recognizing that although "different considerations may apply in section 1983 actions and in FTCA suits, the problems courts encounter in resolving the accrual question under federal law are basically the same”
How later courts described this case
- recognizing that although "different considerations may apply in section 1983 actions and in FTCA suits, the problems courts encounter in resolving the accrual question under federal law are basically the same”
- reaffirming that a plaintiff cannot “simply sit back, without further investigation, and permit the statutory period to lapse.”
- “[A] plaintiff’s ignorance of the existence of a legal right of action based on his injury does not operate to delay accrual of his claim.”
- applying Rhode Island’s three-year statute of limitations for personal injury actions to a § 1983 action alleging constitutional violations
Written by the judges who cited it.
The opinion
BOWNES, Circuit Judge
(dissenting).
I respectfully dissent. While the court’s opinion marshalls the relevant precedent and presents it fairly and completely, I do not think it has been applied correctly. The issue, as I see it, is whether the plaintiff, in the exercise of due diligence, should have discovered the carcinogenic properties of the benzidine on his own initiative. In distinguishing this case from Cox v. Stanton, 529 F.2d 47 (4th Cir.1975), the majority puts great emphasis on the fact that Mar-rapese had a lawyer present at the application of the chemical who was clearly aware of the constitutional violations created because of the lack of probable cause, lack of an arrest warrant, and the battery. I do not believe under the facts of this case that the lawyer’s presence was enough to make the difference. The application of a carcinogenic chemical to the skin by the police is conduct which “shocks the conscience.” I do not believe that a competent lawyer should be expected to consider such an outrageous possibility when determining whether a case is worth pursuing. Without the carcinogenic properties of the ben-zidine, the 1983 case, while strong on law, was short on damages. Marrapese was released within a short time and a minor rash is not a compelling basis for a civil rights action against the police. So while I agree with my brothers that had the case been pursued the carcinogenic properties would probably have been discovered, I do not agree that the plaintiff should have been expected to pursue the case at all or investigate the effects of benzidine on the skin. Even a lawyer should be entitled to assume that police would not use a cancer causing substance on a suspect. I would affirm the judgment of the district court.