Harris v. City of Canton, Ohio

• Decision Date: 13 January 1984
• Docket Number: 82-3560,Nos. 81-3696,s. 81-3696
• Citation: 725 F.2d 371
• Parties: Geraldine HARRIS, et al., Plaintiffs-Appellants, v. CITY OF CANTON, OHIO, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 371

725 F.2d 371

Geraldine HARRIS, et al., Plaintiffs-Appellants, v. CITY OF CANTON, OHIO, et al., Defendants-Appellees.

Nos. 81-3696, 82-3560.

United States Court of Appeals Sixth Circuit.

Argued May 2, 1983.

Decided Jan. 13, 1984.

Steven M. Fitten, Dayton, Ohio, for plaintiffs-appellants.

Thomas P. Albu, Asst. Law Director, William J. Hamann (argued), Canton Law Dept., Canton, Ohio, for defendants-appellees.

Before KENNEDY and JONES, Circuit Judges, and COHN, District Judge. ^*

NATHANIEL R. JONES, Circuit Judge.

This is a consolidated appeal in which the plaintiffs-appellants, Geraldine Harris, Bernadette Harris and Willie G. Harris, appeal from two separate district court orders dismissing their civil rights complaint. The initial complaint was dismissed in September of 1979 for want of prosecution. A subsequent request to set aside the default judgment entered pursuant to that dismissal was denied. Upon refiling of the complaint, the action was again dismissed. This second dismissal was based on the district court's determination that the action, when refiled, was barred by the applicable statute of limitations. We find that the refiled action was not untimely and, thus, that dismissal on that ground was inappropriate. Since this conclusion requires vacation of the final dismissal and a remand to the district court for further proceedings, we decline to decide whether the initial dismissal and the subsequent refusal to set aside the default judgment would justify a similar remand order by this Court.

I.

At approximately 7:15 a.m. on April 26, 1978, Geraldine Harris was driving with her daughter, Bernadette, when she was stopped by the Canton police and cited for speeding. The events which followed provide the basis for the present action. The appellants claim that, immediately after the citation was issued, Mrs. Harris was arrested without probable cause and verbally abused. Several other officers soon arrived with a paddy wagon and threw Mrs. Harris into it "feet first." When Bernadette Harris attempted to walk toward her mother, one of the officers purportedly punched her in the chest and knocked her away from the wagon. The arresting officer then ordered the Harris family car impounded, despite pleas from Bernadette that she be allowed to take it home.

The appellants claim that Mrs. Harris was then taken to the Canton police station where she was fingerprinted, booked and strip-searched. In addition, the officers are charged with failing to provide proper medical attention when needed and failing to advise Mrs. Harris of her rights. No charges other than speeding were ever brought against Mrs. Harris or her daughter. Mrs. Harris was subsequently released into the custody of her husband and son. Both she and Bernadette were apparently taken to a hospital where they received appropriate medical care.

The Harrises filed a written complaint with the mayor, safety director and city law director. The complaint was referred to the Canton police chief. The appellants contend that no officers were investigated and no further action was taken pursuant to the complaint. On April 19, 1979 the plaintiffs filed a complaint against the City of Canton, its mayor, its law director, the entire police department, the police chief individually, and all individual officers involved in Mrs. Harris' arrest. The complaint alleged that all defendants, now appellees, had violated the appellants' civil rights by arresting and assaulting Mrs. Harris and her daughter following a mere speeding infraction. The complaint alleges violations of 42 U.S.C. Secs. 1981, 1983, 1985 and 1986 and asserts direct causes of action under the 4th, 5th, 8th, 13th and 14th amendments to the United States and Ohio Constitutions. Willie G. Harris filed a pendent state claim for medical expenses and loss of consortium. A summons and marshal's service form were properly executed and delivered to the clerk at the time of filing. The filing fee and United States Marshal's service charge were paid immediately. The Marshal did not attempt to serve the complaint upon the defendants, however, apparently feeling free not to act since outstanding fees for other cases were still owed by plaintiffs' counsel.

The action was filed in the Northern District of Ohio, Eastern Division. On May 17, 1979, Judge Robert B. Krupansky filed a pretrial order requiring the plaintiffs to effect service of process within thirty days of the filing of the complaint. That order provided that absent such service the action would be dismissed sua sponte. On September 5, 1979, the complaint still not having been served by the U.S. Marshal, the trial judge dismissed the plaintiffs' complaint for want of prosecution. Other than the statement in the May 17 pretrial order itself, no prior notice of the dismissal was given to the parties and no hearing to show cause for failure to comply with the pretrial order was held. In addition, it appears that none of the parties were notified once the dismissal was entered.

On July 17, August 16 and again on November 2, 1979, counsel for the plaintiffs communicated with the U.S. Marshal's office regarding service. Service was finally perfected on November 2, with all, including the U.S. Marshal, apparently unaware of the prior dismissal. Following service of the complaint, the local news media contacted the court to verify the existence of the law suit. It was not until the press coverage on November 5, 1979 that the parties became aware that the case had been dismissed.

On January 8, 1980, the plaintiffs filed a second action. The defendants responded by claiming that the applicable statute of limitations barred a second suit. The case was now assigned to Judge John R. Manos who instructed the parties to file briefs on all issues relevant to the statute of limitations defense. In response, the appellants filed an amended complaint detailing the nature of the civil rights violations charged.

The appellants then filed a 60(b) motion to vacate the September 5, 1979 dismissal by Judge Krupansky. The motion was based on claims of mistake, inadvertence and neglect on behalf of the clerk and U.S. Marshal, and on the lack of notice to the plaintiffs. Although the motion was unopposed, the motion was denied, without explanation, nunc pro tunc (as of September 1, 1980) on October 9, 1981. The denial of that motion is the basis of appeal No. 81-3969. ¹

Following Judge Krupansky's action on the matter, Judge Manos proceeded to consider the statute of limitations argument as it applied to the second filing. On July 27, 1982, the case was dismissed, the district judge finding that the Ohio one year statute of limitations for assault, battery, malicious prosecution and false imprisonment barred the action. Judge Manos also found the Ohio Savings Statute inapplicable, concluding that the second action did not satisfy the literal requirements for its application. Appeal No. 82-3560 is from Judge Manos' order.

The appellants essentially seek the same remedy in both appeals before this Court to have their civil rights action reinstituted so that it may proceed on the merits. Since our disposition of appeal No. 82-3560 effectively grants that remedy, we decline to resolve the issues raised in the companion case. ²

II.

The gravamen of the appellants' complaint, as amended, is a series of civil rights violations arising out of the incidents which allegedly occurred on April 26, 1978. ³ Congress has not established a statute of limitations for most civil rights actions. Significantly, no statute of limitations was directly written into Secs. 1981, 1983 or 1985. ⁴ In such situations, rather than assume that no limitation on the actions was intended, it is up to the courts "to 'borrow' the most suitable statute or other rule of timeliness from some other source." DelCostello v. International Brotherhood of Teamsters, et al., --- U.S. ----, ----, 103 S.Ct. 2281, 2287, 76 L.Ed.2d 476 (1983). The general, though not universal, practice is for federal courts to apply the state law limitations period governing the most closely analagous cause of action. ⁵ Id.; see also Board of Regents v. Tomanio, 446 U.S. 478, 100 S.Ct. 1790, 64 L.Ed.2d 440 (1980); Mason v. Owens-Illinois, Inc., 517 F.2d 520 (6th Cir.1975).

In an effort to comport with this general rule Judge Manos reasoned that the actions underlying the claimed constitutional and civil rights violations would give rise to, if prosecuted in a common law action in state court, actions for assault, battery and false imprisonment. Accordingly, the court determined that the appropriate statute of limitations to be applied in this case is that set out in Ohio Revised Code Sec. 2305.11 which reads, in pertinent part: "An action for libel, slander, assault, battery, malicious prosecution, false imprisonment ... shall be brought within one year after the cause of action accrued ...." The court then concluded that since the second complaint was filed in January 1980, more than a year and a half after the incidents complained of, the action was not timely.

The appellants argue that when examining a civil rights complaint the district court should do more than merely look to the underlying nature of a would-be state tort action. Instead, the Harrises claim that, given their nature, civil rights actions are necessarily broader than the mere torts which may give rise to them. Accordingly, the appellants assert that the district court erred in taking such a narrow view of the case before it when determining the applicable limitations period. In this case, however, we need not decide whether the district court erred in taking such a narrow view of the applicable limitations period.

For, even if this Court were to agree that the one year statute of limitations for assault and false imprisonment were applicable here, the district court's order dismissing the second complaint was improper because of that court's...