Gilpin v. Tack

• Decision Date: 18 July 1966
• Docket Number: No. 1083.,1083.
• Citation: 256 F. Supp. 562
• Parties: Dan C. GILPIN, Plaintiff, v. Mrs. Mary A. (Gilpin) TACK, Mrs. W. L. Zumbro, Sheriff Clary Atkinson, Harry H. Atkinson, M.D., and J. B. Jamison, Jr., M.D., Defendants.
• Court: U.S. District Court — Western District of Arkansas

256 F. Supp. 562

Dan C. GILPIN, Plaintiff, v. Mrs. Mary A. (Gilpin) TACK, Mrs. W. L. Zumbro, Sheriff Clary Atkinson, Harry H. Atkinson, M.D., and J. B. Jamison, Jr., M.D., Defendants.

No. 1083.

United States District Court W. D. Arkansas, El Dorado Division.

July 18, 1966.

Dan C. Gilpin, pro se.

C. Richard Crockett, Little Rock, Ark., for Mrs. Mary A. (Gilpin) Tack and Mrs. W. L. Zumbro.

L. Weems Trussell, Fordyce, Ark., for Sheriff Clary Atkinson.

Graves & Graves, Hope, Ark., for Harry H. Atkinson, M.D.

Thomas Gaughan, Camden, Ark., for J. B. Jamison, Jr., M.D.

MEMORANDUM OPINION

HARRIS, District Judge.

This is a suit brought by the Plaintiff, Dan C. Gilpin, a resident of Texas, against the Defendants, Mrs. Mary A. (Gilpin) Tack, Mrs. W. L. Zumbro, Sheriff Clary Atkinson, Harry H. Atkinson, M.D., and J. B. Jamison, Jr., M.D., seeking damages for false arrest, malicious prosecution, and false imprisonment. The original complaint wherein these allegations are made was filed in the Texarkana Division of the Western District of Arkansas, on August 17, 1965, by the Plaintiff, representing himself as counsel. He is not an attorney.

The Defendants, none of whom resided in the Texarkana Division, filed a motion to quash service on the basis of residence. At the Plaintiff's request the cause was transferred to the El Dorado Division of the Western District of Arkansas on September 14, 1965.

The incident upon which this suit was brought occurred on August 16th and 17th, 1962. On complaint of Mrs. Mary A. (Gilpin) Tack, the Plaintiff's wife at that time, the Plaintiff was arrested on August 16, 1962, for disturbing the peace in Fordyce, Dallas County, Arkansas, by Sheriff Clary Atkinson.

Since it developed the disturbance originated in the adjoining Calhoun County, Arkansas, and it appearing that the Plaintiff's residence was in Calhoun County, Plaintiff was transferred to the Calhoun County Jail.

An action for commitment to the Arkansas State Hospital was brought on an affidavit of Mrs. Mary A. (Gilpin) Tack, one of the Defendants herein, in the Calhoun County Probate Court on a charge of insanity. Dr. Harry H. Atkinson and Dr. J. B. Jamison, Jr., Defendants herein, examined the Plaintiff, Dan C. Gilpin, and on their testimony the Probate Court of Calhoun County, R. W. Lanius, Judge, committed the Plaintiff Dan C. Gilpin on August 17, 1962, to the Arkansas State Hospital for Nervous Diseases for care and treatment.

Following his commitment to the Arkansas State Hospital he was examined by the State Hospital's doctors, and on September 5, 1962, diagnosed a "Paranoid Schizophrenia". He was treated with group psychotherapy and administered Thorazine in gradually reducing dosages. Since it was determined that he was a resident of Texas, he was discharged from the State Hospital on November 26, 1962, as a non-resident of the State of Arkansas.

The Plaintiff seeks damages in the sum of $50,000 from the Defendants on the allegations of false arrest, malicious prosecution and false imprisonment.

On October 7, 1965, Plaintiff amended his complaint and alleged malpractice and libel against the Defendants Dr. Harry H. Atkinson and Dr. J. B. Jamison, Jr.

Each Defendant herein has filed timely responses to the complaint and amended complaint alleging the Statute of Limitations bars the action and that the pleadings failed to state a cause of action upon which relief could be granted. They asked that the action be dismissed.

This Court has jurisdiction of the case based on diversity of citizenship, the amount in controversy exceeding $10,000 exclusive of interest and costs.

In a pre-trial order dated January 10, 1966, the Court directed the parties to prepare and submit a brief on the question of the Statute of Limitations applicable to this case. On the question of libel, the Court directed the Plaintiff to advise which of the Defendants he claims libeled him, the nature of the alleged libel or libels and the dates on which he claims they occurred. The Plaintiff attempted to comply with that part of the pre-trial order of the Court by filing a brief on the Statute of Limitations, but failed to comply with the pre-trial order of the Court on the question of libel in that he did not include the nature of the alleged libel or libels or the dates on which he claims they occurred. It appears that Plaintiff's allegations of libel against Defendants Dr. Atkinson and Dr. Jamison are based on their interrogatories in connection with this case.

There are two questions involved herein for a determination. First, are the allegations in the petition of the Plaintiff barred by the Statute of Limitations under Arkansas law; and, second, does the complaint and subsequent pleadings herein state a cause of action on which relief can be granted?

The Court will consider the question of Statute of Limitations first.

In the original petition the Plaintiff alleged false arrest, false imprisonment, and malicious prosecution. In the amended complaint, malpractice and libel was alleged against the Defendants, Dr. Harry H. Atkinson and Dr. J. B. Jamison, Jr.

Under the Arkansas Statutes, an allegation of false arrest must be brought within two years. Ark.Stat.Anno. § 37-203¹ The allegation in this case accrued on August 16, 1962, and this suit was filed August 17, 1965, a period of three years. Therefore, the allegation of false arrest is barred by the Statute of Limitations and should be dismissed.

An action alleging false imprisonment under Arkansas Statutes must be commenced within one year after the cause of action accrued. Ark.Stat. Anno. § 37-201² The Statute of Limitations of one year had run prior to the bringing of the action, therefore, the allegation of false imprisonment is barred by the Statute of Limitations and should be dismissed.

Any action alleging malpractice under Arkansas law must be brought within two years after the cause of action accrued. Ark.Stat.Anno. § 37-205³ The date of accrual of the cause of action in this case for malpractice against the Defendant doctors was August 17, 1962. This suit was brought alleging malpractice on October 7, 1965. Two years having run, the action was barred by the Statute of Limitations and should, therefore, be dismissed.

The allegation of libel against the Defendants Dr. Harry H. Atkinson and Dr. J. B. Jamison, Jr., contained in the Plaintiff's amended complaint filed October 7, 1965, was a new and independent cause of action not included in the original complaint of the Plaintiff of August 17, 1965. Under Arkansas law the Statute of Limitations continued to run until the date of the filing of the amended complaint alleging libel herein. Love v. Couch, 181 Ark. 994, 28 S.W.2d 1067, Bridgman v. Drilling, 218 Ark. 772, 774, 238 S.W.2d 645, and Air Leases, Inc. v. Baker, D.C., 167 F.Supp. 145, 150 An action alleging libel under Arkansas law must be brought within three years after the cause of action accrued. Ark. Stat.Anno. § 37-206⁴ Three years having run the allegation of libel was barred by the Statute of Limitations and should, therefore, be dismissed.

Having disposed of the allegations barred by the Statute of Limitations, the question of whether the pleadings support an action of malicious prosecution or libel upon which...