Jones v. Shankland, 84-3623

• Decision Date: 20 October 1986
• Docket Number: No. 84-3623,84-3623
• Citation: 800 F.2d 77
• Parties: Harllel B. JONES, Plaintiff-Appellant, v. Robert SHANKLAND, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 77

800 F.2d 77

Harllel B. JONES, Plaintiff-Appellant, v. Robert SHANKLAND, et al., Defendants-Appellees.

No. 84-3623.

United States Court of Appeals, Sixth Circuit.

Argued Aug. 7, 1985.

Decided Sept. 2, 1986.

Rehearing and Rehearing En Banc Denied Oct. 20, 1986.

Richard L. Aynes, argued, Appellate Review Office School of Law, University of Akron, Akron, Ohio, Gary T. Kelder, College of Law, Syracuse University, Syracuse, N.Y., Theodore E. Meckler, Cleveland, Ohio, for plaintiff-appellant.

Colleen C. Cooney, Asst. County Prosecutor, Thomas P. Gill, argued, Kathleen Ann Sutula, George J. Sadd, Patrick McLaughlin, argued, U.S. Atty., Dale Kainski, argued, John D. Maddox, Robert M. Wolff, Asst. Director of Law, Cleveland, Ohio, for defendants-appellees.

Before ENGEL, MERRITT and KENNEDY, Circuit Judges.

ENGEL, Circuit Judge.

Harllel B. Jones appeals a judgment of the United States District Court for the Northern District of Ohio, granting defendants' motions to dismiss and for summary judgment in his civil rights action. In this appeal, Jones contends that the district court erroneously held that his claims against four defendants were barred by the applicable statute of limitations and that the remaining county defendants were absolutely immune from civil suit. We affirm.

A complete recital of events which brought about Jones' conviction of second degree murder in the Ohio state courts and his ultimate release upon issuance of a federal writ of habeas corpus is chronicled in Jones v. Jago, 428 F.Supp. 405 (N.D.Ohio 1977), aff'd, 575 F.2d 1164 (6th Cir.), cert. denied, 439 U.S. 883, 99 S.Ct. 223, 58 L.Ed.2d 196 (1978); and Jago v. United States District Court, 570 F.2d 618 (6th Cir.1978).

I.

On October 12, 1971, Harllel Jones was arrested and held to answer an indictment charging him with first degree murder and shooting with intent to kill. The state maintained that Jones had instigated the fatal shootings of two men on August 7, 1970, in retaliation for the death of a member of a political group which he had organized. On March 28, 1972, a jury convicted Jones of second degree murder and of shooting with intent to kill or wound. After exhausting his state remedies, Jones filed a petition for habeas corpus in the federal court in Cleveland charging, among other constitutional errors, that the prosecution had unconstitutionally suppressed exculpatory evidence.

During Jones' prosecution the state had refused to disclose a statement which the defense specifically requested. That statement, by a fifteen year old juvenile who had been present at the August 7 shootings, contained that person's recollections of that evening but made no mention of any involvement on the part of Jones. On February 10, 1977, the district court granted Jones' writ. Jones v. Jago, 428 F.Supp. 405 (N.D.Ohio 1977), and on June 24, 1977, Jones was released from prison on bond. On February 2, 1978, the Sixth Circuit rejected the prosecution's appeal of Jones' release, Jago v. U.S. District Court, Northern District of Ohio, East Division, at Cleveland, 570 F.2d 618 (6th Cir.1978), and on May 3, 1978, the Sixth Circuit affirmed the district court's decision granting a conditional writ of habeas corpus, Jones v. Jago, 575 F.2d 1164 (6th Cir.1978). The state's petition for a writ of certiorari was denied by the United States Supreme Court on October 2, 1978. Jago v. Jones, 439 U.S. 883, 99 S.Ct. 223, 58 L.Ed.2d 196 (1978). Finally, on February 12, 1979, the district court entered a "final" order unconditionally releasing Jones, the state having determined not to retry him.

On October 29, 1979, Jones filed a civil action in the United States District Court under 42 U.S.C. Secs. 1983, 1985(2) and (3) and 1986. He alleged that the earlier prosecution violated his rights under the First, Fourth, Fifth, Sixth, Eighth, Ninth, Thirteenth, Fourteenth and Fifteenth Amendments. He also alleged pendent state claims of false imprisonment, intentional infliction of emotional distress, malicious prosecution, abuse of process, invasion of privacy and defamation. Jones named eleven defendants. Three defendants, Robert Shankland, Thomas Mahon and James Fuerst, were officers of the police department of the City of Cleveland and were sued individually. Defendants William H. Greene, Jr. and William Kelley were each agents of the Federal Bureau of Investigation assigned to the Cleveland Field Office of the FBI. Greene and Kelley were sued individually. Robert Perry was alleged to be an undercover agent who worked for the Federal Bureau of Investigation as an informant. He was sued individually. Defendants John T. Corrigan, Robert E. Feighan and William J. Coyne were all employed by Cuyahoga County. Corrigan was the duly elected prosecutor for the county. Feighan and Coyne were assistant Cuyahoga County prosecutors. Corrigan, Feighan and Coyne were sued in both their individual and official capacities. Also named were the "Cuyahoga County Prosecutor's Office" and Defendant Cuyahoga County, the "Parent-Governmental" entity of the Cuyahoga County Prosecutor's Office. The liability of the prosecutor's office and the county was alleged to be "predicated upon the actions of defendant Corrigan."

Jones' lengthy complaint alleged that the named defendants acted either solely or in conspiracy to infringe his First Amendment rights, failed to disclose exculpatory information, procured false testimony, failed to correct perjured testimony, caused a conflict of interest for defense counsel and then did not disclose that conflict to Jones, put a "spy" in the defense camp and "covered up" the foregoing allegedly unconstitutional actions.

On July 2, 1984, Chief Judge Frank J. Battisti granted the city and federal defendants' motions to dismiss and a motion for summary judgment which had been filed by the county defendants. He held that Jones' claims against the city and federal defendants were governed by the one-year statute of limitations contained in Ohio Rev.Code Sec. 2305.11. Concluding that Jones' cause of action accrued at the very latest on October 2, 1978, when the Supreme Court denied certiorari, Judge Battisti found the suit time-barred. While Judge Battisti also concluded that the county defendants had waived the statute of limitations defense by not raising it in their pre-answer motion to dismiss, he nonetheless granted the county defendants' motion for summary judgment on the ground that they were entitled to absolute immunity for their actions in prosecuting the criminal case.

On appeal, Jones contends that the district court should have examined each claim made to determine which Ohio statute of limitations provision should have been applied. He argues also that his cause of action did not accrue until February 12, 1979, when the district court granted an unconditional writ or thirty days thereafter when the state's right to appeal that order expired. Moreover, he claims that the statute of limitations was tolled by Ohio Rev.Code Sec. 2305.16 because although physically free since June 24, 1977, he had remained constructively "imprisoned" under the restrictions of bail until the issuance of the unconditional writ. Finally, he argues that the county defendants were not immune from suit.

II.

We first conclude that Chief Judge Battisti was entirely correct in his determination that the individual county prosecutors were absolutely immune from personal liability in damage suits brought pursuant to 42 U.S.C. Sec. 1983. Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976).

Jones argues that many of the claims charged against those in the prosecutor's office relate to their role as administrator or investigative officers, rather than as advocates. His complaint contains essentially allegations of failing to disclose exculpatory and other information concerning witnesses, procuring false testimony, failing to correct perjured testimony, causing a conflict of interest for defense counsel, not disclosing that conflict to Jones, putting a "spy" in the defense camp, and "covering up" those allegedly unconstitutional actions.

The foregoing actions appear to us to be clearly within the scope of immunity contemplated by the Supreme Court in Imbler. The use of perjured testimony and the non-disclosure of exculpatory information are certainly entitled to absolute immunity. See Imbler, 424 U.S. at 431 n. 34, 96 S.Ct. at 995 n. 34. The conflict of interest problems and the spy allegations would also seem to be related to the acts of an advocate and thus come within the area of prosecutorial immunity as do the cover up allegations which merely appear to be restatements of the prosecution's claimed failure to disclose exculpatory information.

III.

The trial judge's determination that Jones' claims against the remaining defendants were governed by Ohio's one-year statute of limitations as contained in Ohio Rev.Code Sec. 2305.11 has since been fully reaffirmed by the Supreme Court's determination in Wilson v. Garcia, 471 U.S. 261, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985), that actions under section 1983 are best characterized as personal injury actions and subject to the state statutes of limitations for those types of claims. While there are two conceivable statutes of limitations in Ohio bearing on personal injury claims, one for negligent claims and one for intentional claims, our court in Mulligan v. Hazard, 777 F.2d 340 (6th Cir.1986), has recently held, consistent with Judge Battisti's ruling here, that the one-year limitations period of Ohio Rev.Code Sec. 2305.11 is more appropriate. We agree and accept Mulligan v. Hazard as stare decisis in our circuit on the question of Ohio's most nearly analogous statute. Mulligan v. Hazard is also authority in our circuit that Wilson v. Garcia is to be applied retroactively, dispelling any question of the applicability of the one-year period to the present case.

IV.

Having found that the one-year statu...