Covington v. Winger, G78-516.

• Citation: 562 F. Supp. 115
• Decision Date: 25 April 1983
• Docket Number: No. G78-516.,G78-516.
• Parties: James Luther COVINGTON, Plaintiff, v. Matt WINGER, Metro Squad; Lansing Police Department, Defendants.
• Court: U.S. District Court — Western District of Michigan

562 F. Supp. 115

James Luther COVINGTON, Plaintiff, v. Matt WINGER, Metro Squad; Lansing Police Department, Defendants.

No. G78-516.

United States District Court, W.D. Michigan, S.D.

February 15, 1983.

On Motion for Reconsideration April 25, 1983.

Thomas G. Buford, Rita L. Repko, Howard & Howard, P.C., Kalamazoo, Mich., for plaintiff.

Stephen R. Sawyer, City Atty., Lansing, Mich., for defendants.

OPINION

ENSLEN, District Judge.

Plaintiff filed this civil rights action in propria persona in the Eastern District of Michigan on May 24, 1978, alleging that certain items of Plaintiff's personal property had been seized in a police search and had not been returned to him, in violation of his due process rights under the Fourteenth Amendment. A change of venue to this District was granted in July 1978. On April 12, 1982 Defendants moved to dismiss or for summary judgment, on various grounds. Soon after, counsel was appointed to represent Plaintiff who filed a responsive brief. Plaintiff's attorneys have also filed an Amended Complaint on Plaintiff's behalf, and it is in light of this Complaint that Defendants' motion will be judged.

Plaintiff alleges that his apartment was illegally searched on or about May 23, 1971, by the Defendant Metro Squad, including officers of the Defendant Lansing Police Department. (The Metro Squad is apparently an investigative agency consisting of various local police agencies in the Lansing area). Plaintiff claims that the search warrant was limited to narcotics, but that these Defendants seized other items from his apartment as well: four hand guns; one shot gun; three money orders; and a jar of old coins. Defendants deny that the search was illegal but admit to seizing the guns and three money orders. As a result of the search, Plaintiff was charged with possession of heroin, and convicted. The conviction was reversed by the Michigan Court of Appeals in August 1973, on grounds which have not been disclosed to this Court. The following month, Plaintiff allegedly requested and obtained a state court judge's verbal order for the return of the guns, money orders and jar of coins. According to Plaintiff, Defendant Winger was to assist him in retrieving the items and failed to do so. Plaintiff states that when he was present in state court on June 18, 1974, he was finally informed that the property had been misplaced or lost. He claims that Defendants' failure to return the property was willful and in reckless disregard of his rights.

Count I of Plaintiff's Amended Complaint asserts that the search and seizure violated Plaintiff's Fourth Amendment rights; Count II, that Plaintiff was deprived of his property without due process of law, in violation of the Fourteenth Amendment. Plaintiff asks for the return of the items, or damages for their loss in the amount of $894; and for punitive damages in the amount of $26,106.

I. Statute of Limitations

Defendants argue that even if Plaintiff's cause of action did not accrue until June 18, 1974, the action should be dismissed as barred by the statute of limitations, since it was not commenced until 1978. Plaintiff contends that although this action was not filed within three years of the 1974 accrual of the claim, the statute of limitations was tolled because Plaintiff was incarcerated at that time. Because Defendants have directed the Court's attention to Plaintiff's responses to interrogatories, this motion may be treated as one for summary judgment. FRCP 12(c). Of course, in evaluating a motion under FRCP 56, the Court must construe the facts in the light most favorable to the nonmoving party. United States v. Diebold, Inc., 369 U.S. 654, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962); Bohn Aluminum and Brass Corporation v. Storm King Corporation, 303 F.2d 425 (CA 6 1962). Summary judgment will be appropriate only where there are no genuine issues of material facts. Adickes v. S.H. Kress & Company, 398 U.S. 144, 147, 90 S.Ct. 1598, 1603, 26 L.Ed.2d 142 (1970); Chavez v. Noble Drilling Company, 567 F.2d 287 (CA 6 1978).

While the parties have touched only lightly on the question of when the cause of action accrued, a thorough review of the pleadings and Plaintiff's responses to interrogatories convinces me that Plaintiff's claim accrued in 1971, and therefore appears to be barred. Generally, in civil rights actions the Court must look to state law for the statute of limitations which applies in analogous state causes of action, since § 1983 and § 1985 do not contain their own limitations provisions. Kilgore v. City of Mansfield, Ohio, 679 F.2d 632 (CA 6 1982); Krum v. Sheppard, 255 F.Supp. 994 (W.D.Mich.1966), aff'd, 407 F.2d 490 (CA 6 1967). Michigan's three year statute of limitations governs this civil rights claim. M.C.L.A. § 600.5805(8); Krum v. Sheppard, supra; Kurzawa v. Mueller, 545 F.Supp. 1254 (E.D.Mich.1982). However, federal law determines when the cause of action "accrued." Kurzawa; Bireline v. Seagondollar, 567 F.2d 260 (CA 4 1977), cert. den., 444 U.S. 842, 100 S.Ct. 83, 62 L.Ed.2d 54. The general rule in this regard is stated in Rubin v. O'Koren, 621 F.2d 114, 116 (CA 5 1980), on reh., 644 F.2d 1023:

A cause of action accrues under § 1983 when the plaintiff "knows or has reason to know of the injury which is the basis of the action." Lavellee v. Listi, 611 F.2d 1129 (CA 5 1979) at 1131.

The underlying injury involved here is the seizure of the items from Plaintiff's apartment in 1971. Certainly Plaintiff's claim of illegal search and seizure, under the Fourth and Fourteenth Amendments, accrued at that time. I find that Plaintiff's separate Fourteenth Amendment due process claim also accrued at the time of the search and seizure. Plaintiff was clearly aware in 1971 that the items had been removed from his apartment by Defendants. Furthermore, Plaintiff's answers to interrogatories disclose that Plaintiff himself wrote letters to Defendant Metro Squad in 1971 and 1972 requesting the return of the property; he also asked his state court defense counsel to move for the return of the items. Plaintiff was "deprived" of the property in 1971, was aware of the taking at that time; and it is from that date that the statute of limitations runs. See Schaefer v. Stack, 641 F.2d 227 (CA 5 1981).

Plaintiff would have the Court focus on the date Plaintiff was advised that the property had been misplaced and would not be returned to him, in determining the date of accrual of his cause of action. Admittedly, it may have been as late as 1974 that Plaintiff learned that the property could not be returned to him because it had been lost. But this is simply an effect of the initial seizure of Plaintiff's property; and while it may be determinative of Plaintiff's available remedies (obviously Plaintiff at that time learned that he probably could no longer obtain the return of the items), a cause of action does not accrue at "the time at which the consequences of the acts become most painful." Abramson v. University of Hawaii, 594 F.2d 202, 209 (9th Cir. 1979), quoted in Delaware State College v. Ricks, 449 U.S. 250, 258, 101 S.Ct. 498, 504, 66 L.Ed.2d 431 (1980). Although in Ricks, the Supreme Court was speaking to accrual of a cause of action in the context of employment termination, its language applies equally to the injury complained of here. I am additionally persuaded that Plaintiff's entire cause of action accrued in 1971, by Plaintiff's pro se brief and response to Defendants' motion. Plaintiff clearly feels that the gravamen of his claim is the allegedly illegal search and seizure which took place in 1971.

The facts which lead me to this conclusion are undisputed, so that summary judgment on this issue is appropriate. Therefore, unless the statute of limitations was tolled in this case, Plaintiff's claims are barred, since this action was filed more than three years after the cause of action accrued.

In Board of Regents v. Tomanio, 446 U.S. 478, 100 S.Ct. 1790, 64 L.Ed.2d 440 (1980), the Supreme Court held that the question of whether a limitations period is tolled is an inherent aspect of the state statute of limitations. Since federal courts must look to the state for the statute of limitations in § 1983 and § 1985 actions, the courts are obligated to also apply state tolling statutes, as long as the result is not inconsistent with the Constitution or federal law.

Michigan's tolling statute provides, in pertinent part:

If the person first entitled to ... bring an action is ... imprisoned at the time his claim accrues, he ... shall have one year after his disability is removed through death or otherwise, to ... bring the action although the period of limitations has run.

* * * * * *

To be deemed a disability, the ... imprisonment must exist at the time the claim accrues.

M.C.L.A. § 600.5851(1), (3).

In Major v. Arizona State Prison, 642 F.2d 311 (CA 9 1981), the court held that a similar Arizona statute was not intended to apply where a prisoner in fact had access to the federal court system and was thus not "disabled" from bringing suit under § 1983. I might be inclined to make a similar finding here, if it were not for a recent Michigan Court of Appeals decision, which holds that the Michigan tolling provision is intended to apply to prisoners across the board, regardless of the fact of improved access to the courts. Hawkins v. Justin, 109 Mich.App. 743, 311 N.W.2d 465 (1981). Of course, even under Board of Regents v. Tomanio, a state tolling provision can be overridden if found to be inconsistent with the Constitution or federal law. At least one case concluded that the Michigan statute is inconsistent with federal policy and law insofar as it tolls the statute of limitations in prisoners' civil rights actions where there is a clear demonstrated access to the federal court by the particular plaintiff. Campbell v. Guy, 520 F.Supp. 53 (E.D.Mich. 1981). That case was, however, decided prior to the Hawkins v. Justin case; it is unclear...