Thomas v. City of New Albany, 89-4871

• Decision Date: 18 May 1990
• Docket Number: No. 89-4871,89-4871
• Parties: Daniel THOMAS, Individually and as next friend to Annette Thomas, Plaintiff-Appellant, v. CITY OF NEW ALBANY, et al., Defendants-Appellees. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 476

901 F.2d 476

Daniel THOMAS, Individually and as next friend to Annette Thomas, Plaintiff-Appellant, v. CITY OF NEW ALBANY, et al., Defendants-Appellees.

No. 89-4871

Summary Calendar.

United States Court of Appeals Fifth Circuit.

May 18, 1990.

David G. Hill, Oxford, Miss., for plaintiff-appellant.

Roger H. McMillin, Jr., Robert M. Carter, New Albany, Miss., for defendants-appellees.

Appeal from the United States District Court for the Northern District of Mississippi.

Before GEE, DAVIS, and JONES, Circuit Judges.

PER CURIAM:

His Section 1983 action for use of excessive force by city police dismissed on limitations grounds, Daniel Thomas appeals. The sole issue is which of two Mississippi limitations periods applies, the one-year statute applicable to intentional torts or the six-year residual statute governing claims of a sort not treated elsewhere. The material facts are undisputed. We reverse.

The incident of which Mr. Thomas complains took place on November 29, 1983. At that time, under the rule of Morrell v. City of Picayune, 690 F.2d 469 (5th Cir.1982), it was settled that the six-year statute applied to such actions. He first consulted counsel nearly two years later, however, and was then correctly advised that, under our Circuit's intervening decision in Gates v. Spinks, 771 F.2d 916 (5th Cir.1985), cert. denied, 475 U.S. 1065, 106 S.Ct. 1378, 89 L.Ed.2d 603 (1986), the one-year statute applied and barred his action. After our decision in Young v. Biggers, 820 F.2d 727 (5th Cir.1987), however, counsel concluded otherwise and, in September 1987, suit was filed. ¹ A few months later, responding to the Supreme Court's decision in Wilson v. Garcia, 471 U.S. 261, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985), we handed down Hanner v. State of Mississippi, 833 F.2d 55 (1987), under the rule of which Thomas's action was again time-barred. Finally came the Supreme Court decision in Owens v. Okure, 488 U.S. 235, 109 S.Ct. 573, 102 L.Ed.2d 594 (1989), under which the six-year, residual statute plainly applies to the action.

The district court viewed the question presented as one of Okure's retroactivity, concluded that it should not be retroactively applied "with respect to this plaintiff" so as to "reward his prolonged inaction at the expense of the defendants' peace of mind," and dismissed the action. Despite our sympathy with the result--a sympathy arising chiefly from the staleness of some claims legitimately subject to being brought within the period of so lengthy a statute--we conclude that it cannot stand. In the first place, we are dubious that the problem presented is correctly viewed as one of retroactivity. In the second, we conclude that, even if it be so viewed, no inequity results.

As for whether the problem is truly one of retroactivity at all, we note that after Okure was handed down on January 10, 1989, and before the running of the six-year statute on Thomas's claim on November 30, 1989, almost eleven months ensued--months during which, had he never brought an action at all, he could have done so. Thus, at a time when his remedy was not barred, it became known that limitations had not run on it.

But even if the problem be viewed in terms of whether or not Okure should be retroactively applied, and if the Chevron factors be consulted, the result is the same. As the district court observed, cases are ordinarily decided in accordance with the law that exists at the time of decision. Gulf Offshore Oil Co. v. Mobil Oil Co., 453 U.S. 473, 101 S.Ct. 2870, 69 L.Ed.2d 784 (1981). Chevron Oil Co. v. Huson, 404 U.S. 97, 107, 92 S.Ct. 349, 355, 30 L.Ed.2d 296 (1971) sets forth factors to be considered in determining when special circumstances exist suggesting prospective application...