of action); Kamruddin v. Desmond, 293 A.D.2d 714, 741
N.Y.S.2d 559 (App.Div. 2d Dep't 2002) (equitable estoppel because of
concealment of medical records that were needed to pursue malpractice cause
of action of which plaintiff was aware); Croop v. Odette, 29 Misc.2d 606, 219
N.Y.S.2d 805 (Sup.Ct. Oneida Cty.1960) (equitable estoppel because of
defendant's representation that compensation would be paid without need for
lawsuit), aff'd, 14 A.D.2d 724, 218 N.Y.S.2d 532 (4th Dep't 1961); see also
Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Ohnuma, 161 Misc.2d 423, 432,
613 N.Y.S.2d 811, 816 (Sup.Ct.N.Y.Cty.1994) (equitable tolling concerns
when statute of limitations begins to run), rev'd on other grounds, 218 A.D.2d
572, 630 N.Y.S.2d 724 (1st Dep't 1995). In other states, concealment is
sometimes referred to as "equitable tolling," e.g., Snapp & Associates Insurance
Services, Inc. v. Robertson, 96 Cal.App.4th 884, 890-91, 117 Cal.Rptr.2d 331,
334-35 (2002), or simply the reason that the statute of limitations is "tolled,"
e.g., Walk v. Ring, 202 Ariz. 310, ___, 44 P.3d 990, 999 (2002), and at least one
state uses "tolling" to concern both accrual and stopping of the statute of
limitations, see Major League Baseball v. Morsani, ___ Fla. ___, ___, 790
So.2d 1071, 1079 (2001) ("Tolling, strictly speaking, is concerned with the
point at which the limitations period begins to runs and with the circumstances
in which the running of the limitations period may be suspended.").
19
20
21
below, his current claims are barred whether the issue is viewed as one of
delayed accrual or tolling. And the outcome is unaffected no matter which of
the tolling concepts is applicable. Because Pearl casts his argument in terms of
"equitable tolling," by which he means fraudulent concealment of a cause of
action, we will use that phrase in discussing all aspects of his contention.
22
In the pending case, we clearly borrow New York's rule of tolling during
infancy, see N.Y. C.P.L.R. 208 (McKinney 1990), and therefore the statute of
limitations ran on Pearl's section 1983 claims on September 29, 1971, three
years after his eighteenth birthday. Citing primarily federal case law,7 Pearl
invokes the doctrine of equitable tolling and contends that the limitations
period has been tolled because the police officers who testified against him lied
about the 1967 episode, giving a false version that Officer Nolan had concocted
for them. Brief for Appellant at 26-36.
23
The tolling issue arises in this case in an unusual context. Unlike typical tolling
cases in which the plaintiff contends that fraudulent concealment prevented
him, even in the exercise of due diligence, from acquiring sufficient awareness
of a cause of action to permit the timely filing of a lawsuit, see, e.g., Simcuski,
44 N.Y.2d at 448-51, 406 N.Y.S.2d at 262-64, 377 N.E.2d 713, Pearl initiated a
suit against the police officers and the City of Long Beach, and that suit was
settled. He now seeks to overcome the obstacle of that settlement by seeking to
have the settlement vacated on the ground that it was procured by fraud, i.e.,
the officers' false testimony, which, he contends, induced him to settle on
unfavorable terms. Even if fraud against the Appellant or a fraud upon the state
court warranted ignoring the prior litigation, see Griffith v. Bank of New York,
147 F.2d 899, 901 (2d Cir.1945), Pearl would still have to demonstrate that the
circumstances permit him to sue the officers and the City 32 years after the
episode.
24
information when she became an adult to bring her claim. Id. at 199-200.
"Although some of the facts putatively concealed by the defendants might have
strengthened [the plaintiff's] case by corroborating her story, we find that the
absence of those facts did not sufficiently justify [the plaintiff] in not pursuing
her cause of action as to merit equitable tolling." Id. at 200. If state law tolling
principles apply, we have no reason to think that New York, whose tolling rules
we have termed "less liberal" for plaintiffs than those of federal law, see Saylor
v. Lindsley, 391 F.2d 965, 970 (2d Cir.1968), would not make the same
distinction we made in Paige.
25
Although we have broadly stated, as Pearl notes, that we will apply the
equitable tolling doctrine "as a matter of fairness" where a plaintiff has been
"prevented in some extraordinary way from exercising his rights," Miller v.
International Telephone & Telegraph Corp., 755 F.2d 20, 24 (2d Cir.1985), we
made it clear that we had in mind a situation where a plaintiff "could show that
it would have been impossible for a reasonably prudent person to learn" about
his or her cause of action. Id. (emphasis added); see Johnson v. Nyack Hospital,
86 F.3d 8, 12 (2d Cir.1996).
26
Claims against the police officers. Thus understood, the doctrine of equitable
tolling, as Pearl calls it, or equitable estoppel, as New York calls it, does not
permit Pearl to sue the individual police officers at this late date. Pearl was
obviously aware of his cause of action for police brutality at the time of the
1967 episode and not only could have sued the officers, but did so. Even if we
assume that the alleged fraud of the officers in concocting a false account of the
episode would provide a basis for setting aside the 1972 settlement of Pearl's
state court civil suit, see Griffith, 147 F.2d at 901, a renewed assertion of his
claims against the officers would be time-barred. Although the police officers'
allegedly false testimony in Pearl's two criminal trials and in the depositions for
his state court suit undoubtedly induced Pearl and his mother to settle that suit
for a modest sum, the facts of the episode, as he now alleges them to be, were
fully known to Pearl in 1967. What he has now, like the plaintiff in Paige, is
more persuasive evidence, not newly developed awareness of a previously
concealed cause of action.
27
Although Bell v. City of Milwaukee, 746 F.2d 1205 (7th Cir.1984), where
equitable tolling was permitted, id. at 1220-31, involves police misconduct
somewhat similar to what Pearl alleges, the rationale for the Seventh Circuit's
decision reveals why such tolling is not available to Pearl. In Bell, as is alleged
here, police officers perjured themselves on the stand as to the circumstances of
a shooting that caused the victim's death, and a police officer who participated
in the episode came forward years later with a recantation. The central fact
underlying the decision in Bell, however, was that, because Daniel Bell was
killed by the officers, his family lacked specific, first-hand information about
what had occurred. They were aware of the death, but not of the facts that made
the death actionable. Although Bell's family did not believe the reports and
testimony relating to the shooting, the family had no basis for knowing or
proving what actually happened because Bell did not survive to tell his version
of the episode. As the Seventh Circuit later explained, "the conspiracy had
prevented a full and open disclosure of facts crucial to the cause of action,
rendering hollow the plaintiffs' right of access." Vasquez v. Hernandez, 60 F.3d
325, 329 (7th Cir.1995). Moreover, in Bell, the Court of Appeals quoted
extensively from the District Court's view of what it considered "`the applicable
and binding [Wisconsin] state rule of law on the application of the doctrine of
estoppel by fraudulent concealment [, which considers] whether the defendants'
conduct and representations were so unfair and misleading as to outbalance the
public's interest in setting a limitation on an action.'" 746 F.2d at 1231 (quoting
Bell v. City of Milwaukee, 514 F.Supp. 1363, 1371 (E.D.Wis.1981)). Neither
New York case law nor ours adopts such an expansive approach to equitable
tolling.
28
29
plaintiff was accused. Because plaintiffs may not have had any information to
arouse suspicion about the basis for their arrests, their causes of action would
not have begun to run until they acquired that information ....
30
Id. at 210 (citing Sandutch v. Muroski, 684 F.2d 252, 254 (3d Cir.1982)).
Whether or not we would adopt the ruling in Yeadon, Pearl's claim does not
depend on what other witnesses might reasonably have perceived and reported
to the police.
31
32
Dory does not aid Pearl. Although Dory knew all along what he claimed the
true facts were concerning his lack of criminal culpability and must have
thought at the time of trial that the police officer and the recanting witness were
lying, he had no basis for knowing that their false testimony resulted from a
conspiracy between the prosecutor and the police officer. By contrast, Pearl
makes no allegation that the allegedly false testimony presented against him
resulted from a conspiracy between, on the one hand, the testifying police
officers and, on the other hand, any other official about whose involvement he
was unaware. Indeed, Milo's affidavit precludes such a possibility; he avers that
the plan to present false testimony originated with Officer Nolan, one of the
police officers Pearl contends testified falsely.
33
Nor can Pearl now assert a previously concealed cause of action by pointing to
a conspiracy among the four police officers who testified against him. Knowing
what he contends the true facts were, he had reason to believe they were lying,
and, because their versions were identical, it was a reasonable inference that the
officers had agreed to present their allegedly false versions. We have previously
ruled that accrual of a cause of action based on specific acts of which a plaintiff
was aware cannot be postponed, nor can a limitations period be tolled, simply
by alleging that the acts were taken pursuant to a conspiracy. See Pinaud, 52
F.3d at 1156-58; Singleton, 632 F.2d at 192-93.
34
Pearl cannot validly claim concealment of his causes of action against the
police officers, whether based on section 1983, RICO, or state law.
35
Claims against the City of Long Beach. Pearl's awareness of his causes of
action against the police officers also precludes application of equitable tolling
(or equitable estoppel) to most of his claims against the City of Long Beach.
Aware of the injuries that the officers inflicted upon him, he was similarly
aware of his currently alleged state law causes of action against the City based
on respondeat superior and alleged negligent training and supervision of the
officers. Complaint, Claims 10, 11. The one cause of action now alleged of
which Pearl was not aware until he received the second Milo affidavit is what
he labels his "Monell Claim": that his injuries resulted from a municipal policy
of failing to "control police officers engaged in the excessive and unjustified
use of force" and maintaining a "police code of silence wherein police officers
regularly coverup police use of excessive and unjustified force by telling false
and incomplete stories ... in sworn testimony ...." Complaint, Claim 4. In that
affidavit Milo stated that there existed in the Long Beach Police Department "a
pattern of brutality in which not all police officers participated but in which all
acquiesced." Although not explicitly alleging a policy of encouraging false
testimony, Milo's statement that "you learned quickly to look the other way and
not to open your mouth" adequately supports the allegation of the Complaint
that the City's policy included providing false testimony.
36
524 (2d Cir.1982). But Pearl is not seeking delayed accrual until the date of
Monell; his equitable tolling argument based on fraudulent concealment of his
Monell claim seeks either accrual of that claim until discovery of Milo's
affidavits or tolling of that claim, if it is viewed as accruing earlier.
37
38
39
Pearl has made no showing that the City of Long Beach actively concealed
from him the existence of a municipal policy concerning either police brutality
or false testimony concerning such misconduct. If he aspired to anticipate
Monell, due diligence required him at least to use the generous provisions of
federal discovery rules to obtain information concerning other episodes similar
to his that might have sufficed to support a claim of a municipal policy.8 In the
absence of such inquiry, he cannot point to any misrepresentation by City
officials that amounts to "active fraudulent concealment" of what might have
become a pioneering Monell cause of action. Pearl's allegations of false
testimony by the police officers bear at most on thwarting successful pursuit of
his claims concerning the episode in which he was involved; the officers were
not asked about and did not misrepresent with respect to municipal policy or
custom.
Conclusion
40
41
42
Notes:
1
U.S. 143, 156, 107 S.Ct. 2759, 97 L.Ed.2d 121 (1987). Even if RICO applied to
Pearl's claims, the extra one year would not affect our disposition of this appeal.
2
It is arguable that because section 1983 is to "be read against the background of
tort liability" for purposes of holding a defendant responsible "for the natural
consequences of his actions,"Monroe v. Pape, 365 U.S. 167, 187, 81 S.Ct. 473,
5 L.Ed.2d 492 (1961), and for purposes of good faith immunity, Pierson v. Ray,
386 U.S. 547, 556-57, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967), accrual of a
section 1983 cause of action should also be a matter of state law. However, it is
well settled under our precedents that accrual is a matter of federal law.
However, it is well settled under our precedents that accrual is a matter of
federal law. See, e.g., Keating v. Carey, 706 F.2d 377, 382 (2d Cir.1983);
Singleton, 632 F.2d at 191.
Other circumstances noted in the Third Circuit to warrant equitable tolling are
"where the plaintiff in some extraordinary way has been prevented from
asserting his or her rights" and "where the plaintiff has timely asserted his or
her rights mistakenly in the wrong forum."Oshiver, 38 F.3d at 1387 (citing
School District of Allentown v. Marshall, 657 F.2d 16, 19-20 (3d Cir.1981)).
Keating first stated the federal rule concerning concealment that postpones the
accrual of a cause of action and then, "[b]orrowing" the state tolling rule, noted
that the state had "adopted the same equitable estoppel doctrine." Keating, 706
F.2d at 382.
The Appellant also citesMcCabe v. Gelfand, 57 Misc.2d 12, 291 N.Y.S.2d 261
(N.Y. Sup. Ct. 1968), which ruled that a claim of concealment of a fraud
presented a disputed issue of fact.