Battle v. Lawson, 72-193.
| Decision Date | 23 May 1972 |
| Docket Number | No. 72-193.,72-193. |
| Citation | 352 F. Supp. 156 |
| Parties | Bobby BATTLE, Plaintiff, v. Wayne LAWSON, Police Chief, Oklahoma City Police Department, Oklahoma County, State of Oklahoma, and Curtis P. Harris, Seventh Judicial District of Oklahoma County, State of Oklahoma, Defendants. |
| Court | U.S. District Court — Western District of Oklahoma |
Bobby Battle, pro se.
Roy H. Semtner, Oklahoma City, Okl., for Lawson.
James R. McKinney, Oklahoma City, Okl., for Harris.
Plaintiff seeks recovery of $132.85 which he claims was taken from him on booking into the Oklahoma City Jail and never returned to him. Defendants have moved to dismiss on the grounds that Plaintiff's action is barred by limitations and that there exists in the case a defect of parties.
Plaintiff alleges:
1. He was arrested and booked on April 17, 1968 into the Oklahoma City Jail by Officer Edward Lee Moore. Personal belongings, including the $132.85 mentioned above, were taken from Defendant. He was given a receipt for the belongings but not the money.
2. He was taken before a magistrate on June 3, 1968 and a preliminary examination was conducted.
3. The District Attorney filed an information on June 5, 1968 charging Plaintiff with Robbery with Firearms after former conviction of a felony, specifying that Plaintiff took $170.00 from one Lafayette Fleming on April 17, 1968.
4. Plaintiff was released on bail, date unspecified, and his personal belongings returned to him. The money was not returned and Plaintiff was given the explanation that the money was being held as evidence.
5. The information previously filed against Plaintiff was dismissed on motion of the District Attorney on July 18, 1969.
6. On an unspecified date, Plaintiff again requested return of the money and was informed that the money was being held pending the refiling of the dismissed charge.
7. Plaintiff began the service of an unrelated sentence in the Oklahoma State Penitentiary on October 21, 1969.
8. Plaintiff was placed in "punitive segregation" from May 7, 1970 until an unspecified day in September, 1971 and was not allowed access to the courts.
9. Plaintiff attempted to file a replevin action against Defendant Harris in the Oklahoma County District Court on September 28, 1971; it does not appear that any action was actually filed.
10. Plaintiff attempted to file a replevin action against Defendant Lawson in the Oklahoma County District Court on October 20, 1971; it does not appear that any action was actually filed.
Plaintiff pleads jurisdiction of the Court under 28 U.S.C.A. § 1343 which authorizes jurisdiction of actions arising under 42 U.S.C.A. § 1983. The Constitutional right which Plaintiff appears to assert is the guarantee of the Fifth Amendment of the Constitution prohibiting the deprivation of property without due process of law. On the basis of such allegations, the Court appears to have jurisdiction of this action.
Defendants plead the bar of 12 Okl.St.Ann. § 95,1 which is applicable to cases arising under 42 U.S.C.A. § 1983. Crosswhite v. Brown, 424 F.2d 495 (Tenth Cir. 1970). This case apparently placed civil rights actions under the third subdivision of 12 Okl.St.Ann. § 95 to the exclusion of the seventh subdivision of that Statute.2 The Statute appears to encompass both unlawful takings of personalty as well as injuries to the rights of another. A limitation of two years therefore applies in this case.
Oklahoma has made provision for the disposition of stolen property. In effect, an officer coming into possession of allegedly stolen property holds it subject to the order of the magistrate before whom the information respecting such property is laid. 22 Okl.St.Ann. § 1322. On satisfactory proof of title thereto, the magistrate may deliver the same to the owner. 22 Okl.St.Ann. § 1323. Petitioner claims to be the owner of the money involved here and it would appear from the above Statutes that from the moment the money was taken from him he could have asserted his title thereto and obtained its return on proof of his title satisfactorily to the examining magistrate. It follows that Plaintiff's cause of action...
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...that court stated, in pertinent part: ... Personal participation is an essential allegation in a § 1983 claim. Battle v. Lawson, 352 F.Supp. 156 (W.D.Okl.1972); Campbell v. Anderson, 335 F.Supp. 483 (D.Del.1971); Christian v. Anderson, (unpublished, 10th Cir.1974); Case No. 74-1213; Ellerma......
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...District of Philadelphia, 346 F.Supp. 249, 253 (E.D.Pa.1972); Potts v. Wright, 357 F.Supp. 215, 218 (E.D.Pa.1973); Battle v. Lawson, 352 F.Supp. 156, 158 (W.D.Okl.1972); Hopkins v. Hall, 372 F.Supp. 182, 183 (E.D.Okl.1974); Veres v. County of Monroe, 364 F.Supp. 1327, 1331 (E.D.Mich.1973); ......
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Mingo v. Patterson, Civ. A. No. 78-K-336.
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