Miller v. Smith, 77-2610

• Decision Date: 21 April 1980
• Docket Number: No. 77-2610,77-2610
• Citation: 615 F.2d 1037
• Parties: Bruce MILLER, Plaintiff-Appellant, v. N. S. SMITH, Individually and in his capacity as a member of the Dallas Police Department, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1037

615 F.2d 1037

Bruce MILLER, Plaintiff-Appellant, v. N. S. SMITH, Individually and in his capacity as a member of the Dallas Police Department, et al., Defendants-Appellees.

No. 77-2610.

United States Court of Appeals Fifth Circuit.

April 21, 1980.

Ronald G. Franklin, Hill & Parker, Houston, Tex., for plaintiff-appellant.

Joseph G. Werner, Asst. City Atty., Dallas, Tex., for defendants-appellees.

Renea Hicks, Asst. Atty. Gen., Austin, Tex., amicus curiae, for the State of Texas.

Appeal from the United States District Court for the Northern District of Texas.

Before COLEMAN, Chief Judge, KRAVITCH and HENDERSON, Circuit Judges.

COLEMAN, Chief Judge.

On January 4, 1967, Bruce Miller was arrested for robbery with firearms and has since been continuously in prison. Miller pleaded guilty to the charge but this was set aside because the trial court had not sufficiently apprised him of the possible punishment, Miller v. State, 424 S.W.2d 430 (Tex.Cr.App.1968). Upon remand, Miller stood trial and was convicted. This conviction was affirmed, Miller v. State, 472 S.W.2d 269 (Tex.Cr.App.1971). The appellate court held specifically that Miller's arrest was lawful because it had been made on probable cause, 472 S.W.2d at 272. ¹

More than nine years passed after Miller's arrest February 4, 1976, he filed a pro se suit for damages, 42 U.S.C., Sections 1981, 1983, and 1985, in which he charged that Officer N. S. Smith and Chief Donald Byrd of the Dallas Police Department had unlawfully arrested him on the robbery charge, in violation of his constitutional rights.

An arrest is to be viewed as proper as long as a conviction flowing from that arrest stands, Covington v. Cole, 528 F.2d 1365 (5 Cir., 1976), but the police officers relied instead on the Texas two-year statute of limitations, Article 5526 V.A.T.S. ² Miller responded that this period of limitation was tolled during his imprisonment by Article 5535 of the Texas statutes. ³ The District Court disagreed with this contention and dismissed the complaint, Miller v. Smith, 431 F.Supp. 821 (N.D.Tex.1977).

Since there is no federal statute of limitations for civil rights actions, federal courts will apply that statute of limitations which the forum state prescribed for suits seeking similar relief in state courts. E. g., Proctor v. Flex, 567 F.2d 635 (5 Cir., 1978); Kissinger v. Foti, 544 F.2d 1257 (5 Cir., 1977); Knowles v. Carson, 419 F.2d 369 (5 Cir., 1969).

The Texas tolling statute (Footnote 3, supra ) was last amended effective January 1, 1968, when the ancient imprisonment tolling provisions were left intact.

In the posture in which the case comes to us, the sole issue is whether the application of a state statute of limitations in a civil rights case mandates application of a state "tolling" provision where one exists.

Although there have been a few cases which peripherally approached it, this issue has not been precisely decided in this Circuit. Bryant v. Potts, 528 F.2d 621 (5 Cir., 1976) was a pro se prisoner suit, 42 U.S.C., Section 1983, alleging that property belonging to the plaintiff had been unlawfully seized and retained by defendant police officers. The seizure occurred December 16, 1969. The suit was not filed until September 15, 1975, far beyond the expiration of the Texas two-year limitations. The district court applied the two-year statute but the Texas tolling provisions had not been brought to its attention. Our panel vacated and remanded to allow the district court to "consider the applicability" of the tolling statute and "for further proceedings in due course in the event it is found applicable " (emphasis added), 528 F.2d at 623. Nothing was said in the opinion as to the standards to be observed by the district court when it "considered" the applicability of the tolling statute. In any event, the trial court was not told that it was required to apply the tolling statute.

Grundstrom v. Darnell, 531 F.2d 272 (5 Cir., 1976) (Summary Calendar) was a pro se 42 U.S.C., Section 1983, suit against a sheriff for certain alleged violations of civil rights. The district court dismissed on the ground that habeas corpus was the appropriate remedy. Our panel agreed and offered the observation that

It appears that Vernon's Ann.Tex.Stats. Art. 5535, which tolls limitations statutes as applied to persons imprisoned, will protect plaintiff against a statute of limitations bar as to any civil rights claims which he may eventually wish to assert, after full pursuit of habeas corpus relief. It has not been argued otherwise.

This observation, however, was not necessary to the decision of the case and there was no reasoned analysis in support of the observation.

On the other hand, we do not overlook Footnote 1 in the Fifth Circuit Section 1983 case of Neel v. Rehberg, 577 F.2d 262, 264 (1978):

1. In support of his contention that none of his allegations are time-barred, the plaintiff points to Ga.Code Ann. § 3-801, which provides:

Infants, idiots, or insane persons, or persons imprisoned, who are such when the cause of action shall have accrued, shall be entitled to the same time, after the disability shall have been removed, to bring an action, as is prescribed for other persons.

Thus, according to Neel, Georgia statutes of limitation are tolled in the case of persons under legal disability, which includes prisoners. In Heard v. Caldwell, S.D.Ga., 1973, 364 F.Supp. 419, the district court found that the doctrine that a prisoner cannot sue no longer exists in Georgia, and, in any event, that "(b)orrowing the state (statute of limitations) for the purpose of Civil Rights suits does not necessarily carry with it to the federal courts a tolling provision of the state law which has (the) effect" of "impeding or delaying the plaintiff from resort to the federally-created remedy." "The policy and intent of the federal law must be considered in dealing with the state limitation," the court added. 364 F.Supp. at 422. We agree with the district court and find that as a matter of federal law, Ga.Code Ann. § 3-801 does not apply to suits brought pursuant to 42 U.S.C. § 1983. See Mizell v. North Broward Hospital District, 5 Cir., 1970, 427 F.2d 468.

We are aware that the Sixth Circuit has held in a Section 1983 case that a federal district court borrowing the Ohio statute of limitations should have utilized the state tolling statute, Austin v. Brammer, 555 F.2d 142 (1977). To like effect, especially citing a New York Advisory Committee report that "As to a person imprisoned, legal capacity to sue, if it exists, is only a theoretical right" (1958), see Ortiz v. LaVallee, 442 F.2d 912 (2 Cir., 1971). The Ninth Circuit has also held that state statutory tolling must be observed, see Ney v. State of California, 439 F.2d 1285 (Circuit Judge Kilkenny dissenting, 1971); Horn v. Bailie, 309 F.2d 167 (9 Cir., 1962). See, also, Duncan v. Nelson, 466 F.2d 939 (7 Cir., 1972).

None of these cases contain any extended discussion or analysis for simply holding that in borrowing a state statute of limitations in a civil rights damage suit a federal district court is required to bring along, in tandem, a state tolling provision.

The District Court Decision

In declining to apply the Texas tolling statute to this civil rights case the District Court reasoned as follows:

1. At common law, a convicted felon was civilly dead and had not the legal capacity to prosecute a suit. Originally, this was the codified law of Texas, since repealed.

2. It has been over 75 years since a state court in Texas in a published opinion has tolled a statute of limitations because of a plaintiff's imprisonment (In 1978 a Texas Court of Civil Appeals applied the Texas tolling statute in favor of a Texas prisoner suing for personal injuries under the Texas Tort Claims Act, Jenkins v. State, 570 S.W.2d 175 (Tex.Civ.App., Houston, 1978)).

3. During the fiscal year 1976, 668 civil rights suits were filed in the United States District Courts in Texas, of which 41% were filed by prisoners.

4. Federal law guarantees a state prisoner the right to prosecute civil rights suits. If the prisoner is indigent he may proceed in forma pauperis. If the claim appears meritorious a prisoner-plaintiff may have counsel appointed to represent him. Prisoners are aided in gathering evidence through liberal discovery rules.

5. In federal question cases, federal principles are to be followed as to when a cause of action has accrued and as to when a statute of limitations is to be tolled, citing Holmberg v. Armbrecht, 327 U.S. 392, 66 S.Ct. 582, 90 L.Ed. 743 (1946).

6. To apply the Texas tolling statute would be "inconsistent with the policies underlying the federal civil rights act and, therefore, would be improper under 42 U.S.C., Section 1988". ⁴

Since the instant case was decided, another federal district court in Texas has met the same issue and decided it the same way, Stephens v. Curtis, 450 F.Supp. 141 (S.D.Tex.1978). The reported opinion in that case cites several other unreported federal district court decisions in Texas to like effect. ⁵ Reciting extensive statistics of a highly informative nature (450 F.Supp. at 143) the Stephens' Court pointed out that since 1960 civil filings in the district courts of the United States have increased 120.2% while prisoner filings have increased 797.4%. It was concluded:

It is therefore readily evident that prisoners are not, in fact, disabled from filing civil rights suits as they may have been at common law or under early Texas law. On the contrary, the rationale for a prisoner's disability in filing suit, as codified in Texas' century-old statute, has long since become obsolete.

Our Disposition of the Appeal

It is well settled that in states having no applicable tolling statute, imprisonment does not stop the running of an applicable limitations statute, Proctor v. Flex, 567 F.2d 635 (5 Cir., 1978); Kissinger v. Foti, 544 F.2d 1257 (5 Cir., 1977).

The...