Dionisio Polanco et al.
James J. Lombardi, III, in his capacity as Treasurer of the City of Providence, et al.
Providence County PC 12-1844 Superior Court Melissa A. Long
Plaintiffs: Max Wistow, Esq. Kenneth J. Sylvia, Esq.
Defendants: Michael B. Forte, Jr., Esq. Steven B. Nelson,
Esq. Kevin F. McHugh, Esq.
Suttell, C.J., Goldberg, Robinson, and Indeglia, JJ.
case came before the Supreme Court for oral argument on May
9, 2019, pursuant to an order directing the parties to appear
and show cause why the issues raised in these consolidated
appeals should not summarily be decided. After reviewing the
memoranda of the parties, and having heard and considered the
oral arguments advanced, we conclude that cause has been
shown. Accordingly, this case is assigned to the regular
calendar for full briefing and argument.
August 2005, a man was battered at a Providence
nightclub. The defendant, Michael Camardo, a
Providence police officer, responded to the scene but filed
no report of the incident. In September 2007, the plaintiff,
Dionisio Polanco, was arrested in connection with the
beating; he was subsequently convicted following a nonjury
trial in July 2008. Mr. Polanco was sentenced to ten years in
prison, with four years to serve and six years suspended,
with probation, was ordered to have no contact with the
victim, and was ordered to pay $550 in assessments.
summer of 2010, two witnesses to the incident, who were
previously unknown, came forward claiming that Mr. Polanco
had not been the assailant. Plaintiffs allege that Officer
Camardo had spoken to those witnesses on the night of the
incident, but that, because no police report was filed, Mr.
Polanco was not aware of their existence at the time of his
trial. In light of this new evidence, Mr. Polanco requested a
new trial from the Superior Court. His motion was granted and
the judgment was vacated. On July 28, 2011, the state
dismissed the charges against Mr. Polanco pursuant to Rule
48(a) of the Superior Court Rules of Criminal Procedure.
April 9, 2012, Mr. Polanco and several members of his family
brought this negligence action against Officer Camardo and
the City of Providence, alleging that Officer Camardo had
failed to file a police report identifying potentially
exculpatory witnesses, and that that failure led to Mr.
Polanco's conviction and incarceration. In July 2017,
defendants moved for summary judgment, arguing that the
three-year statute of limitations imposed by G.L. 1956 §
9-1-14(b) served as a time bar to plaintiffs' claim. A
justice of the Superior Court granted that motion, and final
judgment entered in favor of defendants on April 10, 2018.
Plaintiffs timely appealed, and their separate appeals were
consolidated by order of this Court.
this Court, plaintiffs advance several arguments that, if
successful, would rescue their claims from the statute of
limitations. First, they argue that the discovery rule should
toll the statute of limitations, at least until Mr. Polanco
first learned of the existence of the exculpatory witnesses.
They also argue that their claims should be tolled by G.L.
1956 § 9-1-20 or under a theory of equitable tolling.
Alternatively, they argue that, because Mr. Polanco's
arrest and conviction were lawful in all respects, plaintiffs
did not suffer a legally cognizable injury until Mr. Polanco
was awarded a new trial, his conviction was vacated, and the
charges against him were dismissed pursuant to Rule 48(a).
Therefore, plaintiffs argue, the cause of action did not
accrue until that time. Finally, plaintiffs argue that the
principles set forth in Heck v. Humphrey, 512 U.S.
477 (1994), would have prevented them from bringing a claim
of negligence against Officer Camardo until Mr. Polanco's
conviction was vacated, because any such claim would have
amounted to an impermissible collateral attack on his
heard the arguments of the parties, and having closely
examined the memoranda filed on behalf of the parties, we are
of the opinion that this case should be returned to the
regular calendar for full briefing and argument. It is so
as an Order of this Court this 11th day of June, 2019.
Justice Flaherty, dissenting.
dissent from the order assigning this case to the regular
calendar. In my opinion, the parties' arguments have been
sufficiently developed at this stage such that this appeal
may be decided without further briefing. I would hold that
cause has not been ...