McCune v. City of Grand Rapids

• Decision Date: 25 March 1988
• Docket Number: No. 87-1105,87-1105
• Citation: 842 F.2d 903
• Parties: James L. McCUNE, Plaintiff-Appellant, v. The CITY OF GRAND RAPIDS, a municipal corporation; Francis Pierce; Gerald Steele; John Doe; and Richard Roe, Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 903

842 F.2d 903

James L. McCUNE, Plaintiff-Appellant, v. The CITY OF GRAND RAPIDS, a municipal corporation; Francis

Pierce; Gerald Steele; John Doe; and Richard

Roe, Defendants-Appellees.

No. 87-1105.

United States Court of Appeals, Sixth Circuit.

Argued Jan. 25, 1988.

Decided March 25, 1988.

Walter L. Harrison (argued), Grand Rapids, Mich., for plaintiff-appellant.

G. Douglas Walton (argued), Deputy City Atty., Grand Rapids, Mich., for defendants-appellees.

Before MILBURN and GUY, Circuit Judges, and CONTIE, Senior Circuit Judge.

CONTIE, Senior Circuit Judge.

James L. McCune appeals from the district court's judgment dismissing McCune's complaint in its entirety. For the following reasons, we affirm the district court's judgment in part, vacate the district court's judgment in part, and remand this case for further proceedings consistent with this opinion.

I. ¹

Appellant James L. McCune was employed as a Grand Rapids Parks Patrol Officer from August of 1978 through the latter part of 1980. The Grand Rapids Police Department and the Grand Rapids Parks Department supervised appellant's work as a parks patrol officer. Apparently, appellee the City of Grand Rapids maintains both departments.

At the request of appellee Francis Pierce, a police officer who was acting deputy chief of police or acting chief of police for appellee the City of Grand Rapids at all times relevant to the instant case, McCune agreed to act as an undercover officer to investigate burglaries, armed robberies, and transactions in illegal controlled substances. In the course of his duties as an undercover officer, appellant regularly reported to Pierce concerning the extent of drug activity appellant observed. Also, in the course of his duties as an undercover officer, appellant on one occasion gave Pierce $1200 cash which was appellant's share in one of the robberies with which he was subsequently charged. Appellant understood that the cash proceeds would be used as evidence against the robbers. Finally, in the course of his duties as an undercover officer appellant kept a detailed notebook from which he reported to Pierce.

In April of 1981, officers employed by the City of Walker, Michigan, the Kent County Sheriff's Department, and the City of Grand Rapids arrested McCune in the city of Walker. Appellant was charged with approximately seven counts of armed robbery, conspiracy to commit armed robbery, and breaking and entering. Appellee Pierce was present when appellant was arrested. Pierce made no attempt to stop the arrest or to inform the arresting officers that appellant's activity giving rise to the charges was done in furtherance of appellant's duties as an undercover officer.

Appellee Gerald Steele who was a police officer and acting deputy chief of police at all times relevant to the instant case came into possession of McCune's notebook which detailed his undercover activities. Steele hid the notebook to prevent the exculpatory evidence contained therein from being produced.

After McCune's arrest in April of 1981, he was incarcerated in the Kent County Jail. Appellant posted bond on May 22, 1981, and subsequently fled Michigan in fear of his life. Appellant turned himself in to the Federal Bureau of Investigation (F.B.I.) on March 22, 1982. Thereafter, he was incarcerated until on or about February 11, 1983. All charges against appellant were dropped on September 12, 1983.

On June 17, 1985, McCune filed a complaint in the United States District Court for the Western District of Michigan. The complaint alleges that appellees the City of Grand Rapids, Francis Pierce, Gerald Steele, John Doe and Richard Roe in concert and conspiracy knowingly and falsely caused McCune to be subjected to criminal prosecution and imprisonment. Appellant also alleges that appellee Gerald Steele secreted the notebook which contained evidence which exculpated appellant. Appellant alleges that as a result of these wrongs appellees deprived appellant of rights, privileges and immunities secured by the United States Constitution in violation of 42 U.S.C. Sec. 1983. The district court dismissed McCune's complaint on December 30, 1986, holding that it had not been filed within the applicable three year statute of limitations.

McCune filed this timely appeal. This court must decide whether the district court erred in dismissing appellant's complaint in its entirety for failure to comply with the statute of limitations.

II.

In Wilson v. Garcia, 471 U.S. 261, 276-280, 105 S.Ct. 1938, 1947-1950, 85 L.Ed.2d 254 (1985), the Supreme Court held that the appropriate statute of limitations to be applied in all section 1983 actions is the state statute of limitations governing actions for personal injury. Subsequently, in Carroll v. Wilkerson, 782 F.2d 44, 45 (6th Cir.), cert. denied, --- U.S. ----, 107 S.Ct. 330, 93 L.Ed.2d 302 (1986), this court held that Michigan's three year statute of limitations for personal injury claims, Mich.Comp.Laws Ann. Sec. 600.5805(8) (West 1987), governs section 1983 actions when the cause of action arises in Michigan. In the instant case, since the cause of action arose in Michigan, the applicable statute of limitations is Michigan's three year statute of limitations for personal injury claims.

The more critical question for the purposes of this appeal concerns when appellant's section 1983 cause of action accrued. Although Wilson held that state law provides the statute of limitations in section 1983 actions, it also reaffirmed that federal law and not state law is relevant for the purpose of characterizing a section 1983 claim. Wilson, 471 U.S. at 268-71, 105 S.Ct. at 1943-45. Accordingly, federal law governs the question of when that limitations period begins to run. Sevier v. Turner, 742 F.2d 262, 272 (6th Cir.1984). In Sevier, this court held that the statute of limitations begins to run when the plaintiff knows or has reason to know of the injury which is the basis of his action and that a plaintiff has reason to know of his injury when he should have discovered it through the exercise of reasonable diligence. Id. at 273. In Dunn v. Tennessee, 697 F.2d 121, 126-27 (6th Cir.1982), cert. denied, 460 U.S. 1086, 103 S.Ct. 1778, 76 L.Ed.2d 349 (1983), this court considered the definition of malicious prosecution of the state in which the claim arose for the purpose of defining the injury to a section 1983 plaintiff to determine when the plaintiff's cause of action accrued. As this court has recently noted, however, "although state law may be considered to the extent it is not inconsistent with federal law, federal law controls for the purpose of characterizing section 1983 claims." McMaster v. Cabinet for Human Resources, 824 F.2d 518, 520 (6th Cir.1987).

Appellant contends that the actions of appellees resulted in appellant's wrongful arrest, wrongful incarceration, wrongful criminal prosecution, and wrongful suppression of exculpatory evidence. He argues that these wrongful actions constitute a continuing tort. Appellant claims, therefore, that his section 1983 cause of action did not accrue until the continuing wrongful conduct ceased.

This court has not addressed the question of what constitutes a continuing tort in the context of section 1983 actions. Other jurisdictions, however, have addressed this question. In Ward v. Caulk, 650 F.2d 1144, 1147 (9th Cir.1981), the Ninth Circuit reasoned in the context of an action based inter alia on section 1983 that "[a] continuing violation is occasioned by continual unlawful acts, not by continual ill effects from an original violation." The court in Ward held that continuing non-employment resulting from an original action is not a continual violation.

Relying on the reasoning in Ward, the Third Circuit in Sandutch v. Muroski, 684 F.2d 252, 254 (3d Cir.1982), rejected the appellant's argument, similar to the argument made before this court, that his continuing incarceration constituted a continuing tort because as long as he continued to be incarcerated he continued to suffer the injury of false imprisonment.

In Singleton v. City of New York, 632 F.2d 185, 191 & n. 5 (2d Cir.1980), cert. denied, 450 U.S. 920, 101 S.Ct. 1368, 67 L.Ed.2d 347 (1981), the Second Circuit rejected the appellant's argument that section 1983 suits may not contain more than one cause of action and that, therefore, the appellant's claims of assault and false arrest accrued at the time of the accrual of his claim of malicious prosecution. The court stated that it saw no reason for numerous claims for relief under section 1983 to be considered to have accrued on the same date.

Moreover, in Compton v. Ide, 732 F.2d 1429, 1432-33 (9th Cir.1984), the Ninth Circuit rejected the appellant's argument that the continuance of a conspiracy beyond the date when injury or damage occurs extends the statute of limitations in a section 1983 action. The court held that "[t]he existence of a conspiracy does not generally postpone accrual of causes of action arising from the conspirators' separate wrongs." Id. at 1433. Accord Singleton, 632 F.2d at 192.

Applying these standards to the existing facts, appellant's argument that the actions of appellees constitute a continuing tort must fail. Under Sandutch, appellant's claim of wrongful continued incarceration constitutes an ill effect from his false arrest. Moreover, under Singleton, the false arrest, malicious prosecution, and wrongful suppression of exculpatory evidence constitute discrete wrongs (i.e., separate torts with separate elements), and they will not be viewed by this court as a continuing violation. Finally, under Compton the existence of a conspiracy does not postpone accrual of appellant's separate claims. ² We will, therefore, examine each claim to determine whether it is barred by the applicable statute of limitations.

Appellant's first contention, that he was wrongfully arrested, is tantamount to a claim of false arrest. When the claim...