119 F.3d 1259 (6th Cir. 1997), 95-2031, Swekel v. City of River Rouge

Docket Nº:95-2031.
Citation:119 F.3d 1259
Party Name:Delores Marie SWEKEL, Plaintiff-Appellant, v. CITY OF RIVER ROUGE, Defendant, Gregory Harrington, William Abair, Johnson Taylor, William Cooper, and David Israel, Defendants-Appellees.
Case Date:July 23, 1997
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

Page 1259

119 F.3d 1259 (6th Cir. 1997)

Delores Marie SWEKEL, Plaintiff-Appellant,



Gregory Harrington, William Abair, Johnson Taylor, William

Cooper, and David Israel, Defendants-Appellees.

No. 95-2031.

United States Court of Appeals, Sixth Circuit.

July 23, 1997

Argued for Appellant Oct. 18, 1996.

Submitted for Appellees Oct. 18, 1996.

Page 1260

Thomas G. McHugh (briefed), Mt. Clemens, MI, Morgan J.C. Scudi (argued and briefed), Huth, Lynett & Scudi, San Diego, CA, for Plaintiff-Appellant.

Michael H. Feiler, Farmington Hills, MI, for Defendant City of River Rouge.

Kurt A. Olson, F. Dennis Luke Assoc., Allen Park, MI, John J. Cibrario (briefed), Westland, MI, for Defendants-Appellees Gregory Harrington, William Abair, and Johnson Taylor.

Andrew R. Grifka, Livonia, MI, John J. Cibrario, Westland, MI, for Defendants-Appellees William Cooper and David Israel.

Before: MERRITT, JONES, and COLE, Circuit Judges.

JONES, J., delivered the opinion of the court, in which COLE, J., joined. MERRITT, J. (pp. 1264-65), delivered a separate concurring opinion.


NATHANIEL R. JONES, Circuit Judge.

Plaintiff, Delores Swekel, appeals the district court's sua sponte dismissal of her suit under 42 U.S.C. § 1983 claiming that Defendants denied her access to the courts. Because Swekel failed to present evidence that the Defendants' actions rendered a state court remedy ineffective, we now AFFIRM.


On September 30, 1988, at approximately 11:00 p.m., Arnold F. Swekel attempted to cross a street in River Rouge, Michigan. While crossing the street, either one or two cars speeding down the street hit and fatally injured Mr. Swekel.

After the accident, Officer Dwight Black went to the scene and interviewed witnesses. Apparently four witnesses told Officer Black that two cars were involved in the accident. Officer Black then filed a police report that provided a description of the two vehicles involved. After filing the report, Officer Black was removed from the case. Additionally, the daily log sheets for the night of September 30, 1988, disappeared after the incident. The Plaintiff alleges that the log sheet would reveal that the incident involved two vehicles.

Mr. Swekel was in the hospital for seventeen days before he passed away on October 17, 1988. Delores Swekel ("Swekel"), the widow and personal representative of the estate of the decedent, allegedly requested that the police interview him during this period, but they declined.

Swekel claims that following the accident the police engaged in an immediate cover up of the second driver because he was the son of a high-ranking police officer. She alleges that even though the witnesses stated two drivers were involved, and all of the evidence pointed towards the high-ranking police officer or his son, the police never investigated either of them.

According to Swekel the Defendants: (1) failed to perform forensic tests on Mr. Swekel's clothes; (2) ignored the responding officer's report that two cars were involved; (3) told the responding officer not to attend the preliminary hearing, though it is customary for the responding officer to attend; (4) ignored anonymous tips stating that Russel Kulinski, a police commander at the time of the accident, or his son, Todd, was one of the

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drivers who struck Mr. Swekel; (5) refused to investigate the link between the Kulinskis and the second driver; (6) refused to interview Todd Kulinski; and (7) failed to disclose to Plaintiff the anonymous tips implicating the Kulinskis, despite the fact that Plaintiff told the police that she suspected Todd Kulinski.

Swekel successfully pursued a wrongful death action against the first driver. She claims that Defendants' actions deprived her of a similar suit against the second driver, because she could not discover his identity before her time to file suit expired under the Michigan statute of limitations. In fact, she claims that she did not discover the identity of the second driver until discovery in this suit. Swekel's attorney believed that as a result of the police cover up, he lacked the evidence to file suit and would have subjected himself to sanctions if he filed suit.

The federal case for denial of access to the courts was set to go to trial on May 15, 1995. On May 11, 1995, the district court ordered Swekel to show cause why it should not dismiss the case in light of Joyce v. Mavromatis, 783 F.2d 56 (6th Cir.1986) (holding that plaintiff was not denied access to courts if she could file a viable suit in state court). In her brief to the district court, Swekel argued that the Defendants' cover-up of the identity of the second driver caused the statute of limitations to run and, thus, amounted to her legally being barred from filing suit. The district court disagreed and held that she could have filed a "John Doe" suit against the second driver in state court and then amended it when she discovered the second driver's identity.

The district court found that Swekel possessed a sufficient factual basis to file a "John Doe" suit in state court. These facts are as follows: On December 5, 1989, the Plaintiff deposed Estel Chaffins, who testified that two cars were involved in the accident. Furthermore, in another deposition taken on June 28, 1989, Plaintiff's counsel asked an accident witness whether he knew Todd Kulinski Finally, in early 1990, Plaintiff's counsel sent a copy of Mr. Chaffins's statement to the police and requested that they re-open the case. These actions demonstrated to the district court that Swekel knew of a second driver before the three-year statute of limitations had run and could have filed a suit in state court against a "John Doe" defendant. The district court conceded that "John Doe" suits do not toll the statute of limitations in Michigan, see, e.g., Fazzalare v. Desa Indus., Inc., 135 Mich.App. 1, 6, 351 N.W.2d 886 (1984), but reasoned that with the aid of discovery Swekel may have been able to discover the identity of the second driver before the statute ran. Consequently, the district court granted summary judgment to Defendants sua sponte.

Swekel moved for reconsideration, which the district court denied. She then filed this timely appeal.


"We review a district court's grant of summary judgment de novo. ... [I]n a motion for summary judgment, 'credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge.... The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.' " Russo v. City of Cincinnati, 953 F.2d 1036, 1041-42 (6th Cir.1992) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513, 91 L.Ed.2d 202 (1986), and citing Vollrath v. Georgia-Pacific Corp., 899 F.2d 533, 534 (6th Cir.), cert. denied, 498 U.S. 940, 111 S.Ct. 345, 112 L.Ed.2d 310 (1990)); see also Rowley v. United States, 76 F.3d 796, 799 (6th Cir.1996). Summary judgment is appropriate when the record "shows that there is no genuine issue as to any material fact and that the moving party is entitled to a judgement as a matter of law." Fed.R.Civ.P. 56(c).

On appeal, Plaintiff argues Defendants denied her the right of access to the courts by covering-up for a high-ranking police officer and his son. "It is beyond dispute that the right of access to the courts is a fundamental right protected by the Constitution." Graham v. National Collegiate Athletic Ass'n, 804 F.2d 953, 959 (6th Cir.1986).

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In fact, the right of access to the courts finds support in several provisions of the Constitution including: the Due Process Clause of the Fourteenth Amendment, Wolff v. McDonnell, 418 U.S. 539, 579, 94 S.Ct. 2963, 2986, 41 L.Ed.2d 935 (1974), the Equal Protection Clause, Pennsylvania v. Finley, 481 U.S. 551, 557, 107 S.Ct. 1990, 1994, 95 L.Ed.2d 539 (1987), the First Amendment, Turner v. Safley, 482 U.S. 78, 84, 107 S.Ct. 2254, 2259, 96 L.Ed.2d 64 (1987)(citing Johnson v. Avery, 393 U.S. 483, 89 S.Ct. 747, 21 L.Ed.2d 718 (1969)), and the Privileges and Immunities Clause of Article IV, see, e.g., Chambers v. Baltimore & Ohio R.R. Co., 207 U.S. 142, 148, 28 S.Ct. 34, 35, 52 L.Ed. 143 (1907); Smith v. Maschner, 899 F.2d 940, 947 (10th Cir.1990).

The right of access in its most formal manifestation protects a person's right to physically access the court system. Without more, however, such an important right would ring hollow in the halls of justice. See Chambers, 207 U.S. at 148, 28 S.Ct. at 35 ("In an organized society it is the right conservative of all other rights, and lies at the foundation of orderly government. It is one of the highest and most essential privileges of citizenship...."). Access to courts does not only protect one's right to physically enter the courthouse halls, but also insures that the access to courts will be "adequate, effective and meaningful." Bounds v. Smith, 430 U.S. 817, 822, 97 S.Ct. 1491, 1495, 52 L.Ed.2d 72 (1977). Therefore, if a party engages in actions that effectively cover-up evidence and this action renders a plaintiff's state court remedy ineffective, they have violated his right of access to the courts. See Bell v. City of Milwaukee, 746 F.2d 1205, 1261 (7th Cir.1984) ("To deny such access defendants need not literally bar the courthouse door or attack plaintiffs' witnesses."). Otherwise, to what avail would it be to arm a person with such a constitutional right, when the courtroom door can be hermetically sealed by a functionary who destroys the evidence crucial to his case. A contrary interpretation of this right would encourage "police officials to conceal the circumstances relating to unlawful killing committed...

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