Fomby v. City of Calera

• Decision Date: 29 November 1983
• Docket Number: Civ. A. No. CV 83-PT-1853-S.
• Citation: 575 F. Supp. 221
• Parties: Gregory FOMBY, Plaintiff, v. CITY OF CALERA, a municipal corporation; Harry Deal, Chief of Police for City of Calera; Officer Robert "Rob" Kiker, a police officer in the City of Calera, Defendants.
• Court: U.S. District Court — Northern District of Alabama

575 F. Supp. 221

Gregory FOMBY, Plaintiff, v. CITY OF CALERA, a municipal corporation; Harry Deal, Chief of Police for City of Calera; Officer Robert "Rob" Kiker, a police officer in the City of Calera, Defendants.

Civ. A. No. CV 83-PT-1853-S.

United States District Court, N.D. Alabama, S.D.

November 23, 1983.

As Amended November 29, 1983 and February 21, 1984.

Roy J. Brown, Birmingham, Ala., for plaintiff.

Walter W. Bates, McDaniel, Hall, Parsons, Conerly, Scott & Lusk, P.C., Birmingham, Ala., for defendants.

MEMORANDUM OPINION

PROPST, District Judge.

This cause comes on to be heard on the Motion to Dismiss filed by the City of Calera (City) on September 14, 1983, which has been treated as a motion for summary judgment by order of this court entered on October 14, 1983.

The complaint was filed more than six months, but less than one year, after the occurrence of the incidents complained of. It generally seeks redress for alleged use of excessive force, illegal arrest, false imprisonment, assault and battery, denial of medical treatment and improper training and supervision. The City is alleged to have a policy and practice "to permit and encourage its police officers to violate the civil rights of the citizens in the manner described herein." No claim was filed with the City within six months of the occurrence of the incidents complained of. The issue is clearly defined. Is this court bound in this case by the decision of the Supreme Court of Alabama in Stewart, et al. v. City of Northport, Ala., 425 So.2d 1119 (Ala.1983), which holds that Ala.Code § 11-47-23 (1975) is the most analogous and applicable statute of limitations which must be applied in actions brought against Alabama municipalities under 42 U.S.C. § 1983?

The Alabama Supreme Court clearly recognized that "It is well established that in a § 1983 action, the courts must look to state law for the applicable statute of limitations.... Since the defendant is a municipality, the applicable Alabama statute of limitations is § 11-47-23, Code 1975. Section 11-47-23 states: `All claims against the municipality (except bonds and interest coupons and claims for damages) shall be presented to the clerk for payment within two years from the accrual of said claim or shall be barred. Claims for damages growing out of torts shall be presented within six months from the accrual thereof or shall be barred.'" 425 So.2d at 1121.

The Alabama Supreme Court distinguished Ehlers v. City of Decatur, 614 F.2d 54 (5th Cir.1980), by noting that, "The Ehlers court, however, read the Georgia statute as an exhaustion of remedies requirement, not as a statute of limitations," and stating that, "Alabama's statute is different from the Georgia statute under consideration in Ehlers. Section 11-47-23 does not require that an injured party give notice directly to the City before filing suit; rather this section has been construed to allow the filing of suit within the six-month period to be notice to the City." 425 So.2d at 1121.

The Stewart court further noted that, unlike the Georgia statute, which requires affirmative action by the municipal body before suit is filed, "Alabama's statute does not require such affirmative action. The only requirement is that suit be filed within the six months allowed by the statute of limitations. We are of the opinion that § 11-47-23 does not establish any constitutional barriers, such as the exhaustion of administrative remedies to plaintiffs' filing their § 1983 action. Therefore, Ehlers is not controlling in this cause." 425 So.2d at 1121-1122 (emphasis added).

To this judge's knowledge, this issue has been at least partially raised before two other judges of this court.¹ Neither of these judges found it necessary to directly confront the issue.² The issue has been directly presented to this court for decision.

The court approaches this subject with the strong feeling that it enters an area where infallibility will result only from finality. The court will thus briefly state what it deems to be the applicable principles which lead to its conclusion.

The choice of a limitations period for a federal cause of action is itself a question of federal law. Auto Workers v. Hoosier Corp., 383 U.S. 696, 701, 86 S.Ct. 1107, 1110, 16 L.Ed.2d 192 (1966). This court is not bound by any holding of the Alabama Supreme Court in determining what the applicable statute of limitations should be. The court should not apply Stewart to this case if to do so would violate federal law.³

There is no federal statute of limitations expressly applicable to suits brought under the provisions of 42 U.S.C. § 1983. In such cases federal courts "borrow" the most nearly analogous state statute of limitations. Calhoun v. Alabama Alcoholic Beverage Control Board, 705 F.2d 422, 424 (11th Cir.1983). The Fifth Circuit has held that the Alabama statutes of limitations most generally applicable to § 1983 cases are § 6-2-34, (six years) for actions sounding in trespass and § 6-2-39 (one year) for actions sounding in trespass on the case.⁴ The analogous statute is determined by the "essential nature of the claim." Beard v. Stephens, 372 F.2d 685 (5th Cir.1967).⁵ In Beard, the court stated: "We must first look at both federal and state law to determine whether the borrowed period has run. We look first to federal law to determine the nature of the claim and then to state court interpretations of the state's `statutory catalogue' to see where the claim fits into the state scheme.... The problem is a two step one—first, what under federal law is the `essential nature' of the claim, and second, what statute of limitations would the state courts hold applicable to this type of claim." 372 F.2d at 688 (emphasis added).⁶ The Court then proceeded to determine that the six year statute applied to a claim against the sheriff and his deputies for "wrongful wounding" of the plaintiff during an arrest and that the one year statute applied to a conspiracy claim and to a dereliction of duty claim.⁷

The Beard court declined to follow an approach that all § 1983 actions were actions "not arising from contract, and not specifically enumerated in this section."⁸

The 7th Circuit has held the § 1983 and the § 1985 claims, as statutory rights of action, were under the Illinois six-year statutes as "civil action(s) not otherwise provided for."

If we followed that broad approach the claims of appellant all would fall within the Alabama one year statute. Our view is that a procedure which as the first step of the two-step analysis characterizes the claim simply as a "statutory cause of action" does not meet the requirement of establishing the "essential nature" of the claim.

372 F.2d at 690, n. 7.

The question which is now presented is by what approach does this court determine the essential nature of the claims now before the court? Is the "essential nature" that the claims are against a municipality or is the essential nature that the claims are for the use of excessive force, illegal arrest, false imprisonment, assault and battery, denial of medical treatment and improper training and supervision?⁹

In Monell v. New York City Dept. of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), the Supreme Court overruled a previous ruling in Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), and held that local governments were intended to be included among the "persons" to which § 1983 applies. Monell held that local governments "like every other § 1983 `person' by the very terms of the statute, may be sued for constitutional deprivations visited pursuant to governmental `custom' even though such a custom has not received formal approval through the body's official decision making channels." 436 U.S. at 690-691, 98 S.Ct. at 2035-36 (emphasis added).

Neither § 1983 nor Monell make a distinction between the procedures applicable to claims against municipalities and any other "person." Monell further states that: "Moreover, since municipalities through their official acts could, equally with natural persons, create the harms intended to be remedied by § 1983 ... there is no reason to suppose that municipal corporations would have been excluded from the sweep of § 1983." 436 U.S. at 685-686, 98 S.Ct. at 2033 (emphasis added). Monell gives no indication that the fact that a claim is against a municipality affects its "essential nature."

Federal cases which have adopted state statutes of limitation by analogy have focused on the nature of the claim or the cause of action and the type of relief sought, not the nature of the party being sued. See Beard, supra; Davis v. U.S. Steel Supply Division of U.S. Steel Corp., 581 F.2d 335 (3rd Cir.1978); Braden v. Texas A & M University System, 636 F.2d 90 (5th Cir.1981); Miller v. Smith, 615 F.2d 1037, rehearing granted 625 F.2d 43 (5th Cir.1980). This court has not found nor been cited a federal § 1983 case which has adopted a statute of limitations based on the party being sued.

In Garcia v. University of Kansas, 702 F.2d 849 (10th Cir.1983), the court said:

"Similarly state statutory periods depend in some instances on the official position of the defendant, thus a stated period for suits against police officers or county commissioners. The status of the defendants, however, has no relation to the nature of the cause of action under sections 1981 or 1983 ....

The Court in Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 95 S.Ct. 1716, 44 L.Ed.2d 295, indicated that such state limitations should be ignored which are "inconsistent with the Federal policy underlying the cause of action." This to us is an indication that the nature of the cause of action is the fundamental consideration ....

In Board of Regents v. Tomanio, 446 U.S. 478, 100 S.Ct. 1790, 64 L.Ed.2d 440, there is a reference to the nature of the cause of action, not a description of the defendants, not how the cause was created, and not the details as to

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