Nitcher v. Newton County Jail

• Decision Date: 31 May 1988
• Docket Number: No. 15428,15428
• Citation: 751 S.W.2d 800
• Parties: Rory D. NITCHER, Appellant, v. NEWTON COUNTY JAIL, et al., Respondents.
• Court: Missouri Court of Appeals

Page 800

751 S.W.2d 800

Rory D. NITCHER, Appellant, v. NEWTON COUNTY JAIL, et al., Respondents.

No. 15428.

Missouri Court of Appeals,

Southern District,

Division One.

May 31, 1988.

Rory D. Nitcher, pro se.

Richard S. Magruder, Jerry Kenter, North Kansas City, for respondents.

CROW, Chief Judge.

Rory D. Nitcher ("plaintiff") filed suit, pro se, naming "Newton County Jail" and "Sheriff John Doe" as defendants. The trial court ordered the action dismissed "by reason of expiration of the three-year statute of limitations." Plaintiff appeals. The vexing issues permeating this litigation will become apparent from the following synopsis.

Plaintiff, an inmate of the Missouri state penitentiary, signed and swore to a petition June 17, 1987, averring, in summary, that (1) between May 11, 1982, and June 23, 1982, inclusive, he had been incarcerated in the Newton County jail, (2) Sheriff John Doe was the Newton County sheriff during such period and "had charge and control of defendant Newton County Jail during that period," (3) during his incarceration plaintiff was confined 10 hours each day in an 8-foot by 14-foot cell with up to 7 other men, and the remainder of each day was confined in a 14-foot by 20-foot cell with up to 15 other men, (4) plaintiff at no time was allowed outdoor or indoor recreation, (5) the cells were not under observation by security personnel, and no "periodic safety checks" were made, (6) the lack of security resulted in plaintiff "being assaulted and hospitalized," (7) during his incarceration plaintiff received a nutritionally deficient diet, and upon arrival at the Department of Corrections was diagnosed as suffering "vitamin deficiency syndrome," (8) while in the Newton County jail plaintiff was not supplied clean clothing or access to laundry facilities, nor was he provided soap and toothbrush, (9) plaintiff had no access to educational, social or religious programs in the Newton County jail, and (10) family visitation in the Newton County jail "consisted of peering through a three inch square window while trying to shout through a few small holes drilled in a steel plate." The petition prayed for damages of $3,800 "plus expenses."

The petition evidently arrived at the office of the Clerk of the Circuit Court of Newton County no later than June 19, 1987, as the petition bears the stamped notation: "Filed JUN 19 1987 Billie M. Gailey, Circuit Clerk & Ex-officio Recorder." The circuit court's "docket sheet," however, shows: "6 24 87 Petition filed. Motion for leave to proceed in forma pauperis and for issuance of summons filed."

The next docket entry is dated "7 22 87" and shows: "Plaintiff granted leave to proceed as a poor person."

On July 23, 1987, the circuit clerk issued a summons to defendant "Sheriff John Doe," and a summons to defendant "Newton County Jail." ¹ The summons to defendant Doe bears a return showing service July 24, 1987, on Mark Bridges. The summons to defendant Jail bears a return showing service July 23, 1987, on someone whose name is illegibly written. ²

The next activity of record occurred August 18, 1987, when a document captioned "Motion to Dismiss and Suggestions in Support Thereof" was filed by attorney Richard S. Magruder, who identified himself as "Attorney for Defendants." The document began: "COMES NOW Defendants by and through counsel, and for their Motion to Dismiss, state...." The document asserted that plaintiff had filed his petition "on or about the 23rd day of July, 1987." (Our emphasis.) That assertion, of course, was incorrect. As noted earlier, the petition bears a stamped filing date of June 19, 1987, and the docket sheet shows a filing date of June 24, 1987.

The document filed by Magruder averred that plaintiff's claim was "barred by the applicable three-year Statute of Limitations set forth in Section 516.130 Rs.Mo. 1979." Citing several cases, the document proclaimed that courts had "consistently held that this three-year Statute of Limitations applies to prisoners' actions against governmental officials concerning the conditions of their confinement." Furthermore, pled the document, the face of plaintiff's petition showed the action was barred by limitations, and plaintiff had the burden of proving any exception. Consequently, said the document, plaintiff's petition must be dismissed with prejudice as the statute of limitations constituted "an absolute bar to his action."

Plaintiff filed a prompt response, alleging that the defendants' reliance on the three-year statute of limitations was misplaced, as the Supreme Court of the United States had held in Wilson v. Garcia, 471 U.S. 261, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985), that lawsuits such as his "should be characterized as personal injury claims for the purpose of applying the appropriate state statute of limitations." The Missouri statute of limitations for personal injuries, pled plaintiff, was § 516.120(4), RSMo 1978, which prescribed a five-year limitation. Citing Lovejoy v. Goodrich, 798 F.2d 1201 (8th Cir.1986), and Farmer v. Cook, 782 F.2d 780 (8th Cir.1986), plaintiff insisted that the five-year limitation of § 516.120(4) applied. Furthermore, explained plaintiff, even if his action were subject to a three-year limitation he still would not be barred, as § 516.170, RSMo 1978, provided that a period of limitation was tolled where a cause of action accrued at a time when the person entitled to sue was imprisoned, and the period of limitation did not begin running until such disability was removed. Plaintiff averred he was imprisoned from May 11, 1982, until November 8, 1985. Therefore, according to plaintiff, the period of limitation did not begin running until the latter date, which was well within three years of the date his petition was filed.

The trial court, as we have seen, granted the defendants' motion to dismiss.

In the jurisdictional statement in his brief, Rule 84.04(a)(b), ³ plaintiff refers to his action as one under 42 U.S.C. § 1983. ⁴ Nowhere in his petition, however, did he mention 42 U.S.C. § 1983, nor did the petition aver that any of the circumstances or conditions described therein constituted a deprivation of any rights, privileges, or immunities secured by the constitution or laws of the United States.

The defendants, however, in their brief, adopted plaintiff's jurisdictional statement, and the arguments in defendants' brief are premised on the assumption that plaintiff's petition pleads (or attempts to) a cause of action under 42 U.S.C. § 1983. ⁵ Moreover, Wilson, 471 U.S. 261, 105 S.Ct. 1938, 85 L.Ed.2d 254, the primary case cited by plaintiff to the trial court, involved an action under 42 U.S.C. § 1983. Accordingly, we shall decide this appeal on the basis that plaintiff is seeking relief under that statute.

Preliminarily, it should be noted that even though 42 U.S.C. § 1983 is a federal statute, Missouri state courts have concurrent jurisdiction of such cases with the federal courts. Stafford v. Muster, 582 S.W.2d 670, 681 (Mo. banc 1979); Shapiro v. Columbia Union National Bank and Trust Co., 576 S.W.2d 310, 315-16 (Mo. banc 1978), cert. denied, 444 U.S. 831, 100 S.Ct. 60, 62 L.Ed.2d 40 (1979); Tyler v. Whitehead, 583 S.W.2d 240, 243 (Mo.App.1979).

In determining which statute of limitations applies to plaintiff's action, we learn from Wilson that there is no specific federal statute of limitations governing actions under 42 U.S.C. § 1983, and that where Congress has not established a time limitation for a federal cause of action, the settled practice has been to adopt a local time limitation as federal law if it is not inconsistent with federal law or policy to do so. 471 U.S. at 266-67, 105 S.Ct. at 1942. From that starting point, the Supreme Court of the United States held in Wilson that the forum state's statute of limitations applicable to tort actions for the recovery of damages for personal injuries was the one to be applied to actions under 42 U.S.C. § 1983. 471 U.S. at 276-80, 105 S.Ct. at 1947-49[5-7].

Plaintiff maintains here, as he did in the trial court, that the Missouri statute of limitations applicable to tort actions for the recovery of damages for personal injuries is § 516.120(4), RSMo 1986, which establishes a five-year limitation. ⁶ Defendants do not challenge that proposition. See: Farwig v. City of St. Louis, 499 S.W.2d 388, 389 (Mo.1973); Daniels v. Schierding, 650 S.W.2d 337, 338-39 (Mo.App.1983); Langendoerfer v. Hazel, 601 S.W.2d 290 (Mo.App.1980). Defendants insist, however, that Wilson should not be applied retroactively in the instant case.

The reason defendants argue against retroactive application of Wilson is that prior to Wilson the United States Court of Appeals, Eighth Circuit, had held that the three-year limitation of § 516.130(1), RSMo 1978, ⁷ applied to an action by an inmate of the Missouri state penitentiary against the warden and other penitentiary officers under 42 U.S.C. § 1983, where the inmate complained that he had been stabbed and beaten by other inmates immediately after the officials had denied his request for protection. Foster v. Armontrout, 729 F.2d 583 (8th Cir.1984). Defendants contend that if Wilson (decided April 17, 1985) does not apply retroactively to plaintiff's claim for his alleged constitutionally substandard confinement in the Newton County jail (May 11, 1982, until June 23, 1982), we should follow Foster and apply the three-year limitation of § 516.130(1). The three-year limitation would clearly bar plaintiff's action unless the running of the three-year period had been tolled during plaintiff's alleged three and a half years of imprisonment (May 11, 1982, until November 8, 1985).

Having noted the significance of the issue of retroactivity, we turn our attention to the question of when plaintiff commenced this suit. Defendants, in their brief, assert that plaintiff's petition was filed June 24, 1987. They obviously base this averment on the entry on the docket sheet...