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

> Court of Appeals for the Sixth Circuit · March 16, 1989 · 869 F.2d 989

URL: https://www.frixlaw.com/law-library/cases/9478807

## Case

- **Full name:** Daniel BROWNING, D/B/A Daniel Browning Excavating Co.; Linda Browning, Plaintiffs-Appellants, v. Craig R. PENDLETON, Et Al., Defendants-Appellees
- **Court:** Court of Appeals for the Sixth Circuit
- **Decided:** March 16, 1989
- **Citations:** 869 F.2d 989; 1989 U.S. App. LEXIS 3078; 1989 WL 21950
- **Precedential status:** Published
- **Opinion:** Concurrence by Jones
- **Judges:** Engel, Keith, Merritt, Kennedy, Martin, Jones, Krupansky, Wellford, Milburn, Guy, Nelson, Ryan, Boggs, Norris, Lively
- **Cited by:** 350 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9478807

## How later opinions describe it (automated extraction)

- holding that the “appropriate statute of limitations for 42 U.S.C. § 1983 civil rights actions arising in Ohio is contained in Ohio Rev. Code Ann. § 2305.10 , which requires that actions for bodily injury be filed within two years after their accrual”
- finding that a federal claim for personal injury pursuant to 42 U.S.C. § 1983 should be construed as a personal injury tort, as the most analogous state law claim, and the general state statute of limitations for personal injury should be applied
- holding that Ohio Rev. Code § 2305.10 is “the appropriate statute of limitations for 42 U.S.C. § 1983 civil rights actions arising in Ohio”
- finding that the “[t]he appropriate statute of limitations for 42 U.S.C. § 1983 civil rights actions arising in Ohio” is two years
- holding that Ohio’s two-year statute of limitations applies to civil right claims asserted under 42 U.S.C. § 1983

## Opinion text

NATHANIEL R. JONES,
Circuit
Judge, concurring.
Although I agree with the majority’s decision, I write separately because the majority’s opinion glosses over the full import of the Supreme Court’s decision in Owens v. Okure, — U.S. -, 109 S.Ct. 573 , 102 L.Ed.2d 594 (1989), as it applies to this court’s section 1983 jurisprudence. The Owens decision goes beyond merely holding that the forum state’s “general or residual” statute of limitations for personal injury actions applies to section 1983 claims. Ante, at 991. The Court also reaffirmed its earlier decision in Wilson v. Garcia, 471 U.S. 261 , 105 S.Ct. 1938 , 85 L.Ed.2d 254 (1985), and specifically held that section 1983 provides for a broad spectrum of actions for injury to personal rights. At the same time, the Court explicitly rejected this court’s position in Mulligan v. Hazard, 111 F.2d 340 (6th Cir.1985), cert. denied, 476 U.S. 1174 , 106 S.Ct. 2902 , 90 L.Ed.2d 988 (1986), which held that the intentional tort analogy “more specifically encompassed the sorts of actions which concerned Congress as it enacted the civil rights statutes.” Id. at 344.
In Wilson , the Court emphasized that the federal interest in protecting rights guaranteed by the Fourteenth Amendment, and the concomitant concern that a claimant whose rights have been violated be afforded a reasonable period to seek redress for personal injury, requires the rejection of “residual” or “catch-all” limitations for section 1983 claims. The Wilson Court observed that “[i]t is most unlikely that the period of limitations applicable to such claims ever was, or ever could be fixed in a way that would discriminate against federal claims, or be inconsistent with federal law in any respect.” Wilson, 471 U.S. at 279 , 105 S.Ct. at 1949 . Justice Marshall, for a unanimous Court in Owens , observed that a state’s statute of limitation’s period for intentional torts “would be manifestly inappropriate” because of the diversity of individual states’ limitations periods and because adopting such a rule would, in effect, compound the “conflict, confusion and uncertainty,” see Wilson, 471 U.S. at 266 , 105 S.Ct. at 1941 , which the Wilson Court attempted to rectify. Owens, 109 S.Ct. at 578 .
The Owens Court reaffirmed the holding in Wilson , by stating that analogizing state causes of action to section 1983 claims is inherently arbitrary because many section 1983 “claims bear little if any resemblance to the common-law intentional tort.” Id. Moreover, the Court rejected the intentional tort analogy because it “reflects a profound misunderstanding of § 1983’s history.” Id. 109 S.Ct. at 581 n. 11. Specifically, the Court observed that the Civil Rights Act of 1871 (“Act”), section 1983’s predecessor, was enacted by Congress as a result of the Ku Klux Klan’s coordinated campaign of violence which resulted in the denial of citizens’ civil and political rights. Id. Relying on Monroe v. Pape, 365 U.S. 167 , 81 S.Ct. 473 , 5 L.Ed.2d 492 (1961), the Court further observed that while the Act was partially intended to prevent intentional torts committed by the Klan and its constituency, Congress’s more important concern was providing a federal remedy for the unauthorized conduct of state officials who frequently failed or refused to protect *993 the federal rights of blacks in the post-Civil War South. Owens, 109 S.Ct. at 581 n. 11.
Because the rights enforceable under section 1983 include those federal rights protected by the Fourteenth Amendment, the Wilson Court reasoned that section 1983 claims “are best characterized as personal injury actions,” and a longer limitations period is mandated in order to ensure that the federal interest vindicated by the legislation would not be unduly diminished. Wilson, 471 U.S. at 280 , 105 S.Ct. at 1949 . While the Owens Court did not reach the question of whether the federal interest would be violated if a one-year limitations period were applied to section 1983 claims, the Court nevertheless concluded that because of the diversity of state statutes of limitations for intentional torts, adoption of the residual statute for personal injury actions would be consistent with the broad range of section 1983 claims.
This court held in Mulligan that the applicable Ohio statute of limitations for section 1983 cases was Ohio Rev.Code Ann. § 2305.11, the intentional tort provision. In Owens , the Supreme Court rejected both the rationale and result of our decision in Mulligan and reaffirmed the reasoning of Wilson v. Garcia. I write separately to underscore that fact.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9478807. Public record. Not legal advice.