537 F. 2d 1289 - Shaw v. McCorkle

The District Court dismissed plaintiff Shaw's 42 U.S.C.A. § 1983 action against four Mississippi highway patrolmen and their surety, holding that the suit was barred by the Mississippi one-year statute of limitations for intentional torts. Plaintiff appeals from that dismissal, contending that the District Court should have applied the Mississippi six-year catch-all statute of limitations, under which plaintiff's suit would not have been barred. We agree with plaintiff, and we therefore reverse and remand.

Plaintiff-appellant brought this civil rights action to recover damages for injuries which he allegedly received at the hands of four Mississippi highway patrolmen. According to the complaint, plaintiff was stopped on January 13, 1974, on an interstate highway in Laurel, Mississippi by one of the defendant highway patrolmen. After he was stopped he was not arrested but was threatened and shoved by the patrolman. When plaintiff attempted to drive away to get help, the patrolman chased him and shot at him. The three other defendant highway patrolmen then joined in the chase, and when plaintiff was finally caught the defendants beat and abused him.

Plaintiff was charged with the misdemeanors of reckless driving, resisting arrest, assault on an officer and refusal to take a sobriety test. After conviction of these offenses in Justice of the Peace Court, plaintiff appealed and was acquitted of the reckless driving charge by a jury verdict. The three remaining charges against him were passed to the files.

Plaintiff then filed his complaint against the patrolmen under 42 U.S.C.A. § 1983 and § 1985 in the District Court on November 3, 1975, seeking a total of $100,000 in actual and punitive damages. Plaintiff thereafter amended the complaint to plead that the constitutional deprivations which he suffered at the hands of the patrolmen also constituted a breach of the performance bond indemnifying the faithful performance of the official duties of the defendant highway patrolmen, and plaintiff moved to add the bonding company, Pacific Indemnity Company, as a party defendant. The District Court permitted the addition of Pacific Indemnity as a party defendant but in the same order dismissed the complaint as barred by the applicable Mississippi statute of limitations. It is from this dismissal that plaintiff appeals.

The complaint was not filed until 22 months after plaintiff was allegedly abused by the patrolmen. It is well established that federal courts must look to the applicable state statute of limitations if Congress has not as it has not for § 1983 and § 1985 actions provided a federal statutory limitation period. 42 U.S.C.A. § 1988; O'Sullivan v. Felix, 1914, 233 U.S. 318, 34 S.Ct. 596, 58 L.Ed. 980. This case turns on the determination of which Mississippi statute of limitations should be applied to plaintiff's action.

Mississippi requires that actions for intentional torts be brought within one year.1 Defendants argue and the District Court so held that this is the applicable limitation period and that plaintiff's action was therefore filed ten months too late. Plaintiff, on the other hand, contends that his particular action would not sound in intentional tort but would rather be an action against the patrolmen and their surety for breach of the performance bond, a contract, and should be governed by Mississippi's catch-all limitation period (which includes actions on a written contract) of six years.2

Since § 1983 is a federally-created right of action, we must ultimately ground our choice of which state statute of limitations should apply on the basis of which statute will best effectuate3 the Congressional policies underlying § 1983.4 See Brazier v. Cherry, 5 Cir., 1961, 293 F.2d 401.

In describing the method used to find the most analogous cause of action, the cases speak with two voices, but these voices are not discordant. One line of cases advises that this selection is a two-step process. The first step is the determination based on federal law of the "essential nature" of the federal claim. The second step is the determination according to state law of which state limitation period would be applicable to claims like the one the Court has determined it is presented with. Bell v. Aerodex, Inc., 5 Cir., 1973, 473 F.2d 869, 871; Franklin v. City of Marks, 5 Cir., 1971, 439 F.2d 665, 669-70; McGuire v. Baker, 5 Cir., 1970, 421 F.2d 895, 898; Moviecolor Limited v. Eastman Kodak Co., 2 Cir., 1961, 288 F.2d 80, 83.

A second line of cases formulates a more direct method of selection, asking simply which state limitation period the state itself would have enforced had plaintiff brought an action seeking similar relief in a court of that state. Franks v. Bowman Transportation Co., 5 Cir., 1974, 495 F.2d 398, 405, rev'd in part on other grounds, 1976, --- U.S. ----, 96 S.Ct. 1251, 47 L.Ed.2d 444; Knowles v. Carson, 5 Cir., 1969, 419 F.2d 369; Peterson v. Fink, 8 Cir., 1975, 515 F.2d 815, 816; Warren v. Norman Realty Co., 8 Cir., 1975, 513 F.2d 730, 733-34.

The difference between these two methods for determining the applicable state limitation period seems to be that the "two-step" procedure requires the application of federal law in categorizing the action, while the simpler "one-step" method asks instead how a state court applying state law would categorize the same or a similar action for relief. However, the leading case on the subject in this Circuit, Beard v. Stephens, 5 Cir., 1967, 372 F.2d 685, speaks of the two methods as if they were perfectly compatible, the two-step method being an implementation of the simpler one-step approach.5 Strangely enough, both two-step and one-step cases rely on Beard to support their respective approaches, with apparently no articulated concern for justifying the particular approach chosen or for commenting upon the approach not taken.6

Furthermore, the distinction between the two methods of selecting the appropriate state limitation period fades in practice, since even the cases using the two-step approach (in which the essential nature of the claim is said to depend on federal law) in fact draw heavily on state law in categorizing the claim presented. For example, in McGuire v. Baker, supra, the Court determined that the essential nature of a claim under § 1983 and § 1985 presented in the Northern District of Texas was either an action for debt, since Texas law citing two Texas cases so treats any liability created by statute, or for trespass under the theory of a leading Texas case (both actions had the same statutory limit). Id. at 898-99. And the Court in Beard v. Stephens, supra, applying the first step of a two-step approach, determined that an action under § 1983 and § 1985 brought in the Northern District of Alabama for a wrongful wounding by a sheriff's deputy during an arrest constituted a cause of action in trespass under Alabama case law, that the conspiracy claim was an action in trespass as to some defendants and an action on the case as to others based on general common law and Alabama case law, and that a separate claim against the sheriff charging negligence sounded in case only, again relying on an Alabama case. Id. at 689-90.

Thus, both lines of cases concerning the method of selecting the applicable state statute of limitations in fact depend substantially on state law in categorizing the essential nature of the claim presented, and the apparently discordant voices of the two-step and one-step approaches are in essence harmonious.

Having examined our method of analysis, we are prepared to ferret out the Mississippi statute of limitations which would be applied had this or a similar action against these defendants been brought in state court. That is, how would a Mississippi court categorize this action or an action seeking similar relief, and which state statutory limitation period would apply to the action so categorized.

In State for Use of Smith v. Smith, 1930, 156 Miss. 288, 125 So. 825, plaintiff sought damages against a deputy sheriff and his surety in a suit on the deputy's official bond for injuries sustained from being shot by the deputy during an arrest. The trial court dismissed the suit because it had been filed after the one-year statute of limitations for intentional torts had run. The Mississippi Supreme Court reversed on two grounds. First, when committed by a public official, such an act is not the breach of a duty which every person owes to every other person and thus is not an intentional tort. Rather, the action is for breach of the deputy sheriff's official duties.7 Second, since the bond represents a contract between the officer, his surety, and the obligees by which the officer agrees faithfully to discharge the duties of his office, an action for damages on the bond is a contract action, not governed by the one-year intentional tort statute of limitations but by the general six-year limitation period applicable to written contracts.8

In a later case almost identical with the present case, differing only in that it was not brought under § 1983 and was in state rather than federal court, the Mississippi Supreme Court in Alexander v. Carsley, 1946, 199 Miss. 881, 25 So.2d 709, relied on Smith in holding that the action was a suit on the bond and not subject to the one-year statute of limitations for intentional torts, even though the act giving rise to the breach was itself an assault.9 In addition, Alexander clearly implies that the action is in contract as to both the patrolman and his surety.10

In his federal civil rights action plaintiff Shaw seeks damages totalling $100,000 against four highway patrolmen and the surety on their official performance bond. Had plaintiff brought an action seeking similar relief similar damages, similar defendants in a Mississippi court, that suit would have had to be an action against a public officer and the surety on his bond.11 In Mississippi such an action is in contract and is governed by the six-year statutory limitation period for written contracts. Miss.Code Ann. § 15-1-49, supra note 2; Alexander v. Carsley, supra ; State for Use of Smith v. Smith, supra. We are bound to apply this same six-year limitation period to plaintiff's civil rights action in federal court.12

The District Court, in dismissing the complaint as barred by Mississippi's one-year limitation for intentional torts, reasoned that in spite of the two Mississippi cases to the contrary, the action was essentially in tort rather than contract and that the Mississippi Supreme Court would so hold if given "the opportunity to review its holdings in Smith and Alexander with a full appreciation of the consequences and implications of those rulings."13 To buttress its holding, the District Court characterized the second ground in Smith, see note 8, supra, as dictum and ventured that this passage may have "misled" the Mississippi Supreme Court in Alexander. Finally, the District Court thought it would be anomalous to create a situation where a suit for an intentional tort against a bonded public officer would be subject to the one-year limitation period on intentional torts,14 whereas an action against the officer and his surety or against the surety alone (which would be likely to seek indemnity from the bonded officer) would actually or effectively subject the bonded public officer to a six-year limitation period.

The District Court, however, is not free to second-guess the Mississippi Supreme Court contrary to its straightforward previous decisions just because the District Court disagrees with that Court's reasoning or with the wisdom of its conclusion. Delta Airlines, Inc. v. McDonald Douglas Corp., 5 Cir., 1974, 503 F.2d 239; Steel v. G. D. Searle & Co., 5 Cir., 1973,483 F.2d 339. As in Delta, the District Court below has not cited a single subsequent Mississippi case modifying, distinguishing or criticizing the Mississippi cases on which plaintiff relies, and we have found none. The holding in Smith that an action against an officer and his surety on the officer's performance bond is in contract rather than in tort is not dictum but is rather an independent alternative ground of decision, see note 8, supra, and the Mississippi Supreme Court cited Smith for this very proposition as recently as 1968. See note 10, supra. That the Mississippi Supreme Court was somehow "misled" in Alexander by this reasoning in Smith is mere speculation on the part of the District Court. The resulting pattern of statutory limitations in suits against bonded public officers, which the District Court characterized as anomolous, is not skewed by federal civil rights actions and was clearly forseeable by the Mississippi Supreme Court when deciding Smith and Alexander.15 It would be pure conjecture to conclude that the Mississippi Supreme Court would undertake to reform this pattern if now given the opportunity.

REVERSED and REMANDED.