842 F.2d 903 (6th Cir. 1988), 87-1105, McCune v. City of Grand Rapids

Docket Nº:87-1105.
Citation:842 F.2d 903
Party Name:James L. McCUNE, Plaintiff-Appellant, v. The CITY OF GRAND RAPIDS, a municipal corporation; Francis Pierce; Gerald Steele; John Doe; and Richard Roe, Defendants-Appellees.
Case Date:March 25, 1988
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 903

842 F.2d 903 (6th Cir. 1988)

James L. McCUNE, Plaintiff-Appellant,

v.

The CITY OF GRAND RAPIDS, a municipal corporation; Francis

Pierce; Gerald Steele; John Doe; and Richard

Roe, Defendants-Appellees.

No. 87-1105.

United States Court of Appeals, Sixth Circuit

March 25, 1988

Argued Jan. 25, 1988.

Page 904

Walter L. Harrison (argued), Grand Rapids, Mich., for plaintiff-appellant.

G. Douglas Walton (argued), Deputy City Atty., Grand Rapids, Mich., for defendants-appellees.

Before MILBURN and GUY, Circuit Judges, and CONTIE, Senior Circuit Judge.

CONTIE, Senior Circuit Judge.

James L. McCune appeals from the district court's judgment dismissing McCune's complaint in its entirety. For the following reasons, we affirm the district court's judgment in part, vacate the district court's judgment in part, and remand this case for further proceedings consistent with this opinion.

I. 1

Appellant James L. McCune was employed as a Grand Rapids Parks Patrol Officer from August of 1978 through the latter part of 1980. The Grand Rapids Police Department and the Grand Rapids Parks Department supervised appellant's work as a parks patrol officer. Apparently, appellee the City of Grand Rapids maintains both departments.

At the request of appellee Francis Pierce, a police officer who was acting deputy chief of police or acting chief of police for appellee the City of Grand Rapids at all times relevant to the instant case, McCune agreed to act as an undercover officer to investigate burglaries, armed robberies, and transactions in illegal controlled substances. In the course of his duties as an undercover officer, appellant regularly reported to Pierce concerning the extent of drug activity appellant observed. Also, in the course of his duties as an undercover officer, appellant on one occasion gave Pierce $1200 cash which was appellant's share in one of the robberies with which he was subsequently charged. Appellant understood that the cash proceeds would be used as evidence against the robbers. Finally, in the course of his duties as an undercover officer appellant kept a detailed notebook from which he reported to Pierce.

In April of 1981, officers employed by the City of Walker, Michigan, the Kent County Sheriff's Department, and the City of Grand Rapids arrested McCune in the city of Walker. Appellant was charged with approximately seven counts of armed robbery, conspiracy to commit armed robbery, and breaking and entering. Appellee Pierce was present when appellant was arrested. Pierce made no attempt to stop the arrest or to inform the arresting officers that appellant's activity giving rise to the charges was done in furtherance of appellant's duties as an undercover officer.

Appellee Gerald Steele who was a police officer and acting deputy chief of police at all times relevant to the instant case came into possession of McCune's notebook which detailed his undercover activities. Steele hid the notebook to prevent the exculpatory evidence contained therein from being produced.

After McCune's arrest in April of 1981, he was incarcerated in the Kent County Jail. Appellant posted bond on May 22, 1981, and subsequently fled Michigan in fear of his life. Appellant turned himself in to the Federal Bureau of Investigation (F.B.I.) on March 22, 1982. Thereafter, he was incarcerated until on or about February 11, 1983. All charges against appellant were dropped on September 12, 1983.

On June 17, 1985, McCune filed a complaint in the United States District Court for the Western District of Michigan. The complaint alleges that appellees the City of

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Grand Rapids, Francis Pierce, Gerald Steele, John Doe and Richard Roe in concert and conspiracy knowingly and falsely caused McCune to be subjected to criminal prosecution and imprisonment. Appellant also alleges that appellee Gerald Steele secreted the notebook which contained evidence which exculpated appellant. Appellant alleges that as a result of these wrongs appellees deprived appellant of rights, privileges and immunities secured by the United States Constitution in violation of 42 U.S.C. Sec. 1983. The district court dismissed McCune's complaint on December 30, 1986, holding that it had not been filed within the applicable three year statute of limitations.

McCune filed this timely appeal. This court must decide whether the district court erred in dismissing appellant's complaint in its entirety for failure to comply with the statute of limitations.

II.

In Wilson v. Garcia, 471 U.S. 261, 276-280, 105 S.Ct. 1938, 1947-1950, 85 L.Ed.2d 254 (1985), the Supreme Court held that the appropriate statute of limitations to be applied in all section 1983 actions is the state statute of limitations governing actions for personal injury. Subsequently, in Carroll v. Wilkerson, 782 F.2d 44, 45 (6th Cir.), cert. denied, --- U.S. ----, 107 S.Ct. 330, 93 L.Ed.2d 302 (1986), this court held that Michigan's three year statute of limitations for personal injury claims, Mich.Comp.Laws Ann. Sec. 600.5805(8) (West 1987), governs section 1983 actions when the cause of action arises in Michigan. In the instant case, since the cause of action arose in Michigan, the applicable statute of limitations is Michigan's three year statute of limitations for personal injury claims.

The more critical question for the purposes of this appeal concerns when appellant's section 1983 cause of action accrued. Although Wilson held that state law provides the statute of limitations in section 1983 actions, it also reaffirmed that...

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