“Accrual” under Wallace v. Kato explored

§ 1983 claim failed to state sufficient personal involvement by defendant that it had to be dismissed without prejudice to try again. In a footnote, the court helpfully attempts to explain the issue of accrual of the cause of action under Wallace v. Kato. Spencer v. City of Stamford, 2007 U.S. Dist. LEXIS 28809 n.1 (D. Conn. April 18, 2007):

Though the court addresses only two of the defendants’ grounds for dismissing the Complaint, the court notes that Spencer’s § 1983 claim may be completely barred by the three-year statute of limitations for filing such actions. See Williams v. Walsh, 558 F.2d 667, 670 (2d Cir. 1977). Federal law determines the accrual date of a § 1983 action. Wallace v. Kato, __ U.S. __, 127 S. Ct. 1091, 1095 (2007). Accrual generally occurs “when the plaintiff has a complete and present cause of action,” id. (quotations and citations omitted), or, “when the plaintiff knows or has reason to know of the harm.” Eagleston v. Guido, 41 F.3d 865, 871 (2d Cir. 1994). Spencer’s complaint appears to challenge the legality of the search of his home on April 12, 2000. He filed this action nearly six years later, on July 28, 2006. Because it appears that Spencer’s unreasonable search claim would not necessarily render his conviction invalid, see Heck v. Humphrey, 512 U.S. 477, 487 n.7, 129 L. Ed. 2d 383 (1994), it also appears that Spencer’s harm occurred “by the invasion of his zone of privacy.” Day v. Morgenthau, 909 F.2d 75, 77 (2d Cir.1990).

Spencer argues that the applicable statute of limitations did not begin to accrue until April 27, 2004, when the Connecticut Supreme Court ruled that the cocaine found in his apartment should have been suppressed. Pl. Reply at 2. However, this would only be true if Spencer alleged wrongdoing analogous to malicious prosecution. See Wallace, 127 S. Ct. at 1097 (discussing Heck rule of delayed accrual for malicious prosecution claims).

The difficulty in resolving this matter is that Spencer’s accrual argument and the ambiguity of his Complaint raise a doubt as to whether he actually intended to allege malicious prosecution, or if his Reply merely makes a legal error with respect to the accrual of his unreasonable search and/or seizure claim. Settling this matter is not necessary for the purposes of the instant motion, and the court will not attempt to do so at this time. Regardless, Spencer is advised that it would behoove him to clarify the nature of his Fourth Amendment claim should he file an amended complaint.

The fact plaintiff’s state case is on appeal bars a civil claim under Heck. Olson v. Lemos, 2007 U.S. Dist. LEXIS 28893 (E.D. Cal. April 18, 2007).*

There was sufficient reliability of the informant shown for probable cause to arrest the defendant. Defendant asserted lack of consent for the first time on appeal, so that issue was waived. People v Carter, 2007 NY Slip Op 3458, 39 A.D.3d 1226 (4th Dept. 2007).*