Bailey v. Faulkner, 84-2844

• Decision Date: 19 June 1985
• Docket Number: No. 84-2844,84-2844
• Citation: 765 F.2d 102
• Parties: Charles BAILEY, Plaintiff-Appellant, v. Gordon FAULKNER, Department of Corrections, and G.B. Valdez, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 102

765 F.2d 102

Charles BAILEY, Plaintiff-Appellant, v. Gordon FAULKNER, Department of Corrections, and G.B. Valdez,

Defendants-Appellees.

No. 84-2844.

United States Court of Appeals, Seventh Circuit.

Submitted April 18, 1985.

Decided June 19, 1985.

Joseph M. Kalday, Leg. Asst., Michigan City, Ind., for plaintiff-appellant.

Jay Rodia, Deputy Atty. Gen., Indianapolis, Ind., for defendant-appellee.

Before BAUER, WOOD and POSNER, Circuit Judges.

POSNER, Circuit Judge.

In 1983 the plaintiff, an inmate in an Indiana state prison, brought this pro se civil rights suit under 42 U.S.C. Sec. 1983 against the Commissioner of the Indiana Department of Corrections, Gordon Faulkner, and against one G.B. Valdez. The suit alleges that Valdez was an imposter doctor whose testimony at the plaintiff's criminal trial in 1972 resulted in the plaintiff's being convicted and imprisoned. He seeks damages as well as other relief against what he terms an unconstitutional imprisonment. The district judge dismissed the suit as barred by the statute of limitations, and the plaintiff appeals.

The state statute of limitations that the federal courts must borrow in a section 1983 suit is the statute of limitations for personal-injury suits, Wilson v. Garcia, --- U.S. ----, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985), which is two years in Indiana, Ind.Code Sec. 34-1-2-2. Applied here, a two-year limitation would have barred this suit sometime in 1974, nine years before it was brought; except that we may assume (without having to decide) that the plaintiff could have waited till 1979 to sue, because he says he did not learn, and could not have learned, of the imposture until 1977. But his suit, filed in 1983, would still be untimely, were it not for a provision of Indiana law that gives a person "under legal disabilities" two years after the disability is removed to bring suit. Ind.Code Sec. 34-1-2-5. Until 1982, a state prisoner was deemed to be "under legal disabilities" for this purpose. Ind.Code. Sec. 34-1-67-1(6). This provision, hopelessly archaic in an era when the ready access of prisoners to the courts, state and federal, is constitutionally guaranteed by cases such as Bounds v. Smith, 430 U.S. 817, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977), was repealed that year. Ind.P.L. 200, Sec. 1 (1982).

As an original matter, one might question the applicability of Indiana's (now repealed) prisoner tolling provision to a suit filed in federal court in 1982, given the broad and easy access that state prisoners have had to federal court for many years now. It was on this basis that the Fifth Circuit in Miller v. Smith, 615 F.2d 1037 (5th Cir.1980), refused in a section 1983 case to borrow a tolling provision of Texas law that is just like the Indiana tolling provision at issue in this case. There is contrary precedent in this circuit, however, and in several others. See, e.g., Duncan v. Nelson, 466 F.2d 939, 941-42 (7th Cir.1972); Whitson v. Baker, 755 F.2d 1406 (11th Cir.1985) (per curiam). In fact Miller stands alone. Although the approach of Wilson v. Garcia, in treating the issue of borrowing as a federal question to be resolved in accordance with the needs and circumstances of federal litigation, supports Miller, there is dictum in Wilson which suggests that when a federal court borrows a state statute of limitations, it should borrow any applicable tolling provisions along with the period of limitations itself. See --- U.S. ----, and n. 17, 105 S.Ct. at 1943 and n. 17. But what places the correctness of Duncan v. Nelson beyond question is the Supreme Court's decision in Board of Regents v. Tomanio, 446 U.S. 478, 100 S.Ct. 1790, 64 L.Ed.2d 440 (1980), which holds that when a federal court borrows a state statute of limitations to do service in a suit under section 1983, it must borrow the tolling provisions as well; and though tolling while the plaintiff is a prisoner was not in issue in Tomanio, we cannot see any reasonable basis for distinguishing the case on that ground. The only basis on which the Court in Tomanio was willing to consider not borrowing a tolling provision was if it would produce results inconsistent with the policies underlying section 1983, and we cannot say that a provision that gives a prisoner more time than he would otherwise have (or deserve) in which to bring a suit under that section would be inconsistent with the policies of section 1983. Although as we have said the recent Wilson case suggests a somewhat more flexible approach, the issue in that case was different and we cannot believe that Tomanio is no longer good law. See also Suslick v. Rothschild Securities Corp., 741 F.2d 1000, 1005 (7th Cir.1984). Finally, the repeal of the disability in 1982 cannot help the state, because a plaintiff has two years to sue after the removal of a disability, and this suit was...