Schorle v. City of Greenhills, C-1-80-424.

• Decision Date: 26 February 1981
• Docket Number: No. C-1-80-424.,C-1-80-424.
• Parties: Rodney SCHORLE, Plaintiff, v. CITY OF GREENHILLS, et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

524 F. Supp. 821

Rodney SCHORLE, Plaintiff, v. CITY OF GREENHILLS, et al., Defendants.

No. C-1-80-424.

United States District Court, S. D. Ohio, W. D.

February 26, 1981.

Robert P. Malloy, Cincinnati, Ohio, for plaintiff.

R. Thomas Moorhead, Perrino, Woellner & Mire, Cincinnati, Ohio, for defendants.

SPIEGEL, District Judge.

This is a civil action for damages filed by plaintiff, Rodney Schorle (Schorle), on August 8, 1980, for violation of his civil rights pursuant to 42 U.S.C. §§ 1983 and 1988. The complaint is against the City of Greenhills, Ohio (City); Wilma DuPlain, the City's tax commissioner; Ronald E. Otting, the City's mayor; Larry Zettler and T. Sullivan, City police officers, and John E. Sellman, a notary public.

Schorle alleges that he was arrested by Officers Zettler and Sullivan on August 10, 1978, by virtue of an arrest warrant, and charged with violating Section 191.15 of the Income Tax Law of the City of Greenhills. He was held in custody until he could post a $100 bond. However, Schorle states that the complaint and affidavit upon which the warrant was based do not reflect the original signatures of the complainant, Wilma DuPlain, although John Sellman acknowledged them as sworn to and subscribed by him on August 10, 1978. Also, Schorle alleges, the complaint and affidavit were not ever properly reviewed by the Mayor before the arrest warrant issued, since the Mayor's purported signature on the warrant appears to be merely a rubber stamp.

The complaint further alleges that Schorle appeared in the Greenhills' Mayor's Court on August 22, 1978, at which time the matter was set over to September 29, 1978. At no time did Schorle ever waive his right to a jury trial or his right to be represented by counsel. Yet, on September 12, 1978, when Schorle, unrepresented, again appeared in Mayor's Court, the Mayor entered a plea of not guilty on his behalf and proceeded to hear evidence against him presented by the City. Thereafter, the Mayor found Schorle guilty of the charge against him and sentenced him to six months in jail and a fine of $1,000, despite the fact that the ordinance provides for a maximum penalty of six months' imprisonment and a $500 fine. The Mayor granted Schorle's request for a stay of execution but required him to post an additional bond of $1,000. Schorle remained in the City's custody until this bond could be posted. The Mayor never advised him of his right to appeal.

Schorle sought legal counsel and commenced an appeal to the Hamilton County, Ohio, Municipal Court. The Municipal Court granted Schorle's motion to dismiss the charge against him on January 20, 1979.

All of the defendants have filed a motion to dismiss the complaint or, in the alternative, to dismiss each of them as a party defendant (doc. 4). Plaintiff has filed a memorandum in opposition (doc. 7). Defendants' basis for dismissal of the complaint as to all of them is based on the argument that a one-year period of limitations should be applied to plaintiff's cause of action. As most of the injuries of which plaintiff complains occurred in August and September of 1978, the last act mentioned in his complaint being the dismissal of the City's charges against him by the Municipal Court on January 20, 1979, application of a one-year statute of limitations would clearly bar this action which was not filed until August 8, 1980.

Since there is no specifically stated or otherwise relevant federal statute of limitations for actions arising under the Civil Rights Acts, 42 U.S.C. §§ 1981 et seq., federal courts must look to the most analogous state law in determining limitations periods. Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 95 S.Ct. 1716, 44 L.Ed.2d 295 (1974); Garner v. Stephens, 460 F.2d 1144, 1145 (6th Cir. 1972).

As noted by The Honorable William O. Bertelsman in Hines v. Board of Education of Covington, Kentucky, 492 F.Supp. 469, 472 (E.D.Ky.1980):

Trial courts have been provided with little guidance in the methods to be used in making the required analysis. This court believes and holds that in implementing the Sixth Circuit approach the two primary factors to be considered in attempting to analogize a federal civil rights claim to a state claim for the purpose of selecting an appropriate statute of limitations are the interest of the plaintiff sought to be protected, and the operative facts comprising the claim.

There are three Ohio statutes of limitations which the Sixth Circuit has recognized as being applicable to Civil Rights claims: Ohio's one-year statute of limitations for intentional torts, Ohio Rev. Code § 2305.11, Austin v. Brammer, 555 F.2d 142 (6th Cir. 1977); Ohio's four-year statute of limitations for injuries to the rights of the plaintiff not arising on contract nor enumerated in Ohio Rev. Code §§ 2305.10 to 2305.12, Ohio Rev. Code § 2305.09, Crawford v. Zeitler, 326 F.2d 119, 121 (6th Cir. 1964); and Ohio's six-year statute of limitations for an action upon a liability created by statute other than a forfeiture or a penalty, Ohio Rev. Code § 2305.07, Mason v. Owens-Illinois, Inc., 517 F.2d 520 (6th Cir. 1975).

Defendants contend that plaintiff's complaint is most analogous to one for false arrest, false imprisonment, and malicious prosecution. Thus, they argue, that under Austin, supra and Carmicle v. Weddle, 555 F.2d 554 (6th Cir. 1977), Ohio's one-year statute of limitations, Ohio Rev. Code § 2305.11, is applicable.

Austin and Carmicle reached similar results under similar statutes of limitations in Ohio and Kentucky, respectively. In Austin the plaintiff alleged that his civil rights were violated by police officers who gave perjurious testimony in a state criminal action, which resulted in his conviction and incarceration. The Court found the most nearly analogous Ohio statute of limitations to be Ohio Rev. Code § 2305.11, which applies a limitations period of one year to actions of false imprisonment, which encompasses false arrest, Alter v. Paul, 101 Ohio App. 139, 135 N.E.2d 73 (1955), and malicious prosecution. However, the Sixth Circuit reversed the District Court's dismissal of the complaint on the basis that the running of the statute had been tolled by plaintiff's incarceration. Thus, the determination made by the Sixth Circuit in Austin of the applicable statute of limitations is dicta.

In Carmicle, plaintiff's claim was that certain of his neighbors had conspired with local officials to falsely charge plaintiff with maintaining a nuisance in the neighborhood by countenancing the destructive conduct of his children. This charge culminated in the issuance of an injunction against the plaintiff by the County Circuit Court and allegedly forced the plaintiff to evacuate his home under threat of further prosecution. Plaintiff also contended that he was arrested without probable cause and that the Circuit Court was without jurisdiction of the offense charged. The Court found that K.R.S. § 413.140(1)(c), Kentucky's one-year statute of limitations for actions for false arrest and malicious prosecution was the most appropriate statute of limitations. In Carmicle, the Sixth Circuit explicitly rejected the application of K.R.S. § 413.120(2) which provides a limitation period of five years for an action upon a liability created by statute. 555 F.2d at 555.

However, in Garner v. Stephens, 460 F.2d 1144 (6th Cir. 1972), the Court held Kentucky's five-year statute of limitations, K.R.S. § 413.210(2), to be the correct period of limitation for an action pursuant to § 1983 of the Civil Rights Act where the plaintiff claimed that the County Board of Education had discriminated against her by requiring her to take a full year's leave of absence due to pregnancy. The Court found Kentucky's one-year limitation period for injury to the person of the plaintiff to be inapplicable, since the Kentucky courts had applied that statute only in cases of actual physical injury. Since the law of the state in question must be examined to determine the appropriate limitations period to apply, the Court found K.R.S. § 413.120(2), which limits an action upon a liability created by statute when no other time is fixed by the statute creating liability, to be the most appropriate. In so doing, the Court rejected the use of K.R.S. § 413.210(7), which provides a five-year limitation period for injuries to the rights of the plaintiff.

Likewise, in Mason v. Owens-Illinois, Inc., 517 F.2d 520 (6th Cir. 1975), the Court held Ohio Rev. Code § 2305.07, Ohio's six-year statute of limitations for an action upon a liability created by statute other than a forfeiture or a penalty, to be applicable to an action under 42 U.S.C. § 1981 which was brought by a former employee against a former employer for racial discrimination. In doing so, they used the rationale of Garner.

However, the Sixth Circuit took a different approach in dealing with cases arising in Michigan. Michigan has no period of limitations analogous to the Ohio or Kentucky periods for actions upon a liability created by statute. Thus, in Marlowe v. Fisher Body, 489 F.2d 1057 (6th Cir. 1973), and Madison v. Wood, 410 F.2d 564 (6th Cir. 1969), both discrimination actions brought under §§ 1981 and 1983, respectively, the Court reasoned that a deprivation of civil rights is primarily a violation of personal rights. Accordingly, the Court applied the Michigan three-year statute of limitations relating to an action for damages for injuries to the person. Unlike the Kentucky state courts, the Michigan courts have construed that statute to apply to all injuries to the person, not just physical ones. Mich. Comp. Laws Ann. § 600.5805(7).

Ohio, like Michigan and Kentucky, has a limitation period for an injury to the rights of the plaintiff. Ohio Rev. Code § 2305.07. In both Ohio and Kentucky, the Sixth Circuit chose to apply the statutes of limitations for actions upon a liability created by statute, rather than those for injuries to the rights of...