Triplett v. Azordegan

• Citation: 478 F. Supp. 872
• Decision Date: 12 October 1977
• Docket Number: No. C 75-4008.,C 75-4008.
• Parties: Ernest TRIPLETT, Plaintiff, v. Dr. Azizollih AZORDEGAN et al., Defendants.
• Court: U.S. District Court — Northern District of Iowa

478 F. Supp. 872

Ernest TRIPLETT, Plaintiff, v. Dr. Azizollih AZORDEGAN et al., Defendants.

No. C 75-4008.

United States District Court, N. D. Iowa, W. D.

October 12, 1977.

COPYRIGHT MATERIAL OMITTED

Robert D. Bartels, John M. Thompson, Kent B. Magill, Prisoner Assistance Clinic, Iowa City, Iowa, Stephen F. Avery, Spencer, Iowa, for plaintiff Triplett.

James L. Abshier, City Atty., Michael S. Walsh, Asst. City Atty., Sioux City, Iowa, for employees of City of S. C., Russell H. White and William Dennison.

Richard Turner, Atty. Gen., John Beamer, Stephen C. Robinson, and Fred M. Haskins, Asst. Attys. Gen., Des Moines, Iowa, for employees of State of Iowa, Wm. Sanguin and Dr. Sainz.

Addison M. Parker, Dwight W. James, Richard A. Malm, Des Moines, Iowa, Frank C. Horton, Jackson, Miss., for Azordegan.

Emmanuel S. Bikakis, Dewis J. Gaul, Richard Rhinehart, David E. Vohs, Sioux City, Iowa, for Donald O'Brien.

Frank J. Margolin, Sioux City, Iowa, for Wm. Dennison and Russell White.

John W. Gleysteen and Marvin F. Heidman, Sioux City, Iowa, for Robert Beebe and Wm. Sturges.

Harry H. Smith and LeRoy J. Sturgeon, Smith & Smith, Sioux City, Iowa, for Dennison.

ORDER

McMANUS, Chief Judge.

This order is the result of a spate of motions and requests in this labyrinthine litigation which began three years ago. Matters before the court include: (1) a resisted motion for summary judgment filed August 10, 1977 by defendant Sanguin¹; (2) a resisted motion filed May 19, 1977 to vacate this court's January 25, 1977 order dismissing defendants Azordegan, and Sainz; (3) a resisted motion for court ordered service filed May 2, 1977; (4) defendant Azordegan's request for oral argument on the question of personal jurisdiction; and (5) plaintiff's resisted motion for partial summary judgment against defendant Sanguin filed July 28, 1977.

On September 11, 1974, the plaintiff brought an action under 42 U.S.C. § 1983 against eight defendants, each of whom was sued individually and in his official capacity.² The complaint alleges plaintiff was deprived of his constitutional rights under color of state law by virtue of his being drugged before confessing to a 1954 murder. Plaintiff was convicted and served 17 years in the state penitentiary. In 1972 the Plymouth County District Court ordered plaintiff released on the grounds of the involuntary confession and all charges were dismissed. Plaintiff charges that he has suffered personal injury in the form of violation of his constitutional rights, loss of freedom, loss of income, pain and suffering and loss of dignity.

Motion for Summary Judgment

As defendant Sanguin has withdrawn Division 2 of his motion for summary judgment, we need deal only with Division 1 which asserts that this action is barred by the statute of limitations. In effect, the defendant asserts that because for some reason the plaintiff failed to produce medical records at his initial trial, the period of limitations began to run against him in 1955.

It is clear that the issues surrounding the confession were raised at trial and in post trial motions, but failed to affect the conviction. Only in 1972, when the district court released Triplett was there a determination that his rights had been violated. At that time this action ripened. The case was filed and defendant Sanguin, an Iowa resident, was served within any of the applicable Iowa statute of limitations.³

The movant claims that plaintiff knew all the operative facts in 1955 and should have sued then. Knowing the operative facts in a case based on § 1983 is clearly a different matter from knowing the facts in a tort case. In tort there is an act or inaction and injury. There is no question as to the type of injury. Rather the extent of injury and causative links are at issue. However, in a § 1983 action it is necessary to first define the constitutional wrong on which the claim is based. Here the Plymouth County District Court did just that in October of 1972. It is almost too evident to warrant comment that plaintiff, having been convicted of murder by virtue of a confession which in 1955 was deemed legal and admissible, could not have, at that time, pursued a § 1983 claim. See Kauffman v. Moss, 420 F.2d 1270, 1274-75 (3d Cir.) cert. denied 400 U.S. 846, 91 S.Ct. 93, 27 L.Ed.2d 84 (1970); cf. Kennedy v. Mendoza-Martinez, 372 U.S. 144, 157-158, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963).

In fact the Eighth Circuit Court of Appeals has recognized that issues determined at a criminal trial may estop the criminal defendant from relitigating them in a civil action based on § 1983. McNally v. Pulitzer Pub. Co., 532 F.2d 69 (8th Cir. 1976).

It is well established that prior criminal proceedings can work an estoppel in a subsequent civil proceeding, so long as the question involved was "distinctly put in issue and directly determined" in the criminal action.

532 F.2d at 76.

The state district court found that the conviction was based on the involuntary confession. The issue of voluntariness was sufficiently raised at the original trial to warrant estoppel until the court reversed the conviction in 1972.

To hold that a plaintiff needed to ignore the criminal proceedings and immediately sue under § 1983 would mean that plaintiff would have had to pursue a technically possible, but at the time frivolous suit. To so argue is to read Kafka into law.

Defendant raises the "discovery rule" as a bar. That rule is inapplicable in this context. In addition, it is possible to analogize this issue to that of a continuing tort, that is, each day the plaintiff was deprived of his constitutional rights constituted a new violation. Thus the statute of limitations would run from the last day of incarceration.

In light of the above discussion, this court can see no reason to believe defendant will be unfairly prejudiced by allowing this action to proceed.

Motion to Vacate Order

Plaintiff timely moved to vacate this court's order of January 25, 1977 which made final the court's April 4, 1975 order dismissing defendants Azordegan and Sainz on the basis of ineffective service.

Defendants Azordegan and Sainz were served personally in Mississippi and North Carolina, respectively. They moved to dismiss and were re-served under FRCP 4(e) and the Iowa "long arm" statute, § 617.3 Code of Iowa (1973).

This court held that both attempts were ineffective and that § 617.3 could be applied prospectively only. Plaintiff now asks to vacate the order so that it may properly move for court ordered service under IRCP 56.1 and 56.2

Defendant resists on the grounds that filing of an appeal stays the district court's hand from further consideration of its order. That jurisdictional argument is mooted by the Eighth Circuit Court of Appeal's June 8, 1977 remand for consideration of the motion for court ordered service.

The granting of motions under FRCP 60(b) is within the discretion of the court rendering the judgment. Hale v. Ralston Purina Co., 432 F.2d 156 (8th Cir. 1970); Pagan v. American Airlines Inc., 534 F.2d 990 (1st Cir. 1976). Several courts within the eighth circuit have held that 60(b) is to be liberally construed to accord justice. State of Iowa v. Union Asphalt & Road Oils, Inc., 281 F.Supp. 391, 398 (S.D. Iowa 1968), affirmed 409 F.2d 1239 (8th Cir. 1969); Hodgson v. American Can Co., Dixie Products, 317 F.Supp. 152 (W.D.Ark.1970), reversed in part 440 F.2d 916 (8th Cir. 1971); 11 Wright & Miller, Federal Practice and Procedure: Civil § 2857.

In this case, reopening the case to allow proper service will further justice and there is no persuasive argument that defendants will be unduly prejudiced. Under FRCP 60(b)(1) the order may be vacated.

Motion for Court Ordered Service filed May 2, 1977 as amended June 27, 1977

Plaintiff, having failed to effectively serve defendants Sainz and Azordegan under the Iowa long arm statute, now seeks a court order under IRCP 56.1 or 56.2⁴ for extra-territorial service. This raises a number of thorny questions.

Procedurally plaintiff first sought a court order under 56.1(n) and defendants resisted on the grounds that: (1) 56.1(n) does not authorize extra-territorial service; (2) service was barred by the two-year statute of limitations contained in § 614.1(2) Code of Iowa (1977); (3) plaintiff failed to use due diligence by not initially serving under 56.1(n); (4) 56.1(n) may not be employed retroactively; (5) promulgation of 56.1(n) is beyond the Iowa Supreme Court's authority; and (6) retrospective application of 56.1(n) violates due process.

Plaintiff responded by amending his motion to include service via IRCP 56.2 should the court find 56.1(n) inapplicable.

Out of state service

The law in Iowa on the relationship of 56.1 and 56.2 is not settled. As noted in plaintiff's memorandum in support of his amendment to the motion for court ordered service, one authority considers the sections essentially redundant. 1 Vestal and Willson, Iowa Practice, April, 1977 Cumulative Supplement, §§ 10.02(12)-(13), pp. 12-19. Section 56.1 in general seems to deal with in-state service. The language of 56.1(n) therefore, could be read to apply only to service within Iowa. However, paragraph 2 of 56.2 provides that service may be made "(a) as provided in rule 56.1 within or without the state, or (b) if such service cannot be so made, in any manner consistent with due process of law prescribed by order of the court in which the action is brought." 56.2 IRCP. This could be read as adding extra-territorial service to that provided in 56.1 or as an incorporation of 56.1 including its extra-territorial service provision of subsection (n).

This court agrees with the plaintiff that Rule 56.1(n), as an addition to old Rule 56, expands the reach of the courts beyond Iowa's boundaries and thus is adequate grounds for service in the present case.

However, even if 56.1(n) is read narrowly to comport with defendant's interpretation, 56.2 explicitly provides for...