Epp v. Gunter

• Decision Date: 03 February 1988
• Docket Number: No. CV87-L-506.,CV87-L-506.
• Parties: William E. EPP, Plaintiff, v. Frank GUNTER and Charles Black, Defendants.
• Court: U.S. District Court — District of Nebraska

677 F. Supp. 1415

William E. EPP, Plaintiff, v. Frank GUNTER and Charles Black, Defendants.

No. CV87-L-506.

United States District Court, D. Nebraska.

February 3, 1988.

Stanley D. Cohen, Lincoln, Neb., for plaintiff.

Elaine A. Catlin, Asst. Atty. Gen., Lincoln, Neb., for defendants.

MEMORANDUM ON DEFENDANT'S MOTION TO DISMISS

URBOM, District Judge.

William Epp, the plaintiff, is an inmate at the Nebraska State Penitentiary ("NSP"). He alleges that the defendants deprived him of his liberty interest without due process in violation of the fourteenth amendment and seeks a remedy under 42 U.S.C. § 1983. The defendants, the then director of the Nebraska Department of Correctional Services and the then warden of the NSP, have filed a motion to dismiss, contending that the plaintiff's claim is time-barred by the applicable statute of limitations. The defendants argue that Nebraska's one-year statute of limitations for intentional torts, Neb.Rev.Stat. § 25-208 (Reissue 1985), rather than Nebraska's four-year statute of limitations for other personal injuries, Neb.Rev.Stat. § 25-207 (Reissue 1985), should be borrowed by the federal courts for use in section 1983 actions. The defendants contend that if the one-year statute obtains, Epp's action is time-barred.

The defendants acknowledge that my previous opinions and those of the other federal judges for the district of Nebraska reflect the court's decision to borrow Nebraska's four-year limitations period under § 25-207, but they observe that this court's previous decisions, all unpublished, do not reflect any consideration of the possible application of Nebraska's shorter personal injury limitations period.

The Eighth Circuit has not been confronted with choosing between two or more, potentially applicable statutes of limitations for section 1983 claims, and the circuit courts to which the issue has been presented are divided on the proper analysis and result. A review of the issue is in order.

Discussion

Wilson v. Garcia, 471 U.S. 261, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985), sets the stage.

It said that the nature of the section 1983 remedy and the federal interests involved demanded that the federal courts borrow the forum state's statute of limitations that governs personal injury causes of action for application in section 1983 cases. Accordingly, the Court held that the New Mexico statute of limitations for personal injuries that provided a "3-year statute of limitations governing actions `for any injury to the person or reputation of any person'" was the appropriate New Mexico limitation period to borrow for section 1983 actions. Id. at 280, 105 S.Ct. at 1949, quoting N.M.Stat.Ann. § 37-1-8 (1978).

Although the Supreme Court's holding in Wilson established an easily applicable rule for section 1983 cases that are commenced in a forum state having only one personal injury statute of limitations, it prompted a split among those courts facing two potentially applicable personal injury statutes of limitations in a forum. In Nebraska a choice must be made between Nebraska's four-year and one-year personal injury statute. Parenthetically, I note that Nebraska has a third statutory candidate. Section 25-219 sets a three-year limitation on actions for liability created by a federal statute. None of the parties claim that § 25-219 can serve section 1983 actions in view of the Wilson holding.

The Wilson opinion's guidance is limited, because the opinion can be reasonably interpreted to achieve different results. All the circuit courts that have tackled this issue agree on one fact: Wilson makes it clear that only the one most appropriate statute of limitations of a state should be borrowed for that state's section 1983 actions. Id. at 275, 105 S.Ct. at 1947.

Those circuits that have borrowed the forum state's statute of limitations governing intentional torts have identified with the Wilson court's language referring to the Ku Klux Klan's activities as the "specific historic catalyst" of section 1983. Id. at 276, 105 S.Ct. at 1947. The Wilson Court acknowledged that the legislative history of the reconstruction era acts establishes that the Ku Klux Klan's efforts to "deny decent citizens their civil and political rights" was the primary motivation behind passage of the civil rights acts and the court found that these types of atrocities sounded in tort. Id. at 276-77, 105 S.Ct. at 1947-48. To the contrary, those circuits that have chosen to borrow a more general personal injury statute of limitations from the forum state have capitalized on the Wilson court's language regarding the federal interest in ensuring that borrowed state limitations periods do not discriminate against plaintiffs who seek relief under the section 1983 remedy. Id. at 276, 105 S.Ct. at 1947.

Favoring the Intentional Tort Analogy

Following the Wilson opinion, the circuit court that first had to choose between two statutes of limitations for section 1983 actions was the Eleventh Circuit. In Jones v. Preuit & Mauldin, 763 F.2d 1250 (11th Cir.1985), the court relied heavily upon the Wilson Court's discussion of the Ku Klux Klan's role in demonstrating the need for the section 1983 remedy. Id. at 1255-56. The Eleventh Circuit found that the `essential nature' of a claim brought under section 1983 could be identified by "searching the legislative history of the statute and isolating the particular type of wrong that was most paradigmatic." Id. at 1255. The court found that the most significant group of injuries that Congress intended section 1983 to cover "were acts of intentional and direct violence on the part of the Ku Klux Klan." Id.

The Eleventh Circuit reasoned that the direct acts of violence against black citizens constituted the essential nature of section 1983 claims and that the essential nature was included under the description of trespass under Alabama law. Thus, the court found that actions for redress of modern section 1983 violations should be governed by Alabama's statute of limitations governing "any trespass to person or liberty, such as false imprisonment or assault and battery," rather than Alabama's one-year limitations period governing actions "for any injury to the person or rights of another ... not specifically enumerated in this section." Id. at 1254 quoting Ala.Code §§ 62-34(1), 6-2-39(a)(5)(1975).

Adhering to the reasoning in Jones, the Fifth Circuit in Gates v. Spinks, 771 F.2d 916 (5th Cir.1985), chose between two Mississippi statutes; one provided a one-year statute of limitations for most, if not all, common law intentional torts and the other provided a six-year statute of limitations for all causes of actions for which no other limitation was provided, including negligence and unintentional tort actions.

The Gates court agreed with the Jones court's analysis of the issue and found that Mississippi's statutory scheme was similar to Alabama's in that neither state had a general prescriptive statute governing all personal injury claims. Id. at 919. The proper starting point for analyzing the issue was found to be in recognizing Congress' dominant motivation for enacting section 1983. Agreeing with Jones, the Fifth Circuit acknowledged the fundamental influence that the Klu Klux Klan had on Congress when the section 1983 remedy was formulated and found that the paradigmatic wrong that prompted passage of section 1983 was the campaign of violence against black citizens.

The Gates court also considered the plaintiff's argument that the Wilson Court mandated the use of a statute of limitations for "general" personal injuries in section 1983 actions. However, the Fifth Circuit court found that Mississippi's "6-year residual statute has no more general application than the one-year statute," and determined, therefore, that the court's decision had to rest on some basis other than the word "general". Id. at 920. The court found that "most section 1983 actions are predicated on intentional rather than on negligent acts" and that Congress' intent in enacting section 1983 was to redress intentional misconduct. Id. at 920. Accordingly, the court found that the section 1983 action was more analogous to intentional torts governed by Mississippi's one-year statute than to nonintentional torts governed by the six-year statute.

The Sixth Circuit, in Mulligan v. Hazard, 777 F.2d 340 (6th Cir.1985), aligned itself with those courts that the Congress' enactment of section 1983 as a response to the Ku Klux Klan's violence against black citizens and found that Congress' concern was with "perpetrators of intentional tortious conduct." Accordingly, and without mention of Jones, the Mulligan court decided that suits for libel, slander, assault, battery, malicious prosecution, false imprisonment and malpractice, were more analogous to section 1983 claims than actions for other bodily injuries. Accordingly, Ohio's one-year statute was chosen over a two-year statute.

The only published opinion I have found of a court in the Eighth Circuit that has wrestled with this issue is Cook v. City of Minneapolis, 617 F.Supp. 461, 463 (D.Minn.1985). The choice was between a six-year statute "for any other injury to the person or rights of another, not arising on contract, and not hereinafter mentioned," and a two-year statute for "libel, slander, assault, battery, false imprisonment, or other tort resulting in personal injury." Id. at 464, quoting Minn.Stats. § 541.05 subd. 1(5) and § 541.07(1). The Cook court found the reasoning of the Jones court to be "persuasive and analogous to the instant action" and concluded that section 1983 claims should be characterized as "personal injury actions along the lines of an intentional tort for statute of limitations purposes." Id. at 465.

The Cook court rejected the idea that the essential nature of a section 1983 action could be determined by asking which of the state law causes of action for personal injury could also be brought under ...