Jenkins v. Daniels

751 P.2d 19, 1988 Alas. LEXIS 32, 1988 WL 18118

• Court: Alaska Supreme Court
• Decided: March 4, 1988
• Docket: S-1291
• Status: Published

Opinions

OPINION

COMPTON, Justice.

The principal issue in this case is whether Alaska’s two-year tort statute of limitations or three-year statute of limitations for actions against peace officers applies to Jenkins’ suit against three Anchorage police officers. Although inartfully plead, Jenkins’ complaint can be read to state three separate theories for relief. These are abuse of process, false arrest (imprisonment) and a violation of civil rights under 42 U.S.C. § 1983. The superior court dismissed Jenkins’ complaint without opinion, apparently on the ground that his suit was barred by the two-year tort statute of limitations. We affirm in part and reverse in part.

I. FACTS AND PROCEEDINGS

Prior to April 1982, Jenkins complained to the police department about its officers parking their cars improperly while impounding the cars of other persons who parked in the same manner.¹ Jenkins alleged that as a result of his complaints police officers harassed him. To this end, Jenkins further claims that on April 14, 1982 police officers entered his property under the pretext of investigating a possible robbery and searching for two suspects, knowing that the two suspects were not on Jenkins’ property. After gaining entry in this manner the officers arrested Jenkins for driving while intoxicated and resisting a police officer. His conviction was affirmed by the court of appeals on October 12, 1983.

On April 12, 1984, Jenkins filed an action in the superior court alleging that the police officers used excessive force and were negligent in effecting the April 14, 1982 arrest, and that they were improperly trained. As of the date of the briefing in this appeal, no judgment on the merits had been entered in that proceeding.

On April 15, 1985, Jenkins filed the present action against the same three police officers named in his other suit. Paragraph II of the complaint sets forth the principal element of the tort of false arrest: that the police officers acted without justification in arresting Jenkins.² Paragraphs III and IV of the complaint allege that the officers violated Jenkins’ civil rights as a citizen of the United States and Alaska in making the arrest without probable cause. Finally, the gravamen of the complaint is that the police officers used their investigatory powers improperly by conducting a pretextual search and retaliatory arrest. Such allegations form the basis for the tort of abuse of process.³

The officers moved to dismiss Jenkins’ complaint on the grounds that the “claim is barred by the statute of limitations AS 09.10.070.” The superior court granted the officers’ motion to dismiss with prejudice. Jenkins timely appeals.

II. DISCUSSION

A ruling on the appropriate statute of limitations is a question of law. Edwards v. Teamsters Local Union No. 36, 719 F.2d 1036, 1039 (9th Cir.1983), cert. denied, 465 U.S. 1102, 104 S.Ct. 1599, 80 L.Ed.2d 130 (1984). Questions of law are reviewable de novo. Peters v. Juneau-Douglas Girl Scout Council, 519 P.2d 826, 834 (Alaska 1974).

The officers’ motion to dismiss Jenkins’ complaint was based upon their contention that Jenkins’ action was barred by the two-year statute of limitations found in AS 09.10.070, which provides:

Actions to be brought in two years. No person may bring an action (1) for libel, slander, assault, battery, seduction, false imprisonment, or for any injury to the person or rights of another not arising on contract and not specifically provided otherwise; (2) upon a statute for a forfeiture or penalty to the state; or (3) upon a liability created by statute, other than a penalty or forfeiture; unless commenced within two years.

This section governs most “tort” actions.⁴ Russell v. Municipality of Anchorage, 743 P.2d 372, 374 n. 8 (Alaska 1987); see also Silverton v. Marler, 389 P.2d 3, 4 (Alaska 1964); Anderson v. Fairchild Hiller Corp., 358 F.Supp. 976, 978 (D.Alaska 1973) (citing Austin v. Fulton Insurance Co., 444 P.2d 536, 538 (Alaska 1968)). Further, it is a “residual” statute which governs all claims for injury to the person unless “specifically provided otherwise” in some other statute. Anderson, 358 F.Supp. at 978.

Jenkins’ cause of action accrued upon his arrest on April 14, 1982. See Gowin v. Altmiller, 455 F.Supp. 743, 747 (D.Idaho 1978), aff'd, 633 F.2d 820 (9th Cir.1981) (“cause of action for abuse of process accrues from termination of acts which constitute the abuse complained of”). He filed his action three years later, on April 15, 1985.⁵ If the two-year tort statute of limitations governs Jenkins’ cause of action, then the superior court was correct in dismissing his suit.

Jenkins argues that his cause of action is governed by the three-year statute of limitations provided in AS 09.10.060(a), which provides:

Actions to be brought in three years. (a) No person may bring an action against a peace officer or coroner upon a liability incurred by the doing of an act in an official capacity or by the omission of an official duty, including the nonpayment of money collected upon an execution, unless brought within three years. This section does not apply to an action for an escape.

Jenkins contends that AS 09.10.070’s two-year period of limitation cannot be applicable because it expressly states that it is not applicable where another statute “specifically providefs] otherwise,” and that AS 09.10.060(a) provides otherwise and therefore is applicable by its own terms (“action against a peace officer”). If Jenkins is correct, then his action should not have been dismissed.

In discussing these two statutes we first note “that while the defense of the statute of limitations is a legitimate one, it is not generally favored by the courts.” Safeco Ins. Co. v. Honeywell, 639 P.2d 996, 1001 (Alaska 1981).⁶ Although there is no case law construing AS 09.10.060, we conclude that its language is unambiguous and clearly applies to Jenkins’ action for abuse of process and false arrest (imprisonment). We also conclude that AS 09.10.070 applies to, and thus bars, Jenkins’ action for an alleged civil rights violation.

A. Abuse of Process

The elements of the tort of abuse of process are, “first, an ulterior purpose, and second, a willful act in the use of the process not proper in the regular conduct of the proceeding.” W. Keeton, D. Dobbs, R. Keeton and D. Owen, Prosser and Kee-ton on the Law of Torts § 121, at 898 (5th ed. 1984). Cf. J & L Diversified Enter. v. Municipality of Anchorage, 736 P.2d 349, 351 n. 3 (Alaska 1987) (although this court has not previously stated the elements of an abuse of process claim, the court cited with approval §§ 120-21 of Prosser and Keeton). For example, in Hoppe v. Klapperich, 224 Minn. 224, 28 N.W.2d 780, 784 (1947) the plaintiff alleged that the warrant leading to her arrest was procured “knowingly, wrongfully, maliciously and without probable cause.” The court found that plaintiff’s allegations that defendants attempted to intentionally and maliciously intimidate her into surrendering certain documents by arresting and confining her, supported a claim for abuse of process. Similarly, Jenkins alleges that the police entered his property without justification, arrested him without probable cause and acted with malice. These allegations can be fairly read to state a claim for abuse of process.⁷ See Linck v. Barokas & Martin, 667 P.2d 171, 173 (Alaska 1983) (“[i]f, within the framework of the complaint, evidence may be introduced which will sustain a grant of relief to the plaintiff, the complaint is sufficient”). See also Restatement (Second) Torts § 136 comment d (1977) (abuse of privilege to arrest has same affect as an abuse of process).

There is no allegation that the police officers were not acting in their official capacity when they arrested Jenkins. Thus the action is one “against a peace officer ... upon a liability incurred by the doing of an act in an official capacity_” AS 09.-10.060(a). Since AS 09.10.060(a) specifically provides that a three-year limitation period applies in cases such as this, the “residual” two-year statute is inapplicable. AS 09.10.070; Anderson, 358 F.Supp. at 978.

We also find persuasive the reasoning of Barnes v. Massachusetts Bonding & Ins. Co., 89 Or. 141, 172 P. 95 (1918). In that case the plaintiff sued a sheriff for wrongfully levying upon her property. Id., 172 P. at 95. The court was faced with the question whether to apply a six-year statute of limitations for actions on a liability created by statute, or a three-year statute virtually identical to AS 09.10.060(a). Relying on the rule that a more specific statute governs over an otherwise applicable general statute, the court found:

It may be conceded that the act of the sheriff in levying upon property of a stranger to the writ by virtue of an execution in his hands constitutes a breach of his official bond and results in a liability created by statute for the execution of a writ in his hands is an act in his official capacity and in virtue of his office. If it were not for the provisions of section 7 [of the statute], the action might well be brought within six years from the wrongful taking of the property. Speaking broadly of the facts mentioned in the complaint before us, they give rise to a liability created by statute and might come within the general provisions of section 6, defining a limitation of six years, but they are more particularly mentioned in the short limitation of three years laid down in section 7.

The substance of this statute is that in general a statutory liability may be enforced within six years, but where the accountability of a sheriff, coroner, or constable is involved the action to enforce it must be commenced within three years.

Id., 172 P. at 96 (emphasis added).⁸

Here, the two-year limitations period of AS 09.10.070(1) applies to “libel, slander, assault, battery, seduction, [and] false imprisonment” as well as generally to tort actions unless “specifically provided otherwise.” We conclude that when an action is brought against a police officer or coroner acting in his or her official capacity, the three-year statute of limitations applies, because it is “specifically provided [for] otherwise,” subject only to the escape exception contained in AS 09.10.060(a). See AS 09.10.080 (escape actions must be brought within one year). Abuse of process, when asserted against a peace officer or coroner, is a claim to which the three-year limitations period thus applies.

B. False Arrest (Imprisonment)

In contrast to abuse of process, false imprisonment is listed in AS 09.10.070(1). Jenkins argues that this is an action for false arrest. “False arrest and false imprisonment are not separate torts. A false arrest is one way to commit false imprisonment; since an arrest involves restraint, it always involves imprisonment.” City of Nome v. Ailak, 570 P.2d 162, 168 (Alaska 1977) (citation omitted). In Hazen v. Municipality of Anchorage, 718 P.2d 456 (Alaska 1986) we stated: “The elements of a claim for false arrest are: (1) a restraint upon plaintiffs freedom (2) without proper legal authority.” Id. at 461 (citing W. Prosser, Law of Torts § 11 (4th ed. 1971)).

By alleging that the police arrested him and apparently confined him without justification or probable cause, Jenkins has sufficiently pled a claim for false arrest (imprisonment). Because his action is against police officers acting in their official capacity, however, his claim is not barred by AS 09.10.070(l)’s two-year period of limitations. Rather, it falls squarely within the “specifically provided [for] otherwise” exception of AS 09.10.070(1). AS 09.10.060(a) specifically provides otherwise for actions brought “against ... peace officers] ... upon a liability incurred by the doing of an act in an official capacity.” Thus any possible distinctions between false imprisonment and false arrest are irrelevant for the purpose of determining the applicable statute of limitations. Jenkins’ cause of action for false arrest (imprisonment) falls under the three-year limitations period of AS 09.10.060(a), and is not barred by the two-year statute of limitations.

G. 42 U.S.C. § 1983

Finally, Jenkins alleges that he “was arrested and charged without proper cause and due process in violation of [his] civil rights ...” as both a citizen of the United States and of Alaska. Although Jenkins does not proceed directly under 42 U.S.C. § 1983, applicability of that statute was argued below. See Fairbanks Correctional Center Inmates v. Williamson, 600 P.2d 743 (Alaska 1979) (although the sole mention of § 1983 was in parenthesis in the title of the complaint, that does not bar plaintiffs from stating a cause of action under § 1983). To the extent that Jenkins has a claim under § 1983 we find Wilson v. Garcia, 471 U.S. 261, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985) controlling.

In Wilson the Supreme Court relied primarily on its interpretation of 42 U.S.C. § 1988, which directs that state law be borrowed to fill any gaps necessary to enforce § 1983. After recognizing the diverse categories of claims that may be brought under § 1983 (from First Amendment violations to deliberate indifference to medical needs of prisoners), the court concluded that § 1988 should be construed “as a directive to select, in each state, the one most appropriate statute of limitations for all § 1983 claims.” 471 U.S. at 275, 105 S.Ct. at 1947, 85 L.Ed.2d at 266 (emphasis added). In Wilson the court concluded that Congress would not have characterized § 1983 actions as analogous to state remedies for wrongs committed by public officials, rather, each state should adopt its personal injury statute of limitations. 471 U.S. at 279, 105 S.Ct. at 1948, 85 L.Ed.2d at 268. We are bound by that decision.

The applicable personal injury statute of limitations in Alaska is AS 09.10.070. Russell v. Municipality of Anchorage, 743 P.2d 372, 374 n. 8 (Alaska 1987). See also DeNardo v. Murphy, 781 F.2d 1345, 1347 (9th Cir.), cert. denied, 476 U.S. 1111, 106 S.Ct. 1962, 90 L.Ed.2d 648 (1986) (court held that a state employee’s civil rights suit for wrongful discharge was barred under AS 09.10.070).⁹ We conclude that Jenkins’ claim under § 1983 is barred by AS 09.10.-070(l)’s two-year limitation period.

III. CONCLUSION

The abuse of process and false arrest (imprisonment) claims fall within the plain meaning of AS 09.10.060(a), thus they are not time barred. The § 1983 claim is time barred because AS 09.10.070(1) is the applicable statute of limitations for all § 1983 claims in Alaska, and Wilson requires us to use this two-year statute.

We, therefore, REVERSE in part and REMAND the case to the superior court for further proceedings consistent with this opinion.

MATTHEWS, J., dissents.

1 .This case arises from a motion to dismiss which Alaska Rule of Civil Procedure 12(b) permits the court to treat as a motion for summary judgment. See 2A J. Moore & J. Lucas, Moore’s Federal Practice ¶ 12.10 at 12-87 (2d ed. 1986). In reviewing the granting of a motion for summary judgment, this court will draw all reasonable inferences in favor of the non-moving party. Swenson Trucking & Excavating Inc. v. Truckweld Equip. Co., 604 P.2d 1113, 1116 (Alaska 1980). In addition, "[w]ell pleaded allegations of the complaint are deemed admitted_" Linck v. Barokas & Martin, 667 P.2d 171, 173 (Alaska 1983) (quoting Dworkin v. First Nat'l. Bank of Fairbanks, 444 P.2d 777 (Alaska 1968)).

2 . Although Jenkins does not use the term "false arrest” or "false imprisonment" in the complaint, both parties characterize the cause of action as false arrest in their briefs and memo-randa.

3 . The essence of the tort of abuse of process is "misusing, or misapplying process justified in itself for an end other than that which it was designed to accomplish." W. Keeton, D. Dobbs, R. Keeton and D. Owen, Prosser and Keeton on the Law of Torts § 121, at 897 (5th ed. 1984). Abuse of process is not to be confused with the related tort of malicious prosecution. The critical elements of malicious prosecution are (1) malice, (2) want of probable cause, and (3) termination of proceeding in favor of the plaintiff. Hazen v. Municipality of Anchorage, 718 P.2d 456, 461 (Alaska 1986).

4 . The most significant torts which are not covered by this section are those involving tangible injury to personal property and trespass. AS 09.10.050; Kodiak Elec. Ass’n v. DeLaval Turbine, Inc., 694 P.2d 150, 154-56 (Alaska 1984), reh'g denied, 696 P.2d 665 (Alaska 1985).

5 . Jenkins filed his complaint on the last possible day. AS 01.10.080 provides that in calculating the time for a statute of limitations, the first day is excluded and the last day is included, unless the last day is a holiday, in which case it is also excluded. In David v. Sturm, Ruger & Co., 557 P.2d 1133, 1135 (Alaska 1976), we held that for purposes of AS 01.10.080, weekends are holidays. Jenkins filed his complaint on Monday, April 15, 1985. His action would have been barred on Sunday, April 14, 1985 (assuming a three-year statute of limitations), but David v. Sturm, Ruger & Co. provides that his filing on the following Monday was timely.

6 . Indeed, as Chief Justice Matthews recently observed: “Where two constructions as to the limitations period are possible, the courts prefer the one which gives the longer period in which to prosecute the action." Carman v. Prudential Ins. Co., 748 P.2d 743 (Alaska 1987) (Matthews, C.J. dissenting), citing Safeco Ins. Co. v. Honeywell, 639 P.2d at 1001.

7 . We do not pass on the merits of the abuse of process or false arrest (imprisonment) claims, only that they are sufficiently pled to survive a motion for dismissal under Civil Rule 12(b)(6).

8 . See also Allen v. Fidelity & Deposit Co. of Maryland, 515 F.Supp. 1185 (D.S.C.1981), aff’d mem., 694 F.2d 716 (4th Cir.1982) (mother’s civil rights action for fatal wounding of her son by sheriff, fell within South Carolina's three-year limitations for actions against sheriffs upon a liability incurred doing an act in his official capacity); Brown v. United States, 342 F.Supp. 987 (E.D.Ark.1972) (common law claim of negligence against sheriff and jailer for injuries sustained from fellow inmates, barred by Arkansas’ statute of limitations applicable to actions against sheriffs on account of official acts), aff’d in pertinent part, 486 F.2d 284 (8th Cir.1973).

9 . In DeNardo the Ninth Circuit did not have to decide whether to apply Wilson retroactively because it found AS 09.10.070 applicable before and after Wilson. The court reasoned that under Wilson the two-year personal injury statute, AS 09.10.070(1), was applicable. Alternatively, the court found that prior to Wilson AS 09.10.-070(3), a two-year statute of limitations governing actions founded on a liability created by statute was applicable.