702 F.2d 849 (10th Cir. 1983), 79-1166, Garcia v. University of Kansas

Docket Nº:79-1166.
Citation:702 F.2d 849
Party Name:Paul A. GARCIA, Plaintiff-Appellant, v. UNIVERSITY OF KANSAS, Archie R. Dykes, Helmut E. Huesbergen, Robert P. Cobb, Walter Hiersteiner, C. John Conard, James J. Basham, M.D., E. Bernard Franklin, Robert H. O'Neil, M.D., Marshall P. Reeve, Glee S. Smith, M. Prudence Hutton, Frank A. Lowman, Erich A. Albrecht, Frank Baron, Ernest S. Dick, Charles Fi
Case Date:March 09, 1983
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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Page 849

702 F.2d 849 (10th Cir. 1983)

Paul A. GARCIA, Plaintiff-Appellant,

v.

UNIVERSITY OF KANSAS, Archie R. Dykes, Helmut E. Huesbergen,

Robert P. Cobb, Walter Hiersteiner, C. John Conard, James J.

Basham, M.D., E. Bernard Franklin, Robert H. O'Neil, M.D.,

Marshall P. Reeve, Glee S. Smith, M. Prudence Hutton, Frank

A. Lowman, Erich A. Albrecht, Frank Baron, Ernest S. Dick,

Charles Findlay, Henry Fullenwider, Warren Maurer, Helga

Vigliano, Donald K. Watkins, and Carol Worth, Defendants-Appellees.

No. 79-1166.

United States Court of Appeals, Tenth Circuit

March 9, 1983

Alan E. South of Crews, Milliard & South, Kansas City, Mo., and B.H. Milliard of Crews, Milliard & South, Overland Park, Kan., for plaintiff-appellant.

Robert T. Stephan, Atty. Gen., State of Kan., and Ann Victoria Thomas, Sp. Asst. Atty. Gen., and Associate General Counsel, University of Kansas, Lawrence, Kan., for defendants-appellees.

Before SETH, Chief Judge, SEYMOUR, Circuit Judge, and MARKEY, [*] Judge.

SETH, Chief Judge.

This action is one brought pursuant to 42 U.S.C. Secs. 1981 and 1983. Plaintiff-appellant

Page 850

claims that the University of Kansas and its agents and employees discriminated against him by failing to hire him because of his nationality. The district court treated the motion to dismiss on limitations grounds as a motion for summary judgment and dismissed the action. The trial court found that the nature of plaintiff's causes of action based on 42 U.S.C. Secs. 1981 and 1983 were for injury to personal rights and were barred by K.S.A. Sec. 60-513(a)(4) which allows only two years within which to bring "an action for injury to the rights of another, not arising on contract, and not herein enumerated." This appeal followed.

Since there is no applicable federal statute of limitations relating to civil rights actions brought under sections 1981 and 1983, federal courts must apply "the most appropriate one provided by state law." Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 95 S.Ct. 1716, 44 L.Ed.2d 295; Board of Regents v. Tomanio, 446 U.S. 478, 100 S.Ct. 1790, 64 L.Ed.2d 440; Brown v. Bigger, 622 F.2d 1025 (10th Cir.); Crosswhite v. Brown, 424 F.2d 495 (10th Cir.). In Zuniga v. AMFAC Foods, Inc., 580 F.2d 380 (10th Cir.), we recognized "that the characterization of [an] action for the purpose of selecting the appropriate state limitations provision is ultimately a question of federal law" and is a problem. "But there is no reason to [completely] reject the characterization that state law would impose unless that characterization is unreasonable or otherwise inconsistent with [the policy of the federal statute]." The wrong which plaintiff alleged was a violation of the right to equal protection of the laws by the defendants' discriminatory action in failing to hire him. This was the cause of action. The district court characterized the cause of action against the defendants as being in tort. Appellant contends that the more appropriate description of the cause of action is that of one created by statute. See K.S.A. Sec. 60-512(2).

We must center on the cause of action asserted under sections 1981 and 1983. The cause is one for violation of plaintiff's constitutional rights. We should not be concerned with how the rights were violated, such as by a discharge or by an assault, as this is only an assertion of the manner in which the violation was accomplished. It is not a description of the rights violated.

Similarly state statutory periods depend in some instances on the official position of the defendant, thus a stated period for suits against police officers or county commissioners. The status of the defendant, however, has no relation to the nature of the cause of action under sections 1981 or 1983. Again many limitations statutes are directed to the manner in which the cause of action is created, thus the suspect ones directed to federally created rights, or ones directed generally to rights created by statute. These descriptions are again unrelated to the nature of the cause of action asserted.

The Court in Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 95 S.Ct. 1716, 44 L.Ed.2d 295, indicated that such state limitations should be ignored which are "inconsistent with the federal policy underlying the cause of action." This to us is an indication that the nature of the cause of action is the fundamental consideration.

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