Bruce Miller v. N. S. Smith, Individually and in His Capacity as a Member of the Dallas Police Department , 615 F.2d 1037 ( 1980 )

COLEMAN, Chief Judge.

On January 4, 1967, Bruce Miller was arrested for robbery with firearms and has since been continuously in prison. Miller pleaded guilty to the charge but this was set aside because the trial court had not sufficiently apprised him of the possible punishment, Miller v. State, 424 S.W.2d 430 (Tex.Cr.App.1968). Upon remand, Miller stood trial and was convicted. This conviction was affirmed, Miller v. State, 472 S.W.2d 269 (Tex.Cr.App.1971). The appellate court held specifically that Miller’s arrest was lawful because it had been made on probable cause, 472 S.W.2d at 272.¹

More than nine years passed after Miller’s arrest February 4, 1976, he filed a pro se suit for damages, 42 U.S.C., Sections 1981, 1983, and 1985, in which he charged that Officer N. S. Smith and Chief Donald Byrd of the Dallas Police Department had unlawfully arrested him on the robbery charge, in violation of his constitutional rights.

An arrest is to be viewed as proper as long as a conviction flowing from that arrest stands, Covington v. Cole, 528 F.2d 1365 (5 Cir., 1976), but the police officers relied instead on the Texas two-year statute of limitations, Article 5526 V.A.T.S.² Miller responded that this period of limitation was tolled during his imprisonment by Article 5535 of the Texas statutes.³ The District Court disagreed with this contention and dismissed the complaint, Miller v. Smith, 431 F.Supp. 821 (N.D.Tex.1977).

Since there is no federal statute of limitations for civil rights actions, federal courts will apply that statute of limitations which the forum state prescribed for suits seeking similar relief in state courts. E. g., Proctor v. Flex, 567 F.2d 635 (5 Cir., 1978); Kissinger v. Foti, 544 F.2d 1257 (5 Cir., 1977); Knowles v. Carson, 419 F.2d 369 (5 Cir., 1969).

The Texas tolling statute (Footnote 3, supra) was last amended effective January 1,1968, when the ancient imprisonment tolling provisions were left intact.

In the posture in which the case comes to us, the sole issue is whether the application of a state statute of limitations in a civil rights ease mandates application of a state “tolling” provision where one exists.

Although there have been a, few cases which peripherally approached it, this issue has not been precisely decided in this Circuit. Bryant v. Potts, 528 F.2d 621 (5 Cir., 1976) was a pro se prisoner suit, 42 U.S.C., Section 1983, alleging that property belonging to the plaintiff had been unlawfully seized and retained by defendant police officers. The seizure occurred December 16, 1969. The suit was not filed until September 15, 1975, far beyond the expiration of the Texas two-year limitations. The district court applied the two-year statute but the Texas tolling provisions had not been brought to its attention. Our panel vacated and remanded to allow the district court to “consider the applicability” of the tolling statute and “for further proceedings in due course in the event it is found applicable ” (emphasis added), 528 F.2d at 623. Nothing was said in the opinion as to the standards to be observed by the district court when it “considered” the applicability of the tolling statute. In any event, the trial court was not told that it was required to apply the tolling statute.

Grundstrom v. Darnell, 531 F.2d 272 (5 Cir., 1976) (Summary Calendar) was a pro se 42 U.S.C., Section 1983, suit against a sheriff for certain alleged violations of civil rights. The district court dismissed on the ground that habeas corpus was the appropriate remedy. Our panel agreed and offered the observation that

It appears that Vernon’s Ann.Tex. Stats. Art. 5535, which tolls limitations statutes as applied to persons imprisoned, will protect plaintiff against a statute of limitations bar as to any civil rights claims which he may eventually wish to assert, after full pursuit of habeas corpus relief. It has not been argued otherwise.

This observation, however, was not necessary to the decision of the case and there was no reasoned analysis in support of the observation.

On the other hand, we do not overlook Footnote 1 in the Fifth Circuit Section 1983 case of Neel v. Rehberg, 577 F.2d 262, 264 (1978):

1. In support of his contention that none of his allegations are time-barred, the plaintiff points to Ga.Code Ann. § 3-801, which provides:

Infants, idiots, or insane persons, or persons imprisoned, who are such when the cause of action shall have accrued, shall be entitled to the same time, after the disability shall have been removed, to bring an action, as is prescribed for other persons.

Thus, according to Neel, Georgia statutes of limitation are tolled in the case of persons under legal disability, which includes prisoners. In Heard v. Caldwell, S.D.Ga., 1973, 364 F.Supp. 419, the district court found that the doctrine that a prisoner cannot sue no longer exists in Georgia, and, in any event, that “[borrowing the state [statute of limitations] for the purpose of Civil Rights suits does not necessarily carry with it to the federal courts a tolling provision of the state law which has [the] effect” of “impeding or delaying the plaintiff from resort to the federally-created remedy.” “The policy and intent of the federal law must be considered in dealing with the state limitation,” the court added. 364 F.Supp. at 422. We agree with the district court and find that as a matter of federal law, Ga.Code Ann. § 3-801 does not apply to suits brought pursuant to 42 U.S.C. § 1983. See Mizell v. North Broward Hospital District, 5 Cir., 1970, 427 F.2d 468.

We are aware that the Sixth Circuit has held in a Section 1983 case that a federal district court borrowing the Ohio statute of limitations should have utilized the state tolling statute, Austin v. Brammer, 555 F.2d 142 (1977). To like effect, especially citing a New York Advisory Committee report that “As to a person imprisoned, legal capacity to sue, if it exists, is only a theoretical right” (1958), see Ortiz v. LaVallee, 442 F.2d 912 (2 Cir., 1971). The Ninth Circuit has also held that state statutory tolling must be observed, see Ney v. State of California, 439 F.2d 1285 (Circuit Judge Kilkenny dissenting, 1971); Horn v. Bailie, 309 F.2d 167 (9 Cir., 1962). See, also, Duncan v. Nelson, 466 F.2d 939 (7 Cir., 1972).

None of these cases contain any extended discussion or analysis for simply holding that in borrowing a state statute of limitations in a civil rights damage suit a federal district court is required to bring along, in tandem, a state tolling provision.

The District Court Decision

In declining to apply the Texas tolling statute to this civil rights case the District Court reasoned as follows:

1. At common law, a convicted felon was civilly dead and had not the legal capacity to prosecute a suit. Originally, this was the codified law of Texas, since repealed.

2. It has been over 75 years since a state court in Texas in a published opinion has tolled a statute of limitations because of a plaintiff’s imprisonment [In 1978 a Texas Court of Civil Appeals applied the Texas tolling statute in favor of a Texas prisoner suing for personal injuries under the Texas Tort Claims Act, Jenkins v. State, 570 S.W.2d 175 (Tex.Civ.App., Houston, 1978)].

3. During the fiscal year 1976, 668 civil rights suits were filed in the United States District Courts in Texas, of which 41% were filed by prisoners.

4. Federal law guarantees a state prisoner the right to prosecute civil rights suits. If the prisoner is indigent he may proceed in forma pauperis. If the claim appears meritorious a prisoner-plaintiff may have counsel appointed to represent him. Prisoners are aided in gathering evidence through liberal discovery rules.

5. In federal question cases, federal principles are to be followed as to when a cause of action has accrued and as to when a statute of limitations is to be tolled, citing Holmberg v. Armbrecht, 327 U.S. 392, 66 S.Ct. 582, 90 L.Ed. 743 (1946).

6. To apply the Texas tolling statute would be “inconsistent with the policies underlying the federal civil rights act and, therefore, would be improper under 42 U.S.C., Section 1988”⁴

Since the instant case was decided, another federal district court in Texas has met the same issue and decided it the same way, Stephens v. Curtis, 450 F.Supp. 141 (S.D.Tex.1978). The reported opinion in that case cites several other unreported federal district court decisions in Texas to like effect.⁵ Reciting extensive statistics of a highly informative nature (450 F.Supp. at 143) the Stephens' Court pointed out that since 1960 civil filings in the district courts of the United States have increased 120.2% while prisoner filings have increased 797.4%. It was concluded:

It is therefore readily evident that prisoners are not, in fact, disabled from filing civil rights suits as they may have been at common law or under early Texas law. On the contrary, the rationale for a prisoner’s disability in filing suit, as codified in Texas’ century-old statute, has long since become obsolete.

Our Disposition of the Appeal

• It is well settled that in states having no applicable tolling statute, imprisonment does not stop the running of an applicable limitations statute, Proctor v. Flex, 567 F.2d 635 (5 Cir., 1978); Kissinger v. Foti, 544 F.2d 1257 (5 Cir., 1977).

The question then becomes: When it is evident that a prisoner has free access to the federal courts, and there is no claim or proof that the state by some deliberate action has impaired or obstructed that freedom, should a state tolling statute invariably be mandated for federal district courts in cases wherein the plaintiff has not acted within prescribed time limitations?

In an opinion by Mr. Justice Jackson, the Supreme Court disavowed support for “hoary litigation”:

Statutes of limitation, like the equitable doctrine of laches, in their conclusive effects are designed to promote justice by preventing surprises through the revival of claims that have been allowed to slumber until evidence has been lost, memories have faded, and witnesses have disappeared. The theory is that even if one has a just claim it is unjust not to put the adversary on notice to defend within the period of limitation and that the right to be free of stale claims in time comes to prevail over the right to prosecute them.

Order of Railroad Telegraphers v. Railway Express Agency, Inc., 321 U.S. 342, 348, 349, 64 S.Ct. 582, 586, 88 L.Ed. 788 (1944).

In Occidental Life Insurance Company v. Equal Employment Opportunity Commission, 432 U.S. 355, 97 S.Ct. 2447, 53 L.Ed.2d 402 (1977), the Supreme Court commented:

State legislatures do not devise their limitations periods with national interests in mind, and it is the duty of the federal courts to assure that the importation of state law will not frustrate or interfere with the implementation of national policies. “Although state law is our primary guide in this area, it is not, to be sure, our exclusive guide.” Johnson v. Railway Express Agency, 421 U.S. 454, 465, 95 S.Ct. 1716, 1722, 44 L.Ed.2d 295. State limitations periods will not be borrowed if their application would be inconsistent with the underlying policies of the federal statute. Ibid.; Auto Workers v. Hoosier Cardinal Corp., supra, 383 U.S. [696] at 701, 86 S.Ct. [1107] at 1110-1111; Board of County Commissioners v. United States, 308 U.S. 343, 352, 60 S.Ct. 285, 289, 84 L.Ed. 313.

432 U.S. at 367, 97 S.Ct. at 2455.

It is difficult to see how this principle as to borrowing state statutes of limitation should not apply with equal logic to the borrowing of state tolling provisions.

The purpose of the civil rights statutes is to promote, protect and vindicate those rights guaranteed by the Constitution to every citizen. A suit for money damages, long after the occurrence of the alleged infraction, is one form of vindication. However, to allow one, while the courts were open to him, to lie in wait for years beyond the expiration of an applicable statute of limitations before bringing a suit for money damages would tend to undermine the true policy of the civil rights statutes. This is so because a suit long after the fact could accomplish very little if anything, by way of effectively vindicating constitutional rights. Instead, it would become nothing more than a suit for the recovery of money as would be true of any ordinary private tort claim. That would be an especially unfortunate result in the case we now have before us, in which a litigant seeks to prosecute a civil rights action on the very point expressly rejected years previously by the highest court in the State having jurisdiction over the controversy.

The decisive point is that tolling statutes are designed to preserve the rights of minors, lunatics, and others under disability until they are in position to invoke the aid of the courts. Even though Texas would honor the toll for prisoners in its own courts, there is no valid reason for honoring it in a federal court which at all pertinent times had been open to the prisoner.

Ordinarily, Miller’s suit for money damages would have been barred on January 4, 1969. Miller was in prison when the suit was filed on February 4, 1976. Evidently, being a prisoner did not at that time interfere with his filing the suit. The record is silent, however, as to when Texas state prisoners began to enjoy unimpeded access to the federal courts for the filing of civil rights damage suits. Miller should be entitled to invoke tolling as to any period while he was in prison and before access to the federal courts was freely available to state prisoners. If such access was freely available for more than two years prior to February 4, 1976, then his suit was barred when filed.

We vacate the judgment of the District Court and remand for findings, and further proceedings, not inconsistent herewith.

VACATED and REMANDED.

1 . [5] Appellant’s fourth ground of error is that certain items were improperly admitted in evidence. He claims that these items were the fruits of an illegal search and seizure.

A Dallas police officer testified that while on patrol in a squad car at about 2:30 a. m., he observed a car travelling south on Central Expressway at an excessive rate of speed. He pursued the car, and determined that it was travelling at a rate of about 90 miles per hour (the speed limit at that location was 50 miles per hour). The car exited from the expressway, ran a blinking light, and was stopped by the officer. During the chase, the officer observed a passenger in the rear seat of the car (the appellant) changing his clothes. As the officer approached the car, he could see a quantity of money in a cap through the window of the car. The officer asked the driver to produce a driver’s license; the driver said that he did not have a license. The officer then searched the car and found the remaining items (a pistol, and some items of clothing identified by other witnesses as those worn by appellant during the robbery).

The traffic violation, the suspicious act of the passenger in changing clothes, and the money in the cap, which was in open view under the circumstances, were sufficient to constitute probable cause for the search and arrest. Bowling v. State, 438 S.W.2d 930 (Tex.Cr.App.,1969); Breckenridge v. State, Tex.Cr.App., 460 S.W.2d 907; Taylor v. State, 421 S.W.2d 403 (Tex.Cr.App., 1967). 472 S.W.2d at 272.

2 . Art. 5526. [5687-98] [3354-63] [3203-12] Actions to be commenced in two years

There shall be commenced and prosecuted within two years after the cause of action shall have accrued, and not afterward, all actions or suits in court of the following description:

******

6. Action for injury done to the person of another.

3 . Art. 5535. [5708] [3373] [3222] Person under disability

If a person entitled to bring any action mentioned in this subdivision of this title be at the time the cause of action accrues either a minor, a married person under twenty-one years of age, a person imprisoned or a person of unsound mind, the time of such disability shall not be deemed a portion of the time limited for the commencement of the action and such person shall have the same time after the removal of his disability that is allowed to others by the provisions of this title.

Amended by Acts 1967, 60th Leg., p. 740, ch. 309, Section 3, eff. Jan. 1, 1968.

4 . § 1988. Proceedings in vindication of civil rights

The jurisdiction in civil and criminal matters conferred on the district courts by the provisions of this chapter and Title 18, for the protection of all persons in the United States in their civil rights, and for their vindication, shall be exercised and enforced in conformity with the laws of the United States, so far as such laws are suitable to carry the same into effect; but in all cases where they are not adapted to the object, or are deficient in the provisions necessary to furnish suitable remedies and punish offenses against law, the common law, as modified and changed by the constitution and statutes of the State wherein the court having jurisdiction of such civil or criminal cause is held, so far as the same is not inconsistent with the Constitution and laws of the United States, shall be extended to and govern the said courts in the trial and disposition of the cause, and, if it is of a criminal nature, in the infliction of punishment on the party found guilty.

R.S. § 722.

5 . In 1974 another Judge in the Southern District of Texas held that the Texas tolling statute had to be observed in a civil rights case, Campise v. Hamilton, 382 F.Supp. 172, 185 (S.D., Tex., 1974), appeal dismissed 541 F.2d 279 (5 Cir., 1976), cert. denied, 429 U.S. 1102, 97 S.Ct. 1127, 51 L.Ed.2d 552.