731 F.2d 640 (10th Cir. 1984), 83-1017, Garcia v. Wilson

Docket Nº:83-1017, 83-1018.
Citation:731 F.2d 640
Party Name:Gary GARCIA, Plaintiff-Appellee, v. Richard WILSON and Martin Vigil, Defendants-Appellants.
Case Date:March 30, 1984
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

Page 640

731 F.2d 640 (10th Cir. 1984)

Gary GARCIA, Plaintiff-Appellee,


Richard WILSON and Martin Vigil, Defendants-Appellants.

Nos. 83-1017, 83-1018.

United States Court of Appeals, Tenth Circuit

March 30, 1984

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Ben M. Allen of Rodey, Dickason, Sloan, Akin & Robb, Albuquerque, N.M. (John W. Cassell, Sp. Asst. Atty. Gen., Asst. Legal Advisor, New Mexico State Police, Santa Fe, N.M., filed a brief on behalf of defendant-appellant Vigil), for defendants-appellants.

Richard Rosenstock, Chama, N.M. (Steven G. Farber, Santa Fe, N.M., with him on the brief), for plaintiff-appellee.

Thomas L. Johnson of Modrall, Sperling, Roehl, Harris & Sisk, P.A., Albuquerque, N.M., filed a brief for amicus curiae State of New Mexico.

Before SETH, Chief Judge, and HOLLOWAY, McWILLIAMS, BARRETT, DOYLE, McKAY, LOGAN and SEYMOUR, Circuit Judges.

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SEYMOUR, Circuit Judge.

Gary Garcia brought these consolidated civil rights actions under 42 U.S.C. Sec. 1983 (1976) against former New Mexico State Police Officer Richard Wilson, and State Police Chief Martin Vigil. Garcia alleged that his constitutional rights were violated when Wilson viciously beat him on his face and body with a "slapper" and then sprayed him with tear gas. Garcia further alleged that Vigil had improperly permitted Wilson to be hired as a State Police officer when Vigil knew or should have known that Wilson had previously been convicted of several serious crimes and when Vigil had been advised not to hire Wilson by two high ranking New Mexico State Police officers. Garcia also asserted that Vigil had been grossly negligent in failing to train, supervise, and discipline Wilson properly when he knew that Wilson had assaulted other county residents after he became a police officer.

Defendants moved to dismiss the action, asserting that the suit was barred by the statute of limitations. The district court denied the motion and certified the issue for interlocutory appeal pursuant to 28 U.S.C. Sec. 1292(b) (1976).

The only issue before us is what limitations period should be applied to this section 1983 claim. We have determined to give en banc consideration to this case in order to harmonize our decisions in this area, resolve any inconsistencies, and establish a uniform approach to govern resolution of this question in future cases.


No statute of limitations is expressly provided for civil rights claims brought under section 1983. However, Congress has specifically directed us to look to state law in civil rights cases when federal law is deficient and the state law "is not inconsistent with the Constitution and laws of the United States." See 42 U.S.C. Sec. 1988 (1976) 1 This admonition has been interpreted to mean that " 'the controlling period would ordinarily be the most appropriate one provided by state law.' " Board of Regents v. Tomanio, 446 U.S. 478, 485, 100 S.Ct. 1790, 1795, 64 L.Ed.2d 440 (1980) (quoting Johnson v. Railway Express Agency, 421 U.S. 454, 462, 95 S.Ct. 1716, 1721, 44 L.Ed.2d 295 (1975)).

The first step in selecting the applicable state statute of limitations is to characterize the essential nature of the federal action. Knoll v. Springfield Township School District, 699 F.2d 137, 140 (3d Cir.1983); Braden v. Texas A & M University System, 636 F.2d 90, 92 (5th Cir.1981); Burns v. Sullivan, 619 F.2d 99, 105 (1st Cir.), cert. denied, 449 U.S. 893, 101 S.Ct. 256, 66 L.Ed.2d 121 (1980). Characterization of such a federal claim is a matter of federal law. UAW v. Hoosier Cardinal Corp., 383 U.S. 696, 706, 86 S.Ct. 1107, 1113, 16 L.Ed.2d 192 (1966); Pauk v. Board of Trustees, 654 F.2d 856, 865-66 & n. 6 (2d Cir.1981), cert. denied, 455 U.S. 1000, 102 S.Ct. 1631, 71 L.Ed.2d 866 (1982); Zuniga v. Amfac Foods, Inc., 580 F.2d 380, 383 (10th Cir.1978); Williams v. Walsh, 558 F.2d 667, 672 (2d Cir.1977). The court must then determine which state limitations period is applicable to this characterization. Braden, 636 F.2d at 92; Burns, 619 F.2d at 105. Although the federal courts are bound by the state's construction

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of its own statutes of limitations, it is a question of federal law whether a particular statute, as construed by the state, is applicable to a federal claim. Knoll, 699 F.2d at 141-42; Pauk, 654 F.2d at 866 n. 6.

There is little dispute that these fundamental principles govern the choice of a limitations period for civil rights claims. However, the courts vary widely in the methods by which they characterize a section 1983 action, and in the criteria by which they evaluate the applicability of a particular state statute of limitations to a particular claim. The actual process used to select an appropriate state statute varies from circuit to circuit and sometimes from panel to panel. See, e.g., Garcia v. University of Kansas, 702 F.2d 849 (10th Cir.1983); Garmon v. Foust, 668 F.2d 400 (8th Cir.) (en banc), cert. denied, 456 U.S. 998, 102 S.Ct. 2283, 73 L.Ed.2d 1294 (1982); Beard v. Robinson, 563 F.2d 331 (7th Cir.1977), cert. denied, 438 U.S. 907, 98 S.Ct. 3125, 57 L.Ed.2d 1149 (1978).

Given the varied factual circumstances producing civil rights violations and the diversity of state limitations statutes, it is not surprising that no uniform approach to this problem has developed. Moreover, the Supreme Court has been singularly unhelpful in providing guidance on this important issue of federal law. The Court has instructed us to borrow "the state law of limitations governing an analogous cause of action," Tomanio, 446 U.S. at 483-84, 100 S.Ct. at 1794-95, to " 'adopt the local law of limitation,' " Runyon v. McCrary, 427 U.S. 160, 180, 96 S.Ct. 2586, 2599, 49 L.Ed.2d 415 (1976) (quoting Holmberg v. Armbrecht, 327 U.S. 392, 395, 66 S.Ct. 582, 90 L.Ed. 743 (1946)), and to apply "the most appropriate one provided by state law." Johnson v. Railway Express Agency, 421 U.S. at 462, 95 S.Ct. at 1721. Unfortunately, however, the Court has not addressed the issues that divide the circuits: what federal considerations are relevant to characterizing a civil rights claim and to determining whether a state limitations period is analogous or appropriate.

In the face of Congressional refusal to enact a uniform statute and the Supreme Court's failure to come to grips with the problem, it is imperative that we establish a consistent and uniform framework by which suitable statutes of limitations can be determined for all section 1983 claims in this circuit. In so doing, we must be mindful of the broad remedial purposes of this civil rights legislation. See Childers v. Independent School District No. 1, 676 F.2d 1338, 1342-43 (10th Cir.1982). However, the Supreme Court has clearly stated that the policies of certainty and repose embodied in statutes of limitations are not inconsistent with the purposes of section 1983 and are therefore not to be disfavored in civil rights cases. See Tomanio, 446 U.S. at 487-89, 100 S.Ct. at 1796-97. With these considerations in mind, we begin our analysis by examining the approaches adopted by other circuits.

  1. First Circuit

    The First Circuit has characterized a section 1983 claim alleging the unconstitutional termination of public employment as sounding in tort, and has applied the Puerto Rican statute governing general tort suits to such a claim. See Ramirez de Arellano v. Alvarez de Choudens, 575 F.2d 315 (1st Cir.1978); Graffels Gonzalez v. Garcia Santiago, 550 F.2d 687 (1st Cir.1977). However, in a subsequent case in Massachusetts, the court disregarded this characterization and chose instead to apply a state statute giving public employees six months to file an unlawful employment action in state court. The court stated that the statute was "specifically tailored to deal with the plaintiff's cause of action." Burns v. Sullivan, 619 F.2d 99, 106 (1st Cir.), cert. denied, 449 U.S. 893, 101 S.Ct. 256, 66 L.Ed.2d 121 (1980); see also Holden v. Commission Against Discrimination, 671 F.2d 30 (1st Cir.), cert. denied, --- U.S. ----, 103 S.Ct. 97, 74 L.Ed.2d 88 (1982). 2

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    In a recent case involving professional disciplinary proceedings in Maine, the First Circuit analogized plaintiff's section 1983 claim to various specific common law torts based on the underlying facts and the relief sought. See Gashgai v. Leibowitz, 703 F.2d 10 (1st Cir.1983) (alleged state deprivation of reputation and ability to practice medicine most analogous to defamation and "false light" invasion of privacy). The court adopted this approach without discussion, notwithstanding its arguable inconsistency with earlier cases. Thus, in Walden, III, Inc. v. Rhode Island, 576 F.2d 945, 947 (1st Cir.1978), the court refused to analogize the plaintiff's claim to a specific tort, remarking:

    "While for purposes of deciding this case we need not rule finally on the appropriateness of ever referring to more than one statute of limitations should a precisely analogous state claim indisputably have a different limitations period, it is obviously preferable that one statute of limitations, such as that provided for torts, apply generally to most if not all Sec. 1983 actions arising in a particular jurisdiction."

    Id. at 947 (emphasis added).

  2. Second Circuit

    The Second Circuit recently affirmed its earlier decisions characterizing all section 1983 claims as actions on a liability created by statute. Pauk v. Board of Trustees, 654 F.2d 856, 866 (2d Cir.1981), cert. denied, 455 U.S. 1000, 102 S.Ct. 1631, 71 L.Ed.2d 866 (1982). The court refused to find section 1983 claims analogous to common law torts, stating that "[w]hile some Sec. 1983 claims have counterparts in actions at common law, the constitutional tort remedied by Sec. 1983 is 'significantly different from' state torts ...." Id. (quoting Monroe v. Pape, 365 U.S. 167, 196, 81 S.Ct. 473, 488, 5 L.Ed.2d 492 (1961) (Harlan, J., concurring)). The court also rejected application of state statutes governing suits to...

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