GURFEIN, Circuit Judge:
Thomas Kaiser, pro se, appeals from the grant of summary judgment dismissing his complaint against appellee William Cahn, District Attorney of Nassau County. The action is brought under 42 U.S.C. § 1983, with jurisdiction based upon 28 U.S.C. §§ 1331 and 1343.
Kaiser was convicted, sentenced, and imprisoned on July 7, 1966 by the County Court of Nassau County to serve one-and-a-half to seven years on a conviction for the crimes of conspiracy to extort and attempted extortion and coercion. He remained in the County Jail until August 23, 1966 when he was released on bail on a certificate of reasonable doubt.
Kaiser brought this action for $500,000 in compensatory damages and $500,000 in punitive damages against the District Attorney who prosecuted him, on allegations that he was denied a fair trial because of the defendant's malicious pretrial release to the press of evidence to be used at trial with inferences therefrom that Kaiser had underworld connections. This claim of unfair publicity was not pressed on the direct appeal. The claim was made in a collateral attack, however, during Kaiser's imprisonment in a pro se petition for a writ of habeas corpus joined with a civil rights complaint filed on September 2, 1970. After that action and another action had been dismissed, appellant filed the present action on October 1, 1971, this time with the aid of assigned counsel.
In the absence of a federal statute of limitations the federal courts borrow the state statute of limitations applicable to the most similar state cause of action. Campbell v. City of Haverhill, 155 U.S. 610, 15 S.Ct. 217, 39 L.Ed. 280 (1895); U.A.W. v. Hoosier Corp., 383 U.S. 696, 86 S.Ct. 1107, 16 L.Ed.2d 192 (1966). That is true in federal civil rights actions. Swan v. Board of Education, 319 F.2d 56, 59 (2 Cir. 1963); Ortiz v. LaVallee, 442 F.2d 912 (2 Cir. 1971). We have held, in this Circuit, that the applicable statute of limitations in a federal civil rights case brought in New York is the three years provided by N.Y. C.P.L.R. § 214(2)—liability based on a statute. See Romer v. Leary, 425 F.2d 186
Although the state statute of limitations most analogous to the civil rights claim is borrowed, the question of when the claim for relief accrued remains a question of federal law. Rawlings v. Ray, 312 U.S. 96, 61 S.Ct. 473, 85 L.Ed. 605 (1941); Cope v. Anderson, 331 U.S. 461, 67 S.Ct. 1340, 91 L.Ed. 1602 (1947).
It could well be argued that the instant claim arose when the District Attorney issued the press releases before trial and that all the claimed damage was foreseeably caused by those acts. Since the gravamen of the claim, however, is the imprisonment itself upon a conviction arising from an allegedly unfair trial, we prefer to treat the subsequent sentence to imprisonment on July 7, 1966 as the cause of the action. Judge Weinstein had so held in a similar case involving pre-trial publicity, as Chief Judge Mishler did here, and we agree. United States ex rel. Sabella v. Newsday, 315 F.Supp. 333, 335 (E.D.N.Y. 1970).
The claim for relief accrued while appellant was imprisoned, and he is, therefore, entitled to the benefit of the tolling provision of the New York statute. Ortiz v. LaVallee, supra.
The tolling provision then applicable to prisoners provided in pertinent part:
The argument that the tolling provision applies only where New York law prevents an imprisoned felon from bringing suit must be rejected. We held in Ortiz v. LaVallee, that, even though the prisoner was not legally disabled from suing, we would recognize the practical difficulties prisoners face in instituting and prosecuting suits. The District Court's conclusion to the contrary was erroneous. While we did not emphasize in Ortiz that the claim involved was civil rights claim, we have since held that even a total incapacity to sue imposed by the state would not bar the assertion of a Section 1983 damage claim in the federal court. Ray v. Fritz, 468 F.2d 586 (1972). See also Almond v. Kent, 459 F.2d 200 (4 Cir. 1972). Such a claim is subject, however, to the state statute of limitations, Swan v. Board of Education, supra, and its tolling provisions. Ortiz v. LaVallee, supra.
The New York courts have construed the tolling statute as prohibiting the tacking of disabilities. Once the prisoner is released, the benefit of the tolling statute is lost forever. A later incarceration will not retoll the statute. Gershinsky v. New York, 6 A.D.2d 964, 176 N.Y.S.2d 667 (3rd Dept. 1958), aff'd, 6 N.Y.2d 798, 188 N.Y.S.2d 190, 159 N.E.2d 681 (1959); Jordan v. New York, 56 Misc.2d 1032, 290 N.Y.S.2d 621 (Ct.Cl. 1968) (plaintiff free for eight months); Broadus v. New York, 61 Misc.2d 970, 307 N.Y.S.2d 479 (Ct.Cl.1972) (plaintiff free for ten months). And see Bussue v. Lankler, 337 F.Supp. 146 (S.D.N.Y.1972).
The New York authorities, it should be noted however, have dealt only with situations in which the plaintiff had been subsequently incarcerated on a different charge or for a violation of parole. We have found no specific New York authority on whether incarceration on the same charge after release on bail will retoll the statute. But see Bussue v. Lankler, supra, 337 F.Supp. at 148-149 and note 4.
Considering the purpose of the tolling provision—to mitigate the difficulties of suit while the plaintiff is a prisoner, Ortiz v. LaVallee, supra—freedom from restraint should normally end the tolling period. The reason for freeing the plaintiff has little relevance to the purpose for suspending the statute of limitations. Once the plaintiff is outside the prison walls he may pursue his lawsuit.
Yet we must take into consideration that applying New York doctrine literally might sometimes be unfair. Assume, for example, that the prisoner were on bail for two days and then had his bail revoked. We would have the duty in a civil rights case to find our own interpretation of the state statute under federal common law, since in Civil Rights Act cases, the statute of limitations goes to the remedy and not the creation of the right. See Bomar v. Keyes, 162 F.2d 136, 140-141 (2 Cir. 1947) (L. Hand, J.).
In determining the application of federal common law, we assume that the logic of the New York decisions cited would bar retolling in the case of a release on bail and subsequent reincarceration. The statute would have been tolled only from the July 7, 1966 date
We may in applying federal law to a claim based on a federal statute prevent a result that would substantially impair a valid federal interest. Thus a borrowed state statute of limitations may be tolled in conformity with federal doctrine where the right is the creature of federal statute, Holmberg v. Ambrecht, 327 U.S. 392, 66 S.Ct. 582, 90 L.Ed. 743 (1946), and in state court actions in admiralty where it is thought that a short state statute of limitations would defeat a coincident federal purpose. Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296. See Moviecolor Ltd. v. Eastman Kodak Co., 288 F.2d 80 (2 Cir. 1961) (concealment). Thus, the federal rule in fraud has been applied to a state statute of limitations in bank assessment cases, Holmberg, supra, and the federal rule on concealment has been applied to a state statute of limitations in a claim under the Clayton Act (before Congress enacted the federal statute of limitations). Moviecolor, supra.
The reach of Holmberg v. Albrecht, supra, is not limited to suits in equity but applies to actions at law as well, as was convincingly demonstrated by Judge Friendly in Moviecolor, supra. We think that civil rights claimants, as well as seamen are entitled to, in the words of Mr. Justice Black "full benefit of federal law". Garrett v. Moore-McCormack Co., 317 U.S. 239, 243, 63 S.Ct. 246, 87 L.Ed. 239 (1942).
In sum, we do not feel that we are necessarily bound by the state's determination of when its statute of limitations is tolled where the question arises in a civil rights claim in the federal court.
Applying our own standard of whether a statute of limitations unduly impairs the federal interest sought to be enforced, we see no reason to hold on this appeal that the state rule against tacking disabilities should not be applied. Here appellant had almost three years of freedom within which to file and pursue his civil rights claim. It is true that the action might not have been susceptible to final decision on damages until the Supreme Court decided the appeal, but filing the complaint would have served notice on the defendant and enabled discovery and preliminary motions to proceed.