668 F.2d 400 (8th Cir. 1982), 80-2206, Garmon v. Foust

Docket Nº:80-2206.
Citation:668 F.2d 400
Party Name:Mark Alfred GARMON, Appellee, v. Robert FOUST; Robert Ervin and Charles Cramer, Appellants.
Case Date:January 05, 1982
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

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668 F.2d 400 (8th Cir. 1982)

Mark Alfred GARMON, Appellee,


Robert FOUST; Robert Ervin and Charles Cramer, Appellants.

No. 80-2206.

United States Court of Appeals, Eighth Circuit

January 5, 1982

Submitted Sept. 15, 1981.

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J. M. Sullivan, Asst. City Atty., Des Moines, Iowa, for appellants.

Gregory L. Biehler, argued, Smith, Schneder & Stiles, Charles S. Lavorato, Des Moines, Iowa, for appellee.

Before LAY, Chief Judge, and HEANEY, BRIGHT, ROSS, STEPHENSON, HENLEY, McMILLIAN and ARNOLD, Circuit Judges, En Banc.

BRIGHT, Circuit Judge.

In this appeal we consider which state statute of limitations applies in a federal civil rights action brought under 42 U.S.C. § 1983: the statute governing an action based on the underlying conduct of the defendant, or the state's general, "catch-all" statute of limitations. Resolving inconsistent applications of the Iowa statutes of limitations in section 1983 actions, we hold the general statute of limitations applicable.

Mark Alfred Garmon brought this action under 42 U.S.C. § 1983 against three members of the Des Moines, Iowa, police force. He charged them with violating his civil rights under the fourth and fourteenth amendments in an incident that occurred on December 18, 1975, slightly more than two years prior to his filing of the complaint. The police officers moved for summary judgment on the ground that Iowa's two-year statute of limitations, Iowa Code § 614.1 P 2 1 governing actions for injuries to person or reputation barred the action. The district court 2 denied the motion, ruling Iowa's five-year statute of limitations governing "all other actions," Iowa Code § 614.1 P 4 3, the more appropriate limitations provision. Noting the substantial difference of opinion regarding the applicable Iowa statute of limitations in section 1983 cases, however, the district court certified its interlocutory order for appeal under 28 U.S.C. § 1292(b). We permitted the appeal to resolve inconsistencies in similar cases arising in Iowa, and to clarify the law in this circuit on the appropriate state statute of limitations applicable to section 1983 cases. We now affirm the order of the district court applying Iowa's general statute of limitations in this civil rights action.

I. Factual Background.

On December 17, 1975, defendant Robert Foust of the Des Moines Police Department, received from employees of Drake University

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a package addressed to Mark Garmon that had arrived at the student resident hall where Garmon lived. Without a search warrant or probable cause, Foust took the package to a state judge, who ordered it opened. After discovering that the package contained a green, leafy substance, the officer resealed the package.

The state court issued a warrant on December 18, 1975, authorizing the search of Garmon's dormitory room. Foust, and codefendants Robert Ervin and Charles Cramer, searched plaintiff's room and discovered a controlled substance.

Garmon was charged under Iowa law with possession of a controlled substance. The seizure and search of the package without a warrant or probable cause, however, had tainted all subsequent actions including the issuance of the warrant authorizing the police to search Garmon's room. As a result, Garmon's court-appointed attorney successfully moved to suppress the evidence obtained from the package and from plaintiff's dormitory room. The State subsequently dropped the criminal charges.

On December 20, 1977, more than two years later, Mark Garmon instituted this action against Des Moines policemen Robert Foust, Robert Ervin, and Charles Cramer under 42 U.S.C. § 1983. The complaint alleged that in December 1975, defendants' actions under color of state law deprived Garmon of

(t)he right * * * to be secure in his person and effects against unreasonable search and seizure under the Fourth and Fourteenth Amendments to the Constitution of the United States(, and)

(t)he right * * * not to be deprived of life, liberty or property without due process of law, secure(d) by the Fourteenth Amendment to the Constitution of the United States.

As a result of the illegal search and seizure, Garmon claimed that he suffered severe emotional distress, damage to his reputation, and impaired earning capacity.

The defendant policemen asserted Iowa's two-year statute of limitations, Iowa Code § 614.1 P 2 as a defense. The district court ruled section 614.1 P 2 inapplicable, however, and held the action timely under Iowa's general, five-year statute of limitations. Iowa Code § 614.1 P 4. The controversy before this court focuses on which of the following state statutory provisions governs suits brought under section 1983:


614.1 Period

Actions may be brought within the times herein limited, respectively, after their causes accrue, and not afterwards, except when otherwise specially declared:

2. Injuries to person or reputation-relative rights-statute penalty. Those founded on injuries to the person or reputation, including injuries to relative rights, whether based on contract or tort, or for a statute penalty, within two years.

4. Unwritten contracts-injuries to property-fraud-other actions. Those founded on unwritten contracts, those brought for injuries to property, or for relief on the ground of fraud in cases heretofore solely cognizable in a court of chancery, and all other actions not otherwise provided for in this respect, within five years, except as provided by subsection 8. (Iowa Code § 614.1 PP 2, 4 (Supp.1981) (emphasis added).)

II. Discussion.

When Congress established a cause of action for deprivation of civil rights, 42 U.S.C. § 1983, it did not include a period of limitations for such suits. Both the Rules of Decision Act, 4 and section 1988 5 of the

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Civil Rights Act, however, indicate that state statutes of limitations govern unlimited federal causes of action.

Although the Supreme Court has never addressed the specific question presented in this case, it has stated as a general rule that,

when a federal statute creates a wholly federal right but specifies no particular statute of limitations to govern actions under the right, the general rule is to apply the state statute of limitations for analogous types of actions. See Auto Workers v. Hoosier Corp., 383 U.S. 696 (86 S.Ct. 1107, 16 L.Ed.2d 192); Cope v. Anderson, 331 U.S. 461 (67 S.Ct. 1340, 91 L.Ed. 1602); Campbell v. Haverhill, 155 U.S. 610 (15 S.Ct. 217, 39 L.Ed. 280.) (Chevron Oil Co. v. Huson, 404 U.S. 97, 104, 92 S.Ct. 349, 354, 30 L.Ed.2d 296 (1971).)

Since 1914, when the Supreme Court decided O'Sullivan v. Felix, 233 U.S. 318, 34 S.Ct. 596, 58 L.Ed. 980 (1914), federal courts have "borrowed" state statutes of limitations in civil rights suits, by applying "the most appropriate one provided by state law." Johnson v. Railway Express Agency, 421 U.S. 454, 462, 95 S.Ct. 1716, 1721, 44 L.Ed.2d 295 (1975).

This approach has not yielded uniform results among the federal courts because of the differing analogies drawn between section 1983 actions and state remedies. Courts have variously adopted the state statute of limitations applicable to the state common law tort action for the conduct underlying the section 1983 action, 6 the statute of limitations for causes of action created by statute, 7 or the general, "catch-all" statute of limitations applicable to causes of action not specifically governed by other statutes of limitations. 8

Various panels of this court have also taken inconsistent approaches to the application of state statutes of limitations in section 1983 actions. A comparison of Glasscoe v. Howell, 431 F.2d 863 (8th Cir. 1970) (rejecting the tort analogy) with Savage v. United States, 450 F.2d 449 (8th Cir. 1971), cert. denied, 405 U.S. 1043, 92 S.Ct. 1327, 31 L.Ed.2d 585 (1972) (accepting the tort analogy) exemplifies the split within the Eighth Circuit.

In Glasscoe, an Arkansas resident brought an action under section 1983 against Arkansas police officers, alleging that they had deprived him of his civil rights by arresting him with unnecessary force and violence. Rejecting a tort analogy in the application of a state statute of limitations, the court refused to hold the action time-barred under the one-year Arkansas statute of limitations governing actions for false imprisonment and assault and battery.

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We do not feel that the appellee's action here can be narrowly characterized as merely an action for assault and battery. The United States Supreme Court has made it clear that an action commenced under 42 U.S.C. § 1983 alleging a deprivation of federal constitutional rights under color of state authority is a broad statutory remedy provided for by Congress. Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961). Although such a remedy may also exist at common law, there is an apparent distinction. The Ninth Circuit, in Smith v. Cremins, (308 F.2d 187, 190 (9th Cir. 1962)), explained this distinction:

"Section 1983 of the Civil Rights Act clearly creates rights and imposes obligations different from any which would exist at common law in the absence of statute. A given state of facts may of course give rise to a cause of action in common-law tort as well as to a cause of action under Section 1983, but the elements of the two are not the same. The elements of an action under Section 1983 are (1) the denial under color of state law (2) of a right secured by the Constitution and laws of the United States. Neither of these elements would be required to make out a cause of action in common-law tort; both might be present without creating common-law tort liability."

(Glasscoe v. Howell, supra, 431 F.2d at 865.)

Because 42 U.S.C. § 1983 constitutes a statutory remedy for deprivation of constitutional rights, the panel concluded that either the three-year limitation for an action "founded on any contract or...

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