Collard v. Kentucky Bd. of Nursing

• Citation: 896 F.2d 179
• Decision Date: 17 January 1990
• Docket Number: No. 89-5256,89-5256
• Parties: Margaret Sandra COLLARD, Plaintiff-Appellant, v. KENTUCKY BOARD OF NURSING; Dr. Bruce Neiger; and Sharon W. Weisenbeck, Cheryl Westbay, Sylvia Carson and Peggy Fishburn, Individually and in their official capacities as Hearing Officers of Kentucky Board of Nursing, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 179

896 F.2d 179

Margaret Sandra COLLARD, Plaintiff-Appellant, v. KENTUCKY BOARD OF NURSING; Dr. Bruce Neiger; and Sharon W Weisenbeck, Cheryl Westbay, Sylvia Carson and Peggy Fishburn, Individually and in their official capacities as Hearing Officers of Kentucky Board of Nursing, Defendants-Appellees.

No. 89-5256.

United States Court of Appeals Sixth Circuit.

Argued Dec. 1, 1989.

Decided Jan. 17, 1990.

Theodore H. Amshoff, Jr., Guy Anthony Bayes, and Walter M. Weber (argued), Amshoff, Amshoff & Searcy, Louisville, Ky., for plaintiff-appellant.

William C. Shouse, Kentucky Bd. of Nursing (argued), Linda J. Onkotz, William C. Goetz, Louisville, Ky., and Ronald G. Sheffer, Sheffer, Hoffman, Neel, Wilson & Thomason, Henderson, Ky., for defendants-appellees.

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

RALPH B. GUY, Jr., Circuit Judge.

Plaintiff, Margaret Collard, appeals from the dismissal of her 42 U.S.C. Sec. 1983 action. The suit was dismissed on the basis of the statute of limitations. The district court applied a one-year statute to plaintiff's claims and Collard argues that the applicable statute is five years. She also argues that even if a one-year statute applies, she properly initiated this action within that period of time.

Upon review, we conclude that the district court correctly applied the one-year statute of limitations and we affirm.

I.

Collard is a nurse licensed to practice in the Commonwealth of Kentucky. As a result of her attempt to stop what she maintains was an illegal abortion, two complaints were filed against her with the Kentucky Board of Nursing (KBN or Board). Hearings were held and, on December 13, 1983, the Board issued a final decision placing Collard on probation for two years and assessing a $500 fine. Collard then filed a complaint in the Jefferson Circuit Court, seeking to overturn the Board's decision. She attacked the decision on constitutional, statutory, and procedural grounds, claiming denial of due process as well as violation of rights guaranteed by the first amendment. After hearings and a review of the record, the Jefferson Circuit Court determined that Collard had not been denied due process. The circuit court also ruled that Collard's actions exceeded those protected by the first and fourteenth amendments of the United States Constitution and section five of the Kentucky Constitution. Collard appealed this decision. On October 4, 1985, the Kentucky Court of Appeals reversed the circuit court's decision, concluding that Collard had been denied due process in the hearing procedure. A motion for discretionary review was denied by the Kentucky Supreme Court on January 6, 1986. On March 6, 1986, the Board notified Collard that it intended to take no further action against her. This action was filed October 9, 1986.

II.

Since Congress has never legislated a statute of limitations period for section 1983 actions, the courts, pursuant to the mandate of 42 U.S.C. Sec. 1988, have had to look to analogous state statutes. Considerable confusion was generated which the Supreme Court sought to resolve in Wilson v. Garcia, 471 U.S. 261, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985). Since statutes of limitations differ from state to state, it was not possible for the Supreme Court to achieve country-wide uniformity. The Court did attempt to achieve as much uniformity as possible, however, by decreeing that only one statute in each state shall apply and that, in looking for the one applicable state statute, section 1983 claims should be "characterized as personal injury actions." 471 U.S. at 280, 105 S.Ct. at 1949.

Unfortunately, Wilson did not completely solve the problem since many states had more than one statute of limitations governing personal injury actions. As a result, the Supreme Court was forced to revisit this issue in Owens v. Okure, --- U.S. ----, 109 S.Ct. 573, 102 L.Ed.2d 594 (1989). In Owens, the defendants argued that a section 1983 action against two police officers should be governed by New York's one-year statute of limitations which covered eight intentional torts. The Court rejected the defendants' arguments and concluded that New York's three-year residual statute of limitations for claims of personal injury was the appropriate analogy. The Court reasoned that many states have a multiplicity of intentional tort statutes of limitations, but that "every State has one general or residual statute of limitations governing personal injury actions." 109 S.Ct. at 580. The Court concluded by stating:

We accordingly hold that where state law provides multiple statutes of limitations for personal injury actions, courts considering Sec. 1983 claims should borrow the general or residual statute for personal injury actions.

109 S.Ct. at 582. Although the rule is easy to state, it is somewhat more elusive to apply, as is demonstrated in this case.

Kentucky law provides a five-year statute of limitations for "an action for an injury to the rights of the plaintiff not arising on contract and not otherwise enumerated." Ky.Rev.Stat.Ann. Sec. 413.120(6) (Baldwin 1988). Plaintiff argues that the five-year statute should apply since she sustained no "injury to the person" but, rather, an injury to "[her] rights." In support of this argument plaintiff relies, at least in part, on Craft v. Rice, 671 S.W.2d 247 (Ky.1984). In Craft, the Kentucky Supreme Court concluded that Kentucky should recognize the tort of intentional infliction of emotional distress and that the applicable limitations period should be five years as provided in section 413.120(6). ¹ Plaintiff goes on to argue that Craft, at least impliedly, stands for the proposition that section 413.140(1)(a) is limited to those situations in which a plaintiff's claim flows from a physical injury sustained to the person.

Plaintiff's ability to make this argument is bottomed on the language in Owens v. Okure which directed that we borrow the "general or residual statute for personal injury actions." 109 S.Ct. at 582 (emphasis added). The use of the disjunctive allows plaintiff to make the argument that although the one-year statute (section 413.140(1)(a)) is the "general" personal injury statute, the five-year provision (section 413.120(6)) is the "residual" statute. These waters are further muddied by the following language from footnote 12 of the Owens opinion:

Our decision today is fully consistent with Wilson's rejection of a state residual, or "catch-all," limitations provision as the appropriate one for Sec. 1983 actions. 471 U.S., at 278, 105 S.Ct. at 1948. In Wilson, we rejected recourse to such provisions in the first instance, a position we continue to embrace. Courts should resort to residual statutes of limitations only where state law provides multiple statutes of limitations for personal injury actions and the residual one embraces, either explicitly or by judicial construction, unspecified personal injury actions. See, e.g., Small v. Inhabitants of City of Belfast, 796 F.2d 544 (CA1 1986) (construing Maine's catch-all statute as the general personal injury provision); Alley v. Dodge Hotel, 163 U.S.App.D.C. 320, 501 F.2d 880 (1974) (per curiam ) (construing District of Columbia's catch-all statute as the general personal injury provision).

109 S.Ct. at 582 n. 12.

Although note 12 is arguably confusing, we nonetheless find it helpful to the resolution of this issue when read against the backdrop of Kentucky's statutory scheme for the limitation of actions. Kentucky does not have "multiple" statutes of limitations for personal injury actions. When sections 413.120 and 413.140 are read in their entirety, ² it is clear that Kentucky intended to generally deal with personal injury actions in section 413.140 and that section 413.140(1)(a) is appropriately referenced as the general personal injury limitations statute. In fact, nowhere else does the language "personal injury" appear. If the Supreme Court had not decided Wilson and Owens, plaintiff's argument as a matter of pure logic might carry the day since plaintiff's claim here certainly partakes of "an injury to the rights of the plaintiff." However, in the interest of simplicity and uniformity, the Supreme Court has designated "personal injury" statutes rather than "personal rights" statutes as the benchmark. Accordingly, we conclude that section 1983 actions in Kentucky are limited by the one-year statute of limitations found in section 413.140(1)(a).

In reaching this conclusion we are not flying in the face of the Craft decision. Craft dealt, first of all, with whether Kentucky would even recognize a cause of action for intentional infliction of emotional distress. See Craft, 671 S.W.2d 247. Having answered this question in the affirmative, the Craft court then considered which limitations pigeonhole this new cause of action fit. Id. at 249-50. Whether we agree with the choice made by the Kentucky Supreme Court or not is immaterial since it was clearly their call. However, the case did not deal with a section 1983 cause of action and, even if it did, we would not be bound by the decision of the Kentucky Supreme Court. This was made clear in Wilson when the Court stated:

In borrowing statutes of limitations for other federal claims, this Court has generally recognized that the problem of characterization "is ultimately a question of federal law." Auto Workers v. Hoosier Cardinal Corp., 383 U.S. 696, 706 [86 S.Ct. 1107, 1113, 16 L.Ed.2d 192] (1966) (Sec. 301 of the Labor Management Relations Act of 1947, 29 U.S.C. Sec. 185).

471 U.S. at 269-70, 105 S.Ct. at 1943-44 (footnotes omitted). In fact, the Court in Wilson specifically rejected the New Mexico Supreme Court's conclusion as to the appropriate characterization of a section 1983 action.

It should also be noted that we have already held in an earlier post-Wilson decision that Kentucky's one-year statute of limitations governs section 1983 actions. In ...