Miller v. Smith

• Decision Date: 11 May 1977
• Docket Number: No. CA 3-76-0231-C.,CA 3-76-0231-C.
• Citation: 431 F. Supp. 821
• Parties: Bruce MILLER, Plaintiff, v. N. S. SMITH, Individually and in his capacity as member of the Dallas Police Department, and Donald Byrd, Police Chief of Dallas, Texas, Defendants.
• Court: U.S. District Court — Northern District of Texas

431 F. Supp. 821

Bruce MILLER, Plaintiff, v. N. S. SMITH, Individually and in his capacity as member of the Dallas Police Department, and Donald Byrd, Police Chief of Dallas, Texas, Defendants.

No. CA 3-76-0231-C.

United States District Court, N. D. Texas, Dallas Division.

May 11, 1977.

Bruce Miller, pro se.

Lee E. Holt, City Atty., Joseph G. Werner, Jerry T. Steed, Asst. City Attys., Dallas, Tex., for defendants.

MEMORANDUM OPINION

WILLIAM M. TAYLOR, Jr., Judge.

Plaintiff, a State prisoner, filed this civil rights action on February 4, 1976, seeking damages in the amount of $90,000 under 42 U.S.C. §§ 1981, 1983, and 1985. Defendants are Officer N. S. Smith and Chief Donald Byrd of the Dallas Police Department who are claimed to be responsible for the allegedly unlawful arrest of Plaintiff occurring on or about January 4, 1967, more than nine years prior to the filing of Plaintiff's complaint. Defendants filed a Motion to Dismiss on the theory that this action is barred by the applicable Texas statute of limitations, Art. 5526, V.A.T.S., which requires that such actions be commenced within two years. Petitioner replied by asserting that he is not subject to the State statute of limitations by virtue of Art. 5535, V.A.T.S.¹, which suspends the running of the statute of limitations in actions accruing while a person is "disabled" by imprisonment. For the reasons set forth below, we are of opinion that the "tolling" or "disability" statute, to the extent that it recognizes imprisonment as a "disability", does not apply to federal civil rights actions and that Plaintiff's action must, therefore, be dismissed.

At the outset, it should be noted that while Plaintiff claims the benefits of the Texas "tolling" statute based on imprisonment, he has somehow managed to file this action even though he is still incarcerated. It is obvious, therefore, that Plaintiff is not in fact absolutely disabled from bringing suit. In addition, records compiled by the Administrative Office of the United States Courts reveal that prisoners filed a total of 668 civil rights suits in the United States District Courts of Texas during Fiscal Year 1976. In fact, prisoners' actions constituted 41% of all civil rights suits filed in the federal courts of Texas during FY 1976.

I.

The question in determining whether to apply the Art. 5535 "tolling" provision in this case is whether a federal court, in adopting by analogy a State statute of limitations, must also adopt all related State statutes. If this were a diversity action in which this Court would be proceeding as if it were "only another court of the State"², the answer would probably be in the affirmative. We say "probably" for two reasons.

First, it is open to question whether the "imprisonment" provision of Art. 5535 retains any vitality. A review of reported Texas cases indicates that it has been 75 years since a State court has suspended the statute of limitations based on imprisonment.³ In the only two other reported State cases on the question, one court held that imprisonment commencing after a cause of action accrues does not "toll" the statute⁴ and another held that a probated sentence does not constitute "imprisonment."⁵ The only reported application of the Texas imprisonment provision occurring in modern times was by the United States District Court for the Southern District of Texas which did so without any discussion of the propriety of applying the statute but simply with a statement that:

"Imprisonment under Texas law is considered a disability and the statute of limitations does not begin to run until after the disability is removed."⁶

Second, even if we were proceeding in diversity, there is a strong argument, for the reasons set forth in Part II of this opinion, that the purposes of Art. 5535 are satisfied by the application of pertinent federal statutes and rules, particularly 28 U.S.C. § 1915, the in forma pauperis statute. On this point, Chief Judge Haynsworth, writing for the Fourth Circuit, fashioned a federal "tolling" rule and applied it in a diversity case. That court held that the Virginia statute of limitations was "tolled" by the filing of a similar action in federal court in Kentucky. After a lengthy analysis of the Virginia statute of limitations and the court system of that State, Chief Judge Haynsworth concluded that:

"Since every purpose of Virginia's proscription against the commencement of tort actions more than two years after the injury has been served, we conclude that, as a matter of federal law, the statute has been satisfied."⁷

Believing as we do that a federal court would not be absolutely obligated to apply Art. 5535 even in a diversity action, the freedom of a federal court to exercise reason in deciding whether to apply such a State "tolling" statute should be even greater in federal question cases and even greater yet in federal civil rights actions. This conclusion is implied in the words of pertinent federal statutes. The Rules of Decision statute, 28 U.S.C. § 1652, for example, provides that State rules shall govern "in cases where they apply", implying that federal courts may exercise reason in determining whether a State rule does, indeed, apply to a given case. As for federal civil rights actions, 42 U.S.C. § 1988 provides for application of a pertinent State rule "so far as the same is not inconsistent with the Constitution and laws of the United States", implying that federal courts have a duty to determine whether State rules are consistent with the policies underlying federal civil rights laws.

The cases support this conclusion, for while it is routinely held that State statutes of limitations should be applied where there is no applicable federal limitation period, the Supreme Court of the United States has held that, in federal question cases, federal principles should be followed in determining when a cause of action has accrued⁸ and when a statute of limitations has been "tolled".⁹ The footnoted Supreme Court case on "tolling" involved application of the federally recognized doctrine of "fraudulent concealment" where there was no analogous State rule. In a case more nearly on point, the Second Circuit refused to apply a Connecticut statute providing for "tolling" of limitations when a defendant was "without the State" holding that such a rule was not applicable in a federal question case where federal service of process provisions made an out-of-state defendant amenable to process.¹⁰

In searching Fifth Circuit precedent, it seems clear in civil rights cases that federal and not State rules determine when a federal civil rights action has accrued.¹¹ In a similar case, Judge Wisdom writing for the Fifth Circuit went on to explain why federal law determines when an action has accrued:

"The State statute of limitations is applied in the first place not as a matter of legal compulsion, but merely as a matter of convenience; there is no other period of limitation available."¹²

In addition, the Fifth Circuit has instructed federal district courts to "look to the federal purpose, policy and intent of Congress as to the objectives of the legislation in determining whether the pursuit of state remedies tolls . . . the State statute of limitations." In that federal civil rights action, the Fifth Circuit found that the applicable Florida statute of limitations could be suspended by a federal "tolling" rule recognizing the filing of a related action in State court.¹³ On the very Texas statute involved in this case, the Fifth Circuit remanded the dismissal of a prisoner's civil rights action to the district court to "consider the applicability of Article 5535 to the claim."¹⁴ We read this to mean that the application of Art. 5535 is not a foregone conclusion but rather is a question to be decided based on a determination of whether the statute is reasonably applicable to federal civil rights actions under 28 U.S.C. § 1652 and whether Art. 5535 is consistent with federal policies underlying the civil rights acts in keeping with the command of 42 U.S.C. § 1988.

II.

Having concluded that this court is not obligated to make a mechanical application of Art. 5535, we proceed to consider whether the State "tolling" rule should be adopted under 28 U.S.C. § 1652, that is, whether the "tolling" statute is reasonably applicable to a federal civil rights claim. As a starting point, we note that while several federal courts have applied similar State "tolling" statutes to civil rights cases¹⁵, no federal court has found, in the absence of a State "tolling" statute, that incarceration should suspend the running of a statute of limitations. In response to an argument that the Florida statute of limitations should be "tolled" by plaintiff's imprisonment, the Fifth Circuit said, in a federal civil rights action:

"We can discern no reason why the statute should be "tolled" because Knowles was incarcerated."¹⁶

The Third¹⁷ and Sixth¹⁸ Circuits have similarly refused to "toll" a statute of limitations based on imprisonment where no "tolling" statute was incorporated in State law. This Court is not alone, therefore, in its inability to find any basis in reason for holding that incarceration prevents an individual from prosecuting a federal civil rights claim.

In examining the Texas disability statute, Art. 5535, it is said that the imprisonment provision was enacted by the Texas Legislature "to protect those who are incapable of protecting themselves."¹⁹ There are at least four major reasons why prisoners would need the protection afforded by the "tolling" statute:

(1) At common law, a prisoner was said to be civiliter mortuus or civilly dead and therefore lacked legal capacity to prosecute a complaint. In Texas, Art. 48(5) of the former Penal Code provided, among those penalties which could be imposed upon conviction of crime, "Forfeiture of civil or political rights." There is no similar provision in the new Texas Penal Code so it is...