Dionisio Polanco v. James J. Lombardi, III, in his capacity as Treasurer of the City of Providence ( 2020 )

June 29, 2020
June 29, 2020
Supreme Court
No. 2018-198-Appeal.
No. 2018-199-Appeal.
No. 2018-200-Appeal.
No. 2018-201-Appeal.
No. 2018-202-Appeal.
No. 2018-203-Appeal.
No. 2018-204-Appeal.
(PC 12-1844)
Dionisio Polanco et al. :
v. :
James J. Lombardi, III, in his capacity as :
Treasurer of the City of Providence, et al.
NOTICE: This opinion is subject to formal revision before
publication in the Rhode Island Reporter. Readers are requested to
notify the Opinion Analyst, Supreme Court of Rhode Island, 250
Benefit Street, Providence, Rhode Island 02903, at Telephone (401)
222-3258 or Email opinionanalyst@courts.ri.gov, of any
typographical or other formal errors in order that corrections may be
made before the opinion is published.
Supreme Court
No. 2018-198-Appeal.
No. 2018-199-Appeal.
No. 2018-200-Appeal.
No. 2018-201-Appeal.
No. 2018-202-Appeal.
No. 2018-203-Appeal.
No. 2018-204-Appeal.
(PC 12-1844)
(Dissent begins on Page 27)
Dionisio Polanco et al. :
v. :
James J. Lombardi, III, in his capacity as :
Treasurer of the City of Providence, et al.
Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.
OPINION
Justice Robinson, for the Court. The plaintiffs, Dionisio Polanco and his wife Alexandra
Lozada-Polanco, individually and on behalf of their five minor children, appeal from an April 10,
2018 final judgment of the Providence County Superior Court for the defendants, James J.
Lombardi, III, in his capacity as Treasurer of the City of Providence, and Officer Michael
Camardo, on all counts in the plaintiffs’ complaint. The final judgment followed a February 28,
2018 bench decision and an April 10, 2018 order of the Superior Court granting the defendants’
motion for summary judgment on the ground that the statute of limitations had run before the
plaintiffs filed their complaint in the instant case. On appeal, the plaintiffs make the following
contentions with respect to the running of the statute of limitations in this case: (1) the discovery
rule should be applied when, as the plaintiffs purport occurred in the instant case, “an innocent
plaintiff is convicted of a crime because of a police officer’s egregiously negligent failure to record
-1-
or report exculpatory evidence, and the plaintiff did not know, and could not have known, the
existence of that exculpatory evidence;” (2) “[f]rom when Mr. Polanco was convicted through
when his conviction was vacated, the Exoneration Rule prevented Plaintiffs-Appellants from
bringing this claim, and the statute of limitations on negligence claims arising from his conviction
were tolled;” (3) “[b]ecause Officer Camardo made actual misrepresentations that concealed his
egregious negligence, G.L. 1956 § 9-1-20 delayed accrual of this claim;” and (4) the statute of
limitations should be equitably tolled given the particular facts of this case.
For the reasons set forth in this opinion, we affirm the judgment of the Superior Court.
I
Facts and Travel
Fortunately, the facts and travel of this case are largely not in dispute; and we shall proceed
at once to relate the circumstances forming the basis of this action. In so doing, we rely primarily
on the first amended complaint, defendants’ memorandum accompanying their motion for
summary judgment in Superior Court, and the hearing justice’s bench decision, as well as other
documents contained in the record.
The negligence case with which the Court is presented today arose from the criminal
conviction of Mr. Polanco, which conviction was eventually the subject of a successful motion for
a new trial resulting in the ultimate dismissal of the case by the state. The incident which formed
the basis of the criminal case at issue occurred on August 13, 2005, when Fernando Fernandez was
assaulted with a pool cue at the Mi Sueño club in Providence, Rhode Island. Officer Michael
Camardo of the Providence Police Department responded to the club after a report of a simple
assault. After conducting some degree of investigation, Officer Camardo determined that the
complaint was unfounded. It is undisputed that he did not file a police report. Mr. Polanco alleges
-2-
that Luz Morales and her son-in-law, Lexsandro Collazo, were present at the club at the time of
the incident and were interviewed by Officer Camardo but that he never reported those interviews.
The police separately responded to a call from a friend and family members of the victim
at the hospital. An investigation then ensued, in which the club owner, Jesus Titin, identified the
assailant as having been Mr. Polanco. Mr. Polanco was ultimately arrested in 2007 for felony
assault pursuant to G.L. 1956 § 11-5-2. He was arraigned on October 5, 2007 and ultimately tried
in a bench trial in 2008.
At trial, Mr. Titin changed his earlier statement by testifying that it was not Mr. Polanco
who struck Mr. Fernandez. Importantly, Mr. Titin testified at trial on direct examination as follows
with respect to the officer who responded to the club on the night at issue (Officer Camardo): “He
was a rookie. He didn’t do a report. He messed up.” Mr. Titin, when being cross-examined by
Mr. Polanco’s attorney at trial, also mentioned the fact that the officer did not file a police report.
Ramona Vasquez, a cook at the Mi Sueño club, testified at trial that the assailant on the night in
question was Mr. Polanco. On July 30, 2008, Mr. Polanco was found guilty and was later
sentenced to ten years imprisonment, with four years to serve and the remainder suspended, with
probation, restitution, and $550 in fines; he was also ordered to have no contact with the victim,
Mr. Fernandez.
In the Summer of 2010, while Mr. Polanco was serving his sentence, Ms. Morales returned
to Rhode Island from Puerto Rico and learned of Mr. Polanco’s conviction. She and Mr. Collazo
executed affidavits stating that they had witnessed the assault at issue, that Mr. Polanco was not
the assailant, and that they both had given statements on that night to a police officer at the scene,
which statements included a physical description of the assailant. In September of 2010, Mr.
Polanco filed a motion for a new trial. That motion was subsequently granted following a hearing
-3-
before the trial justice. At that time, Mr. Polanco had been released from serving his sentence at
the Adult Correctional Institutions; but, according to the first amended complaint, he had been
remanded to the custody of United States Immigration and Customs Enforcement (ICE) for
deportation. The state ultimately dismissed the criminal case against Mr. Polanco pursuant to Rule
48(a) of the Superior Court Rules of Criminal Procedure.
The plaintiffs filed the initial complaint in the instant case in April of 2012. Ultimately, a
first amended complaint was filed, which alleged one count of negligence against Officer Camardo
(and John Does), stating that Officer Camardo “negligently failed to complete and file a police
report concerning the Assault resulting in the non-disclosure to Mr. Polanco and/or his criminal
defense counsel, up through and during the course of the State’s criminal prosecution, conviction
and incarceration of him, of the identity of Ms. Morales and Mr. Collazo and their statements that
they were witnesses to the Assault and their description of the assailant.” The first amended
complaint added one count of negligence against the City of Providence based on the alleged status
of Officer Camardo (and the John Does) as “agents, employees, or servants of the City of
Providence acting within the scope * * * thereof.” 1 The plaintiffs claimed that the damage
proximately caused to Mr. Polanco by the purported negligence of defendants was a thirty-two-
month incarceration, his being remanded to ICE for deportation, loss of earning capacity, extreme
pain and suffering, and deprivation of the society and companionship of his wife and children.
With respect to the remaining plaintiffs, it was alleged that they suffered damages due to their
respective loss of Mr. Polanco’s society and companionship.
1
It is clear to us that the gravamen of that allegation is that the City of Providence was
negligent under the theory of respondeat superior.
-4-
After some discovery was conducted, defendants filed a motion for summary judgment,
alleging that plaintiffs were “unable to recover as this suit is time barred by the [three-year] statute
of limitations.” The plaintiffs objected to the motion, arguing that the discovery rule should apply
in this case and that it was impossible for Ms. Morales and Mr. Collazo to be discovered until they
came forward in August of 2010. The plaintiffs also raised an equitable tolling argument in their
supplemental memorandum in opposition to the motion. A hearing was conducted on February 7,
2018.
On February 28, 2018, the hearing justice issued a bench decision on defendants’ motion
for summary judgment. She began by detailing the facts, noting that Officer Camardo did not
complete a police report with respect to the assault at issue. She also noted that he continued to
maintain that he did not take statements from Ms. Morales and Mr. Collazo. The hearing justice
stated that, for the purposes of the motion for summary judgment before her, she would assume
that Officer Camardo had taken those statements. See Mruk v. Mortgage Electronic Registration
Systems, Inc., 82 A.3d 527, 532 (R.I. 2013) (“In deciding a motion for summary judgment, the
Court views the evidence in the light most favorable to the nonmoving party.”). She then went on
to state that there were no material facts at issue. She noted that the parties agreed that the
applicable statute of limitations was three years under G.L. 1956 § 9-1-14(b).
In conducting her analysis, the hearing justice looked to the record to determine “when Mr.
Polanco knew that he had suffered an injury,” and she determined that Mr. Polanco “knew he had
suffered an injury when he was denied his liberty.” She concluded that the statute of limitations
began to run when Mr. Polanco began to serve his sentence on July 30, 2008, which was more
than three years prior to the filing of the complaint in this case.
-5-
The hearing justice then proceeded to consider whether or not the statute of limitations was
tolled by § 9-1-20 or another equitable principle. She concluded that § 9-1-20 required an actual
misrepresentation and in the instant case the allegation was that Officer Camardo failed to file a
police report, not that he “made an express representation or engaged in other affirmative conduct.”
The hearing justice then considered the applicability of the discovery rule to the instant case,
concluding that “the discovery rule applies only in limited classes of cases: medical malpractice
cases; products liability actions for damage to personal property; damage to real property; products
liability cases against drug manufacturers; and legal malpractice actions * * *.” She then stated
that “[t]he instant case simply does not fall into one of these limited categories.” The hearing
justice consequently granted defendants’ motion for summary judgment. An order entered to that
effect on April 10, 2018.
Final judgment for all defendants on all counts in the first amended complaint entered on
April 10, 2018. The plaintiffs filed separate timely notices of appeal. This Court consolidated the
appeals.
II
Standard of Review
This Court reviews the grant of a motion for summary judgment in a de novo manner.
Correia v. Bettencourt, 162 A.3d 630, 635 (R.I. 2017). In so doing, we “employ[ ] the same
standards and rules used by the hearing justice,” and “[w]e will affirm a [trial] court’s decision
only if, after reviewing the admissible evidence in the light most favorable to the nonmoving party,
we conclude that no genuine issue of material fact exists and that the moving party is entitled to
judgment as a matter of law.” Id. (internal quotation marks omitted); see also Daniels v. Fluette,
64 A.3d 302, 304 (R.I. 2013). We have stated that “the nonmoving party bears the burden of
-6-
proving by competent evidence the existence of a disputed issue of material fact and cannot rest
upon mere allegations or denials in the pleadings, mere conclusions or mere legal opinions.”
Newstone Development, LLC v. East Pacific, LLC, 140 A.3d 100, 103 (R.I. 2016) (internal
quotation marks omitted). “[S]ummary judgment is a drastic remedy, and a motion for summary
judgment should be dealt with cautiously.” Employers Mutual Casualty Co. v. Arbella Protection
Insurance Co., 24 A.3d 544, 553 (R.I. 2011) (internal quotation marks omitted).
We have also specifically stated that “[w]hether a statute of limitations has run against a
plaintiff’s claim is * * * a question of law that we likewise review de novo.” Hyde v. Roman
Catholic Bishop of Providence, 139 A.3d 452, 460 (R.I. 2016) (internal quotation marks omitted).
III
Analysis
A
The Discovery Rule
We begin by noting that the parties are in agreement that the statute of limitations
applicable to this case is three years. See § 9-1-14(b)2 (providing that “[a]ctions for injuries to the
person shall be commenced and sued within three (3) years next after the cause of action shall
accrue, and not after”); see also § 9-1-41(d); Ho-Rath v. Rhode Island Hospital, 115 A.3d 938,
950 (R.I. 2015) (noting that “though they constitute separate and distinct claims, loss-of-
consortium and loss-of-society claims still are subject to the applicable statutes of limitation for
the impaired party’s underlying claims”) (internal quotation marks omitted). Thus, Mr. Polanco
2
The plaintiffs state in their brief that, in their opinion, G.L. 1956 § 9-1-25 applies to the
respondeat superior claim at issue in this case. Even assuming that they are correct, that point is
immaterial because both statutes provide for the same three-year statute of limitations.
-7-
had three years from accrual of the cause of action to file this suit. Accordingly, we must initially
inquire as to when the cause of action accrued. 3
“It is generally held that mere ignorance of the facts which constitute the cause of action
will not postpone the operation of the statute of limitations, but the statute will run from the time
the cause of action first accrues notwithstanding such ignorance.” Astle v. Card, 52 R.I. 357, 361,
161 A. 126, 128 (1932). We have stated that “a cause of action accrues and the applicable statute
of limitations begins to run at the time of the injury to the aggrieved party.” Boudreau v. Automatic
Temperature Controls, Inc., 212 A.3d 594, 600 (R.I. 2019) (internal quotation marks omitted); see
also Hill v. Rhode Island State Employees’ Retirement Board, 935 A.2d 608, 616 (R.I. 2007). In
applying this rule to the facts of the case before us, we are of the opinion that Mr. Polanco’s injuries
were first sustained when he was arraigned and bound over for trial on October 5, 2007. It was
then that his incarceration and its attendant harms began to befall him and his family members.
We need not look to when every alleged injury accrued, only when injury first accrued to plaintiffs.
See Astle, 52 R.I. at 361, 161 A. at 128; see also Hill, 935 A.2d at 617 (“It is not the degree of
suffering that is controlling, but rather when the actionable injury arose.”). The October 5, 2007
arraignment was clearly more than three years prior to the April 2012 filing of the complaint in
this action. As such, this action is untimely unless the plaintiffs can avail themselves of one of the
theories for tolling the statute of limitations that are recognized in our law. The first theory of
tolling which we must confront is the discovery rule.
The plaintiffs argue that it was error on the part of the hearing justice not to apply the
discovery rule to this case so as to toll the statute of limitations. They aver that the discovery rule
3
We note that it is the statute of limitations and only the statute of limitations that is at issue
in this appeal; we are not concerned with any of the elements of negligence in deciding the case
before us.
-8-
“delays accrual of a claim until the plaintiff knows or should have known both that he suffered an
injury and that tortious conduct caused the injury.” (Emphasis in original.) They contend that
they “had no way of knowing about the wrongful act that caused their injury—Officer Camardo’s
failure to record any information about the two witnesses, exculpatory or otherwise—until August
2010, rendering the Discovery Rule applicable and this claim timely.”
Specifically, plaintiffs contend that simply knowing that Officer Camardo did not file a
police report did not cause their claims to accrue because: (1) Mr. Polanco did not know that he
suffered an injury as a result of the lack of a police report because the existence of the witnesses
at issue was “unknown” and “unknowable” to him; and (2) Mr. Polanco was unable to discover
the witnesses with a reasonably diligent investigation.
The defendants contend, with respect to the applicability of the discovery rule, that this
Court has not, in the past, applied the discovery rule to cases of this type and should not do so here.
They further posit that, even if the discovery rule is applied in this case, the suit is still time-barred
because plaintiffs knew of the breach at the time of trial when there was testimony that Officer
Camardo did not file a police report and they knew of the injury when Mr. Polanco was
incarcerated prior to trial but they failed to investigate further or file suit within three years.
We have stated that, “[i]n some narrowly circumscribed factual situations * * * when the
fact of the injury is unknown to the plaintiff when it occurs, the applicable statute of limitations
will be tolled and will not begin to run until, in the exercise of reasonable diligence, the plaintiff
should have discovered the injury or some injury-causing wrongful conduct.” Mills v. Toselli, 819
A.2d 202, 205 (R.I. 2003) (internal quotation marks omitted); see Boudreau, 212 A.3d at 600; see
also Renaud v. Sigma-Aldrich Corp., 662 A.2d 711, 715 (R.I. 1995) (stating that “the discovery
-9-
rule concerns the discovery that one has suffered an injury, not the discovery of the identity of the
party allegedly responsible for causing the injury”).
When applicable, “[t]he heart of the discovery rule is that the statute of limitations does
not begin to run until the plaintiff discovers, or with reasonable diligence should have discovered,
the wrongful conduct of the [defendant].” Mills, 819 A.2d at 205 (internal quotation marks
omitted). “The reasonable diligence standard is based upon the perception of a reasonable person
placed in circumstances similar to the plaintiff’s, and also upon an objective assessment of whether
such a person should have discovered that the defendant’s wrongful conduct had caused him or
her to be injured.” Id. (internal quotation marks omitted); see Boudreau, 212 A.3d at 600. “The
discovery-rule exception serves to protect individuals suffering from latent or undiscoverable
injuries who then seek legal redress after the statute of limitations has expired for a particular claim
[and] * * * [i]t requires only that the plaintiff be aware of facts that would place a reasonable
person on notice that a potential claim exists.” Behroozi v. Kirshenbaum, 128 A.3d 869, 873 (R.I.
2016) (internal quotation marks omitted).
However, “[w]e have cautioned * * * that tolling a statute of limitations based upon the
discovery rule should occur only in certain narrowly defined factual situations.” Boudreau, 212
A.3d at 600 (internal quotation marks omitted). For example, this Court has applied the discovery
rule to medical malpractice actions, see Wilkinson v. Harrington, 104 R.I. 224, 234, 243 A.2d 745,
751 (1968), drug product liability actions, see Anthony v. Abbott Laboratories, 490 A.2d 43, 46
(R.I. 1985),4 and improvements to real property. See Lee v. Morin, 469 A.2d 358, 360 (R.I. 1983).
4
It is worth noting that we have gone out of our way to caution that “we must be mindful
not to interpret Anthony [v. Abbott Laboratories, 490 A.2d 43 (R.I. 1985),] to extend far beyond
the facts on which it was based.” Benner v. J.H. Lynch & Sons, Inc., 641 A.2d 332, 337 (R.I.
1994).
- 10 -
We have never held,5 nor do we do so now, that the discovery rule applies to tort claims
such as those at issue in the case presently before us. That being said, it is clear to this Court that,
even if we were to assume that the discovery rule applied to this case, it would not save plaintiffs’
claims. Without feeling obliged to decide precisely when plaintiffs discovered or should have
discovered the cause of action, we can easily reach the conclusion that the latest possible time that
discovery could have occurred was, as the hearing justice found, at the time of Mr. Polanco’s
conviction, which was more than three years prior to the filing of the complaint in this action.
In our judgment, plaintiffs knew of their injury at the time of the arraignment and under no
plausible scenario could they have known of the injury any later than the conviction. Mr. Polanco
would have known he was innocent from the moment of his arrest, at his arraignment, and when
he was convicted. See Renaud, 662 A.2d at 715 (stating that “the discovery rule concerns the
discovery that one has suffered an injury, not the discovery of the identity of the party allegedly
responsible for causing the injury”).
What is more, plaintiffs knew at trial that the first officer who responded to the scene on
the night in question did not file a police report. That knowledge would have put a reasonable
person on notice that a potential claim existed. See Behroozi, 128 A.3d at 873. In the opinion of
this Court, a person exercising reasonable diligence should have been on notice that further
investigation into what was not disclosed in the unfiled police report may have been necessary.
See Mills, 819 A.2d at 205. It does not appear from the record in this case that a reasonable
5
The plaintiffs contend that, in Boudreau v. Automatic Temperature Controls, Inc., 212
A.3d 594 (R.I. 2019), this Court, as plaintiffs characterize it, “assumed for portions of its decision
that the Discovery Rule could apply in a case of this type, though not on these specific facts.”
(Emphasis in original.) We do not read our opinion in Boudreau as so stating. Rather, we read
that opinion as holding the discovery rule to be inapplicable and then stating that, even if we
assumed it was applicable, it still would not have saved the claims at issue. Boudreau, 212 A.3d
at 600. Although the distinction is subtle, we believe it is important.
- 11 -
investigation occurred. It appears that Officer Camardo was never questioned by the defense at
any point before or during the trial.
The plaintiffs contend that any investigation on their part would have been futile and would
not have led to the discovery of the two unidentified alibi witnesses; they claim that the existence
of the two witnesses was “unknowable.” They rely on the fact that Officer Camardo has, in the
course of Mr. Polanco’s motion for a new trial in his criminal case and in this civil action,
repeatedly denied, under oath, taking any witness statements that night. However, it is pure
speculation that Officer Camardo would have denied taking any witness statements if asked during
the pendency of Mr. Polanco’s trial. He may well have denied it, but the exercise of reasonable
diligence would have involved at the very least questioning Officer Camardo and, since that was
not done, we are left to merely speculate as to what he may or may not have disclosed. The
discovery rule does not require this Court to determine in this case what would have been
discovered had a thorough investigation been undertaken, but rather the burden is on the party
seeking to apply the discovery rule to show that reasonable diligence was used.
Moreover, we note that our conclusion is not altered irrespective of whether the negligence
of Officer Camardo on which we focus is the fact that he did not file a police report, or, as plaintiffs
contend, the “egregious failure to disclose critical, exculpatory witness statements * * *.”
(Emphasis in original.) The knowledge that Officer Camardo did not file a police report should
have put plaintiffs on notice that a further investigation as to what may have been in that report
was required. See Behroozi, 128 A.3d at 873.
Thus, it is clear to this Court that, even if the discovery rule were to be applied to this case,
plaintiffs knew or should have known of the potential claims at issue, at the latest, at the time of
- 12 -
Mr. Polanco’s conviction, which conviction occurred more than three years prior to the filing of
this action.
Contrary to the assertions of plaintiffs, in the opinion of this Court, our decision in Hill,
935 A.2d at 608, and our more recent decision in Boudreau, 212 A.3d at 594, are on point with
respect to the case presently before us. A more detailed look at the facts of those cases buttresses
our conclusion with respect to the case before us.
In Hill, the plaintiff filed suit for negligence, intentional infliction of emotional distress,
and malicious prosecution arising from his having been charged with conspiring to obtain money
under false pretenses and aiding and abetting another in obtaining money under false pretenses;
those charges were ultimately dismissed. Hill, 935 A.2d at 610, 612. Summary judgment was
granted to defendants on the negligence and intentional infliction of emotional distress claims
based upon the statute of limitations. Id. at 612. The plaintiff argued that the discovery rule should
be applied to his case because “the severe level of stress caused by the criminal indictment in May
1995 did not manifest itself until his heart attack on June 27, 1998” and because “he was unaware
of the state’s wrongdoing until the charges against him were voluntarily dismissed in July 1999.”
Id. at 616. This Court held that the discovery rule did not apply to tort claims such as the ones
presented, but that, even if it did, the plaintiff “discovered or should have discovered that he
suffered actionable injuries as early as 1995.” Id. at 617. The Court held that some of the harm
which befell Mr. Hill began in 1995 at the time of his indictment and he “knew or, in the exercise
of reasonable diligence, should have known, that he had suffered an injury” at that time. Id. The
Court further held that the argument that the statute of limitations did not accrue until the charges
were voluntarily dismissed could not prevail because “[t]he plaintiff acknowledged that he had
access to the transcripts of the grand jury proceedings” before the charges were dismissed. Id.
- 13 -
The Court further stated that, “[a]lthough an investigation into the cause of an injury may be a long
process, it ordinarily does not toll the statute of limitations because such an interpretation would
render the statute of limitations meaningless and ineffective.” Id.
In Boudreau, the plaintiff’s employer (who was also a defendant) had installed a software
program on the plaintiff’s computer to monitor the content displayed on his computer screen
shortly before his employment was ultimately terminated in June of 2011. Boudreau, 212 A.3d at
596. The information gained through the use of the program was given to the police, and the
plaintiff was arrested and convicted for possession of child pornography. Id. The plaintiff first
found out about the computer software during a hearing before the Rhode Island Department of
Labor and Training Board of Review in January of 2012. Id. The plaintiff filed the suit at issue
in August of 2016, which suit included, among other claims, claims for negligence. Id. at 597.
Summary judgment was ultimately granted to the defendants on statute of limitations grounds. Id.
at 597-98. This Court held that the discovery rule was not applicable to the case and that the
plaintiff knew of his injury at the time of his arrest, shortly after the police searched his work
computer. Id. at 600, 601. However, we also stated that, even assuming that the discovery rule
was applicable, “the latest a reasonable person would have discovered such a cause of action” was
at the January 2012 hearing. Id. at 600.
Likewise, in the instant case, a reasonable person would have been on notice that a potential
claim existed when he or she became aware during trial that the first responding officer had not
filed a police report. Just as Mr. Hill could have read the grand jury records and conducted a
further investigation, and just as Mr. Boudreau was aware of the software put on his computer and
- 14 -
could have conducted a further investigation, plaintiffs here were aware that information from the
first responding officer had not been disclosed, but they took no further meaningful action. 6
In conclusion, this Court declines to extend the discovery rule to tort claims such as those
presented in this case; but, even if we did so, we are of the opinion that plaintiffs’ claims would
not be tolled pursuant to the discovery rule.
B
Heck v. Humphrey, 512 U.S. 477 (1994), and the Exoneration Rule
The plaintiffs next aver that “[f]rom when Mr. Polanco was convicted through when his
conviction was vacated, the Exoneration Rule prevented Plaintiffs-Appellants from bringing this
claim, and the statute of limitations on negligence claims arising from his conviction were tolled.”
In so doing, they rely on the United States Supreme Court’s opinion in Heck v. Humphrey, 512
U.S. 477 (1994). The plaintiffs contend that the “Exoneration Rule” provides that “plaintiffs who
intend to bring civil suits * * * claiming that they were innocent of the crime of which they were
convicted [must] first show not only that the conviction has been challenged in an appropriate
proceeding, but that the challenge succeeded.” Specifically, they claim that “Mr. Polanco needed
to obtain post-conviction relief before suing because his civil action attacked his conviction” and,
6
The plaintiffs rely in their reply brief on this Court’s opinion in O’Sullivan v. Rhode Island
Hospital, 874 A.2d 179 (R.I. 2005). They contend that accrual of a claim does not happen until
“a potential plaintiff knows of an injury, the wrongful conduct of the defendant, and a causal nexus
between the two.” In so representing, they rely on O’Sullivan. In our judgment, the O’Sullivan
opinion is not applicable to the case before us. The Court in O’Sullivan was contending with how
long the cause of action was tolled within the specific parameters of the discovery rule provided
in the wrongful death statute—G.L. 1956 § 10-7-2. O’Sullivan, 874 A.2d at 183-89. In so doing,
we specifically stated that “the exercise of reasonable diligence is not a prerequisite to tolling under
§ 10-7-2 in the same manner” as it is under the typical discovery rule as codified in § 9-1-14.1. Id.
at 186 (emphasis in original). In the instant case, we are concerned with the applicability of our
typical discovery rule, including the reasonable diligence standard. As such, we do not consider
O’Sullivan to be pertinent, and we do not rely on it in analyzing the case before us.
- 15 -
because “Mr. Polanco and his family were legally unable to sue, the statute of limitations should
be tolled during the period of conviction, or alternatively, the claim should not accrue until the
date of exoneration.”
The defendants aver that “the plaintiffs’ choice to file this general negligence claim is not
effected [sic] by the Heck precedent, and the ‘exoneration rule’ urged by the plaintiffs is neither
appropriate in this case, nor would it help their cause.”
In Heck, the United States Supreme Court was confronted with a civil suit filed pursuant
to 42 U.S.C. § 19837 in federal court. Heck, 512 U.S. at 478. In that case, a man convicted of
voluntary manslaughter (it is worth noting that the appeal of his criminal conviction was still
pending when his civil suit was filed) was suing prosecutors and a police investigator for allegedly
“engag[ing] in an unlawful, unreasonable, and arbitrary investigation leading to [his] arrest;
knowingly destroy[ing] evidence which was exculpatory in nature and could have proved [his]
innocence; and caus[ing] an illegal and unlawful voice identification procedure to be used at [his]
trial.” Id. at 478, 479 (internal quotation marks omitted). The Supreme Court equated the claims
with which it was presented to the common law cause of action for malicious prosecution. Id. at
484. The Supreme Court ultimately held as follows:
“We hold that, in order to recover damages for allegedly
unconstitutional conviction or imprisonment, or for other harm
caused by actions whose unlawfulness would render a conviction or
sentence invalid, * * * a § 1983 plaintiff must prove that the
7
42 U.S.C. § 1983 provides, in pertinent part, as follows:
“Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or the District
of Columbia, subjects, or causes to be subjected, any citizen of the
United States or other person within the jurisdiction thereof to the
deprivation of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured in an action
at law, suit in equity, or other proper proceeding for redress * * *.”
- 16 -
conviction or sentence has been reversed on direct appeal, expunged
by executive order, declared invalid by a state tribunal authorized to
make such determination, or called into question by a federal court’s
issuance of a writ of habeas corpus * * *.” Id. at 486-87.
The Court then held that “[a] claim for damages bearing that relationship to a conviction or
sentence that has not been so invalidated is not cognizable under § 1983.” Id. at 487.
Consequently, the Supreme Court explained the impact of its holding as follows:
“[W]hen a state prisoner seeks damages in a § 1983 suit, the district
court must consider whether a judgment in favor of the plaintiff
would necessarily imply the invalidity of his conviction or
sentence; if it would, the complaint must be dismissed unless the
plaintiff can demonstrate that the conviction or sentence has
already been invalidated. But if the district court determines that
the plaintiff’s action, even if successful, will not demonstrate the
invalidity of any outstanding criminal judgment against the
plaintiff, the action should be allowed to proceed, * * * in the
absence of some other bar to the suit.” Id. (emphasis in original).
The plaintiffs contend that the principle set forth in Heck applies to their case; they purport that
their civil case does challenge the validity of Mr. Polanco’s conviction and that, therefore, their
claims did not accrue until he was exonerated.
Subsequent to its decision in Heck, the United States Supreme Court issued an opinion in
Wallace v. Kato, 549 U.S. 384 (2007), which served, in some respects, to clarify the holding in
Heck. That case once again involved a civil suit filed in federal court pursuant to 42 U.S.C. § 1983;
in Wallace, after the plaintiff’s criminal conviction had been overturned, the civil suit at issue was
commenced against the City of Chicago and several Chicago police officers for unlawful arrest.
Wallace, 549 U.S. at 387. The issue before the Supreme Court was when the claim accrued for
the purpose of determining whether or not the statute of limitations had run prior to the filing of
the suit. Id. The Supreme Court first noted that “petitioner could have filed suit as soon as the
allegedly wrongful arrest occurred * * * so the statute of limitations would normally commence to
- 17 -
run from that date.” Id. at 388. The Supreme Court then went on to equate the claim before it to
that of false imprisonment and stated that “[l]imitations begin to run against an action for false
imprisonment when the alleged false imprisonment ends;” i.e., when the defendant is held pursuant
to legal process such as when “he is bound over by a magistrate or arraigned on charges.” Id. at
389. The Supreme Court then noted that “[f]rom that point on, any damages recoverable must be
based on a malicious prosecution claim and on the wrongful use of judicial process rather than
detention itself.” Id. at 390. The Court then distinguished the case from Heck and declined to
apply the rule in Heck that the civil action does not accrue until the criminal conviction is
invalidated on the grounds that, at the time the action in Wallace accrued, there was “no criminal
conviction that the cause of action would impugn * * *.” Id. at 393.8 Therefore, the civil suit at
issue did not imply the invalidity of the conviction in the related criminal action. The defendants
in the present case contend that Wallace, rather than Heck, is the more analogous precedent to the
scenario presented by the case presently before us.
This Court has dealt with the principles articulated in Heck and Wallace on three occasions.
In Laurence v. Sollitto, 788 A.2d 455 (R.I. 2002), we applied Heck to the plaintiff’s claims for
money damages for an allegedly unconstitutional conviction filed pursuant to 42 U.S.C. § 1983.
Laurence, 788 A.2d at 458-59. In Hill v. Rhode Island State Employees’ Retirement Board, 935
A.2d 608 (R.I. 2007), we analyzed the malicious prosecution claim at issue as requiring proof that
the criminal proceeding was terminated in the civil plaintiff’s favor, although we did not cite Heck
as support for that principle, but rather relied on a Rhode Island Supreme Court case which pre-
8
The United States Supreme Court has also addressed these issues in McDonough v. Smith,
139 S. Ct. 2149 (2019). However, for the purposes of our resolution of the instant case, we see no
need to delve into that case in detail. It suffices to state that that case also involved a claim made
in federal court pursuant to 42 U.S.C. § 1983. McDonough, 139 S. Ct. at 2154.
- 18 -
dated Heck.9 Hill, 935 A.2d at 613. In Bainum v. Coventry Police Department, 156 A.3d 418
(R.I. 2017), we relied on Heck and Hill in holding that, in the context of a malicious prosecution
claim, the plaintiff had to demonstrate that the criminal proceeding at issue terminated in his or
her favor. Bainum, 156 A.3d at 421-22.
Unlike the situations presented in all of the just-discussed cases, we are not dealing with a
claim pursuant to 42 U.S.C. § 1983, nor are we confronted in the instant case with an intentional
claim such as one for malicious prosecution or for false imprisonment. We are dealing with causes
of action which sound in state law negligence. Therefore, plaintiffs are asking us to extend the
holding in Heck beyond its terms and the narrow circumstances in which we have heretofore
applied it and to proceed to apply it to all state law claims, including those for negligence. We
decline to do so.10
9
The only instance in which this Court has relied on Wallace v. Kato, 549 U.S. 384 (2007),
is in our opinion in Hill v. Rhode Island State Employees’ Retirement Board, 935 A.2d 608 (R.I.
2007), in which we cited its holding that “the statute of limitations in a lawsuit seeking damages
pursuant to 42 U.S.C. § 1983, arising from an alleged unlawful arrest, began to run when the legal
process was initiated against the plaintiff” as being consistent with our holding with respect to the
statute of limitations issue in that case. Hill, 935 A.2d at 618.
10
In support of their arguments on appeal, plaintiffs also rely on the case of Morin v. Aetna
Casualty and Surety Co., 478 A.2d 964 (R.I. 1984), as illustrative of this Court promulgating a
rule which, according to plaintiffs, would have proved “fatal to Plaintiffs’ suit against these
Defendants if brought before Mr. Polanco’s conviction was vacated.” In our opinion, the Morin
case is inapposite and not applicable to the case before us. In Morin, the plaintiffs brought a civil
action to recover damages from the defendant insurance company (and other defendants) for the
damage caused by a fire and explosion at the plaintiffs’ home. Morin, 478 A.2d at 964. However,
the plaintiffs had been convicted of various criminal offenses in connection with the setting of the
same fire. Id. at 965. We addressed the “issue of whether a criminal conviction is admissible to
bar recovery in a civil suit based on the same facts or occurrence * * *.” Id. We held that the
criminal conviction was admissible, stating that “[t]o allow plaintiffs * * * to initiate a civil suit
against the defendants in an attempt to collect the insurance proceeds for the damage caused by
the fire while excluding the evidence of their convictions would afford plaintiffs the opportunity
to reap the benefits of their crimes.” Id. at 966-67. The present case has nothing to do with the
admissibility of a criminal conviction in a civil case, nor is there any allegation that anyone
- 19 -
That being said, we note that plaintiffs represent in their brief as follows: “When ruling on
common law negligence claims, most courts that have addressed the issue apply the Exoneration
Rule where the injury is an allegedly erroneous conviction.” This statement would seem to be
inconsistent to our conclusion with respect to Heck. However, plaintiffs support their statement
with a lengthy footnote containing numerous citations and, of the cases cited, all but one 11 deal
with actions for attorney malpractice against criminal defense attorneys which sound in
negligence. Indeed, many of the cases from other jurisdictions around the country relied upon by
plaintiffs in the rest of their discussion of the applicability of Heck are attorney malpractice cases.
After due reflection, those cases do not cause us to alter our conclusion in the instant case.
It is certainly true that many (but not all12) courts have required, as an element of attorney
malpractice claims against criminal defense attorneys, that the plaintiff obtained relief from his or
her conviction in some form. See, e.g., Trobaugh v. Sondag, 668 N.W.2d 577, 583 (Iowa 2003);
Adkins v. Dixon, 482 S.E.2d 797, 801-02 (Va. 1997). However, many of those courts have done
so independently of Heck and do not even cite to Heck. See, e.g., Steele v. Kehoe, 747 So. 2d 931,
933 (Fla. 1999); Peeler v. Hughes & Luce, 909 S.W.2d 494, 496-98 (Tex. 1995). As defendants
aver, this exoneration rule principle is at least arguably separate from Heck and has been confined
to actions for attorney malpractice.13 In any event, we are not confronted with a claim of attorney
involved attempted to benefit from their crimes. Thus, the reasoning in Morin simply is not
applicable to the instant case.
11
The one exception is Parish v. City of Elkhart, 614 F.3d 677 (7th Cir. 2010), which extends
Heck v. Humphrey, 512 U.S. 477 (1994), to a state law claim for an intentional tort—intentional
infliction of emotional distress. Parish, 614 F.3d at 679-84.
12
See Rantz v. Kaufman, 109 P.3d 132, 136, 137 (Colo. 2005).
13
It is worth noting that, in Laurence v. Sollitto, 788 A.2d 455 (R.I. 2002), we discussed Heck
and the principles expressed therein in the context of attorney malpractice, but we did not apply
- 20 -
malpractice in the instant matter, and we decline to apply the so-called exoneration rule in the
context of this case.
Accordingly, Heck and the exoneration rule do not alter our conclusions in this case with
respect to the accrual of the causes of action at issue and the running of the statute of limitations.
C
The Applicability of § 9-1-20
An additional theory of tolling which plaintiffs contend is applicable to their case is that of
fraudulent concealment pursuant to the dictates of § 9-1-20.
Section 9-1-20 provides as follows:
“If any person, liable to an action by another, shall fraudulently, by
actual misrepresentation, conceal from him or her the existence of
the cause of action, the cause of action shall be deemed to accrue
against the person so liable at the time when the person entitled to
sue thereon shall first discover its existence.”
The plaintiffs contend that, “[b]ecause Officer Camardo made actual misrepresentations
that concealed his egregious negligence, G.L. 1956 § 9-1-20 delayed accrual of this claim.” The
misrepresentation on which plaintiffs rely is the fact that, at his deposition, the detective who
conducted the investigation of the assault at issue, according to plaintiffs, testified that Officer
Camardo “told him that nobody reported an assault to Officer Camardo that night.” The plaintiffs
further aver that “[s]ection 9-1-20 applies when the misrepresentations were made to someone
other than the plaintiff.”
Heck nor did we clearly apply any similar exoneration rule principle in that case. Laurence, 788
A.2d at 459, 460.
- 21 -
On the other hand, defendants aver that “plaintiffs’ assertion lacks a legitimate factual
basis, has no support in the law and does not comport with the policy behind the adoption of § 9-
1-20, and should be rejected.”
We have stated that “[p]ursuant to the provisions of § 9-1-20, if a potential defendant
fraudulently conceals a cause of action from a potential plaintiff, the statute of limitations is tolled
until such time as the plaintiff discovers the existence of a cause of action.” Boudreau, 212 A.3d
at 601 (internal quotation marks omitted). In order to prove that fraudulent concealment has taken
place, “it is a plaintiff’s burden to show (1) that the defendant made an actual misrepresentation of
fact; and (2) that, in making such misrepresentation, the defendant fraudulently concealed the
existence of the plaintiff’s causes of action.” Id. (internal quotation marks omitted). Accordingly,
the plaintiff must “demonstrate that the defendant made an express representation or engaged in
other affirmative conduct amounting in fact to such a representation which could reasonably
deceive another and induce him or her to rely thereon to his or her disadvantage.” Id. at 601-02
(internal quotation marks omitted). Of particular importance is the fact that we have also stated
that “mere silence or inaction on the part of the defendant does not constitute actual
misrepresentation in this context.” Id. at 602 (internal quotation marks omitted); see Ryan v.
Roman Catholic Bishop of Providence, 941 A.2d 174, 182 (R.I. 2008); see also Smith v.
O’Connell, 997 F. Supp. 226, 238 (D.R.I. 1998), aff’d sub nom. Kelly v. Marcantonio, 187 F.3d
192, 200 (1st Cir. 1999).
Thus, it ineluctably follows that failure to file a police report cannot amount to fraudulent
concealment. Fraudulent concealment requires an actual misrepresentation which is more than
mere silence or inaction. See Boudreau, 212 A.3d at 601-02. Officer Camardo’s act of not filing
a police report certainly does not meet that requirement.
- 22 -
However, plaintiffs point to an alleged misrepresentation that they aver was made by
Officer Camardo to the detective who ultimately investigated the assault. In determining the
applicability of § 9-1-20, we thus must look to the specific language in the deposition testimony
to which plaintiffs point us.
The deposition of the detective who conducted the investigation of the assault at issue
contains the following exchange:
“Q And what did he say [with respect to the placement of the
weapon at the scene]?
“A I think his response was, yeah, I didn’t see any pool stick. There
was nobody there. I thought the kid just, you know, I thought he just
maybe overdosed or fell down drunk.
“* * *
“Q Did he say whether he had talked to any witnesses at the
scene?
“A No.
“Q Okay.
“A No. I think --
“Q Did you ask him?
“A I didn’t really have to ask him. I think he was just kind of just,
you know, you know, kind of just went on and said, you know, I
didn’t know. I didn’t know how he got there. I thought he may have
fallen down drunk or he may have overdosed. I said, did you see a
pool stick in the area or anything like that around him, and he said,
no, I didn’t see anything. I don’t remember it. I don’t recall if he said
there was any witnesses. I don’t. I mean, obviously, there was
witnesses at that point. I think he would have told me that he spoke
to somebody and they told him, they seen him stumble and fall down
drunk.
“Q But you don’t recall asking him?
- 23 -
“A No, I don’t recall. I don’t recall all the details of that. I know the
gist of the conversation was me looking and inquiring about the pool
stick and him saying that he didn’t know how. He thought it was, I
believe he said he thought he was either drunk, like I had said, or
overdosed.”
The parties debate whether or not, for the purposes of fraudulent concealment, an actual
misrepresentation must be made directly to the plaintiff or can be made to a third party. We need
not address that issue, because, in our opinion, the just-cited deposition testimony does not reflect
that any actual misrepresentation was made with respect to the existence of witnesses or with
respect to Officer Camardo having interviewed witnesses on the night in question. The closest the
deponent came to stating that Officer Camardo told him there were no witnesses is when he stated
that Officer Camardo told him, “There was nobody there.” However, the deponent then very
clearly went on to specifically state that he did not recall if Officer Camardo said there were any
witnesses.
Accordingly, the deposition testimony pointed to by plaintiffs simply does not rise to the
level of an actual misrepresentation, which is a necessary element to prove fraudulent
concealment.14 As such, we conclude that the statute of limitations in this case is not tolled
pursuant to § 9-1-20.
14
We pause to briefly note two additional issues presented by the parties with respect to the
applicability of fraudulent concealment. The defendants contend that plaintiffs waived any
argument with respect to the deposition testimony of the investigating detective by not raising it
below. After reviewing the filings in Superior Court with respect to the motion for summary
judgment, it is clear that plaintiffs did mention and cite to that deposition testimony at least twice
below. What is more, given that it so clearly does not amount to an actual misrepresentation, we
need not delve any deeper into the waiver argument.
The plaintiffs also contend that a factual determination must be made as to whether Officer
Camardo took statements from Ms. Morales and Mr. Collazo and “never told anyone about them,”
in order to know whether or not he lied about the statements. They aver that, if it is found that
Officer Camardo lied about taking those statements, it would delay accrual of the claim under § 9-
1-20. We simply cannot agree. Even assuming he did take the statements and failed to disclose
them, he still did not engage in an actual misrepresentation which amounted to more than mere
- 24 -
D
Equitable Tolling
Finally, plaintiffs contend that equitable tolling should be applied in this case because
“[t]his unusual situation exemplifies the need for courts to exercise their equitable powers to
fashion remedies to patch holes in the law.” They further aver that defendants “can point to no
facts that a ‘better’ investigation could have uncovered” in this case.
The defendants posit that equitable tolling should not be applied to this case because
“plaintiffs try to excuse away the fact that they did not seek to investigate their claims at all during
the period between the conviction and when the new witnesses volunteered to come forward.”
They add that, accordingly, there were not “diligent efforts” nor was “reasonable diligence * * *
exercised.” They point out that Mr. Polanco was aware of his injury and the breach at the time of
his trial.
Upon reflection and after a thorough review of the record, we are in agreement with
defendants. “This Court has observed that ‘equitable tolling is an exception to the general statute
of limitations based upon principles of equity and fairness * * *.’” Lehigh Cement Co. v. Quinn,
173 A.3d 1272, 1279 (R.I. 2017) (quoting Johnson v. Newport County Chapter for Retarded
Citizens, Inc., 799 A.2d 289, 292 (R.I. 2002)). Black’s Law Dictionary defines “equitable tolling,”
in pertinent part, as follows:
“The doctrine that the statute of limitations will not bar a claim if
the plaintiff, despite diligent efforts, did not discover the injury until
after the limitations period had expired, in which case the statute is
suspended or tolled until the plaintiff discovers the injury[;] [a]
court’s discretionary extension of a legal deadline as a result of
extraordinary circumstances that prevented one from complying
silence or inaction as is required for fraudulent concealment to toll the statute of limitations. See
Boudreau, 212 A.3d at 601-02.
- 25 -
despite reasonable diligence throughout the period before the
deadline passed.” Black’s Law Dictionary 680 (11th ed. 2019).
Thus, it is clear that a prerequisite to this Court’s extension of the statute of limitations
based on equitable tolling is either a plaintiff who was not able to discover his or her injury despite
diligent efforts or extraordinary circumstances that prevented a plaintiff from complying with the
deadline despite using reasonable diligence. The first is certainly inapplicable to this case since it
is clear plaintiffs knew of their injury at the time of Mr. Polanco’s arraignment.
The second requires the exercise of reasonable diligence on the part of the plaintiffs. As is
reflected in our discovery rule analysis, we are simply not convinced that such reasonably diligent
efforts were undertaken in this case, nor can we agree that, as plaintiffs aver, defendants must point
to facts that a better investigation would have uncovered. When plaintiffs learned at Mr. Polanco’s
trial that Officer Camardo did not file a police report despite being the first officer on the scene,
there was enough to put a reasonable person on notice that a further investigation was necessary;
it was not reasonable to fail to pursue the issue by attempting to get further information from
Officer Camardo (or from another source). However, it is clear from the record that Officer
Camardo was not even interviewed prior to or during the trial. It is also clear that nothing
prevented plaintiffs from engaging in such an investigation. Thus, these simply are not the type of
unusual or extraordinary circumstances which warrant application of the doctrine of equitable
tolling. See Rivera v. Employees’ Retirement System of Rhode Island, 70 A.3d 905, 914 (R.I.
2013) (applying the doctrine of equitable tolling and noting the “unusual” nature of the case). 15
15
The defendants contend that the case of Wallace, 549 U.S. at 384, stands for the proposition
that “equitable tolling is not appropriate in claims against police officers by former criminal
defendants.” The plaintiffs aver, in response, that Wallace is distinguishable from the instant case,
arguing that comparing the two is “like comparing apples and oranges * * *.” Given our above-
conclusion with respect to equitable tolling based on the definition of that doctrine, we need not
wade into this particular debate. See Grady v. Narragansett Electric, Co., 962 A.2d 34, 42 n.4
- 26 -
In conclusion, plaintiffs’ claims accrued at the time that Mr. Polanco was arraigned and
were not tolled by the discovery rule, the holding in Heck, the exoneration rule, § 9-1-20, or the
doctrine of equitable tolling. Consequently, this suit was filed after the three-year statute of
limitations had run and is time-barred.
IV
Conclusion
For the reasons set forth herein, we affirm the judgment of the Superior Court. The record
may be remanded to that tribunal.
Justice Flaherty, dissenting. I find myself in agreement with my colleagues in the
majority with respect to their conclusion that this is not an appropriate case for the discovery rule,
that the so-called “exoneration rule” should not be applied to the facts of this case, and that G.L.
1956 § 9-1-20 is similarly unavailable to this plaintiff.1 Where I part company with the majority,
however, is in its opinion that the principles of equitable tolling should not toll the statute of
limitations in this case and allow the plaintiff to litigate his cause. 2 Because it is my strongly held
belief that, in this highly unusual case, equity demands that the statute of limitations be tolled, I
feel compelled to respectfully dissent.
(R.I. 2009) (noting “our usual policy of not opining with respect to issues about which we need
not opine”).
1
Throughout this dissent, for purposes of simplicity, I write as if there were only one plaintiff in
the case. I acknowledge that Mr. Polanco’s family members have derivative claims, and my
analysis is the same for those claims—that the statute of limitations should not bar them due to the
circumstances of this case.
2
I also observe that the summary-judgment motion regarding the statute of limitations was the
second such motion made by the defendants in this case, plaintiff having already escaped summary
judgment after a trial justice considered plaintiff’s public-duty argument.
- 27 -
Mr. Polanco was accused of assaulting a bar patron with a pool cue and inflicting serious
bodily harm. It is undisputed that the responding police officer filed no report. 3 The responding
officer, Camardo, has never wavered from his position that he did not speak to anyone on the night
in question who gave him any statement or provided him with any description about who the culprit
may have been. However, there were two witnesses, each of whom claimed that they had in fact
spoken to the responding officer and further had provided a description of the assailant. Clearly,
that description was not of Mr. Polanco, who was known to each of the witnesses.
On the other hand, a later investigating officer spoke to a cook who was working on the
night of the incident and to the club owner. One of those individuals identified Mr. Polanco from
a photograph, but the other was unable to do so when shown a photopack. Ironically, at trial, the
witness who had identified Mr. Polanco from his photograph recanted. The other witness, who
could not pick Mr. Polanco from a photographic lineup shortly after the incident, remarkably was
able to positively identify him in court some three years later. As is set forth in the majority
opinion, Mr. Polanco was convicted and sentenced to a substantial prison sentence, a good portion
of which he served.
When one of the witnesses who had given a description of the assailant to the responding
officer returned to Rhode Island from Puerto Rico, she inquired about the condition of the victim.
In that conversation, she was stunned to learn that Mr. Polanco had been convicted of the assault
and that he was incarcerated. This witness then contacted her son-in-law, who had been with her
on the evening of the assault and who had also given a statement to the responding officer; he too
was unaware and discomfited to hear that Mr. Polanco had been incarcerated. This disturbing
3
Further, there was deposition testimony by an investigating detective that Camardo had informed
him that someone on the scene was on the ground as a result of an overindulgence in drugs or
alcohol, but that Camardo did not indicate to the detective that there had been an assault.
- 28 -
news prompted the witnesses to go to the Providence police with their story. When they failed to
achieve any satisfaction from the police, they related their concerns to the Office of the Attorney
General. In that regard, the witnesses did more than merely share their recollections. Both
witnesses swore in affidavits that they had seen the incident and had provided the responding
officer with a description as well as with their contact information. Further, each swore that Mr.
Polanco was not the assailant.
Mr. Polanco soon filed a motion for post-conviction relief based on newly discovered
evidence. The motion came on for hearing before the same justice who had presided over the trial.
After listening to all the testimony, the trial justice found Mr. Polanco’s witnesses to be credible,
and she determined that a new trial was warranted.
The comments that the trial justice made when she granted the new trial are striking to me.
She said: “There is no way [defense counsel] could have known about [the two exculpatory
witnesses]” and she also said that the evidence was “newly discovered since the trial and was not
previously discoverable[.]” Moreover, after the trial justice’s ruling, the state dismissed the case
against Mr. Polanco pursuant to Rule 48 of the Superior Court Rules of Criminal Procedure. The
state said:
“After reviewing the Newly Discovered Evidence presented at the
recent hearing, in addition to the evidence presented at the original
trial, the State has determined that the case cannot be proven by
evidence to satisfy the burden of proof beyond a reasonable doubt,
and therefore, in the interest of justice, moves to dismiss the case at
this time.”
This statement is also striking. It is the trial justice’s findings with respect to the evidence
being unknowable and newly discovered, however, that are particularly troublesome with regard
to the majority’s equitable tolling analysis. Although those factual findings are not binding in this
case as either res judicata or collateral estoppel, they nonetheless should have been taken into
- 29 -
consideration by the majority in its assessment as to whether Mr. Polanco’s civil case should be
equitably tolled.4 However, those bold and important comments did not find their way into the
majority opinion.
Aside from that omission from the majority’s opinion, the independent question remains
whether this case merits tolling the statute of limitations under equitable principles. As the
majority correctly points out, “equitable tolling is an exception to the general statute of limitations
based upon principles of equity and fairness[.]” Lehigh Cement Co. v. Quinn, 173 A.3d 1272, 1279
(R.I. 2017) (quoting Johnson v. Newport County Chapter for Retarded Citizens, Inc., 799 A.2d
289, 292 (R.I. 2002)). Equitable tolling includes “[a] court’s discretionary extension of a legal
deadline as a result of extraordinary circumstances that prevented one from complying despite
reasonable diligence throughout the period before the deadline passed.” Black’s Law Dictionary
680 (11th ed. 2019).
The fact that Mr. Polanco was convicted primarily on the account of one eyewitness’s
testimony, when that eyewitness had previously been unable to positively identify Mr. Polanco, is
important.5 It is also important that two eyewitnesses came forward and attested to having given
4
It is noteworthy that the standard a trial justice employs when ruling on a motion for a new trial
made on grounds of newly discovered evidence includes that the evidence was “not discoverable
prior to trial with the exercise of due diligence[.]” State v. Woods, 936 A.2d 195, 197 (R.I. 2007)
(quoting State v. Firth, 708 A.2d 526, 532 (R.I. 1998)). Similarly, and as discussed in both the
majority opinion and in this dissenting opinion, equitable tolling generally requires reasonable
diligence by the claimant.
5
Indeed, “[m]any studies of exonerations find that erroneous eyewitness identifications play a part
in over 75% of all wrongful convictions.” Sandra Guerra Thompson, Judicial Blindness to
Eyewitness Misidentification, 93 Marq. L. Rev. 639, 639 (2009). The Innocence Project, an
organization that advocates for criminal justice reform and helps to exonerate those that have been
wrongly convicted through the utilization of DNA testing, states that of the 360 wrongful
convictions that were overturned in the United States via “post-conviction DNA evidence[,]”
mistaken eyewitness identifications played a part in roughly 70 percent of those wrongful
convictions. Innocence Project, http://innocenceproject.org/eyewitness-identification-reform/ (last
visited June 12, 2020).
- 30 -
a description of the attacker to the responding officer, and that that information never made its way
to Mr. Polanco until after he had been incarcerated for over two years. Combine this with the trial
justice’s finding that the evidence was undiscoverable and consequently vacating his conviction,
along with the state’s admission that the criminal case must be dismissed “in the interest of
justice[,]” and the facts certainly reveal that this case is extraordinary. The only issue, then,
appears to be whether Mr. Polanco exercised reasonable diligence throughout the statutory period.
The majority spends much of its equitable tolling analysis chastising Mr. Polanco for
failing to exercise such diligence. The majority asserts that, from the moment of trial, when Mr.
Polanco learned that the responding officer failed to file a police report, he should have been on
sufficient notice to begin investigating his claim. Nevertheless, in my opinion, the mere fact that
Mr. Polanco knew that an officer did not file a report does not lead to a conclusion that there were
unidentified witnesses. As the trial justice said, that information was unknowable. For all Mr.
Polanco knew, or could have known, he was merely the victim of a faulty eyewitness identification
and as a result he ultimately was convicted beyond a reasonable doubt.
After Mr. Polanco was convicted and incarcerated, and having limited resources, he could
have had no knowledge of the exculpatory witnesses that he alleges officer Camardo failed to
disclose. Against these odds, and given the particularities of this case, it would have been
unreasonable to expect Mr. Polanco to do as the majority opinion seems to suggest: (a) conduct an
independent investigation from within his prison cell; or (b) file suit naming a series of John Doe
defendants claiming that police negligence had resulted in his wrongful conviction. 6 In any event,
6
What is or is not reasonable diligence must be measured against the circumstances in which a
particular plaintiff finds himself. See Johnson v. Newport County Chapter for Retarded Citizens,
Inc., 799 A.2d 289, 292 (R.I. 2002) (holding that “equitable tolling is * * * available to litigants
who suffer from debilitating mental incapacity”).
- 31 -
I would not hold Mr. Polanco to exercise reasonable diligence in investigating a claim if doing so
is, in and of itself, unreasonable.
This is an extraordinary case. If equity is to mean anything at all, its principles should be
applicable in circumstances such as these. For these reasons, I respectfully dissent from the
holding of the majority in this case.
Moreover, the majority fails to acknowledge the deluge of cases it invites from those
currently serving sentences. It is my opinion that it is far more reasonable to expect those who
may feel they have been wrongfully convicted to wait until their convictions have been vacated to
file a civil suit, if it is warranted, and to toll the statutory period when and if extraordinary
circumstances and reasonable behavior are present.
- 32 -
STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS
SUPREME COURT – CLERK’S OFFICE
OPINION COVER SHEET
Dionisio Polanco et al. v. James J. Lombardi, III, in
Title of Case his capacity as Treasurer of the City of Providence, et
al.
No. 2018-198-Appeal.
No. 2018-199-Appeal.
No. 2018-200-Appeal.
No. 2018-201-Appeal.
Case Number
No. 2018-202-Appeal.
No. 2018-203-Appeal.
No. 2018-204-Appeal.
(PC 12-1844)
Date Opinion Filed June 29, 2020
Suttell, C.J., Goldberg, Flaherty, Robinson, and
Justices
Indeglia, JJ.
Written By Associate Justice William P. Robinson III
Source of Appeal Providence County Superior Court
Judicial Officer From Lower Court Associate Justice Melissa A. Long
For Plaintiffs:
Max Wistow, Esq.
Kenneth J. Sylvia, Esq.
For Defendants:
Attorney(s) on Appeal
Michael B. Forte, Jr., Esq.
Kevin F. McHugh, Esq.
Michael Colucci, Esq.
Steven B. Nelson, Esq.
SU-CMS-02A (revised June 2016)