Keller v. US
| Decision Date | 17 July 1987 |
| Docket Number | Civ. No. 85-1191-K(M). |
| Citation | 667 F. Supp. 1351 |
| Court | U.S. District Court — Southern District of California |
| Parties | Timothy KELLER, Maxine Keller and Kathy Dockter, Plaintiffs, v. UNITED STATES of America, John Kelley, Dick Flood, and Does 3 Through 50, Inclusive, Defendants. |
John A. Mitchell, San Diego, Cal., for plaintiffs.
John J. Robinson, Asst. U.S. Atty., San Diego, Cal., for defendants.
On September 23, 1983, plaintiff Timothy Keller was arrested in his home in the presence of plaintiffs Maxine Keller, his wife, and Kathy Dockter, his stepdaughter. Pursuant to an indictment, a Timothy Keller (not the plaintiff herein) was charged with conspiracy to possess marijuana with intent to distribute, possession of marijuana with intent to distribute, conspiracy to travel in interstate commerce in aid of racketeering activities, and conspiracy to illegally transport U.S. currency out of the United States. Plaintiff was misidentified as the "Timothy Keller" who had been under investigation and who was named in the indictment. Plaintiff was released on September 26, after having spent the weekend in jail. On November 7, 1983, the United States moved to dismiss the indictment as to plaintiff Timothy Keller. That motion was granted on November 9, 1983.
In May 1984, plaintiff filed a claim for damages related to his arrest with the United States Customs Service. A final disposition of that claim was not made by May 1, 1985. On May 2, 1985, plaintiffs commenced this action. The May 1985 complaint named the United States and Does 1 through 501 as defendants.
The complaint alleged 11 counts. In Counts 1 through 6, Timothy Keller alleged assault, battery, false arrest, false imprisonment, intentional infliction of emotional distress, negligent infliction of emotional distress, and negligence. In Count 7, Maxine Keller alleged negligent infliction of emotional distress. In Counts 8 through 10, Kathy Dockter alleged assault, negligent infliction of emotional distress, and negligence. In Count 11, Timothy Keller alleged that the arrest was made without probable cause in violation of 42 U.S.C. § 1983.
In August 1984, the United States answered as to the first ten counts. The United States also moved for dismissal of Count 11 on the ground that only individuals, but not the United States, could be sued under § 1983. Count 11 was dropped by stipulation filed on October 1, 1985.2
On June 9, 1986, this Court heard plaintiff's motion to amend his complaint to add as defendants Dick Flood, an investigator for the State of California, and John Kelley, a federal investigator. The motion to amend was granted, and a first amended complaint was filed on June 9, 1986.
The first amended complaint was substantially the same as to the counts against the United States. A new eleventh count was added, alleging that Flood and Kelley had wrongfully caused plaintiff to be arrested by identifying him as the "Timothy Keller" connected with the criminal activity described in the indictment.
Flood and Kelley have each brought a motion to dismiss or for summary judgment. The Court considers the motions of each defendant separately.
Dismissal of a complaint, or a portion thereof, is proper where the allegations are insufficient "to state a claim upon which relief may be granted." Fed.R.Civ.P. 12(b)(6). Dismissal should be entered when "it appears to a certainty under existing law that no relief can be granted under any set of facts that might be proved in support of plaintiffs' claims." De La Cruz v. Tormey, 582 F.2d 45, 48 (9th Cir.1978); Rae v. Union Bank, 725 F.2d 478, 479 (9th Cir. 1984).
Rule 56(c) of the Federal Rules of Civil Procedure provides that the court shall render a summary judgment if the papers submitted "show (1) that there is no genuine issue as to any material fact and (2) that the moving party is entitled to a judgment as a matter of law." The moving party has the initial burden of demonstrating that summary judgment is proper. Adickes v. S.H. Kress and Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970); International Union of Bricklayers v. Martin Jaska, Inc., 752 F.2d 1401, 1405 (9th Cir.1985). This burden may be discharged by pointing out to the district Court that there is an absence of evidence to support an element of the nonmoving party's case. Celotex v. Catrett, 477 U.S. 317, ___, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1986). The burden then shifts to the nonmoving party to demonstrate the existence of specific facts showing that there is a genuine issue for trial. Celotex, 477 U.S. at ___, 106 S.Ct. at 2553. In considering a motion for summary judgment, the evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his or her favor. Adickes, 398 U.S. at 158-159, 90 S.Ct. at 1609; Lew v. Kona Hospital, 754 F.2d 1420, 1423 (9th Cir.1985); Bricklayers, 752 F.2d at 1404. However, in determining whether the nonmovant has met his or her burden, the court must consider the evidentiary burden imposed upon the nonmovant by the applicable substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, ___, 106 S.Ct. 2505, 2513, 91 L.Ed.2d 202 (1986).
Defendant Flood brings his motion to dismiss or for summary judgment on the grounds that an action against him is barred by the statute of limitations, that plaintiff has failed to indicate that Flood acted to deprive any of them of a constitutional right rising to a § 1983 violation, and that Flood is shielded from liability by the doctrine of prosecutorial immunity.
Flood contends that the determination of the applicable statute of limitations for this action is governed by Wilson v. Garcia, 471 U.S. 261, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985). In Wilson, the Supreme Court held that the state statute of limitations to be applied in § 1983 actions is the statute of limitations applicable to personal injuries. California Code of Civil Procedure Section 340(3) provides that the statute of limitations for personal injury actions is one year.3 Since the acts complained of occurred September 23, 1983, and Flood was not named until June 9, 1986, Flood claims the action is time-barred as to him.
The Wilson decision was issued on April 17, 1985. In the instant case, the alleged violation occurred prior to Wilson; that is, on September 23, 1983. The original complaint was filed on May 2, 1985, 15 days after Wilson was decided, and the amended complaint was filed on June 9, 1986, more than a year after Wilson was decided. Under the three-year statute of limitations period in effect on September 23, 1983, both the original complaint and the first amended complaint would have been timely filed. The question presented here, then, is what effect Wilson has on the timeliness of the original and first amended complaints.
In the Ninth Circuit, Wilson has been given retroactive effect when doing so would operate to lengthen the limitations period. Rivera v. Green, 775 F.2d 1381 (9th Cir.1985). However, the court in Gibson v. United States, 781 F.2d 1334 (9th Cir.1986), refused to apply Wilson retroactively when doing so would prevent a claim that was timely when filed.4Gibson involved a complaint filed while the three-year limitations period was still in effect. In the instant case, on the other hand, the claim is "pre-accrued;" the claim accrued before Wilson was decided, but first appears in an action filed afterward. Thus, when the original complaint in this action was filed in May 1985, the "law in effect" was the one-year limitations period mandated by Wilson. The precise issue presented in the instant case is addressed by neither Rivera nor Gibson.
In determining whether a new rule is to be applied retroactively, this court must consider: (1) whether the decision establishes a new principle of law; (2) whether retroactive application will further or retard the purposes of the rule in question; and (3) whether applying the new decision will produce substantial inequitable results. Chevron Oil Co. v. Huson, 404 U.S. 97, 106-07, 92 S.Ct. 349, 355, 30 L.Ed.2d 296 (1971); Barina v. Gulf Trading and Transport Co., 726 F.2d 560, 563 (9th Cir.1984). The first of these factors militates against retroactivity in this instance because Wilson represents a clear break with prior law. The second factor is neutral, because the objective of the Wilson court — establishing a uniform statute of limitations for § 1983 actions — had been equally satisfied by the Ninth Circuit's adoption of the three-year limitations period. Gibson, 781 F.2d at 1339. A determination of whether retroactive application is appropriate depends on the more fact-specific third Chevron factor: whether retroactive application of the post-Wilson limitations period leads to substantial inequitable results.
Retroactive application of Wilson in the instant action would operate to extinguish plaintiffs' claim as of September 23, 1984, when the claim was one year old but not time-barred under then-existing law. Such retroactive application would create a substantial inequity.5 This court therefore holds that under the Chevron factors the one-year limitations period may not be retroactively applied in this case. The question that remains is how much time after Wilson plaintiff may be given in which to file a pre-accrued claim.
When a court establishes a new statute of limitations that would bar pre-accrued claims, a plaintiff must be given a reasonable time or grace period in which to file suit upon such claims. Texaco, Inc. v. Short, 454 U.S. 516, 527 n. 21, 102 S.Ct. 781, 791, 70 L.Ed.2d 738 (1982); Scoggins v. Boeing Co., Inc., 742 F.2d 1225, 1228 (9th Cir.1984). The Ninth Circuit has not yet addressed the question of what is a reasonable time after Wilson for plaintiffs to file a pre-accrued § 1983 claim....
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