City of Mound Bayou v. Johnson

Citation562 So.2d 1212
Decision Date18 April 1990
Docket NumberNo. 07-IA-59507,07-IA-59507
PartiesThe CITY OF MOUND BAYOU, Mississippi and Alfred Thompson, Individually, and as a Police Officer of the City of Mound Bayou, Mississippi v. Eddie JOHNSON, Jr.
CourtUnited States State Supreme Court of Mississippi

Lindsey C. Meador, Jacobs Eddins Povall Meador & Crump, Cleveland, for appellants.

John L. Hatcher, Cleveland, for appellee.


ROBERTSON, Justice, for the Court:


This case presents important questions concerning the period of time within which one charging police brutality must bring his action against the offending officer and the municipality whom he serves. Related are the questions of the limitations period governing actions for false arrest and malicious prosecution against a municipality.


We begin with a brief chronology of the events necessary to an understanding of the issues tendered on this appeal.

August 6, 1983 Plaintiff/Appellee, Eddie Johnson, Jr. arrested

Johnson Convicted in Mound Bayou Municipal Court on Charges of Resisting Arrest and Disturbing the Peace

January 31, 1984 County Court Verdict overturning Municipal Court and acquitting Johnson

August 6, 1984 Expiration of one year period from date of arrest and assault and battery

January 31, 1985 Expiration of one year period from date of Johnson's acquittal in County Court

June 7, 1985 Plaintiff/Appellee files complaint in Circuit Court of Bolivar County alleging police brutality, false arrest and malicious prosecution

July 2, 1985 Removal to U.S. District Court

July 9, 1985 Defendants/Appellants file Answer and Defenses in U.S. District Court

July 23, 1986 U.S. District Court dismisses Count III (Section 1983 claim) with prejudice, remands Counts I and II (state law claims) to Circuit Court of Bolivar County

July 7, 1988 Circuit Court Order Overruling Defendant's Motion to Dismiss, Certifying Question, and Staying Further Proceedings

September 7, 1988 Interlocutory Appeal granted by Supreme Court of Mississippi

Fleshing out the facts, we find that on June 7, 1985, Eddie Johnson, Jr. commenced the present civil action by filing his complaint in the Circuit Court of the Second Judicial District of Bolivar County, Mississippi. Johnson named as Defendants the City of Mound Bayou, Mississippi, a municipal corporation, and Alfred Thompson, individually, and as a police officer of the City of Mound Bayou. By reason of the present procedural posture of the case, we take the allegations of Johnson's complaint as true. Cain v. McKinnon, 552 So.2d 91 (Miss.1989); Wilkinson v. Mercantile National Bank, 529 So.2d 616, 618 (Miss.1988).

Johnson alleges that on Saturday morning, August 6, 1983, at approximately 3:00 a.m. he arrived at the home of his parents in Mound Bayou at which time he was unlawfully arrested by Officer Alfred Thompson who was at the time acting in his capacity as a police officer of the City of Mound Bayou. The complaint continues:

After falsely placing the Plaintiff under arrest, Defendant Alfred Thompson proceeded to wantonly and negligently beat upon the Plaintiff with his hands, fists, pistol and blackjack far more than necessary to take the Plaintiff into custody and was carried out in such negligent fashion as to demonstrate a lack of regard of the right of the Plaintiff to be free from unnecessary and unlawful bodily harm or the threat thereof. Such actions were without the due care and diligence which a reasonable and prudent individual, particularly a police officer, should have displayed under the same or similar circumstances. Defendant Alfred Thompson inflicted serious bodily injury upon Plaintiff, causing severe cuts, abrasions, bruises and sprains to left ear, upper lip, top of the head, right ankle sprain, left wrist and hand, right shoulder, and the loss of three teeth and other parts of the body of the Plaintiff, all of which caused severe and excruciating pain to the Plaintiff for a considerable period of time thereafter, all of which was done with a reckless and wanton disregard of and callous indifference of the rights of the Plaintiff and for the Johnson's complaint continues:

purpose of inflicting serious bodily injury upon him, all of which was totally unnecessary for the purpose of arrest or apprehending the said Plaintiff.

After the beating of the Plaintiff as aforesaid, Defendant Alfred Thompson placed handcuffs upon the Plaintiff in a rough and brutal manner and threw the Plaintiff inside his police vehicle, which proceeded to the Police Station in Mound Bayou, Mississippi. While in route and at the City Hall in Mound Bayou, Mississippi, Defendant Alfred Thompson again administered acts of brutality upon the Plaintiff while handcuffed and powerless to defend himself. Defendant Alfred Thompson apparently realizing at last what he had done to the Plaintiff, then proceeded to charge the Plaintiff with resisting arrest, hoping in some way that this would seem a justification for his conduct. Defendant Alfred Thompson further falsely charged Plaintiff with disturbing the peace in order to justify the false arrest of Plaintiff. The charges of resisting arrest and disturbing the peace were clearly without probable cause and were made against the Plaintiff out of anger and malice toward him, and were known by Defendant Alfred Thompson to be false.

In due course, Johnson was brought to trial in the Municipal Court of the City of Mound Bayou, on the charges of resisting arrest and disturbing the peace, whereupon Johnson was found guilty. Johnson subsequently perfected an appeal to the County Court of the Second Judicial District of Bolivar County, Mississippi, where, after trial by jury, the County Court on January 31, 1984, reversed each conviction, ordered the charges dismissed and Johnson finally discharged.

Johnson's complaint presents three claims. First, he asserts an action of assault and battery against Officer Thompson and the City of Mound Bayou. Second, he charges Thompson with false arrest, and Thompson and the City with malicious prosecution. Third, invoking the concurrent jurisdiction of this Court, Johnson states a claim for violation of his civil rights under 42 U.S.C. Sec. 1983.

In lieu of immediate answer, Defendants Thompson and the City of Mound Bayou seized upon the fact that Johnson had asserted a federal claim under Section 1983 and petitioned the United States District Court for the Northern District of Mississippi that the action be removed to that court. On July 23, 1986, the United States District Court held the federal claim time barred and dismissed that claim "with prejudice". 1 The Court ordered the remainder of the action, Johnson's claims for assault and battery, false arrest and malicious prosecution, remanded to the Circuit Court of Bolivar County. The City of Mound Bayou and Thompson then answered, asserting numerous defenses, including sovereign and qualified official immunity. 2

Of concern today is the defense that Johnson's claims are barred by Mississippi's one-year statute of limitations. Miss.Code Ann. Sec. 15-1-35 (1972). When the matter came on for hearing before the Circuit Court on Defendants' motion to dismiss by reason of the statute of limitations, that Court denied the motion, holding that that a substantial basis exists for a difference of opinion on the question of law as to which appellate resolution may materially advance a termination of the litigation herein, avoid exceptional expense to the parties herein, and resolve an issue of general importance in the administration of justice.

it was bound to do so under the authority of State For the Use of Smith v. Smith, 156 Miss. 288, 125 So. 825 (1930), inter alia, but in doing so, certified the question to this Court via interlocutory appeal, see Rule 5(a), Miss.Sup.Ct. Rules, expressing its belief

Specifically this Court feels that the Mississippi Supreme Court may wish to revisit and reconsider the rationale of State v. Smith, 156 Miss. 288, 125 So. 825 (1930) wherein the Supreme Court held that intentional torts committed by police officers were controlled by the six year general statute of limitations, rather than the one year limitation. Further, the Court is of the opinion that the Supreme Court may consider that State v. Smith, supra, has never been interpreted to apply the six year statute of limitations to a municipal, corporate defendant.

The Circuit Court's order of July 6, 1988, then stayed all proceedings in this action pending the interlocutory appeal.

This Court has heretofore held that substantial questions regarding whether an action should be dismissed as time barred by reason of a statute of limitations often meet the criteria of our Rule 5(a), making them appropriate for consideration via interlocutory appeal. American Electric v. Singarayar, 530 So.2d 1319, 1323 (Miss.1988); Kilgore v. Barnes, 490 So.2d 895, 896 (Miss.1986); Cf. Missouri Pacific Railroad Co. v. Tircuit, 554 So.2d 878 (Miss.1989). By order entered September 7, 1988, this Court granted Defendants' petition for interlocutory appeal to consider the important limitations questions presented.


Count I of Johnson's complaint states a claim generically akin to a common law assault and battery. See Williams v. Clark, 236 Miss. 423, 427, 110 So.2d 365, 367 (1959); Morgan v. Loyacomo, 190 Miss. 656, 663, 1 So.2d 510, 511 (1941); see also State For the Use of Smith v. Smith, 156 Miss. 288, 292, 125 So. 825, 826 (1930). If defendants were private parties, we are confident all would agree that Johnson's action is barred by Miss. Code Ann. Sec. 15-1-35 (Supp.1989), which in relevant part reads:

All actions for assault, assault and battery, maiming, false imprisonment, malicious arrest, or menace, ... shall be commenced within one year next after the cause of such action accrued, and not thereafter.

It is true that there is a certain amount of negligence language trailing along in Johnson's complaint. This is of no moment, as


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