McMillian v. City of Rockmart
| Decision Date | 06 August 1981 |
| Docket Number | No. 81-7054,81-7054 |
| Citation | 653 F.2d 907 |
| Parties | Ernie H. McMILLIAN, Plaintiff-Appellant, v. CITY OF ROCKMART, Buddy Cagle and Lee Hayes, Defendants-Appellees. Summary Calendar. . Unit B |
| Court | U.S. Court of Appeals — Fifth Circuit |
Marson G. Dunaway, Jr., Rockmart, Ga., for plaintiff-appellant.
C. Stephen Malone, Rockmart, Ga., for City of Rockmart and Cagle.
Wayne W. Gammon, Cedartown, Ga., for Hayes.
Appeal from the United States District Court for the Northern District of Georgia.
Before GODBOLD, Chief Judge, KRAVITCH and HATCHETT, Circuit Judges.
Ernie McMillian, appellant, appeals the order of the district court granting summary judgment in favor of the City of Rockmart and two city police officers, appellees, on the basis that appellant's action brought under 42 U.S.C. § 1983 was barred by the applicable statute of limitations. Because we find that the district court properly applied Georgia's two-year period of limitations applicable to personal injuries, we affirm the district court.
Rockmart police officers arrested Ernie McMillian on July 9, 1977, and charged him with violations of city ordinances. The recorder's court, a municipal court established by the city charter, found McMillian guilty and imposed upon him alternatively a $100 fine or thirty days confinement. Following the trial, in response to McMillian's charges of irregularities surrounding his arrest, the mayor and city council of Rockmart investigated the actions of the arresting officers and took disciplinary action against them. McMillian appealed the decision of the recorder's court to the Superior Court of Polk McMillian contends that the district court applied the wrong period of limitations, and that Georgia's twenty-year period of limitations covering suits for the enforcement of rights accruing to individuals under statutes or by operation of law should apply here. McMillian also contends that even if the district court properly applied the two-year statute of limitations, the court erred in rejecting his contention that the City engaged in a continuing course of conduct against him. Thus, the period of limitations began to run with each subsequent act on the part of the City and so was not tolled at the time McMillian filed this action. McMillian bases this contention on the fact that he was prosecuted in the recorder's court on charges stemming from his arrest, as well as the fact that the City appeared in the Superior Court and the Supreme Court of Georgia opposing his attempts to appeal the decision of the recorder's court. Additionally, McMillian contends that the district court violated Rule 56(c), Federal Rules of Civil Procedure, in granting a motion for summary judgment without a hearing and without notifying the parties that the court would make a final determination of the case.
County, Georgia, pursuant to a provision in the Rockmart City charter. The superior court granted the City's motion to dismiss McMillian's appeal on the ground that appeal is an improper method of review of decisions of the recorder's court, despite the provisions contained in the Rockmart City charter. The Supreme Court of Georgia upheld this decision. McMillian then filed a civil action pursuant to 42 U.S.C. § 1983 in the federal district court alleging irregularities surrounding his arrest. This action was filed on July 12, 1979, two years and three days after McMillian's arrest. The district court granted the City's motion for summary judgment on the ground that McMillian's action was barred by Georgia's two-year period of limitations on actions for injuries to the person. This appeal followed.
We must determine (1) which period of limitations should be applied to this action brought in the State of Georgia pursuant to 42 U.S.C. § 1983; (2) if the two-year period of limitations applies, whether the district court erred in finding no continuing course of conduct against the appellant; and (3) whether the district court abused its discretion in granting summary judgment in favor of the appellees.
It is well established that when Congress has provided no period of limitation, as here for a claim under 42 U.S.C. § 1983, the federal court must use the applicable statute of limitations from the state in which it sits. O'Sullivan v. Felix, 233 U.S. 318, 34 S.Ct. 596, 58 L.Ed. 980 (1914). This borrowing is a two-step process. The court must first determine the essential nature of the federal claim before it, and then look to state law in order to determine which state statute is applicable to claims similar to the one before the court. McGuire v. Baker, 421 F.2d 895 (5th Cir. 1970), cert. denied, 400 U.S. 820, 91 S.Ct. 37, 27 L.Ed.2d 47 (1971). Georgia law provides a two-year limitations period for "actions for injuries to the person." Ga.Code Ann. § 3-1004. 1 The Fifth Circuit has applied this statute to actions brought under 42 U.S.C. § 1983. Wooten v. Sanders, 572 F.2d 500 (5th Cir. 1978).
McMillian contends that the twenty-year limitations period prescribed in the first portion of Ga.Code Ann. § 3-704 2 is
applicable to all claims brought under 42 U.S.C. § 1983. The Georgia statute provides that "(a)ll suits for the enforcement of rights accruing to individuals under statutes ... shall be brought within twenty years after the right of action shall have accrued." McMillian contends that this twenty-year limitation period is applicable because his action is based on a federal statute. The Fifth Circuit, however, has held that this statute applies only to rights of action given to individuals by special legislative acts, and not to rights of action accruing to members of the public from general statutes. Hendryx v. E. C. Atkins & Co., 79 F.2d 508 (5th Cir. 1965). Further, Georgia courts have stated that this section applies only to rights which arise under legislative enactment and which would not exist except for some act of the legislature, and that it does not apply to suits to enforce liability under a particular statute which merely codifies a legal principle previously recognized. Williams v. Clemons, 178 Ga. 619, 173 S.E. 718 (1934). The United States Supreme Court has ruled that 42 U.S.C. § 1983 does not create any substantive rights. Rather, it creates only remedies for the violation of certain fundamental rights derived from the Constitution and subsequently created federal statutory rights. Chapman v. Houston Welfare Rights Organization, 441 U.S. 600, 99 S.Ct. 1905, 60 L.Ed.2d 508 (1979); Maine v. Thiboutot, 448 U.S. 1, 100 S.Ct. 2502, 65 L.Ed.2d 555 (1980). Because 42 U.S.C. § 1983 does not fall within the Georgia statutory language providing for enforcement of rights accruing under statutes, then, the district court was correct in applying Georgia's two-year period of limitations covering actions based on personal injury.
McMillian contends that the City engaged in a continuing course of conduct in his prosecution in the recorder's court and in the course of McMillian's unsuccessful attempts to appeal the decision of the recorder's court. There is no indication that the City has any authority or right of review over the decisions of the recorder's court, either as to which cases will be prosecuted or as to the final determination of the issue before the court. Although the governing authority of the City of Rockmart appoints the judge of the recorder's court, that governing authority has no right to review the decisions of the court. Review of the recorder's court decision lies in the superior court by writ of certiorari. Ga.Code Ann. § 19-101; Ga.Code Ann. § 24-2615(4). The city charter, however, states that review is by appeal.
McMillian points to the fact that the city attorney, as prosecuting officer, knew of the factual situation surrounding McMillian's arrest and did not attempt to prohibit the recorder's court from processing the action against the plaintiff. Both the prosecuting officer and the judge of the recorder's court have absolute immunity for their official acts, Procunier v. Navarette,...
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