Pollard v. United States

• Decision Date: 31 October 1974
• Docket Number: Civ. A. No. 4126-N.
• Citation: 384 F. Supp. 304
• Court: U.S. District Court — Middle District of Alabama
• Parties: Charlie W. POLLARD et al., Plaintiffs, Carrie Bell Griffin, Plaintiff-Intervenor, v. The UNITED STATES of America et al., Defendants.

384 F. Supp. 304

Charlie W. POLLARD et al., Plaintiffs Carrie Bell Griffin, Plaintiff-Intervenor, v. The UNITED STATES of America et al., Defendants.

Civ. A. No. 4126-N.

United States District Court, M. D. Alabama, N. D.

October 31, 1974.

COPYRIGHT MATERIAL OMITTED

Fred D. Gray, Gray, Seay & Langford, Tuskegee, Ala., and Jack Greenberg, James M. Nabrit, III, and Jack H. Himmelstein, New York City, for plaintiffs.

Cleveland Thornton, Tuskegee, Ala., for plaintiff-intervenor, Carrie Bell Griffin.

Rowan S. Bone, Keener & Cusimano, Gadsden, Ala., Harry D. Raymon, Raymon, Russell, Nathanson & Segrest, and T. Dudley Perry, Tuskegee, Ala., for Class plaintiffs.

Ira DeMent, U. S. Atty., and Kenneth E. Vines, Asst. U. S. Atty., M. D. Ala., Montgomery, Ala., and Lawrence Klinger, Civ. Div., Dept. of Justice, Washington, D. C., for the U. S.

William J. Baxley, Atty. Gen., David W. Clark, Asst. Atty. Gen., and James T. Pons, Sp. Asst. Atty. Gen., of Ala., and by Herman H. Hamilton, Jr., and Champ Lyons, Jr., Capell, Howard, Knabe & Cobbs, Montgomery, Ala., for State Health Officer of Ala. and Members of Ala. State Committee of Public Health.

ORDER

JOHNSON, Chief Judge.

This cause is now submitted upon separate motions of the individual state defendants and of the United States for this Court to enter summary judgments in their favor with respect to certain claims. The submission is upon the pleadings, depositions, affidavits, interrogatories, documents, and briefs of the parties.

Motion for summary judgment by the individual state defendants.

The defendants Myers, Chenault, Burleson, Strandell, Adams, and Bush (hereinafter, the "state defendants") move this Court to enter partial summary judgments in their favor with respect to all claims filed by plaintiff administrators and executors whose decedents died more than two years preceding the filing of the original complaint in this cause on July 24, 1973. Claims have been alleged against the state defendants arising under both federal law and state law:

(1) Federal law. Plaintiffs have stated claims against the state defendants arising under 42 U.S.C. §§ 1981, 1983, 1985, and 1986.

Since there is no express federal remedy for wrongful death under the civil rights statutes (42 U.S.C. §§ 1981, 1983, and 1985), the common and statutory law of the State of Alabama must be looked to for a suitable remedy not inconsistent with the Constitution and laws of the United States. 42 U.S.C. § 1988. An action against these state defendants for the wrongful deaths of plaintiffs' decedents resulting from violations of the civil rights statutes gives rise, by virtue of Alabama's wrongful death statute, to federally enforceable claims for damages by their personal representatives. Brazier v. Cherry, 293 F.2d 401 (5th Cir. 1961), cert. denied, 368 U.S. 921, 82 S.Ct. 243, 7 L.Ed.2d 136 (1961), cited with approval in Moor v. County of Alameda, 411 U.S. 693, 702-703, n. 14, 93 S.Ct. 1785, 36 L.Ed.2d 596 (1973).

With the exception of 42 U.S.C. § 1986, which will be considered below, none of the civil rights statutes at issue in this motion contains a statutory period of limitation. It is well established that in such instances where Congress has provided no period of limitation for a federal claim, the federal court must borrow the applicable statute of limitations which the state in which it sits would enforce had an action seeking similar relief been brought in a court of that state. O'Sullivan v. Felix, 233 U.S. 318, 34 S.Ct. 596, 58 L.Ed. 980 (1914); McGuire v. Baker, 421 F.2d 895, 898 (5th Cir. 1970), cert. denied, 400 U.S. 820, 91 S.Ct. 37, 27 L.Ed.2d 47 (1970); Beard v. Stephens, 372 F.2d 685, 688 (5th Cir. 1967).

Title 7, § 123 of the Alabama Code provides that all actions for wrongful death must be brought "within two years from and after the death of the testator or intestate." Whether this provision be considered a statute of limitations or an essential element of the right to sue, Nicholson v. Lockwood Greene Engineers, Inc., 278 Ala. 497, 500, 179 So.2d 76 (1965); Woodward Iron Company v. Craig, 256 Ala. 37, 53 So.2d 586 (1951), it is clear that an Alabama court would enforce the two-year limitation period if a similar suit had been brought before it.

Plaintiffs argue, however, that this Court should adopt the state limitation provision only if it would assist an injured plaintiff and should disregard it if its effect would be to bar an otherwise meritorious claim because of lapse of time.¹ Such a construction of 42 U.S.C. § 1988 would be contrary to the well-settled practice of adopting applicable state limitation periods and would lead to the anomalous result in many cases of there being no limitation period within which such federal claims must be pursued. "Congress would surely have spoken more explicitly had it intended that civil rights actions should endure forever or be subject only to laches, regardless of the nature of the claim presented." Baker v. F & F Investment, 420 F.2d 1191, 1196 (7th Cir. 1970), cert. denied, 400 U.S. 821, 91 S.Ct. 40, 27 L.Ed.2d 49 (1970).

Plaintiffs further maintain that the doctrine of fraudulent concealment operates to postpone the running of the statute of limitations as to each plaintiff until he discovered, or in the exercise of reasonable diligence should have discovered, the existence of his cause of action. As a matter of federal law, the statute does not begin to run until the facts giving rise to the action are discovered or reasonably discoverable. Holmberg v. Armbrecht, 327 U.S. 392, 397, 66 S.Ct. 582, 90 L.Ed. 743 (1946). This equitable doctrine is read into every federal statute of limitations, Id., "unless Congress expressly provides to the contrary in clear and unambiguous language." Atlantic City Electric Company v. General Electric Company, 312 F.2d 236, 241 (2nd Cir. 1962).

The state defendants are entitled to judgment as a matter of law on those civil rights claims presented by the personal representatives of decedents who died before July 24, 1971, and whose claims were discovered or reasonably discoverable on or before July 24, 1971.²

On the basis of the pleadings, depositions, affidavits, and other documents filed in support of and in opposition to these motions for summary judgment, it appears that there exists a genuine issue as to the material fact of when each plaintiff administrator or plaintiff executor became aware of the existence of his claim³ and whether such delay in discovery, if any, was the result of the state defendants' alleged fraudulent concealment of the existence of the claim. Consequently, summary judgment is inappropriate as to these claims at this time.

Plaintiffs also assert claims against these state defendants for wrongful neglect cognizable under 42 U. S.C. § 1986. Unlike the other civil rights statutes considered above, § 1986 specifically provides that "no action under the provisions of this section shall be sustained which is not commenced within one year after the cause of action has accrued." As a general rule, this one-year limitation commences to run on the date of the decedent's death. Huey v. Barloga, 277 F.Supp. 864, 875 (N.D.Ill. 1967). Plaintiffs allege, however, that defendants fraudulently concealed from them and from their decedents the existence of their causes of action. It is well settled as a matter of federal law that where a plaintiff is without knowledge of his claim because of the fraudulent conduct of a defendant, the bar of the statute does not begin to run until the fraud is discovered. Holmberg v. Armbrecht, supra. "This equitable doctrine is read into every federal statute of limitation." Id.

It follows that the state defendants are entitled to judgment as a matter of law only on those § 1986 claims which were discovered before July 24, 1972. Because the record does not contain any evidence as to when the plaintiff administrators and executors discovered their § 1986 claims,⁴ this Court concludes that there is a genuine issue of material fact unresolved and that summary judgment is inappropriate at this time.

(2) State law. Plaintiff administrators and executors also sue the state defendants for wrongful death under Ala. Code, Tit. 7, § 123. An action for wrongful death must be brought within two years of the death of the decedent. Title 7, § 123. This limitation is considered to be of the essence of the right rather than a statute of limitation. Nicholson v. Lockwood Greene Engineers, Inc., supra. In fact, it has been held that since Title 7, § 123 contains its own limitation, there is no statute of limitation applicable to a cause of action for wrongful death. Woodward Iron Company v. Craig, supra, 256 Ala. at 40, 53 So.2d 586. Moreover, none of the rules for tolling a statute of limitation has any application to a wrongful death action. Id.; Nicholson v. Lockwood Greene Engineers, Inc., supra. Accordingly, plaintiffs' invocation of Title 7, § 42 of the Alabama Code is unavailing even if their allegations of fraudulent concealment are considered true for purposes of this motion. Cf. Yniestra v. Tarleton, 67 Ala. 126 (1880).

The only facts material to the determination of this motion, insofar as plaintiffs' wrongful death claims under Alabama law are concerned, are the dates of their decedents' deaths. As to these facts, the record discloses that there is no controversy. It further appears that the state defendants are entitled to judgment as a matter of law upon all wrongful death claims arising under Title 7, § 123 of the Alabama Code with respect to decedents who died before July 24, 1971.

Motion for summary judgment by the United States with respect to claims arising under the Federal Tort Claims Act.

The United States has moved this Court to enter summary judgment in its favor against all plaintiff administrators and executors whose decedents died more than two years preceding the filing of the original complaint in this cause on...