Gordon v. City of Warren, Civ. A. No. 4-72525.

• Decision Date: 06 May 1976
• Docket Number: Civ. A. No. 4-72525.
• Citation: 415 F. Supp. 556
• Parties: Harold H. GORDON and the Estate of Louis P. Begin, Plaintiffs, v. CITY OF WARREN et al., Defendants.
• Court: U.S. District Court — Western District of Michigan

415 F. Supp. 556

Harold H. GORDON and the Estate of Louis P. Begin, Plaintiffs, v. CITY OF WARREN et al., Defendants.

Civ. A. No. 4-72525.

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

May 6, 1976.

Thomas D. Sherman, Detroit, Mich., for plaintiffs.

Robert J. Lord, Fair Haven, Mich., for City of Warren.

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFFS' CROSS MOTION FOR PARTIAL SUMMARY JUDGMENT

PHILIP PRATT, District Judge.

This action arises as a result of a controversy between the plaintiffs, private land developers, and the defendants — the City of Warren, its Planning Commission and eight individual commissioners.¹ In September, 1969, the defendants herein sought and were granted an order by the Macomb County Circuit Court requiring the plaintiffs to demolish several multi-family residential buildings in the process of construction, which allegedly infringed upon a proposed highway right-of-way. The defendants were also ordered to halt all further construction or development on those properties.

That order, and the legality of an underlying ordinance² upon which the defendants premised their action,³ was appealed to the Michigan Court of Appeals. On January 2, 1971, that court held that the local ordinance was not authorized under any existing state enabling legislation and, therefore, was invalid.⁴ That holding was affirmed by the Michigan Supreme Court,⁵ which added that had there been enabling legislation on which to base such an ordinance, "the Warren zoning ordinance is unconstitutional on its face," for failing to provide any of the traditional safeguards required by due process.

Plaintiffs brought this action for damages under the Fourteenth Amendment, 42 U.S.C. § 1983 and § 1985 and malicious prosecution on October 2, 1974.⁶ The defendants responded with a motion to dismiss three of the four counts. Prior to the date of the hearing the parties agreed that the defendants would withhold their motion, pending the filing of an amended complaint which has been filed. The amended complaint deletes the malicious prosecution count and defendants now move for summary judgment as to the three counts of the amended complaint.

The defendants argue that the cause of action is barred by the applicable Michigan statute of limitations and that there is failure to state a cause of action.⁷

The plaintiffs have also moved for partial summary judgment against the City of Warren on Count I of their amended complaint.

I. APPLICABLE STATUTE OF LIMITATIONS

The initial issue is what statute of limitations is to be applied to the § 1983 and § 1985 claims of Counts II and III.

A.

As the federal courts have often noted, none of the sections of the Civil Rights Act explicitly provide for any period of limitation for the bringing of an action. The courts, therefore, are instructed to look to the most analogous state statute of limitations. O'Sullivan v. Felix, 233 U.S. 318, 34 S.Ct. 596, 58 L.Ed. 980 (1914). See Title 42, U.S.C. § 1988. Moreover, the stance of the courts is that for any particular factual event, the same state statute of limitations should control all Civil Rights Act counts, whether brought under § 1981, § 1983 or § 1985. See Mulligan v. Schlachter, 389 F.2d 231 (6th Cir. 1968). Therefore, whatever state statute is chosen, that limitation will control both the § 1983 and § 1985 counts in this action.

Although the controlling rule — "to adopt the most analogous state statute of limitations" — is generally accepted by the federal judiciary, the Circuits have diverged in their application of this rule.

The Third Circuit approach is to apply the statute of limitations of the underlying tort or wrongful act. See Howell v. Cataldi, 464 F.2d 272 (3rd Cir. 1972); Thomas v. Howard, 455 F.2d 228 (3rd Cir. 1972); Orlando v. Baltimore & Ohio Ry., 455 F.2d 972 (3rd Cir. 1972).

The Second, Ninth and Tenth Circuits, however, have held that actions under § 1983 (and the other sections of the Civil Rights Act) are (1) governed by state statutes of limitations for state actions created by statute or (2) are governed by the general limitations period of the state (where the former does not exist). See Rosenberg v. Martin, 478 F.2d 520 (2d Cir. 1973); Willis v. Reddin, 418 F.2d 702 (9th Cir. 1969); Crosswhite v. Brown, 424 F.2d 495 (10th Cir. 1970).

The Fifth, Sixth and Seventh Circuits' decisions reflect indecision over the proper approach. See, e. g., Shank v. Spruill, 406 F.2d 756 (5th Cir. 1969), contra in White v. Padgett, 475 F.2d 79 (5th Cir. 1973); Madison v. Wood, 410 F.2d 564 (6th Cir. 1969); Mulligan v. Schlachter, 389 F.2d 231 (6th Cir. 1968); contra in Garner v. Stephens, 460 F.2d 1144 (6th Cir. 1972); Jones v. Jones, 410 F.2d 365 (7th Cir. 1965), cert. denied 396 U.S. 1013, 90 S.Ct. 547, 24 L.Ed.2d 505 (1970), contra in Duncan v. Nelson, 466 F.2d 939 (7th Cir. 1972), cert. denied, 409 U.S. 894, 93 S.Ct. 175, 34 L.Ed.2d 152 (1972).

Several Circuits have attempted to explain this lack of internal consistency by pointing out differences between statutes of limitations available from state to state. These efforts, on the whole, are unsatisfactory and afford no persuasive rationale why a circuit should not be internally consistent when entertaining actions under the Civil Rights Act provisions, much less explain why the federal judiciary should be so divided as to the proper approach in these cases.

The Eighth Circuit in Reed v. Hutto, 486 F.2d 534 (1973), after examining its prior decisions in Savage v. United States, 450 F.2d 449 (8th Cir. 1971), cert. denied 405 U.S. 1043, 92 S.Ct. 1327, 31 L.Ed.2d 585 (1972) (where the court "focused upon the character of the conduct underlying the civil rights violation in order to determine the most appropriate statute of limitations") and Glasscoe v. Howell, 431 F.2d 863 (8th Cir. 1970) (where the court "focused not on the assault but on the statutory derivation of the civil rights claim as creating a new and different remedy . . .") admitted that the two approaches followed were not merely different but were basically inconsistent. 486 F.2d at 536. To date, however, the Eighth Circuit has not chosen between the two.

B.

The Sixth Circuit has recently rendered a decision from which this Court infers a third approach. In Marlowe v. Fisher Body, 489 F.2d 1057 (6th Cir. 1973), the plaintiff, an employee of the defendant corporation, brought a § 1981 and Title VII action, alleging that he had been denied the right of advancement or promotion and of overtime in an arbitrary and capricious manner because he was a member of the Jewish faith. The amended complaint alleged various contractual violations by the defendant. In response to the apparent contention that the contractual nature of these charges required application of the Michigan six-year statute of limitations, the Court of Appeals said:

"The fact that the amended complaint also referred to alleged breaches of contract (contract rights being specifically protected by § 1981) does not alter the fact that a deprivation of civil rights is primarily the violation of personal rather than property rights. Accordingly the Michigan three-year statute of limitations (M.C.L.A. § 600.5805(7)) relating to an action for damages for injuries to the person applies."

No citation of authority was given for this proposition; however, the rationale and phrasing is identical to that found in Madison v. Wood, 410 F.2d 564 (6th Cir. 1969) and Krum v. Sheppard, 255 F.Supp. 994 (W.D.Mich.1966), affd. 407 F.2d 490 (6th Cir. 1967), (the rationale of which was adopted in Madison).

Krum involved an arrest by state authorities under color of state law, after the plaintiff refused to submit to a bridge crossing search. The plaintiff, in a §§ 1983, 1985 action charged that one defendant officer filed a false complaint against him and that both defendants testified falsely at the preliminary hearings and trial, thereby depriving him of his civil rights. The district court analyzed the cause of action as follows:

"A deprivation of civil rights may, of course, involve an injury to property. However, even in a civil rights action where property has been damaged, the basis of the civil rights action is still the violation of personal rights. Indeed, if an injury to property were all that was involved, the plaintiff would be left to an action for trespass in the state courts. Nonetheless, having decided to bring this action under the Civil Rights Act, the rights which the plaintiff claims were violated are in their very nature personal rights. Moreover . . . plaintiff charges the defendants with conduct violative of the rights, privileges and immunities secured to him under the Constitution of the United States. This indicates quite clearly that the plaintiff's claim must be for `injuries to the person' within the ordinary meaning of that term."⁸ (Emphasis supplied).

Applying this rule, the district court applied § 609.13 of the Compiled Laws of Michigan, 1948 (now § 600.5805(7) of the revised state act), which provides a three-year period for "actions to recover damages for injuries to person and property. . . ."

This rationale was both approved of and applied in Madison v. Wood, supra, a § 1983 and 1985 action by a policeman for an allegedly unlawful demotion from Sergeant to Patrolman. It is clear from both Krum and Madison that the Sixth Circuit interprets the above-stated Michigan statute broadly to include much more than mere physical injuries to persons and more than an injury to specific property. The Court of Appeals therein established the rule that a wrong alleged under the Civil Rights Act is a constitutional wrong, and that such a wrong is personal in nature. Therefore, at least with regard to such causes of action originating in Michigan, the Sixth Circuit has decided to abandon the Third Circuit approach of looking at the underlying wrongful act and will...