Demery v. City of Youngstown

KRUPANSKY, Circuit Judge.

Plaintiff-appellant Buetine Demery (Demery) appealed from the district court’s judgment dismissing his civil rights claims as time-barred in this action commenced pursuant to 42 U.S.C. §§ 19811 and 1983. The defendants-appellees are the City of Youngstown, Ohio (Youngstown or City), the Mayor of Youngstown, Patrick Ungaro, and the Youngstown Chief of Police, Randall A. Wellington.

The record disclosed the following facts. Demery, a black male, was awarded a provisional civil service appointment to the position of patrolman in the Youngstown Police Department on October 5, 1981. On July 11, 1982, Demery was on duty at the city jail when a prisoner “escaped,” and on July 12, 1982, Demery was discharged for violating several department rules and regulations with regard to the incident. After his discharge, an investigation was conducted concerning the escape, and Demery was indicted in the Court of Common Pleas for Mahoning County, Ohio for aiding and abetting in the escape. The indictment was later dismissed after the prosecutor determined that insufficient evidence existed to support a conviction.

On April 24, 1985, approximately three years after his discharge, Demery commenced this action seeking relief under 42 U.S.C. §§ 1981 and 1983. On February 18, 1986, the defendants moved for summary judgment, which was granted by the district court on February 21, 1986. The district court determined that the Supreme Court's decision in Wilson v. Garcia, 471 U.S. 261, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985), which directed federal courts to apply each state’s personal injury statute of limitations in § 1983 actions, was equally applicable in § 1981 actions. The court therefore concluded that Demery’s § 1981 action was time-barred under Ohio’s applicable one year personal injury statute of limitations as mandated by Mulligan v. Hazard, 777 F.2d 340 (6th Cir.1985), cert. denied, — U.S. -, 106 S.Ct. 2902, 90 *1258L.Ed.2d 988 (1986).2 Demery thereafter commenced this timely appeal challenging only the dismissal of his § 1981 claim.

Generally, when Congress has not enacted a statute of limitations expressly applicable to a particular federal cause of action, federal courts will borrow and “apply the most closely analogous statute of limitations under state law.” Del Costello v. International Bhd. of Teamsters, 462 U.S. 151, 158, 103 S.Ct. 2281, 2287, 76 L.Ed.2d 476 (1983). In Wilson v. Garcia, supra, the Supreme Court directed lower federal courts confronted with § 1983 actions to apply each state’s statute of limitations for personal injury actions in determining whether the claims were time-barred.

A catalog of other constitutional claims that have been alleged under § 1983 would encompass numerous and diverse topics and subtopics: discrimination in public employment on the basis of race or the exercise of First Amendment rights, discharge or demotion without procedural due process, mistreatment of schoolchildren, deliberate indifference to the medical needs of prison inmates, the seizure of chattels without advance notice or sufficient opportunity to be heard — to identify only a few. If the choice of the statute of limitations were to depend upon the particular facts or the precise legal theory of each claim, counsel could almost always argue, with considerable force, that two or more periods of limitations should apply to each § 1983 claim. Moreover, under such an approach different statutes of limitations would be applied to the various § 1983 claims arising in the same State, and multiple periods of limitations would often apply to the same case. There is no reason to believe that Congress would have sanctioned this interpretation of its statute.
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Although the need for national uniformity “has not been held to warrant the displacement of state statutes of limitations for civil rights actions,” Board of Regents v. Tomanio, 446 U.S. [478], at 489, 100 S.Ct. [1790] at 1797 [64 L.Ed.2d 440], uniformity within each State is entirely consistent with the borrowing principle contained in § 1988. We conclude that the statute is fairly construed as a directive to select, in each State, the one most appropriate statute of limitations for all § 1983 claims. The federal interests in uniformity, certainty, and the minimization of unnecessary litigation all support the conclusion that Congress favored this simple approach.

105 S.Ct. at 1946-47 (footnotes omitted).

Several circuits have addressed the issue joined herein, and have decided that the reasoning of Wilson v. Garcia is equally applicable to causes of action arising pursuant to 42 U.S.C. § 1981 and that the same statute of limitations mandated by Wilson v. Garcia also applies to actions anchored in § 1981. The Tenth Circuit approached the issue as one analogous to its decision in Garcia v. Wilson, 731 F.2d 640 (10th Cir. 1984) (en banc). In Garcia v. Wilson, the Tenth Circuit concluded that each state’s personal injury statute of limitations governed all § 1983 actions brought within that state, which conclusion was affirmed by the Supreme Court in Wilson v. Garcia, supra. In Equal Employment Opportunity Comm’n v. Gaddis, 733 F.2d 1373, 1377 (10th Cir.1984), the Tenth Circuit determined that its decision in Garcia v. Wilson was applicable to § 1981 actions, thereby requiring the application of the same personal injury statute of limitations in both § 1981 and § 1983 actions:

The rationale supporting our conclusion in Garcia is equally applicable to claims brought under section 1981. “The interests protected and the evil sought to be remedied are similar under both § 1981 and § 1983, and no significant reason exists to justify differentiating between them for limitation purposes.” Accordingly, adopting the analysis set out in Garcia, we hold that all section 1981 claims are in essence actions for injury to personal rights.

Id. at 1377 (citations omitted).

The Third Circuit also concluded that the Supreme Court’s decision in Wilson was applicable to § 1981 actions, and held, “therefore, that the personal injury statute of limitations of the forum state supplies the most analogous statute of limitations for actions brought under § 1981.” Good*1259man v. Lukens Steel Co., 777 F.2d 113, 120 (3d Cir.1985), cert. granted, — U.S.-, 107 S.Ct. 568, 93 L.Ed.2d 573 (1986). The court reasoned that the direction of 42 U.S.C. § 19883 to borrow and apply state law in civil rights actions applied to both § 1981 and § 1983; that § 1981, like § 1983, protected a broad range of federal rights with each separate claim arguably controlled by a different state statute of limitations for an analogous state cause of action; and that a substantial overlap existed between the types of claims brought under each section.

Similarly, in Banks v. Chesapeake & Potomac Tel. Co., 802 F.2d 1416 (D.C.Cir. 1986), the District of Columbia Circuit stated:

Although the Supreme Court has not considered whether the same statute of limitations should apply in § 1981 suits as in § 1983 suits, see Burnett v. Grattan, 468 U.S. 42, 48 n. 11, 104 S.Ct. 2924, 2929, n. 11, 82 L.Ed.2d 36 (1984), we find the reasoning of Garcia to be persuasive in this context as well. As an initial matter, it is clear that the same statutory directive applies to both types of claims. See 42 U.S.C. § 1988 (1982). Similarly, the Court’s emphasis in Garcia on avoiding collateral litigation over the applicable statute of limitations is equally compelling here. Both § 1983 and § 1981 provide remedies for a broad range of actions that could be characterized as various state torts. Allowing the characterization to turn on the particular facts of a ease presents the same threat of excessive collateral litigation. Thus the Court’s conclusion that § 1988 “is fairly construed as a directive to select, in each State, the one most appropriate statute of limitations,” Garcia, 471 U.S. at 275, 105 S.Ct. at 1947, is equally applicable here.
More importantly, we see no difference between the central objectives of § 1981 and § 1983 — each a product of the Reconstruction Era — for the purposes of applying Garcia to § 1981 claims. Both statutes were enacted “to ensure that individuals whose federal Constitutional or statutory rights are abridged [could] recover damages or secure injunctive relief.” Burnett, 468 U.S. at 55, 104 S.Ct. at 2932. Section 1981, like § 1983, broadly protects the right of all persons “to the full and equal benefit of all laws and proceedings for the security of persons and property.” 42 U.S.C. § 1981 (1982). A violation of that command is a “personal injury” in very much the same sense as is a violation of § 1983.
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Moreover, characterization of § 1981 claims as personal injury actions is far from unique. Indeed, before Garcia, courts frequently characterized claims brought under both statutes as personal injury claims. * * * Thus we conclude that characterization of § 1981 claims as personal injury actions is both appropriate and accurate.

Id. at 1421-22 (footnote and citations omitted).

The Eleventh Circuit has also stated that Wilson v. Garcia should be applied to § 1981 actions. Friedlander v. Trout-man, Sanders, Lockerman & Ashmore, 788 F.2d 1500, 1503 n. 2 (11th Cir.1986) (“The same single limitations period should apply to § 1981 claims.”)

This court has reviewed with interest the Seventh Circuit’s decision in Nazaire v. Trans World Airlines, Inc., 807 F.2d 1372, 1380 n. 5 (7th Cir.1986) wherein it concluded that the statute of limitations applicable to § 1981 actions to be the limitations period that applies to actions in contract. In essence, the Seventh Circuit in arriving at its declaration adopted the reasoning of Judge Garth’s dissent in Goodman v. Lukens Steel Co., supra. Balancing the comparative analyses of the Seventh Circuit and Judge Garth’s dissent against the decisions of the Third Circuit in Goodman v. Lukens Steel Co., the Eleventh Circuit, the D.C. Circuit in Banks v. Chesapeake & Potomac Telephone Co., and the Tenth Circuit in Equal Employment Opportunity Comm’n v. Gaddis, it is the conclusion of this court that the latter arguments are more appealing and persuasive in logic and in alignment with the intent and purpose of the expressions of the Supreme Court in Wilson v. Garcia.

In characterizing § 1983 for statute of limitations purposes, the Supreme Court in Wilson v. Garcia has directed that lesser courts consider the elements of the underlying cause of action and the congressional *1260purpose in providing it. Although the Supreme Court has not considered whether the same statute of limitations should apply in § 1981 actions as in § 1983 controversies, the reasoning of Garcia is convincing and applies equally to defining a directive to select, in each state, the one most appropriate statute of limitations to be applied in § 1981 suits. The Court noted that the statutory direction of § 1988 applied to both §§ 1981 and 1983, as well as to other Reconstruction Civil Rights claims. 105 S.Ct. at 1942. 42 U.S.C. § 1988 provides, in part:

§ 1988. Proceedings in vindication of civil rights; attorney’s fees

The jurisdiction in civil and criminal matters conferred on the district courts by the provisions of this Title, and of Title “CIVIL RIGHTS,” and of Title “CRIMES,” for the protection of all persons in the United States in their civil rights, and for their vindication, ...

Both sections afford remedies for a broad range of actions that are logically and comfortably characterized as various state torts.

As a legacy from the Reconstruction Era, both sections emerged with the common objective of affording individuals asylum from an invasion of constitutionally protected rights through due process and equal protection of the law. The Third Circuit in Goodman v. Lukens Steel Co. observed that:

Present day § 1981’s predecessor was founded on the Thirteenth Amendment that allows “neither slavery nor involuntary servitude” to exist any longer. It is difficult to imagine a more fundamental injury to the individual rights of the person than the evil that comes within the scope of that amendment. Also of significance is that in Runyon v. McCrary, [427 U.S. 160, 96 S.Ct. 2586, 49 L.Ed.2d 415 (1976) ], the Supreme Court accepted the use of a state’s personal injury statute of limitations in a § 1981 case. 427 U.S. at 180-82, 96 S.Ct. at 2599-2600.
Moreover, in its reenactment of § 1981 in 1870, Congress looked to constitutional authority embodied in the Fourteenth, as well as in the Thirteenth Amendment. Croker v. Boeing Company, 662 F.2d 975, 987 (3d Cir.1981) (in banc); see also General Building Contractors Ass’n., Inc. v. Pennsylvania, 458 U.S. 375, 102 S.Ct. 3141, 73 L.Ed.2d 835 (1982). Consequently, much of the body of law developed under the Fourteenth Amendment is helpful in the interpretation of § 1981.

777 F.2d at 119-20.

It is apparent from tracking the remedies available under both §§ 1981 and 1983 that there exists a substantial overlap. In Banks v. Chesapeake, the D.C. Circuit succinctly summarized in quoting from Burnett v. Grattan, 468 U.S. 42 at 55, 104 S.Ct. at 2932:

Section 1981, like § 1983, broadly protects the right of all persons “to the full and equal benefit of all laws and proceedings for the security of persons and property.” 42 U.S.C. § 1981 (1982). A violation of that command is a “personal injury” in very much the same sense as is a violation of § 1983. As the Court explained in Garcia,
The unifying theme of the Civil Rights Act of 1871 is reflected in the language of the Fourteenth Amendment that unequivocally recognizes the equal status of every “personsubject to the jurisdiction of any of the several States. The Constitution’s command is that all “persons” shall be accorded the full privileges of citizenship; no person shall be deprived of life, liberty, or property without due process of law or to be denied the equal protection of the laws. A violation of that command is an injury to the individual rights of the person.

471 U.S. at 277, 105 S.Ct. at 1948 (last emphasis added; footnote omited). See also Curtis v. Loether, 415 U.S. 189, 196 n. 10, 94 S.Ct. 1005, 1009 n. 10, 39 L.Ed.2d 260 (1974) (suggesting that racial discrimination be treated as a “dignitary tort”); Developments-Section 1981, 15 Harv. C.R./C.L.L.Rev. 29, 224 (1980) (noting that some courts have characterized claims under § 1981 as “dignitary torts”). Indeed, it is significant to note that in reaching the conclusion that § 1983 claims are best characterized as “personal injury” claims, the Court cited two cases that held that § 1981 claims are also appropriately characterized as “personal injury” claims. See Garcia, 471 U.S. at 278 n. 38, 105 S.Ct. at 1948 n. 38 (citing Runyon v. McCrary, 427 U.S. 160, 179-82, 96 S.Ct. 2586, 2598-2600, 49 L.Ed.2d 415 (1966)); McCausland v. Mason County Bd. of Educ., 649 F.2d 278, *1261279 (4th Cir.), cert. denied, 454 U.S. 1098, 102 S.Ct. 671, 70 L.Ed.2d 639 (1981)).

802 F.2d at 1421-22.

Accordingly, this court adopts the reasoning enunciated by the majority of the circuits that have addressed the issue and concludes that the characterization of § 1981 claims as personal injury actions is both appropriate and accurate and that the statute of limitations to be applied to § 1981 actions is the statute of limitations that applies to tort actions in each state. In summary, the Supreme Court decision in Wilson v. Garcia encompasses § 1981 actions, and the same state personal injury statute of limitations applies equally to §§ 1981 and 1983 controversies. Having previously determined that Wilson v. Garcia has retroactive effect and that the one year statute of limitations of Ohio Revised Code § 2305.11 is the appropriate statute of limitations for § 1983 actions, Mulligan v. Hazard, supra, this court resolves that the same limitation period is equally and retroactively applicable to § 1981 suits. Demery’s § 1981 action, having been filed approximately three years after his discharge, is time-barred. The judgment of the district court is hereby AFFIRMED.

. 42 U.S.C. § 1981 provides:

All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.

. In Mulligan v. Hazard, this court determined that Ohio’s one year statute of limitations for libel, slander, assault, battery, malicious prosecution, false imprisonment, and malpractice, Ohio Rev.Code § 2305.11, was the most appropriate personal injury statute of limitations for § 1983 actions. The Mulligan court also concluded that Wilson was to be applied retroactively.

. 42 U.S.C. § 1988 requires that §§ 1981 and 1983 actions be governed by "the common law, as modified and changed by the Constitution and statutes of the State wherein the court having jurisdiction of [the] civil ... cause is held, so far as the same is not inconsistent with the Constitution and statutes of the United States.”