Storey v. United States, EC-85-510-GD-D.

• Decision Date: 12 March 1986
• Docket Number: No. EC-85-510-GD-D.,EC-85-510-GD-D.
• Citation: 629 F. Supp. 1174
• Parties: Charles STOREY, Plaintiff. v. UNITED STATES of America; Charles Garrett; and X, Whose True Name is Unknown, and Who is an Agent of the Internal Revenue Service of United States Government, Defendants.
• Court: U.S. District Court — Northern District of Mississippi

629 F. Supp. 1174

Charles STOREY, Plaintiff. v. UNITED STATES of America; Charles Garrett; and X, Whose True Name is Unknown, and Who is an Agent of the Internal Revenue Service of United States Government, Defendants.

No. EC-85-510-GD-D.

United States District Court, N.D. Mississippi, E.D.

March 12, 1986.

Jim Waide, Estes & Waide, Tupelo, Miss., for plaintiff.

Gregory D. Keenum, Keenum & Keenum, P.A., Booneville, Miss., William D.M. Holmes, Trial Atty., Tax Div., U.S. Dept. of Justice, Washington, D.C., Robert Q. Whitwell, U.S. Atty., Oxford, Miss., for defendants.

MEMORANDUM OPINION

DAVIDSON, District Judge.

This cause is presently before the court on the defendant's motion to dismiss. In the case sub judice the plaintiff, Charles Storey, brought suit against the defendants Charles Garrett, a garage owner, the United States of America and an unnamed Internal Revenue Service agent. In his complaint the plaintiff alleges that in August of 1981, state officials seized a pickup truck that the plaintiff owned and delivered it to the defendant Garrett without affording the plaintiff notice or a hearing. The complaint alleges that Garrett and the state officials entered a conspiracy that Garrett would continue to withhold the plaintiff's truck from him without affording the plaintiff any procedural due process in violation of Title 42 U.S.C. § 1983. Storey instituted suit against the state officials in 1984. This action was subsequently settled, and the state officials abandoned any claim they had to the plaintiff's truck.

Although the state officials abandoned their claim to the truck, the defendant Garrett still refuses to release the truck to the plaintiff. The complaint states that Garrett has asserted that he has a storage lien against the plaintiff's truck. The complaint further provides that the defendant IRS agent authorized and directed Garrett to continue to deny the plaintiff possession and use of his truck without due process. It is also alleged that the IRS agent had an agreement with Garrett that Garrett would sell the truck to satisfy his storage lien and that the IRS would then receive the proceeds from this sale to satisfy Garrett's debt to the IRS.

In the motion to dismiss, the defendant alleges four grounds for dismissal. The defendant alleges:

1) That the court lacks jurisdiction over the subject matter of the action because the complaint fails to allege a substantial federal question;

2) That if the complaint does allege a federal question, it is barred by the statute of limitations;

3) That the complaint fails to state a claim upon which relief from this court may be granted because the United States of America has denied any claim to the truck that is the subject of this action;

4) That the court lacks jurisdiction in that no allegations have been made as to the adequacy of any state remedy.

In considering a motion to dismiss, the court must construe the allegations of the complaint liberally, and the allegations must be accepted as true in testing their sufficiency. Cruz v. Beto, 405 U.S. 319, 322, 92 S.Ct. 1079, 1081, 31 L.Ed.2d 263 (1972). A court should not dismiss a complaint unless it is apparent that the plaintiff can prove no set of facts that would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957). With these guidelines in mind, the court proceeds to consider each of the grounds for dismissal alleged by the defendant.

LACK OF SUBJECT MATTER JURISDICTION

In considering whether the court has jurisdiction on a motion to dismiss, the court looks only to the allegations in the pleadings. In the plaintiff's complaint, he alleges that the United States is a defendant and that a federal official conspired with the private defendant to deprive the plaintiff of constitutionally protected rights. It is settled law that a federal cause of action exists when an individual's constitutional rights are violated by a federal official acting under color of federal authority. Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388, 389, 91 S.Ct. 1999, 2001, 29 L.Ed.2d 619 (1971); Shelby v. McAdory 781 F.2d 1053 (5th Cir. 1986) (per curiam). Because a federal cause of action is alleged against the unnamed IRS agent, this federal district court has jurisdiction over the subject matter. 28 U.S.C. § 1331. Furthermore, this court has jurisdiction over civil actions against the United States that are founded upon the Constitution of the United States. 28 U.S.C. § 1346.

This court also has original jurisdiction over the private defendant in this case. In his complaint, the plaintiff alleges that the defendant, Garrett, a private citizen, conspired with state officials to deprive him of his property without due process of law in violation of 42 U.S.C. § 1983. In 1981, the defendant and several state officials allegedly conspired to take and retain the defendant's truck without any notice or hearing. The defendant still has control of the plaintiff's truck. Title 42 U.S.C. § 1983 provides that: "every person" who acts "under color" of state law to deprive another of constitutional rights shall be liable in a suit for damages. In Dennis v. Sparks, 449 U.S. 24, 27-28, 101 S.Ct. 183, 186, 66 L.Ed.2d 185 (1980), the Supreme Court held that a private person may be found to act "under color of" state law when he engages in a conspiracy with a state official to deprive another of his constitutional rights. The court stated that to act under color of state law for § 1983 purposes does not require that the defendant be an officer of the state. It is enough that the defendant is a willful participant in a joint action with an agent of the state. Id. at 27, 101 S.Ct. at 186. "Private persons, jointly engaged with state officials in the challenged action, are acting `under color' of state law for purposes of § 1983 actions." Id. at 28, 101 S.Ct. at 186; see also Adickes v. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). Since the plaintiff asserts that Garrett acted jointly with state officials in depriving him of his property, a federal question does exist under § 1983 and this court has jurisdiction over the matter. 28 U.S.C. § 1343. See also Lugar v. Edmonson Oil Co., 457 U.S. 922, 927 n. 6, 102 S.Ct. 2744, 2748 n. 6, 73 L.Ed.2d 482 (1982).

STATUTE OF LIMITATIONS

The defendant alleges that if the complaint does allege a federal question under § 1983, the action is barred by the statute of limitations. In Gates v. Spinks, 771 F.2d 916, 920 (5th Cir.1985), the Court of Appeals for the Fifth Circuit held that all § 1983 actions brought in Mississippi will be governed by Mississippi Code § 15-1-35, the Mississippi one-year statute of limitations for intentional torts. Although the defendant is correct in asserting that Mississippi state law governs in determining the proper statute of limitations to be applied, the question of when a § 1983 cause of action accrues is a question that must be determined by federal, not state law. Donaldson v. O'Connor, 493 F.2d 507, 529 (5th Cir.1974) cert. denied, 419 U.S. 894, 95 S.Ct. 171, 42 L.Ed.2d 138, vacated and remanded on other grounds, 423 U.S. 885, 96 S.Ct. 161, 46 L.Ed.2d 117 (1975). In Donaldson, the Fifth Circuit Court of Appeals stated, "when a tort involves continuing injury, the cause of action accrues and the limitation period begins to run, at the time the tortuous conduct ceases." Id. In Donaldson, a former mental patient had been involuntarily committed without a prior hearing. He brought suit under § 1983 at the time he was released from the institution. The defendants claimed that the plaintiff's § 1983 action accrued at the time he was committed and was barred by the statute of limitations. The Donaldson court disagreed and held that "where a tort causing continuing injury is alleged, a patient's cause of action does not accrue until the date of his release." Id.

In the instant action, the plaintiff alleges that he has been deprived of his property without due process as a result of a conspiracy between the defendant and state law enforcement officials. The conspiracy to deprive the plaintiff of his property is alleged to be a continuing tort because the defendant retained the plaintiff's truck pursuant to an agreement with the state officials from August 1981 until December 1985, when the state officials abandoned their claim to the truck.

In examining the plaintiff's contention that the conspiracy was a continuing tort, the court notes that a conspiracy consists of two basic elements: 1) an agreement between the parties to inflict a wrong or injury upon another, and 2) an overt act in furtherance of the agreement that results in damage to another. Hampton v. Hanrahan, 600 F.2d 600, 621 (7th Cir.1979), rev'd in part on other grounds, 446 U.S. 754, 100 S.Ct. 1987, 64 L.Ed.2d 670 (1980). For purposes of a § 1983 action, the plaintiff must allege, with particularity, that a state official, acting in his official capacity, conspired with the private defendant to violate the plaintiff's constitutional rights. Weiss v. Willow Tree Civic Association, 467 F.Supp. 803, 811 (S.D.N.Y.1979). See also Tarkowski v. Robert Bartlett Realty Co., 644 F.2d 1204 (7th Cir.1980); Ostrer v. Aronwald, 567 F.2d 551, 553 (2nd Cir. 1977). A bare allegation that the private defendant and state officials acted in concert is no evidence of conspiracy. The plaintiff must make a factual disclosure tending to show that the private defendant and public officials directed themselves toward unconstitutional actions in accordance with a mutual understanding. Sparkman v. McFarlin, 601 F.2d 261, 268 (7th Cir. 1979). It appears that for purposes of the motion to dismiss, the plaintiff has met these requirements. The plaintiff has also established a prima facie showing that the state officials and the defendant Garrett had a mutual continuing understanding for Garrett to continue to deprive the plaintiff...