Corliss v. City of Fall River

• Decision Date: 01 November 2005
• Docket Number: No. CIV.A. 05-11406-DPW.,CIV.A. 05-11406-DPW.
• Citation: 397 F.Supp.2d 260
• Parties: Albert Henry CORLISS, Plaintiff, v. CITY OF FALL RIVER and Does 1-10, Defendants.
• Court: U.S. District Court — District of Massachusetts

397 F.Supp.2d 260

Albert Henry CORLISS, Plaintiff, v. CITY OF FALL RIVER and Does 1-10, Defendants.

No. CIV.A. 05-11406-DPW.

United States District Court, D. Massachusetts.

November 1, 2005.

COPYRIGHT MATERIAL OMITTED

Thomas F. McGuire, Jr., McGuire & Coughlin PC, Fall River, MA, for City of Fall River, Defendant.

MEMORANDUM AND ORDER

WOODLOCK, District Judge.

The Plaintiff has returned to this Court with a new federal civil rights theory nine months after I dismissed his first law suit, which involved a state law conversion claim against the same Defendants based upon the same set of underlying facts, for lack of subject matter jurisdiction. In the nine-month period between the dismissal of his first suit and the commencement of his second, the applicable three-year statute of limitations as to both his conversion and his civil rights claims ran out. As a consequence, the Plaintiff seeks refuge in the Massachusetts one-year renewal statute and argues that, having returned to the court before the protection of the renewal statute lapsed, he can benefit from an extended statute of limitations. The Defendants have moved to dismiss. I find that while the Massachusetts renewal statute can, as a general proposition, function to extend the statute of limitations for § 1983 actions, it may not do so here because the new federal civil rights theory does not present a "new action for the same cause" as the original conversion claim I dismissed.

I. BACKGROUND

Pro se Plaintiff, Albert Henry Corliss, alleges that on or about May 3, 2001 a towing company improperly towed his 1988 Nissan pick-up truck from the Watuppa Indian Reservation in Fall River on the instructions of the Fall River Police Department. Mr. Corliss first learned that his vehicle had been towed, as opposed to stolen, when he received a written notice dated June 30, 2001 from the towing company. The written notice stated that the vehicle was towed at the request of the Fall River Police Department. It is unclear precisely when Mr. Corliss received this letter, but it was certainly before December 26, 2001 because on that date he composed a letter to the towing company referencing the June 30, 2001 notice.

Mr. Corliss filed his first suit based on these facts on April 27, 2004. See Corliss v. Levesque Auto Services, Inc., No. 04-cv-10834-DPW. The Plaintiff sought relief against the towing company (Levesque Auto Services, Inc.), the Fall River Police Department, and Does 1-10 under Mass. Gen. Laws ch. 266, § 120D for conversion. Mr. Corliss identified the damages as equal to the fair market value of his truck ($1500) at the time of the conversion and any other costs that the Court may deem appropriate. In a Memorandum and Order issued October 13, 2005, I found neither diversity nor federal question jurisdiction over that essentially state law dispute and accordingly granted the Fall River Police Department's motion to dismiss the action in its entirety pursuant to Fed.R.Civ.P. 12(b)(1).

On July 5, 2005, the Plaintiff filed the present lawsuit in this Court against the City of Fall River (the "City") and Does 1-10, but not against Levesque Towing, seeking relief under 42 U.S.C. § 1983 for what he now styles as a violation of his First Amendment right to peaceably assemble based on the towing incident. He does not attempt to renew the conversion claim. The Plaintiff is seeking recovery of his goods, damages and an end to what he calls the institutionalized behavior by the City which he claims has effectively deprived the Nemasket Troy Indian Tribe of the peaceful enjoyment of their deeded reservation. The City has moved for dismissal pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim, arguing that the applicable statute of limitations has run.

II. DISCUSSION

A. Standard of Review Under 12(b)(6)

Under Fed.R.Civ.P. 12(b)(6), a court may only dismiss a complaint "if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Lalonde v. Textron, Inc., 369 F.3d 1, 6 (1st Cir.2004)(citing Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002)). Where the motion for dismissal is premised on the running of the applicable limitations period, the pleader's allegations must leave "no doubt that [the] asserted claim is time-barred." Jorge v. Rumsfeld, 404 F.3d 556, 561 (1st Cir.2005) (citing LaChapelle v. Berkshire Life Ins. Co., 142 F.3d 507, 509 (1st Cir.1998)).

I recognize that I must hold a pro se plaintiff's allegations "to less stringent standards than formal pleadings drafted by lawyers." Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972). "Nonetheless, pro se plaintiffs must comply with the applicable procedural and substantive rules of law, and dismissal remains appropriate when the court lacks jurisdiction over the claims or the parties and when the complaint fails to even suggest an actionable claim." Overton v. Torruella, 183 F.Supp.2d 295, 303 (D.Mass.2001). See also Lefebvre v. Commissioner of Internal Revenue, 830 F.2d 417, 419 (1st Cir.1987).

B. The Basic Statute of Limitations

The statute of limitations applicable to an action for conversion under Massachusetts law is Mass. Gen. Laws ch. 260, § 2A, which provides that: "Except as otherwise provided, actions of tort, actions of contract to recover for personal injuries, and actions of replevin shall be commenced only within three years next after the cause of action accrues." See Stark v. Advanced Magnetics, Inc., 50 Mass.App.Ct. 226, 232, 736 N.E.2d 434 (2000) (holding that actions for conversion must be bought within the three years provided by Mass. Gen. Laws ch. 260, § 2A). The same provision applies to this § 1983 action because "[t]he Supreme Court directs federal courts adjudicating civil rights claims under 42 U.S.C. § 1983 to borrow the statute of limitations applicable to personal injury actions under the law of the forum state. Where a state has more than one statute of limitations that applies to personal injury actions, a federal court should borrow the state's general or residual personal injury statute of limitations. In Massachusetts, that statute is Mass. Gen. Laws ch. 260, § 2A[.]" Street v. Vose, 936 F.2d 38, 39 (1st Cir.1991)(internal citations omitted).

As a matter of state law, Mr. Corliss' tort claim accrued at the time he was injured. Dinsky v. Town of Framingham, 386 Mass. 801, 803, 438 N.E.2d 51 (1982). Since Mr. Corliss filed his first suit on April 27, 2004, chronologically less than three years after the towing and a fortiori less than three years after he acknowledged receiving notice of the towing, Mr. Corliss' first action was plainly filed within the statute of limitations period.¹

By contrast, Mr. Corliss' § 1983 action, considered separately, was not filed within the appropriate statute of limitations period after the civil rights claim accrued. The question of when a § 1983 cause of action accrues is a matter of federal law. Case law dictates that the accrual period begins in § 1983 actions "when the plaintiff knows or has reason to know of the injury which is the basis of the action." Street, 936 F.2d at 40 (citing Torres v. Superintendent of Police, 893 F.2d 404, 407 (1st Cir.1990)). See also Nieves-Marquez v. Puerto Rico, 353 F.3d 108, 119-20 (1st Cir.2003) (A claim accrues "when facts supportive of a civil rights action are or should be apparent to a reasonably prudent person similarly situated." (citation omitted)). Here, the § 1983 cause of action accrued, at the latest, when Mr. Corliss received the written notice informing him that his vehicle had been towed at the request of the Fall River Police Department. Since Mr. Corliss must have received the written notice before December 26, 2001, this action should have been filed by December 26, 2004, at the latest, to be timely according to Mass. Gen. Laws ch. 260, § 2A. Because Mr. Corliss did not file the present suit until July 5, 2005, the only way this suit can survive the Defendants' motion is if the § 1983 action comes within the scope of the Massachusetts renewal statute.

C. The Renewal Statute

Mass. Gen. Laws ch. 260, § 32, the renewal statute provides:

If an action duly commenced within the time limited in this chapter is dismissed for insufficient service of process by reason of an unavoidable accident or of a default or neglect of the officer to whom such process is committed or is dismissed because of the death of a party or for any matter of form, or if, after judgment for the plaintiff, the judgment of any court is vacated or reversed, the plaintiff or any person claiming under him may commence a new action for the same cause within one year after the dismissal or other determination of the original action, or after the reversal of the judgment; and if the cause of action by law survives the executor or administrator or the heir or devisee of the plaintiff may commence such new action within said year.

(emphasis supplied)

Mr. Corliss contends that the present suit is not time-barred because his original action was dismissed for a "matter of form" (lack of subject matter jurisdiction) and that the present action is a "new action for the same cause" filed within one year after my dismissal of the first action on October 13, 2004.

1. Does the Renewal Statute Apply? — If Mr. Corliss had brought a suit in state court against the same defendants for conversion after I dismissed his original federal suit, the state court would have been obligated to allow the action, at least with respect to timeliness, based on Mass. Gen. Laws ch. 260, § 32. See e.g. Liberace v. Conway, 31 Mass.App.Ct. 40, 42-43, 574 N.E.2d 1010 (1991). Similarly, if Mr. Corliss had originally brought his § 1983 action based on a First Amendment violation and I had dismissed it last year on the basis of some matter of form and he was now bringing the § 1983 action again having cured that...