Fox v. Desoto

• Decision Date: 04 June 2007
• Docket Number: No. 06-5930.,06-5930.
• Citation: 489 F.3d 227
• Parties: Brandon FOX, Plaintiff-Appellant v. Ronald DeSOTO, Louisville Regional Airport Authority, Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

489 F.3d 227

Brandon FOX, Plaintiff-Appellant v. Ronald DeSOTO, Louisville Regional Airport Authority, Defendants-Appellees.

No. 06-5930.

United States Court of Appeals, Sixth Circuit.

Argued: April 25, 2007.

Decided and Filed: June 4, 2007.

ARGUED: Garry Adams, Jr., Clay, Kenealy, Wagner & Adams, Louisville, Kentucky, for Appellant. Jennifer B. Swyers, Stites & Harbison, Louisville, Kentucky, for Appellees. ON BRIEF: Garry Adams, Jr., Wendi S. Wagner, Clay, Kenealy, Wagner & Adams, Louisville, Kentucky, for Appellant. Jennifer B. Swyers, Robert W. Griffith, Stites & Harbison, Louisville, Kentucky, for Appellees.

Before: GUY, COLE, and McKEAGUE, Circuit Judges.

OPINION

RALPH B. GUY, JR., Circuit Judge.

Plaintiff Brandon Fox appeals from the judgment entered in favor of defendants Officer Ronald DeSoto and the Louisville Regional Airport Authority on claims arising from his arrest and subsequent prosecution for disorderly conduct and resisting arrest. The district court dismissed plaintiff's state law claims for false arrest and imprisonment and for assault and battery as time-barred, and granted summary judgment to defendants on the remaining claims. The district court found DeSoto was entitled to qualified immunity on the plaintiff's Fourth Amendment claims, and concluded that the plaintiff could not prevail on either the claim for malicious prosecution against DeSoto or on the derivative claim against the Airport Authority for negligent hiring, training, and/or retention of DeSoto. After review of the record and the applicable law, we affirm the judgment, albeit on the somewhat different grounds as dictated by the recent decision in Wallace v. Kato, ___ U.S. ___, 127 S.Ct. 1091, ___ L.Ed.2d ___ (2007).

I.

On September 2, 2002, plaintiff Brian Fox was a Special Agent of the Internal Revenue Service (IRS) planning to travel from Louisville, Kentucky, to Chicago, Illinois, on a flight operated by Southwest Airlines. Fox was authorized to travel with the weapon he was carrying, had completed the necessary paperwork, and had been screened at the security checkpoint. He boarded the airplane and had not yet been introduced to the captain and crew as is required by regulation, when he got into a verbal exchange with a female passenger and her fiancé.

There is no dispute that Fox was having some difficulty fitting his carry-on luggage into an overhead bin and was blocking the aisle. The female passenger told plaintiff that the bag was not going to fit and complained that he was blocking the way. Fox admitted that he told her to "fuck off" and that her fiancé spoke up aggressively in her defense. Although there was testimony that Fox told him to "fuck off" as well, Fox did not recall saying anything to him. Fox returned to his seat, but the exchange had come to the attention of a flight attendant who asked the pilot if they could remove someone for cursing at another passenger.

Captain Jeff Hefner told her that they could, but she became uncomfortable about approaching Fox when she learned that he was armed. Hefner intervened, called Fox forward, confirmed that Fox had said "fuck off" to another passenger, and then ordered Fox off the airplane without giving him an opportunity to explain. While Fox retrieved his bag, Hefner called for security to come to the gate and then escorted Fox down the jetway to the gate area. Hefner advised the gate agent and TSA employees that he was removing an armed individual who purported to be an IRS agent for causing a disturbance on the aircraft. Fox asked to speak with Southwest's Ground Security Coordinator, as he had been trained to do if he encountered problems while traveling with a weapon. He then took a seat in the gate area.¹

Fox testified that he was surprised that security had been called, and felt overwhelmed and a little anxious and embarrassed. Officer DeSoto, who was employed by the Regional Airport Authority, as well as Officer Minton and Lt. Clark, responded to the gate area. Fox was asked for identification several times, but he refused to talk with anyone and repeatedly asked for the Ground Security Coordinator. After several minutes, DeSoto approached and asked Fox to identify himself. Fox refused to talk to him and asked again for the Ground Security Coordinator. Michelle Miller arrived and approached Fox, asking if he had checked any luggage and telling him that he would be rebooked on another flight. Miller testified that she was employed as a Customer Service Supervisor as well as being the designated Ground Security Coordinator on duty at that time. Miller stated that she told Fox as much, while Fox denied that she had. Fox would not talk with Miller, so she went to the gate agent and determined that Fox had not checked any luggage.

DeSoto testified that Fox had begun to draw the attention of other passengers who began gathering around to watch instead of attending to their business. DeSoto decided to remove Fox from the area, asked Fox to come with him to talk somewhere else, and took Fox's arm to have him stand up. DeSoto claimed that Fox stiffened, made a fist, and reached for his right side. Fox denied making a fist, but admitted that he stood up and reached for his right side. Fox testified that he was reaching for his credentials, but admitted that he was also carrying his weapon on the right.

It was then that DeSoto used an armbar hold to take Fox down to the floor. DeSoto held Fox face down, with a knee on the back of his head, and handcuffed him. DeSoto required some assistance getting the handcuffs on, and tossed away plaintiff's weapon, ammunition clips, and identification. In the process, Fox suffered a cut and bruising below one eye. Arrested on misdemeanor charges of disorderly conduct and resisting arrest, Fox was taken to the jail and later released. The state criminal trial, which was not held until June 9, 2004, ended with the state trial judge granting a directed verdict in favor of Fox on both charges.

Six months later, on December 28, 2004, plaintiff filed this action against DeSoto and the Airport Authority asserting claims under federal and state law. Fox alleged that DeSoto arrested him without probable cause and used excessive force in violation of the Fourth Amendment. 42 U.S.C. § 1983. State law claims for false arrest and imprisonment, assault and battery, and malicious prosecution were also asserted against DeSoto. Finally, a derivative claim was alleged against the Airport Authority for negligent hiring, training, and/or retention of DeSoto.

After an opportunity for discovery, defendants filed a motion seeking, in the alternative, dismissal of the claims as time-barred, or summary judgment on the merits. The motion was resolved in defendants' favor on June 6, 2006, with the district court dismissing the state law claims for false arrest and imprisonment and for assault and battery as untimely, and granting summary judgment to the defendants on all remaining claims. Judgment was entered accordingly, and plaintiff appealed.

II.

A determination that a claim was filed outside the applicable statute of limitations is a conclusion of law that this court reviews de novo. Tolbert v. State of Ohio Dep't of Transp., 172 F.3d 934, 938 (6th Cir.1999). The district court's decision granting summary judgment is also reviewed de novo. Smith v. Ameritech, 129 F.3d 857, 863 (6th Cir.1997). Summary judgment is appropriate when there are no issues of material fact in dispute and the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c). In deciding a motion for summary judgment, the court must view the factual evidence and draw all reasonable inferences in favor of the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

A. Statute of Limitations

As the district court concluded and the parties agree, all of the plaintiff's claims in this case are governed by a one-year statute of limitations. The constitutional claims asserted under 42 U.S.C. § 1983 are governed by the state personal injury statute of limitations. Wilson v. Garcia, 471 U.S. 261, 280, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985); Collard v. Ky. Bd. of Nursing, 896 F.2d 179, 182 (6th Cir.1990). In Kentucky, an action for injury to a person, for arrest, or for malicious prosecution "shall be commenced within one (1) year after the cause of action accrued." KY. REV. STAT. § 413.140(1). The controversy in this case concerns when the claims accrued — except, of course, for the malicious prosecution claim which did not accrue until plaintiff was acquitted in June 2004.

State law claims for false arrest and false imprisonment, which constitutes a single cause of action in Kentucky when law enforcement is involved, as well as assault and battery arising out of an arrest, generally accrue at the time of the arrest. See Dunn v. Felty, No.2004-CA-1029-MR, 2005 WL 736596, at *2 (Ky.App. Apr.1, 2005) (unpublished decision) (review granted Nov. 16, 2005).² For the Fourth Amendment claims for arrest without probable cause and the use of excessive force during the arrest, federal law determines when the statute of limitations begins to run on a § 1983 claim. Wallace v. Kato, ___ U.S. ___, 127 S.Ct. 1091, 1095-96, ___ L.Ed.2d ___ (2007); Ruff v. Runyon, 258 F.3d 498, 500 (6th Cir.2001).

Under federal law, the limitations period begins to run when a plaintiff knew or should have known of the injury that forms the basis of the claim. Ruff, 258 F.3d at 500. In fact, the Court in Wallace specifically held that a claim for wrongful arrest under § 1983 accrues at the time of the arrest or, at the latest, when detention without legal process ends. 127 S.Ct. at 1095-96. A § 1983 claim for excessive force in effectuating an arrest accrues at the time of arrest. Id. at 1095. Absent some tolling or delay in accrual, all of these claims would be untimely because they were not brought until December...