Daniel Browning, D/B/A Daniel Browning Excavating Co. Linda Browning v. Craig R. Pendleton

869 F.2d 989, 1989 U.S. App. LEXIS 3078, 1989 WL 21950
CourtCourt of Appeals for the Sixth Circuit
DecidedMarch 16, 1989
Docket86-4123
StatusPublished
Cited by332 cases

This text of 869 F.2d 989 (Daniel Browning, D/B/A Daniel Browning Excavating Co. Linda Browning v. Craig R. Pendleton) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Daniel Browning, D/B/A Daniel Browning Excavating Co. Linda Browning v. Craig R. Pendleton, 869 F.2d 989, 1989 U.S. App. LEXIS 3078, 1989 WL 21950 (6th Cir. 1989).

Opinions

MILBURN, Circuit Judge.

We granted en banc rehearing in this civil rights action thereby vacating a prior unreported decision of a panel of our court. We did so in order to resolve an inconsistency between two decisions by different panels of our court in selecting the appropriate state statute of limitations for civil rights actions filed pursuant to 42 U.S.C. § 1983 (1982) as required by the Supreme Court in Wilson v. Garcia, 471 U.S. 261, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985). Compare Carroll v. Wilkerson, 782 F.2d 44 (6th Cir.) (per curiam), cert. denied 479 U.S. 923, 107 S.Ct. 330, 93 L.Ed.2d 302 (1986), with Mulligan v. Hazard, 777 F.2d 340 (6th Cir.1985), cert. denied, 476 U.S. 1174, 106 S.Ct. 2902, 90 L.Ed.2d 988 (1986). Simply stated, the question before us is whether the appropriate statute of limitations for section 1983 actions arising in Ohio is contained in Ohio Rev.Code Ann. § 2305.11 (Anderson 1988), which provides that all actions for intentional torts must be brought within one year of their accrual, or Ohio Rev.Code Ann. § 2305.10 (Anderson 1988), a general statute which requires that actions for bodily injury be filed within two years after their accrual. For the reasons that follow, we hold that the two-year limitations period; viz., Ohio Rev.Code Ann. § 2305.10, is the appropriate statute of limitations for actions arising in Ohio under 42 U.S.C. § 1983.

I.

This action arises out of the appellants’ operation of a gravel business in Warren County, Ohio. The appellees are the former and present sheriff, county commissioners, county engineer, and board of commissioners in Warren County, Ohio. The appellants contend that the appellees, with intent to force them to close their gravel business, selectively enforced low load limits and failed to maintain certain county roads over which the appellants needed to travel to operate their business. The appellants also allege that the appellees’ actions forced them to file for reorganization under Chapter 11 of the Bankruptcy Code and subsequently forced them to convert into a Chapter 7 proceeding. Their gravel business was sold at a sheriff’s sale on October 17, 1983.

The appellants filed this action on July 1, 1985, pursuant to 42 U.S.C. § 1983, alleging that the appellees acted in violation of their rights of equal protection and due process as guaranteed by the Fourteenth Amendment to the United States Constitution. On December 24, 1985, after the matter had been referred to a magistrate, the appellees filed a motion for judgment on the pleadings, contending that the action was time barred. On March 10, 1986, the magistrate issued a Report and Recommendation that the motion for judgment on the pleadings be granted in light of Mulligan v. Hazard, supra, wherein a panel of this court adopted a one-year statute of limitations for section 1983 actions arising in Ohio. On November 7, 1986, the district court entered an order adopting the Report and Recommendation and granting the defendants’ motion for judgment on the pleadings. This timely appeal followed.

II.

In Wilson, the Court held that in each state a single statute of limitations should be borrowed for section 1983 claims and [991]*991that the period favored should be the one governing “[g]eneral personal injury actions, sounding in tort____” 471 U.S. at 279,105 S.Ct. at 1949. However, the Court had no occasion to decide the issue presented in this case where a state, such as Ohio, has different limitations periods for intentional and unintentional personal injury actions.

One of this court’s first occasions to apply the Supreme Court's holding in Wilson occurred in Mulligan, wherein the panel selected Ohio Rev.Code Ann. § 2305.11, the one-year provision for intentional torts, as the appropriate limitations period. The Mulligan panel explained:

As the Supreme Court noted in Wilson, Congress enacted the Civil Rights Act of 1871 in order to combat the violence that was being perpetrated by the Ku Klux Klan and other organizations against the newly emancipated slaves. The concern of Congress, thus, was with perpetrators of intentional tortious conduct. While both §§ 2305.10 and 2305.11 theoretically encompass intentional tort actions, § 2305.11, which applies to actions involving assaults, batteries and the like, more specifically encompasses the sorts of actions which concerned Congress as it enacted the civil rights statutes. Accordingly, we hold that the one year limitations period contained in § 2305.11 governs Mulligan’s actions.

777 F.2d at 344 (footnote omitted).

A subsequent panel of this court rendered a theoretically conflicting opinion in Carroll, 782 F.2d 44, wherein this court had to determine which Michigan statute of limitations was to be applied to section 1983 actions. There were three possible limitations periods from which the court could choose. Mich.Comp.Laws Ann. § 600.5805(2H6) (West 1987) provides that the limitations period for actions charging assault, battery, false imprisonment, malicious prosecutions, malpractice, and actions against a sheriff or constable based on their negligence or misconduct is two years. Mich.Comp.Laws Ann. § 600.5805(7) provides that the limitations period is one year for actions charging libel or slander. Finally, Mich.Comp.Laws Ann. § 600.5805(8) provides for a three-year limitations period for all other actions for personal or property injury. The panel in Carroll concluded, without explanation, that the action “was subject to the three-year statute of limitations for personal injury claims set forth in MCLA § 600.5805(8).” Id. at 45.

Thus, it is evident that the holdings in Mulligan and Carroll are inconsistent with regard to the appropriate statute of limitations in states wherein different limitations periods exist for intentional torts causing personal injury and nonintentional personal injury actions. Moreover, the circuit courts of appeal have split on this issue. Compare Jones v. Preuit & Mauldin, 763 F.2d 1250 (11th Cir.1985) (selecting intentional tort limitations period), cert. denied, 474 U.S. 1105, 106 S.Ct.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Byrd v. Shiverdecker
S.D. Ohio, 2020
Carr v. Sessions
District of Columbia, 2019
Charles Hunt v. City of Cleveland
563 F. App'x 404 (Sixth Circuit, 2014)
Sandy Sykes v. United States
507 F. App'x 455 (Sixth Circuit, 2012)
Lasmer Industries, Inc. v. Am General, LLC
741 F. Supp. 2d 829 (S.D. Ohio, 2010)
Rodriguez v. City of Cleveland
619 F. Supp. 2d 461 (N.D. Ohio, 2009)
Washington v. Florida Department of Children & Families
595 F. Supp. 2d 1291 (M.D. Florida, 2009)
Ralph Nader v. J. Blackwell
Sixth Circuit, 2008
Stevenson v. Willis
579 F. Supp. 2d 913 (N.D. Ohio, 2008)
Ohio Midland, Inc. v. Ohio Department of Transportation
286 F. App'x 905 (Sixth Circuit, 2008)
A to Z, Inc. v. City of Cleveland
281 F. App'x 458 (Sixth Circuit, 2008)
Cooey v. Taft
Sixth Circuit, 2007
Gessner v. Schroeder, Unpublished Decision (2-9-2007)
2007 Ohio 570 (Ohio Court of Appeals, 2007)
Lett v. Sahenk
174 F. App'x 921 (Sixth Circuit, 2006)
Jones v. City of Allen Park
167 F. App'x 398 (Sixth Circuit, 2006)
Bowles v. City of Cleveland
129 F. App'x 239 (Sixth Circuit, 2005)
Dye v. City of Warren
367 F. Supp. 2d 1175 (N.D. Ohio, 2005)
Banks v. City of Whitehall
344 F.3d 550 (Sixth Circuit, 2003)

Cite This Page — Counsel Stack

Bluebook (online)
869 F.2d 989, 1989 U.S. App. LEXIS 3078, 1989 WL 21950, Counsel Stack Legal Research, https://law.counselstack.com/opinion/daniel-browning-dba-daniel-browning-excavating-co-linda-browning-v-ca6-1989.